OM PARKASH Vs. STATE OF HARYANA

JUDGEMENT

(1.) PRAYER in the present revision petition is for setting aside the order dated 2.8.2005, passed by the learned Additional Sessions Judge, Bhiwani, summoning the petitioners to stand trial alongwith the already arraigned accused.

(2.) COUNSEL for the petitioners contends that the petitioners have been summoned to stand trial, pursuant to an order, passed under Section 319 of the Cr.P.C. The learned trial Court relied upon Ex.PB, a statement, made by Hem Raj, the first informant, and brother of the deceased Mukesh Devi, as also his oral deposition as PW2, to arrive at a conclusion that there was sufficient material on record to proceed against the petitioners and they should, therefore, be summoned as accused to face trial for the commission of offences, punishable under Sections 302/120-B read with Section 34 of the IPC. It is argued that the statement, Ex.PB, and the oral deposition of Hem Raj, as PW2, clearly reveals that Hem Raj did not witness the commission of the alleged offence. His knowledge as to the participants in the offence and the particulars thereof, is derived from Tejbir, minor son of the deceased. He has deposed that his statements are based upon information, derived from Tejbir. It is urged that his deposition as to the particulars of the offence and the participants therein being "hearsay evidence" i.e no evidence in the eyes of law, the learned trial Court, erred in summoning the petitioners, on the basis of "hearsay evidence". It is, therefore, prayed that the present petition be allowed and the impugned order set aside.

(3.) IN response to the aforementioned arguments, counsel for the petitioners submits that on the date of the impugned order, the only "evidence", available to the trial Court, were Ex.PB, and the deposition of Hem Raj as PW2. Tejbir's deposition recorded on 17.8.2006, after the passing of the impugned order, cannot be taken into consideration to uphold the order, passed under Section 319 of the Cr.P.C on 2.8.2005. It is further contended that as Section 319 of the Cr.P.C requires a Court to record satisfaction, on the basis of evidence before it, any evidence, recorded after the passing of an order, under Section 319 of the Cr.P.C, cannot be relied upon to justify the correctness of such an order.