SOBHA RAM Vs. STATE AND KANHAIYALAL

JUDGEMENT

(1.) Instant petition Under Section 482 CrPC is directed against order dt.09/07/98, whereby Special Judge (SC/ST Cases), Ajmer in exercise of powers Under Section 319, CrPC on the application of complainant during trial in Sess. Case No. 25/95, took cognizance of offence Under Sections 302 & 302/149, IPC against petitioner who is employed as police constable.

(2.) Facts, in brief, relevant for purposes of controversy raised herein are that on 05/12/1994 at about 11.10 AM one Kanhaiyalal lodged a written report at P.S. Gegal (Ajmer) for an incident having taken place in early morning at about 5 AM. It was inter-alia alleged therein that while he was irrigating his fields through common Well in course of his turn on that day and was accompanied with Surajmal and Bal Kishan besides one Amar Chand being present at the spot, while Ganesh, Gheesu and Sobha were on way to their fields for irrigation, they were stopped to smoke Bidi with him (informant) at about 4 AM that time, Ramkaran S/o Kuka, Mohan S/o Baldev asked him to stop Well's engine, to which he refuted saying of his fields being in process of irrigation so as to irrigate next day also but both Ram Karan and Mohan left the place hurling threats to the informant and after a while, Hardayal and Madan also joined him near Well where he was busy irrigating his fields. However, at about 5 AM, about 25 persons named in the report including Sbhoaram (petitioner herein) forming an unlawful assembly came together at the place of incident duly armed with sharp edged weapons like axe and opened with assaults inflicting the multiple blows on their persons as a result whereof, three persons (Balkishan, Ganesh and Surajmal) lost their lives. It is relevant to point out that petitioner herein was specifically named in the report, as one of accused persons with the allegation of attributing to have caused multiple blows by axe on the person of Surajmal (deceased).

(3.) On aforesaid report, FIR-131/94 was registered for offences Under Sections 147, 148, 149, 323, 326, 307 & 302, IPC against 23 accused persons named therein. After investigation, police filed challan against 22 persons out of total 23 except petitioner despite named in the FIR, besides two more persons (Sualal and Jagdish) not named in the FIR. After accused persons were charged, the trial commenced in course whereof, prosecution eye witnesses (Hardayal (Pw1), Madan (Pw2), Kanhaiaylal -informant (Pw3), Shobharam S/o Ganesh (Pw4), Gheeshu (Pw5) & Devdutt (Pw6) were examined and they all corroborated incriminating version that petitioner Shobharam was having axe in his h and and inflicted multiple axe blows on the person of deceased Surajmal in course of scuffle. At first instance on 06/04/95, Public Prosecutor moved application Under Section 319, CrPC to array petitioner as an accused while prosecution evidence has not yet commenced, hence application was got dismissed as not pressed. When last prosecution witness (Pw28), Setharam (investigating officer) was recorded, yet another application was filed Under Section 319 CrPC on 24/10/97 but that too was dismissed as not pressed for good reasons known to the prosecution. After statements of accused were recorded Under Section 313, CrPC, and matter had ripen for final hearing and in fact at one occasion arguments were heard but remained inconclusive, at that time, complainant (respondent NO. 2) filed application Under Section 319, CrPC, which was allowed vide order dt.09/07/98 and the trial Judge on the basis of material came in prosecution evidence during trial, took cognizance of offences Under Section 302, 302/149, IPC against the petitioner and summoned him through arrest warrant against which he has filed instant petition on 13/07/98.