MEHMOOD AND AAMIN Vs. STATE

JUDGEMENT

(1.) INSTANT petitions have been filed Under Section 397 read with Section 401, CrPC by accused assailing order dt.21/11/07 in Sess. Case No.55/06 whereby Addl. Sess. Judge(Fast track) Kishangarh -Bas (Alwar) while accepting application of complainant Under Section 319, CrPC, took cognizance of offences Under Section 302 & 302/34 IPC against Mehmood & Aamin (petitioners).

(2.) INCIDENT took place on 07/04/06 of which written report was lodged by eye -witness, Sher Mohd.(Pw 1), specifically having named present petitioners(Mehmood & Aamin) and attributing infliction of lathi & Tanchia blows by them on the deceased. After investigation, police filed charge sheet against Ayub Khan, Ibrahim Khan & Abdul Khan for offences Under Section 302, 323, 324 & 341, IPC and against accused Wahid Khan Under Section 299 CrPC. During trial, statements of ten witnesses including Sher Mohd. (Pw 1), informant & Fateh Mohd. (Pw 2), eye witness, were recorded and both of them in their examination in -chief deposed about their active participation of petitioners causing injuries on the person of deceased by lathi & sharp -edged weapon(Tanchia)as is corroborated by post mortem report describing nature of injuries, which have been deposed by Dr.PS Choudhary (Pw 5). At this stage, application was filed by complainant on 14/11/07 for taking cognizance against petitioners Under Section 319, CrPC. After taking note of statements of prosecution witnesses recorded during trial, particularly Sher mohd. (Pw 1) & Fateh Mohd. (Pw 2) and Dr.PS Choudhary(PW 5), learned trial Judge took cognizance against petitioners - Mehmood Under Section 302, IPC and Amin Under Section 302/34, IPC.

(3.) COUNSEL for petitioners jointly submit that in cross examination, both the eye witnesses of incident are not consistent about their evidence adduced in examination -in -chief; as such no reliance can be placed and that apart, injuries assigned to them do not corroborate with post mortem report as well as statement of Dr. PS Chodhary (Pw 5); in such circumstances, there is no prima facie material on record and the trial Judge committed serious error in taking cognizance of offence Under Section 302/34, IPC in exercise of powers Under Section 319, CrPC.