BANWARI LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD Mr. N. N. Mathur learned counsel for the petitioner. Miss Sumitra Sankhla Public Prosecutor and Mr. H. S. S. Kharelia learned counsel for complainant Sewak Singh.

(2.) THIS is an interesting case. On May 25, 1982, at about 3. 30 A. M. Sewak Singh lodged a first information report at Police Station, Mukalawa alleging that his brother Baljeet Singh had been murdered by the petitioner Banwarilal by a gun shot. Upon this first information report, the police registered a case under section 302, I. P. C. After investigation, the police came to the conclusion that it was not the petitioner Banwarilal but the first informant Sewak Singh who had murdered his own brother and in order to save himself he had lodged a false first information report. After investigation, the police filed a charge sheet against Sewak Singh for the murder of his brother Baljeet Singh. The criminal case was committed to the court of Sessions and was ultimately transferred to the court of Additional Sessions Judge Raisinghnagar being Sessions case No. 9 of 1983.

(3.) IT is true that the Judicial Magistrate Raisinghnagar had taken cognizance of the offence under section 302 I. P. C. on the police report made under section 173 Cr. P. C. However, it is equally true that the cognizance was of the offence and not the offender. After taking cognizance, Sewaksingh was tried by the Additional Sessions Judge, Raisinghnagar. In that trial, the petitioner could not be tried together with Sewaksingh under section 319 (1) Cr. P. C. for the simple reason that neither Sewaksingh could appear as a witness against the petitioner, nor the petitioner could appear as a witness against Sewaksingh because in that event both of them would have been co-accused. Section 319 (1) Cr. P. C. contemplates proceedings against person other than the person who was accused if the former person can be tried together with the accused. For the reasons already stated above, Banwarilal could not be tried together with Sewaksingh under section 319 (1) Cr. P. C.