SURESH @ MADHU DAS Vs. STATE

JUDGEMENT

(1.) This petition is directed against an order passed by the learned Assistant Sessions judge, Ganjam directing to array the petitioner Under Section 319 read with Section 193 Cr.P.C. as an accused in Sessions Case No. 21 of 1990 arising out of CR Case No. 367/89. The brief facts are that the prosecution was launched against some other persons under Sections 147, 148 and 486, IPC for having set fire to the house of the Harijans. In course of trial, the Additional Public Prosecutor filed an application Under Section 319, Cr P.C. before the Assistant Sessions Judge to summon the petitioner to stand trial along with the accused persons since his name was purported to have been revealed by the witnesses as having been associated with the crime. The application was allowed and NBW was ordered to be issued against the petitioner for taking cognisance and framing charges against him.

(2.) Mr. Misra, learned counsel for the petitioner, has urged that the only evidence purported to be utilised against the petitioner so as to invoke the powers Under Section 319 Cr. PC is that of PWs 1, 2, 5 and 7, but while PWs 5 and 7 have been declared hostile, PWs 1 and 2 have not named the petitioner and hence there is no justification for the petitioner to be made to face the trial along with the accused persons. The learned Addl. Govt. Advocate does not dispute that the only evidence relevant so far as the petitioner is concerned is that of PWs 1, 2, 5 and 7, but submits that PWs 5 and 7 have been declared hostile only so far as their not implicating the other accused persons, but that both of them have named the petitioner as the person who had set fire to the houses. Besides, PWs 1 and 2 have also stated the petitioner to have instigated the villagers to set fire to the houses of the Harijans.

(3.) Learned counsel for the petitioner filed a petition for amendment of the criminal revision petition and to take an additional ground which has been registered as Misc. Case No. 19 of 1991. On hearing the learned counsel for the petitioner, the petition was allowed. It is the stand taken by him that PWs 5 and 7 having never stated before the police in their statements Under Section 161 Cr.P.C. of the petitioner having set fire to the houses of the Harijans, their statements in Court are not believable. So far as PWs 1 and 2 are concerned, it is submitted by him that PW 1 never stated before the police of the petitioner having instigated the villagers to set fire to the houses of the Harijans and PW 2 also never named the petitioner before the police at all. Hence it is his submission that their statements in Court are also not to be given any credit.