Mehmood and Aamin vs State

Ajay Rastogi, J.—Instant petitions have been filed u/s 397 read with Section 401, CrPC by accused assailing order dt.21/11/07 in Sess. Case No.55/06 whereby Addl. Sess. Judge(Fast track) Kishangarh-Bas (Alwar) while accepting application of complainant u/s 319, CrPC, took cognizance of offences u/s 302 & 302/34 IPC against Mehmood & Aamin (petitioners).

Incident took place on 07/04/06 of which written report was lodged by eye-witness, Sher Mohd.(Pw 1), specifically having named present petitioners(Mehmood & Aamin) and attributing infliction of lathi & Tanchia blows by them on the deceased. After investigation, police filed charge sheet against Ayub Khan, Ibrahim Khan & Abdul Khan for offences u/s 302, 323, 324 & 341, IPC and against accused Wahid Khan u/s 299 CrPC. During trial, statements of ten witnesses including Sher Mohd. (Pw 1), informant & Fateh Mohd. (Pw 2), eye witness, were recorded and both of them in their examination in-chief deposed about their active participation of petitioners causing injuries on the person of deceased by lathi & sharp-edged weapon(Tanchia)as is corroborated by post mortem report describing nature of injuries, which have been deposed by Dr.PS Choudhary (Pw 5). At this stage, application was filed by complainant on 14/11/07 for taking cognizance against petitioners u/s 319, CrPC. After taking note of statements of prosecution witnesses recorded during trial, particularly Sher mohd. (Pw 1) & Fateh Mohd. (Pw 2) and Dr.PS Choudhary(PW 5), learned trial Judge took cognizance against petitioners - Mehmood u/s 302, IPC and Amin u/s 302/34, IPC.

From a perusal of written report, on which instant FIR was registered at the behest of Sher Mohd. (Pw 1) and statements of Sher Mohd (Pw 1) & Fateh Mohd. (Pw 2), it clearly depicts that both the accused petitioners are specifically named and injuries have been attributed to them having been inflicted by lathi & Tanchia blows. Sufficient material has come on record for taking cognizance by trial Judge against petitioners.

Counsel for petitioners jointly submit that in cross examination, both the eye witnesses of incident are not consistent about their evidence adduced in examination-in-chief; as such no reliance can be placed and that apart, injuries assigned to them do not corroborate with post mortem report as well as statement of Dr. PS Chodhary (Pw 5); in such circumstances, there is no prima facie material on record and the trial Judge committed serious error in taking cognizance of offence u/s 302/34, IPC in exercise of powers u/s 319, CrPC.

This Court has considered contentions of Counsel for the parties and with their assistance examined material on record. Scope of Section 319, CrPC has been examined by Apex Court in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, followed in Mohd. Shafi Vs. Mohd. Rafiq and Another, ad infra:

In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really un-extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the Court concerned so that it may act according to law.

This Court has gone through the impugned order as well as statements of Sher mohd. (informant)(Pw 1), Fateh Mohd. (Pw 2, eye witness) & Dr. PS Choudhary (Pw 5) recorded during trial besides post mortem report and does not find any manifest error being committed by trial Judge in exercise of powers u/s 319, CrPC while taking cognizance against petitioners vide order impugned which may call for interference in revisional jurisdiction.

At this stage, Counsel submits that nonbailable warrants issued against petitioners be converted into bailable one. In the opinion of this Court, in the facts of the case, there is no justification to convert the arrest warrants. Hence such a prayer stands rejected.

Consequently both the revision petitions are hereby dismissed.