Gopi Ram vs State of Rajasthan and Another

Govind Mathur, J.—This revision petition as per provisions of Section 397 read with 401 Code of Criminal Procedure is preferred to assail the order dated 26.8.2009 passed by learned Additional Sessions Judge (Fast Track), Anupgarh, rejecting an application preferred u/s 319 Code of Criminal Procedure

The factual matrix necessary to be noticed is that at the instance of the Petitioner a first information report was lodged at Police Station Suratgarh contemplating offences under Sections 302-498-A IPC against Krishnalal, Beerbalram, Kamla, Santram and Suresh. After investigation a police report as per provisions of Section 173 Code of Criminal Procedure was filed before the competent court against accused Beerbalram, Kamla and Suresh alleging commission of an offence u/s 498-A IPC, whereas accused Krishnalal was charged for an offence punishable u/s 302-498-A IPC. After getting the statements of PW-1 Gopiram, PW-2 Balvindra Singh, PW-3 Madanlal and PW-4 Sohanlal recorded, the prosecution submitted an application to include Santram also in the array of accused persons. The application aforesaid was pressed with submission that the witnesses aforesaid in quite unambiguous terms stated that Santram alongwith Beerbalram, Kamla and Suresh stated to abovenamed witnesses to excuse them for the crime committed by them and this fact clearly establishes his involvement in the offence alleged.

Learned Additional Sessions Judge while rejecting the application under the order impugned held that PW-1 Gopiram stated little bit about involvement of Santram but no definite statement is given in this regard by other witnesses viz. PW-3 Madanlal and PW-4 Sohanlal.

It is submitted by learned Counsel for the Petitioner that a bare reading of the statements of PW-1, PW-3 and PW-4 discloses that a prima facie case exists to add Santram as an accused.

This Court in Amara Ram and Ors. v. State of Rajasthan and Anr. SB Cr. Revision Petition No. 1079/2006, decided on 5.12.2007, while following various pronouncements of Hon''ble Supreme Court Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, ; Michael Machado and Another Vs. Central Bureau of Investigation and Another, ; and Krishnappa Vs. State of Karnataka, , reached at the following conclusions:

(1)the power available u/s 319 Code of Criminal Procedure is extra ordinary power and such power must not be exercised mechanically;

(2)the Court must not add a person as an accused unless having hope that a reasonable prospect exists for conviction of the person concerned for the offence alleged;

(3)on basis of available evidence it should appear to the Court that some other person who is not arraigned as an accused could as well be tried alongwith already arraigned accused; and

(4)the Court while exercising power u/s 319 Code of Criminal Procedure may not enter into deep merits of the matter but must ensure that innocent person may not be prosecuted, hence mere a lurking doubt from the evidence about involvement of a person is not sufficient to add and try him.

In the case in hand Respondent Santram was named in first information report but after regular investigation he was not charge-sheeted, however, on being named by PW-1, PW-3 and PW-4 his inclusion as accused is sought. From reading of the statements of the witnesses aforesaid it appears that PW-1 has said little bit about involvement of Santram in the crime and that creates some suspicion, however, the statements given by other witnesses are quite vague in this regard. Even PW-1 has not definitely stated that Santram demanded excuse for his own involvement in the crime.

Having considered the entire material available on record I am of the considered opinion that mere naming of Respondent Santram by the witnesses is not sufficient to add him as an accused and to call for facing trial. His naming may create little doubt about his involvement in the offence but i.e. not sufficient to exercise powers u/s 319 Code of Criminal Procedure While exercising powers under the provision aforesaid mere availability of prima facie case is not adequate but there should be cogent reason to believe that there are all chances of conviction of the person whose addition in the trial is claimed. Such cogent and definite chance at least at this stage is not available. Thus, I do not find any wrong with the order impugned.

The revision petition, therefore, is dismissed.