PARLAD KOHLI Vs. KESHAV VERMA

JUDGEMENT

(1.) This criminal revision is directed against the order dated 10.9.2008 passed by the Principal Sessions Judge, Udhampur, whereby the application moved by the prosecution-State came to be dismissed.

(2.) Prosecution on behalf of State filed an application for alteration of charge and arraying Ajay Kumar, Yash Pal. Raju and Sanju as party accused in the array of accused: with a further prayer that the bail already granted in favour of accused be cancelled. The court after going through the entire record dismissed the application on the ground that prosecution has examined only one witness, namely, Bhagishah after framing of charge and statements of prosecution witnesses, namely, Parimoksh, Mama, Nana and Nani of Bhagishah are yet to be recorded. It is apt to reproduce para-31 of the order herein: 31. So far present case is concerned, it is noticed that when first time the charge was framed Under Section 306/34 RPC on 28.9.05, prosecution examined PW Ashok Kumar, Parimoksh and Romesh Chander and after framing fresh charge statement of PW Bagasha has only been recorded. In this backdrop the other witnesses already examined before the framing of fresh charge are to be examined fresh. As such, the only evidence before the court is that of PW Bagasha. It is true that her statement to some extent is inconformity with the statement made before police by her but at the same time it suffers from some infirmities and is to great extent inconsistent with each other. The evidence of Parimoksh has not been yet recorded. Similarly, evidence of Mama, Nana and Nani of PW Bagasha which has a great bearing upon the nature of offence committed in the case and the persons who have committed the said offence. So unless the evidence of these important witnesses is not recorded, this Court cannot come to conclusion that there is evidence which requires alteration of the charge or addition of persons named by PW Bagasha as accused. The reasons is that the evidence of PW Bagisha in isolation does not satisfy this Court in holding that some other persons named by her besides the accused persons have committed any offence. Nor her evidence can be taken individually for converting the charge to that of murder. In the opinion of the court both these questions can be decided after the other witnesses are examines by the prosecution. The court is of the opinion that this course of action will be in the interest of justice as well because the evidence of a single witness when there are other witnesses yet to be examined cannot hastily be used for converting the offence or adding some more persons as accused.

(3.) Mr. Lehar, learned senior counsel argued that there is evidence on the file that Statement of prosecution witness Bhagishah is sufficient for invoking the powers in terms of Section 351 of Code of Criminal Procedure (for short, hereinafter Code) and also for altering the charge.