PREM SINGH AND ORS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The revision has been filed on behalf of the five accused persons against the judgment of the learned Addl.Sessions Judge, Rajasamand, dated 22-11-1984 by which their appeal was accepted and the judgment of the learned Munsif and Judicial Magistrate, Rajasamand, dated 9-2-1984 convicting the appellants-petitioners for offences Under Sections 147, 323. 325 read with 149 IPC and sentencing them to various terms was set aside and the matter was remanded to the trial court with a direction that the trial court shall decide the application of the APP dated 4-10-1983 Under Section 319 Cr.PC for taking cognizance against one Mohan Singh also and then decide the matter afresh.

(2.) The facts giving rise to this revision briefly stated are that on 4-4-1982 at about 10 or 11 in the night, six or seven persons came to the house of one Uda and demanded a clock. Uda replied that he did not have it. Thereupon Prem Singh s/o Mohan Singh gave him a lathi blow. Uda started running and then Shambu Singh. Mohan Singh, Harchand, Kalu Panna and some others also started beating him with lathis and kicks. It further appears that Uday's son and daughter came to his rescue whereupon the accused persons ran away. Report of this incident was lodged at the police station Rajnagar on 5-4-1982. The police investigated the case and got the injuries of Uda examined. After completion of the investigations a challan was put up against five accused persons, who are the petitioners before (his Court now. No challan was put up against Mohan Singh, who was named in FIR. The learned Magistrate framed charges against these five accused persons, who denied their guilt, whereupon the trial started. During the course of trial when some of the witnesses had already been examined by the learned Magistrate, an application was moved by the APP requesting the court to take cognizance against Mohan Singh also who had been named by the witnesses. On the application filed on 4-10-1983, the learned Magistrate ordered that it will be considered at the time of the final disposal of this matter On the completion of the trial, the learned Magistrate by his judgment dated 9-2-1984 convicted the five accused persons as aforesaid. By the same judgment, he rejected the APP's application for taking cognizance against Mohan Singh as according to him the application was belated and some of the witnesses had not named Mohan Singh in their statements Under Section 161 Cr.PC. The convicted accused filed an appeal before the learned Additional Sessions Judge. One of the grounds in the appeal was that according to PW 2 Uda, it was Mohan Singh who had inflicted one grievous injury on his right arm and another on his left hand, but Mohan Singh was not even made an accused and therefore, the present accused-appellants could not be held guilty Under Section 325 read with 149 IPC. The learned Additional Sessions Judge was of the opinion that although an application had been moved by the APP for taking cognizance against Mohan Singh also, the court improperly rejected it and as Mohan Singh was not tried along with the present accused, their case has been prejudiced. He, accordingly, set aside the order of their convictions and remanded the case to the trial court for deciding the application of the APP dated 4-10-1983 and then decide the case afresh. The petitioners are aggrieved of this order and, therefore, have come up before this Court.

(3.) I have heard the learned counsel for the petitioners and the learned PP and have gone through the record.