ADARSH KUMAR GOEL, J. - (1.) KAILASH Chand deceased had made a statement before the police, which was treated as dying declaration, to the effect that Rohtash son of Rajbir, Raghbir, Rambir and Kaptan threw acid on him. On this statement the investigation was conducted, but instead of challaning any of the said four persons, the investigating agency challaned Rohtash son of Ranjit Singh and Rajbir Singh. During trial, Sewa Devi, widow of the deceased, appeared as PW- 1. She again named the said four persons as having sprinkled acid on the said witness, her husband Kailash Chand and her son Rakesh. In view of this statement, an application under Section 319 of the Code of Criminal Procedure (for short, the Code) was filed for summoning of the four accused, who were originally named. The said application has been dismissed on the ground that since four persons sought to be summoned were not arraigned as accused, they could not be summoned as additional accused. Reference was made to the judgment of this Court in Amar Singh v. The State, AIR 1954 Punjab 106 and a judgment of the Rangoon High Court in Nga Sar Kee v. The King, AIR 1939 Rangoon 390. Hence this petition.
(2.) COUNSEL for the petitioner submits that the view taken by the learned trial Court is based on incorrect appreciation of provisions of Section 319 of the Code, which permit summoning of a person, who may not be an accused for trial, along with the accused, if it appears to the Court that such a person had also committed the offence. It is pointed out that the judgments in Amar Singh and Nga Sar Kee (supra) were considered and distinguished in a DB judgment of this Court in State of Punjab v. Wassan Singh and others, 1984 Crl.L.J. 889. The said judgments were distinguished with the observation that the evidence against both sets of accused being not mutually exclusive, the newly summoned accused could be tried together with the accused already facing the trial, whereas in Amar Singh's case (supra), according to one set of witnesses, the deceased had been murdered at a particular time and place by six accused while according to other set of witnesses, the deceased was murdered by seventh accused. The police filed separate challans. Similar was the position in Nga Sar Kee's case (supra) and in both the said cases, two or more prosecutions were launched and it was in that context that question of joint trial arose. It was observed that situation will be different where prosecution has put in only one challan and there was only one trial and in such a situation, the newly summoned accused could be tried along with the accused, who is already facing trial. It was observed that there was no occasion for joint trial in technical sense.
(3.) I have heard counsel for the parties.;