RAM KARAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) IN this revision petition, the complainant petitioner is challenging the order dt. 15.02.2007 passed by Addl. Sessions Judge (Fast Track) No. 2, Bikaner (hereinafter, 'the trial Court') in Sessions Case No. 45/2005 whereby application filed by the prosecution under Section 319, Cr.P.C. for adding non -petitioner No. 2 Ram Lal as accused was rejected.

(2.) ACCORDING to facts narrated in the petition, the petitioner's grand son Sahi Ram, alongwith Mularam, Vikas, Sitaram, Kishna Ram and Sriram was campaigning in the village for election. At that time, according to the FIR filed by petitioner Ram Karan, it is alleged that due to enmity in the elections, on 29.01.2005, in front of the old well Ram Lal S/o Gopal Ram, Hari Ram, Kedar Ram and Subhash S/o Kheta Ram came out of whom, Ram Lal was armed with a gun and Hari Ram and Kedar Ram had barachhis with them. Subhash was carrying a sela with him. After arriving there in Bellero vehicle, Ram Lal came out and aimed the gun at Sahi Ram, grand -son of the complainant and fired gun shot. It was alleged that due to the said gun -fire shot, Sahi Ram received injury in his chest, at that time, Hari Ram inflicted injury with barachhi to Moola Ram and Kedar Ram also inflicted barachhi blow on the leg of Mula Ram while Subhash caused injury to Mula Ram with sela on his back. Upon this report, case was registered at the Police Station, Nokha and, after usual investigation, challan was filed against Nimba Ram, Mohan Ram, Pathram, Bhanwarlal, Tejaram, Sravan, Jagannath, Hari Ram, Kedar Ram and Ranchhor Ram. It is contended that though specific allegation was levelled by the author of the FIR that Ram Lal inflicted the fatal injury by gun shot, no charge -sheet was filed against non -petitioner Ram Lal. After the challan was filed, the Magisterial Court committed the case to the Court of Sessions for trial and, ultimately, the case was transferred to the Addl. Sessions Judge (Fast Track) No. 2, Bikaner for trial.

(3.) IT is contended by learned Counsel for the petitioner that the order passed by the trial Court rejecting the application filed by the petitioner complainant is erroneous in the eye of law and cannot be sustained because, as per the evidence recorded during the trial, there is sufficient material for addition of non -petitioner Ram Lal as accused in the case; but, the learned trial Court has committed serious error in rejecting the application. It is contended by the learned Counsel that upon perusal of the order impugned it is revealed that the trial Court has minutely scanned the evidence, as it were, the trial Court was deciding the matter finally which is not permissible under the law. It is argued by learned Counsel for the petitioner that upon application under Section 319, Cr.P.C. the Court is only required to see as to whether from the evidence on record there is a prima facie case against the person sought to be arrayed as accused in the trial; but, it seems that at the time of deciding the application, the trial Court embarked upon appreciation of the evidence for final adjudication upon the question of guilt of the nonpetitioner Ram Lal. It is further argued by learned Counsel for the petitioner that the trial Court has failed to appreciate the allegations of most of the prosecution witnesses that the fatal gun -shot was fired by Ram Lal. It is contended that right from the FIR there are specific allegation of the gunshot injury having been caused by non -petitioner No. 2. According to learned Counsel for the petitioner P.W. -5 Likhma Ram, P.W. -6 Mula Ram, P.W. -11 Ram Karan, P.W. -14 Kishna Ram and P.W. -15 Vikas categorically stated in their statements that the gun -shot injury was inflicted by Ram Lal, nonpetitioner No. 2. Learned Counsel for the petitioner argued that the trial Court sifted the evidence while deciding the application under Section 319, Cr.P.C. to arrive at the finding of guilt of the non -petitioner which, at the stage, is not permissible in law.