BUNTI Vs. STATE OF U P

JUDGEMENT

(1.) AMAR Saran, J. This criminal revision has been filed by the accused against the order dated 10-7-2002 passed by the IIIrd Additional Sessions Judge, Mathura, rejecting the application for summoning Govinda in proceedings under Section 319 Cr. P. C. in S. T. No. 108 of 1996, State v. Bunti and Ors. , under Section 302 IPC, P. S. Kotwali, district Mathura.

(2.) COUNTER-affidavit has been filed by the informant, opposite party No. 2. which was served on the applicant's Counsel on 22-10-2002, but no rejoinder affidavit has been filed.

(3.) APPARENTLY there is no illegality in this order. It was argued by Sri Goswami that the informant had mentioned the name of Govinda as one of the assailants in the F. I. R. and deceased Anand Pal had himself disclosed to the informant that Govinda also was one of the assailants, hence the statement stood on the footing of the dying declaration, Govinda's name came in 161 Cr. P. C. of Harihar Prasad and Radha Kant alias Gopal and hence there was sufficient evidence against Govinda under Sections 32 and 6 of the Evidence Act. Learned Counsel for the informant has contended that the version in the FIR is based on hearsay and if on account of some confusion, the name of Govinda was mentioned, that was not sufficient ground for showing his complicity in the offence. He has annexed the statements of Harihar Prasad P. W. 1 and Radha Kant alias Gopal alias Lalu P. W. 2 with his counter-affidavit, the specific role of firing on stomach of the deceased was assigned to Pintu. He denied his statement to the I. O. , that Govinda had fired at the deceased, but he said that Pintu had fired on the deceased. Similarly Harihar Prasad P. W. 1 had also deposed that according to the disclosure made by the deceased to his brother informant Atal Ram Chaturvedi, it was Pintu's shot, which struck him. It is further noteworthy that the informant was not an eye-witness. In these circumstances, I find no error in law, if the learned trial Judge has no sufficient evidence to summon the applicant in exercise of power under Section 319 Cr. P. C.