NAWAB SINGH,J - (1.) THIS petition under Section 482 of mode of Criminal Procedure is directed against the order dated November 30, 2006 passed by Sessions Judge, Yamuna Nagar, whereby, application under Section 319 of Code of Criminal Procedure (for short 'Cr.P.C') filed by prosecution was dismissed.
(2.) CASE First Information Report No. 86 dated May 11, 2006 under Sections 323, 324, 307 and 447 read with Section 34 of Indian Penal Code was registered in Police Station Sadar, Yamuna Nagar on the allegations that Jaspal, Naresh, Parveen Kumar and Suresh were out to pick up a fight with their cousin Arun Kumar and his uncle Sanjiv Kumar. Parveen Kumar and Suresh gave slab and fist blows to Arun Kumar and Sanjiv Kumar. Then Jaspal gave gandasa blow on the head of Arun Kumar. Naresh Kumar gave a khoncha blow on the head of Sanjiv Kumar. After investigation, it was found by the Police that Parveen Kumar and Suresh Kumar did not participate in the occurrence and they did not cause any injury. They were not challaned. Others were sent up for trial and charge under Sections 307, 323, 324 and 447 read with Section 34 IPC was framed them. After recording some evidence, application under Section 319 Cr.P.C was filed by prosecution praying that Parveen Kumar and Suresh be summoned for being tried along with other accused. That application was rejected by the trial Court by impugned order.
(3.) IT calls for pointed notice that while passing the impugned order, learned Sessions Judge observed as under : "The matter was investigated by the Police and it was concluded that Parveen Kumar and Suresh Kumar had neither actively participated in the incident nor they had used force against the two alleged victims. A perusal of the medico- legal report of injured Arun Kumar would show that the doctor had found an incised wound over the occipital region of the scalp which was 8 cms x bone deep. The injured also complained of pain on the left shoulder. The medico- legal report of Sanjiv Kumar shows that he suffered an incised wound over the occipital region which was 3 cms x 2 cms. Both the injured had thus suffered one injury each in the incident although injured Arun Kumar complained of pain and swelling in the right shoulder and the doctor did not come across marks of injury on the faces of the injured which could be caused by slaps and fisticuffs. Therefore, the conclusion drawn by the investigating officer cannot be negated by repetition of the allegations made by PW Ashwani Kumar in the witness box. His ocular testimony does not receive corroboration from the medical evidence on record that the injured had been roughed up before they were attacked with sharp edged weapons by accused Jaspal and accused Naresh. No interference is thus called for at this stage." ;