Sandeep Mehta, J. - (1.) By way of this revision, the petitioners herein have approached this Court for challenging the order dated 22.11.2012 passed by the learned Additional Sessions Judge No.2, Sri Ganganagar in Sessions Case No.38/2009 whereby, the trial court allowed the application preferred by the learned Public Prosecutor under Section 319 Cr.P.C. and directed summoning of the present petitioners as additional accused to face trial with the chargesheeted accused for the offences under Sections 323, 341, 302, 382, 325, 147 and 149 IPC and issued bailable warrants against them.
(2.) Facts in brief are that a written report was submitted to the SHO, Police Station Purani Abadi, Sri Ganganagar by Satish Kumar Gupta on 31.01.2008. It was alleged inter alia in the report that the first informant accompanied by Kurban and Islam were proceeding from Tarachand Vatika to Dev Nagar at about 09.15 pm. When they reached in front of Panchmukhi Hanuman Temple, Pintu, his brother Manish, Baljeet, Manoj, Goriya Soni, Ravi Nayak and 3-4 others, accosted and attacked them. Pintu was having a knife, Manish and Goriya were having swords and the others were having motorcycle chains, iron rods and sticks in their hands. They rained blows upon Kurban and Islam after surrounding them. Rajkumar came to the scene of occurrence on hearing the commotion on which, the accused persons left Kurban and Iqbal and started assaulting Rajkumar. Pintu inflicted knife blow on the head of Rajkumar. Kurban took the opportunity and called the complainant on phone. In the meantime, Badey Lal and Manish came to the scene of occurrence on which, the accused persons left Rajkumar dead in a pool of blood and escaped. The police reached the scene of occurrence on receiving a telephonic information. While going away, the accused persons took away the motorcycle bearing registration No.RJ-13-SA-5513 owned by Rajkumar and his mobile phone with them. Rajkumar used to give information regarding the accused Pintu and others indulging in illicit trafficking of liquor, etc. and being enraged thereby, the accused party, assaulted Rajkumar and killed him. Iqbal and Kurban were also caused injuries in the incident. On the basis of this report, an FIR was registered for the offences mentioned above and investigation commenced. The I.O. submitted a report under Section 173 Cr.P.C. in the court concerned on 19.03.2008 after concluding investigation finding only the accused Rupesh @ Pintu, Baljeet Singh, Manoj Kumar Jat, Gaurav Kumar @ Goriya involved in the incident. A specific finding was given that the accused petitioners were not involved in the incident. It may be mentioned here that Iqbal and Kurban the injured eye witnesses named the present petitioners as assailants in their statements recorded by the I.O. under Section 161 Cr.P.C. Likewise, the first informant Satish Kumar also alleged that the petitioners too participated in the incident. Despite that, the I.O. did not file a charge-sheet against the petitioners herein. When the postmortem was conducted upon the body of Rajkumar, the medical jurist found that he was having 7 injuries on his body all of which were opined to be caused by blunt weapons. Kurban was having three abrasions on his person whereas Iqbal was having one abrasion on his nose. The investigating officer, also recorded the statements of Harish Shukla, the intervener, who also gave a statement consistent with the statements of injured eye-witnesses Islam and the first informant Satish Kumar implicating the petitioners herein.
(3.) At the trial, Kurban did not support the prosecution story and was declared hostile. Islam upon being examined on oath, categorically stated that the petitioners were also present at the scene of the occurrence and alleged that Pintu and Ravi Nayak inflicted lathi blows on the head of the deceased Rajkumar. However, the witness was confronted with his previous statement particular accused persons was missing. Satish Kumar, upon being examined at the trial, alleged that Pintu was having a knife, Manish and Goriya were having swords, Manoj Jat was having a rod, Ravi Nayak was having a stick whereas Baljeet was having motorcycle chain and all were assaulting Rajkumar. Harish Shukla though named the accused persons as assailants. He alleged that Pintu was having a knife, Manish was having an iron rod, Manoj Jat and Goriya were having swords whereas Ravi Nayak was having a stick in his hand. As per the postmortem report (Ex.P/10), the deceased Rajkumar was found having 6 blunt injuries located all over his body. Out of these injuries, 5 were grievous. Evidently, the medical officer did not notice any sharp weapon injury while conducting the postmortem examination upon the deceased. Furthermore, there is a significant discrepancy regarding the weapon and specific part attributed to the petitioner Manish by material witnesses because as noted above, witnesses Kurban and Islam alleged that he was having a sword in his hand whereas Harish Shukla alleged that he was having an iron rod in his hand. Manifestly thus, if the evidence available on record is appreciated, apparently there is a grave discrepancy regarding the role attributed to the petitioner Manish. However, all the witnesses are consistent regarding participation of the petitioner Ravi Nayak in the incident. All the eye witnesses have attributed an iron rod in his hand and have assigned specific role to him in the incident alike the charge-sheeted accused. After all the prosecution witnesses had been examined and even the statement of the accused had been recorded by the trial court, the prosecution moved an application under Section 319 Cr.P.C. which was allowed in the above terms. Being aggrieved by the said order, the accused persons have approached this Court for challenging the order passed by the trial court for summoning them to face trial with the charge-sheeted accused.;