Bhim Singh and Others vs State of Haryana and Another

Jitendra Chauhan, J.—Present revision petition has been filed against the order dated 22.12.2012, passed by the learned Additional Sessions Judge, Bhiwani, whereby the petitioners were ordered to be summoned as additional accused to face the trial under Sections 304B/34 of IPC and the alternative u/s 302/34 of IPC in case FIR No. 454 dated 14.7.2012. After arguing for some time, the learned counsel for the petitioners seeks permission to withdraw the present petition qua petitioner Nos. 1 and 2 with liberty to raise all the pleas before the learned trial Court at appropriate stage.

Allowed to do so.

Dismissed as withdrawn qua petitioner Nos. 1 and 2 with liberty aforesaid.

Learned counsel for the petitioners contends that petitioner No. 3 is the nephew of the deceased (son of brother in law). The marriage of the deceased and Satbir, uncle of the petitioner No. 3 was about 17 years old. The said petitioner alongwith his parents were living separately. He refers to Annexure P-3 and states that he is a student of B.Tech Electronics and Communication. He further submits that after investigation, the challan was filed against Satbir only. He further submits that the said petitioner has no connection with the said crime and he being a nephew of the deceased has been falsely implicated in the present case.

On the other hand, the learned State counsel opposes the prayer of the petitioner.

Heard and perused.

The Hon''ble Supreme Court in the case of Kailash Vs. State of Rajasthan and Another, ], has held that a glance of the provision would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. This Court has laid emphasis on the words, ''it appears from the evidence'', ''any person'', and ''has committed any offence''. It was further held that the power u/s 319 has to be essentially exercised only on the basis of the evidence brought on record of the case. The discretionary jurisdiction could, therefore, be exercised only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence.

In the present case, the petitioners have been summoned as additional accused to face the trial under Sections 304B/34 of IPC and the alternative u/s 302/34 of IPC in case FIR No. 454 dated 14.7.2012. Petitioner No. 1 is a student of B.Tech 2nd Year. The marriage of the deceased and Satbir, uncle of the said petitioner was solemnized about 17 years back. The present FIR has been lodged by sister in law of the deceased. From the perusal of FIR, it reveals that the allegations are against Satbir, Bhim and Roshni only.

No specific role has been attributed to petitioner No. 3 Gaurav Kumar alias Bittu and moreover, he was not connected with the alleged allegations levelled. The said petitioner alongwith his parents were living separately. He was found innocent during investigation by the police and therefore, he was not challaned. There is no legal evidence on record from which it may appear that petitioner No. 3 Garuav Kumar @ Bittu has committed an offence. In view of the above, the present petition qua petitioner No. 3 is allowed; impugned order dated 22.12.2012 qua petitioner No. 3 Gaurav Kumar alias Bittu is set aside and application u/s 319 Cr. P.C. qua petitioner No. 3 is dismissed.