- (1.) Aggrieved by the order dated 4.9.2009, passed by the learned Additional Sessions Judge, Fast Track No. 2, Bharatpur, whereby the learned Judge has accepted the application under Section 319 Cr.P.C. and issued process against the petitioner, the petitioner has challenged the same before this Court.
(2.) Brief facts of the case are that on 24-12-2008 on the basis of parcha bayan of Lakhan Singh, a FIR, FIR No. 521/2008, was registered at Police Station Nadbai, District Bharatpur for the offences under Sections 147, 148, 149, 341, 323, and 307 IPC. However, after the death of Lakhan Singh, on the same day, offence under Section 302 IPC was added. After investigation, a charge-sheet was submitted against four persons namely, Chatar Singh, Pooran Singh, Jaideo Singh, and Narendra Singh by the police. Investigation against the present petitioner was kept pending under Section 173(8) Cr.P.C. During the course of trial, the learned trial Judge recorded testimony of seven witnesses, P.W.I to P.W.7. During the course of trial, Sheodan Singh, the complainant, submitted an application under Section 319 Cr.P.C, wherein he claimed that sufficient evidence has come on record during trial to make out a strong case against the present petitioner for his involvement in the alleged offence. Vide order dated 4.9.2009, the learned trial Judge proceeded against the petitioner. Hence, this petition before this Court.
(3.) Mr. Chaturvedi, the learned Counsel for the petitioner has raised various contentions: firstly, the FIR cannot be registered on the basis of statement recorded under Section 161 Cr.P.C. Secondly, the statement of Lakhan Singh, recorded under Section 161 Cr.P.C. is suspect, as the statement was merely recorded 45 minutes prior to his death. The said statement cannot be treated as "a dying declaration". Therefore, it could not be used for invoking power under Section 319 Cr.P.C. Thirdly, the learned trial Judge has erred in concluding that the deceased was in a position to give statement. According to learned counsel, the deceased was not in a position to give statement, as the dying declaration was recorded just prior to his death. Fourthly, despite the existence of parcha bayan in the charge-sheet, the trial court did not take cognizance against the petitioner. Hence, from the very beginning the trial court was convinced that no case is made out against the petitioner. Therefore, the trial court cannot invoke its power under Section 319 Cr.P.C. at a later stage. Fifthly, the trial court should have examined the genuineness of the dying declaration prior to invoking its power under Section 319 Cr.P.C. Sixthly, but for the dying declaration, no fresh evidence has come into existence. Therefore, the power under Section 319 Cr.P.C. has been invoked illegally. Lastly, since power under Section 319 Cr.P.C. is a vast one, it should be exercised sparingly. In fact, the said power should not have been exercised until and unless all evidence was recorded and trial was completed.;