RAM PRAKASH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and learned Additional Government Advocate. It is a case where F.I.R was lodged by the petitioner relating to case crime no. 556 of 2007 under Sections 323, 324, 506 & 304 IPC at poliice station Auras, district Unnao against three persons i.e. Jagdish,Manna Lal and Dhani, but later on, on the death of injured Chandra Prakash, the case was converted under Section 304 IPC. It has been submitted by learned counsel for the petitioner that during the course of investigation in the statements of witnesses recorded under Section 161Cr.P.C. As well as from the very inception, accused Jagdish son of Guru Prasad was assigned the role of inflicting Bhala injury upon the person of deceased Chandra Prakash. It has been pointed out that the post mortem report of deceased Chandra Prakash also reveals stab wound on the person of the deceased. Learned counsel submitted that in spite of this, charge sheet against Manna Lal and Dhani was filed by the investigating agency by excluding aforesaid Jagdish. I have gone through the record carefully and I find force in the submissions made by the learned counsel for the petitioner. Right from the very inception when the FIR came into being and in spite of existence of Bhala injury on the person of the deceased and specific role of causing injury to the deceased having been assigned to Jagdish son of Guru Prasad in the statements of witnesses recorded under Section 161 Cr.P.C., name of Jagdish son of Guru Prasad has been left out in the charge sheet submitted by the investigating officer. Even after committal of the case and commencement of the trial (Sessions Trial No. 635 of 2008), in the statement of PW. 1 Ram Prakash specifically it has been indicated that Jagdish had also participated in the commission of the crime and injury of the weapon assigned to Jagdish was also found by the doctor conducing the post mortem report on the person of deceased Jagdish. Surprisingly enough, in spite of all these incriminating circumstances against Jagdish, the investigating officer has not arraigned him as an accused in the charge sheet. Application under Section 319 Cr.P.C was moved before the trial court who by order dated 23.03.2009 (Annexure-1) has rejected said application. The order of the trial court is contrary to the proposition of law enunciated by the apex Court . In view of my observations made above, proceedings of Sessions Trial No. 635 of 2008 shall remain stayed till further orders. Copy of this order shall be sent within a week to Senior Superintendent of Police, Unnao for taking necessary action against the investigating officer of crime no. 556 of 2007 under Sections 323, 324, 506 & 304 IPC at police station Auras, district Unnao. Learned counsel for the petitioner shall implead Jagdish son of Guru Prasad afrs respondent no. 2 within a week. If steps are taken within the time granted above, notices shall be issued to him returnable at an early date. List the petition immediately after service of notice.