ABDULLA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This criminal revision has been filed under section 397 read with section 401 Cr.P.C. by the complainant petitioner against the order dated 3.3.2011 of Additional Sessions Judge Fast Track No.2 Jhunjhunu in Sessions Case No. 41/2010 (25/2010) rejecting the application of the complainant through APP under section 319 Cr.P.C.

(2.) Brief facts of this criminal revision petition are that on 30.12.2009 the complainant petitioner lodged a written report at Police Station Kotwali Jhunjhunu against four accused persons namely Mohd. Altaf, Naajra, Mohd. Usman and Mohd. Ramzan regarding an incident of committing murder of daughter of complainant namely Rukaiya and her three minor children in the night of 29/30.12.2009. On the basis of this report, the police registered a criminal case bearing FIR No. 428 of 2009 for offence under sections 302, 306/34 IPC and investigation commenced. The police conducted investigation and after completion of investigation, submitted challan only against three accused persons namely Mohd. Altaf, husband of deceased, Mehrunisha and Rani @ Noorjaha. In the FIR the complainant petitioner has specifically mentioned the names of Usman, Naajra and Ramzan and there is allegation also against these accused persons that these persons were also involved and these accused persons alongwith others have committed murder of daughter of complainant alongwith her three minor children. In the statements recorded under section 161 Cr.P.C. during investigation there were allegations against these three accused persons about their involvement in the crime but the police has not properly and fairly investigated the matter and in collusion with these accused persons has not filed charge sheet against these accused persons. The case being exclusively triable by the Court of Sessions, hence the case was committed to the court of Sessions Judge, Jhunjhunu and ultimately the case came to be tranfsered in the court of Additional Sessions Judge Fast track No.2 Jhunjhunu for trial. The trial court after hearing the arguments on charge, framed the charges against the charge sheeted accused persons namely Mohd. Altaf, husband of deceased, Mehrunisha and Rani @ Noorjaha and the said accused persons denied the charges and claimed to be tried. During trial, statements of two prosecution witnesses namely PW.1 Abdulla and PW.2 Farukh Ahamed were recorded. It has been stated in the petition that in their statements PW.1 and PW.2 have specifically and clearly stated that the deceased Rukaiya and her three minor children have bgeen murdered by the accused persons namely Altaf, Usman Naajra and Ramzan and stated that he accused persons namely Usman, Naajra and Ramzan have been fully involved and have also fully participated in the incident. On 2.8.2010 the complainant petitioner through APP moved an application under section 319 Cr.P.C. before the trial court stating therein that from the statements of the prosecution witnesses PW.1 and PW.2 recorded during trial as well as other material available on record there is ample evidence against the accused persons namely Usman, Naajra and Ramzan therefore they may be impleaded as an accused alongwith co-accused persons, who are already facing trial and prayed for taking cognizance of offence against these three persons for offence under sections 302 and 120 B IPC. The trial court heard the arguments and after considering the material and the evidence of PW.1 and PW.2 illegally and wrongly dismissed the application under section 319 Cr.P.C. vide order dated 3.3.2011.

(3.) The learned counsel for the petitioner has argued that the court below has committed serious error of law as well as fact in dismissing the application under section 319 Cr.P.C. It is stated that in the court statements the prosecution witnesses PW.1 and PW.2 there was specific evidence that the accused persons namely Usman, Naajra and Ramzan were also involved in the incident of committing murder of daughter of the petitioner Rukaiya and her three minor children. In the FIR the complainant petitioner has specifically mentioned the names of Usman, Naajra and Ramzan and there is allegation also against these accused persons that these persons were also involved and these accused persons along with others have committed murder of daughter of complainant along with her three minor children. The learned counsel for the petitioner has argued that section 319 Cr.P.C. clearly goes to show that where in the course of any inquiry into or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. It is further stated that during trial ample evidence has come on record which clearly shows the involvement of the accused persons namely Usman, Naajra and Ramzan in the incident.