AI Structured Summary
Not yet generated for this judgment
Judgment
Kuldip Singh, Judge
This judgment shall dispose of Cr.MMO No. 22 of 2011 and Cr.MMO No. 119 of 2011 as in both the petitions the order dated 23.02.2011 passed by learned Additional Sessions Judge, Mandi, in Cr.M.P. No. 18 of 2011 in S.T. No.6 of 2005 has been assailed. Cr.MMO No. 22 of 2011 has been filed by Sarwar Hussain and Talib Hussain whereas Cr.MMO No. 119 of 2011 has been filed by State.
The facts,in brief, are that FIR NO. 292 dated 01.11.2004 has been registered at Police Station,Balh, under Sections 302, 147, 148, 149, 323 and 506 IPC at the instance of Sadiq Mohammad, son of deceased Nasir Hussain. The allegations are that certain persons numbering around 12 trespassed into the fields of Nasir Hussain, Sarwar Hussain and Talib Hussain. The said persons gave beatings to Nasir Hussain, Sarwar Hussain and Talib Hussain. The assailants were armed with ''dandas'', axes, sword. Nasir Hussain, Sarwar Hussain and Talib Hussain sustained grievous injuries. They were taken to C.H.C., Ratti. Nasir Hussain declared dead by the doctor, Sarwar Hussain and Talib Hussain were referred to Zonal Hospital, Mandi. Talib Hussain was further referred to P.G.I., Chandigarh. Sarwar Hussain and Talib Husssain were in hospital, therefore, the complainant, who is the son of the deceased Nasir Hussain got the complaint registered at Police Station and gave the names of the persons, who were known to him.
It has been alleged that the names of all persons, who had been named by the complainant were not reflected in the FIR such as Noor Mohamad alias Noor Ahmed son of Fateh Mohammad and Hussan Ali alias Hafan Deen son of Fateh Mohammad. The complainant along with his brother Mansab Ali were the eye-witnesses to the occurrence. The statement of Sarwar Hussain was recorded u/s 161 Cr.P.C. also indicates names of aggressors Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed. The petitioner Talib Hussain in his statement u/s 161 Cr.P.C on 17.11.2004 has also given the names of Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed, who inflicted blows upon the injured and deceased along with other aggressors, as a result of which, Nasir Mohammad died.
The lapses of the Investigating Officer surfaced during trial, accordingly prosecution filed an application u/s 319 Cr.P.C. for impleading Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed. PW-1 Sadiq Mohammad and PW-3 Mansab Ali in their statements have named Hussan Ali alias Hafan Deen, Noor Mohamad alias Noor Ahmed, who also gave blows to the deceased as also to the injured petitioners. The petitioners in their statements in the Court on 23.08.2005 had also named Hussan Ali alias Hafan Deen, Noor Mohamad alias Noor Ahmed. The learned Additional Sessions Judge, however, dismissed the application u/s 319 Cr.P.C. on 23.02.2011. The learned Additional Sessions Judge has not appreciated that in view of statements of PW-1, PW-3, PW-4 and PW-5 the involvement of Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed in the commission of the offence has been established.
The learned Court below has erred in dismissing the application u/s 319 Cr.P.C on the ground that evidence had already been recorded, the case was old and, therefore, impleadment of Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed would not be proper. The Court below has not properly appreciated the judgments of the Supreme Court referred to in the impugned order.
The Court below has not appreciated that Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed participated in the commission of offence resulting in the death of Nasir Hussain and causing grievous injuries with deadly weapons to others. The Investigating Officer in order to save those persons had not impleaded them as accused nor had shown them in column No.2 of the challan despite the statements of witnesses u/s 161 Cr.P.C.
The respondent filed reply. It has been stated that during the course of investigation, the complainant did not make any reference about the participation of Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed and as such their names did not figure in the FIR. The involvement of Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed was disclosed by the complainant and other witnesses during the course of the investigation which was ignored being afterthought as there was no corroborating evidence on the record. It has been submitted that application u/s 319 Cr.P.C. has been filed for impleading Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed as during the course of the trial inculpating evidence has come on record that they have participated in the commission of offence. In the reply, ultimately it has been prayed that appropriate orders may be passed.
Pervej Mohammad filed Cr.M.P. No. 462 of 2011 in Cr.MMO No. 22 of 2011 for impleading him as party or granting an opportunity to him for hearing. It has been stated that on statement of PW-1 Sadiq Mohammad, FIR No. 292/2004 Ex. PW8/A has been registered. After investigation of the case, challan was filed in the Court and the applicant along with Anwar, Rehmat, Ashraf Mohammad, Ms Shamshad, Ms.Shabana, Ms. Shabnam and Ms. Rozina were sent for trial in Sessions Trial No. 6/2005 for allegedly causing murder of Nasir Hussain and causing grievous injuries to Sarwar Hussain, Talib Hussain, Sadiq Mohammad and PW-3 Mansab Ali.
It has been stated that prosecution earlier filed an application in December, 2005, and vide order dated 29.05.2006, the trial Court has impleaded Mst.Dil Khursheed and Ms. Sabina as accused.
It has also been stated that out of the same incident another FIR No. 293/2004 was also registered against the complainant party in which Sarwar Hussain, Talib Hussain, Mansab Ali, Sadiq Mohammad, Mst. Hasan Bibi,Gulshad, Shakira Bibi, Naseera Bibi and others are facing trial being Sessions Trial No. 7/2006 under Sections 326, 327, 506, 147, 148, 324 IPC. In both the cases evidence is complete. Statements of accused u/s 313 Cr.P.C. have been recorded, defence evidence also stands recorded and both the cases are at final arguments stage.
In Sessions Trial No. 6/2005, an application dated 19.04.2010 u/s 319 Cr.P.C. was filed by the prosecution for impleading Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed. At that stage, all the witnesses except for Investigating Officer had been examined. The said application has been dismissed by the trial Court on 23.02.2011. Thereafter, statement of Investigating Officer PW-14 Uttam Singh was also recorded on 01.03.2011 and statements of accused have been recorded u/s 313 Cr.P.C. and the accused have also led the defence evidence.
It has been stated that in case Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed are impleaded as accused, then as per mandate of Section 319(4) Cr.P.C., it will result in de novo trial from the stage of presentation of challan. The entire exercise which has been done till now will have to be repeated on impleadment of new accused. This will deny to applicant his fundamental right of speedy trial for no fault on his part. The alleged incident took place on 01.11.2004. The Court earlier impleaded some accused on 29.05.2006, but now the prosecution has moved another application for impleading new accused. It has also been stated that in case impugned order dated 23.02.2011 is set aside and application u/s 319 Cr.P.C. is allowed impleading Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed, in that case ordering of the separate trial for newly impleaded accused will not cause any prejudice to either side.
Cr.MMO No. 119 of 2011 has been filed by the State for setting aside order dated 23.02.2011 passed by learned Additional Sessions Judge, Mandi, in Cr.M.P.No. 18 of 2011 in Sessions Trial No. 6/2005. It has been stated that during the course of the trial PW-1 Sadiq Mohammad and PW-3 Mansab Ali eye witnesses have categorically deposed on oath that Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed were present on the spot and had also actively participated in the commission of offence. The other witnesses such as Mansoor Ali, Talib Hussain and Sarwar Hussain have also stated in their statements on oath in the Court regarding the participation of Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed. The trial Court has erred in dismissing the application u/s 319 Cr.P.C. on 23.02.2011 even in the presence of positive evidence on record showing commission of offence by Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed.
It has been stated that statements of PW-1, PW-3, PW-4 and PW-5 have not been properly appreciated. The case law referred to in the impugned order is not applicable in the facts and circumstances of the case. The Court below has erred in rejecting the application on the ground that case is old. It has not been appreciated that court of learned Additional Sessions Judge, Mandi, remained vacant from 11.11.2008 to 25.10.2009. The State ultimately prayed for setting aside the impugned order.
I have heard the learned counsel for the parties and have also gone through the record. On 3.12.2005 the State had filed an application u/s 319 Cr.P.C. for impleading Mst.Dilkhursheed and Ms. Sabina as accused. It has been stated that sufficient evidence has come on record against Mst. Dilkhursheed and Ms. Sabina. The eye witnesses Sadiq Mohammad, Mansab Ali, Sarwar Hussain, Talib Hussain have specifically stated regarding the participation of Mst. Dilkhursheed and Ms. Sabina. This application was opposed. On 29.5.2006 the application was allowed and Mst. Dilkhursheed and Ms. Sabina were impleaded as co-accused in the case. The prosecution filed another application u/s 319 Cr.P.C. for impleading Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed as co-accused in the case. In the application no statement of any specific witness has been relied for impleading Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed as co-accused. This application was opposed and dismissed by learned Additional Sessions Judge on 23.2.2011.
In both the petitions, the petitioners have relied statements of PW-1, PW-3, PW-4 and PW-5 for impleading Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed as co-accused in the case. It is also the case of the petitioners that in fact Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed were named during investigation also but the investigating officer intentionally did not implead them as accused in the case. It has been submitted that in presence of evidence on record the Court below has erred in not impleading Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed as co-accused in the case. The Court below has erred in rejecting the impleadment of these two persons as co-accused on the grounds that the case is old and evidence is contradictory.
On the other hand, it has been contended that State in reply to Cr.MMO No. 22 of 2011 has stated that involvement of Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed was disclosed by the witnesses during the course of investigation which was ignored being after thought as there was no corroborating evidence on record. The State even after recording of the evidence filed application for impleadment of Mst. Dilkhursheed and Ms. Sabina. The statements of PW-1 to PW-5 were recorded on 23.8.2005, the application for impleadment of Mst. Dilkhursheed and Ms. Sabina was filed on 3.12.2005. There is no explanation why on 3.12.2005 the State did not think of filing application for impleadment of Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed on the basis of evidence which was recorded till then. It has been contended that the State is aware that once the application for impleadment of any accused is allowed then denovo trial starts on the impleadment of new accused. It has been contended that the State is intentionally filing application after application u/s 319 Cr.P.C. for harassing the accused in Sessions Trial No. 6 of 2005. The contention has been raised that mere naming of a person in the evidence as perpetrator of the crime is not enough what is required is whether such naming prima-facie will lead to conviction of the persons so named and as such, to be impleaded as co-accused. The stage of the trial is an important factor so also the number of witnesses already examined. It has been stated that the Court below has rightly dismissed the application as application does not fulfill the various parameters laid down for allowing application u/s 319 Cr.P.C.for impleadment of co-accused.
In view of rival contentions, it is necessary to refer to some case law. In Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, the Supreme Court has held as follows:-
In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other persons against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondents 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it.
The Supreme Court in Sohan Lal and others Vs. State of Rajasthan, has held as follows:-
The crucial words in the section are, ''any person not being the accused''. This section empowers the court to proceed against persons not being the accused appearing to be guilty of offence. Sub-sections (1) and (2) of this section provide for a situation when a court hearing a case against certain accused person finds from the evidence that some person or persons, other than the accused before it is or are also connected in this very offence or any connected offence; and it empowers the court to proceed against such person or persons for the offence which he or they appears or appear to have committed and issue process for the purpose. It provides that the cognizance against newly added accused is deemed to have been taken in the same manner in which the cog was first taken of the offence against the earlier accused. It naturally deals with a matter arising from the course of the proceedings already initiated. The scope of the section is wide enough to include cases instituted on private complaint.
The Supreme Court in Michael Machado and Another Vs. Central Bureau of Investigation and Another, has held as follows:
The basic requirements for invoking the above sections is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.
But even then, what is conferred on the court is only a discretion as could be discerned from the words ? the court may proceed against such person?. The discretionary power so conferred should exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons.?
The Supreme Court further held:
The court while deciding whether to invoke the power u/s 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly-added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be recommended from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite large in number the court must seriously consider whether the objects sought to be achieved by such exercise are worth wasting the whole labour already undertaken. Unless the court is hopeful that there is a reasonable prospect of the case as against the newly brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action.
The learned counsel for the applicant in Cr.M.P.No. 462 of 2011 in Cr.MMO No. 22 of 2011 has relied Shashikant Singh Vs. Tarkeshwar Singh and Another, in support of his contention that even if Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed are impleaded as co-accused, then they should be tried separately and not with the present accused in Sessions Trial No.6 of 2005 as the trial is almost over. He has submitted that the Supreme Court has held that the mandate of law of fresh trial is mandatory whereas the mandate that newly added accused could be tried with the accused is directory.
The Supreme Court in Krishnappa Vs. State of Karnataka, has noticed Municipal Corporation of Delhi and Michael Machado and others (supra) and held as follows:-
Applying the test as aforesaid to the facts of the present case, in our view, the trial Magistrate is right in rejecting the application. The incident was of the year 1993. Seventeen witnesses had been examined. The statements of the accused u/s 313 Cr.P.C. had been recorded. The role attributed to the appellant, as per the impugned judgment of the High Court, was of instigation. Having regard to these facts coupled with the quashing of proceedings in the year 1995 against the appellant, it could not be held that the discretion was illegally exercised by the trial Magistrate so as to call for interference in exercise of revisional jurisdiction by the High Court.
In Kavuluri Vivekananda Reddy and another vs. State of Andhra Pradesh and another (2005) 12 SCC 432, it has been held as follows:
We have perused the statements of these witnesses and find that in relation to the alleged instigation by the appellants, only general statements have been made. On the basis of the said general statements qua the appellants, it is evident that the courts below committed serious illegality in proceeding to add the appellants herein as accused in exercise of power u/s 319 of the Code. The manner of exercise of the power under the said provision has been explained by this Court in Krishnappa Vs. State of Karnataka, wherein it has been held that it has to be kept in view that the power u/s 319 of the Code is discretionary and has to be exercised only to achieve criminal justice and that the court should not turn against another whenever it comes across evidence connecting that other person also with the offence. The provisions of Section 319 of the Code are required to be used sparingly. The summoning of the appellants after the expiry of eight years, on the facts and circumstances of the case and having regard to the nature of the depositions of the witnesses which have been examined by us, is not called for. In this view, we set aside the impugned orders and allow the criminal appeal.
In Y. Saraba Reddy Vs. Puthur Rami Reddy and Another, it has been held as follows:
We find that the High Court has failed to notice the fact that there was in fact no delay in making the application. Though the charge-sheet was filed on 7.11.1997, charges were framed on 25.8.2003. The order-sheet shows that the delay cannot in any way be attributed to the complainant. There is a basic fallacy in the approach of the High Court. It called for the file to be satisfied as to whether the enquiry conducted was to be preferred to the evidence of PW-1. If the satisfaction of the investigating officer or supervising officer is to be treated as determinative, then the very purpose of Section 319 of the Code would be frustrate. Though it cannot always be the satisfaction of the investigating officer which is to be prevail, yet in the instant case the High Court has not found the evidence of PW-1 to be unworthy of acceptance. Whatever be the worth of his evidence for the purposes of Section 319 of the code it was required to be analysed. The conclusion that the IO''s satisfaction should be given primacy is unsustainable. The High Court was not justified in holding that there was belated approach.
The Supreme Court in Guriya @ Tabassum Tauquir and Others Vs. State of Bihar and Another, has held as follows:
As noted above, PWs 1, 2 and 3 have stated about the presence of the appellants without any definite role being ascribed to them in their evidence recorded on 16.4.2001, 8.1.2002 and 29.4.2002. If really the complainant had any grievance about the appellants being not made accused, that could have, at the most, be done immediately after the recording of evidence of PWs 1, 2 and 3. That has apparently not been done. Additionally, after the charge-sheet was filed, a protest petition was filed by the complainant which was dismissed. No explanation whatsoever has been offered as to why the application in terms of Section 319 Cr.P.C. was not filed earlier. The Revisional Court did not deal with these aspects and came to an abrupt conclusion that all the PWs have stated that the appellants have committed overt acts and their names also find place in the protest petition. Undisputedly, no overt act has been attributed to the appellants by PWs 1, 2 and 3. Nothing has been stated about the appellants by PWs 4 and 5. There was mention of their names in the FIR. A protest petition was filed. Same was also rejected. These could not have formed the basis of accepting the prayer in terms of Section 319 Cr.P.C. The High Court''s order, to say the least, is bereft of any foundation. It merely states that there are materials against the petitioners before it. It also did not deal with various aspects highlighted above.
The Supreme Court in Bholu Ram Vs. State of Punjab and Another, has held that the power u/s 319 Cr.P.C. can be exercised either on an application made to the court or by the court suo motu. It is in the discretion of the court to take an action under the said section and the court is expected to exercise the discretion judicially and judiciously having regard to the facts and circumstances of each case.
In Ram Singh and Others Vs. Ram Niwas and Another, has held as follows:
The High Court, in our opinion, however, has committed a serious error in proceeding on the premise that mere existence of a prima facie case would be sufficient to exercise the court''s jurisdiction u/s 319 of the Code. We have noticed hereinbefore the importance of the word ?appears?. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as accused in the case. The High Court furthermore committed a serious error insofar as it failed to take into consideration that when the order dated 29.5.2003 was passed, the learned Judge was in a position to consider the evidence brought on record including the cross-examination of the prosecution witnesses. The High Court did not arrive at any finding that a case has been made out for exercise of such an extraordinary jurisdiction which, in terms of the judgments of this Court, is required to be exercised very sparingly.
The Supreme Court in Suman Vs. State of Rajasthan and Another, has held as follows:
In view of the settled legal position as above, we hold that a person who is named in the first information report or complaint with the allegation that he /she has committed any particular crime or offence, but against whom the police does not launch prosecution or files charge-sheet or drops the case, can be proceeded against u/s 319 Cr.P.C. if from the evidence collected/produced in the course of any inquiry into or trial of an offence, the court is prima facie satisfied that such person has committed any offence for which he can be tried with other accused. As a corollary, we hold that the process issued against the appellant u/s 319 Cr.P.C. cannot be quashed only on the ground that even though she was named in the complaint, the police did not file charge-sheet against her.
Now coming to the facts of the present case, PW-1 Sadiq Mohammad has stated that he saw 12 persons namely Ashraf Mohammad, Parvesh, Anwar Ali, Dilkushid, Shobana, Rozaina, Guddi, Rehmat Ali, Noor Ahmed, Hasan Ali, Shabnam Bano and Shabina having in their hands dandas, axes, swords and they were giving beatings to his father Nazir Hussain and his uncle Sarwar Hussain and Talib Hussain. In cross-examination, he has stated that in his statement u/s 154 Cr.P.C. he had stated that 12 persons had come and attacked but when confronted with Ex.PW-1/A it is not so recorded. He has stated that he does not remember with certainty as to who (accused) was holding what type of weapon. He cannot tell the number of swords, axes and dandas exactly which the accused persons were having.He has not specifically stated regarding the part played by Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed. PW-3 Mansab Ali has stated that he saw accused persons namely Noor Ahmed, Hussan Ali, Mst. Shabina, Mst. Rozina, Rahmat Ali, Nawar Hussain, Dilkushid and Mst. Shamshad giving beatings to his uncles Talib Hussain and Sarwar Hussain. He has also not stated the specific part played by Hussan Ali alias Hafan Deen and Noor Mohamad alias Noor Ahmed in the commission of offence.
PW-4 Talib Hussain has stated that Hussan Ali inflicted injury with sword to him and co-accused Noor Ahmed with axe blow. PW-5 Sarwar Hussain has stated that when they were running from the front side five persons who were relatives of Ashraf Mohammad namely Rehmat Ali, Hussan Ali, Noor Ahmad, Mst. Shabina and Mst. Shabnam came having axes, swords and dandas in their hands. In order to save themselves, they ran towards Nallah but they followed them and over powered them when they crossed the Nallah and attacked them with weapons aforesaid. He has also not stated specific part played by Hussan Ali and Noor Ahmed.
PW-1 Sadiq Mohammad complainant claimed himself to be an eye witness but he has not stated that Hussan Ali inflicted sword injury and Noor Ahmed gave axe blow to PW-4 Talib Hussain. Even PW-4 Talib Hussain has not stated that Hussan Ali and Noor Ahmed inflicted injuries on him on which part of the body. He has not stated that Hussan Ali inflicted injury with sword Ex.P-1 and Noor Ahmed inflicted injury with axe Ex.P-2. He has not stated that Hussan Ali and Noor Ahmed used sword and axe repeatedly on him. PW-10 Dr. Devinder Sharma has noticed eight injuries on the person of Talib Hussain and he has stated that all these injuries can be caused by sword Ex.P-1 and axe Ex.P-2. PW-10 has not segregated which injuries on the person of PW-4 can be caused by sword and which injuries can be caused by axe. He has not stated whether injuries on the person of PW-4 can be caused by single blow of sword and axe each or by more blows. The ocular statement of PW-4 is of no help to prosecution in view of statement of PW-10 regarding the injuries on the person of PW-4 Talib Hussain attributed to Hussan Ali and Noor Ahmed.
The State was aware of the discrepancies and strength of evidence and, therefore, while moving first application u/s 319 Cr.P.C. for impleading Dil Khursheed and Sabina, the State did not request for impleading Hussan Ali and Noor Ahmed as co-accused in the case even though at the time of moving first application the statements of PW-1, PW-3, PW-4, PW-5 and PW-10 were very much recorded when the first application for impleadment of co-accused was filed. There is no explanation why at the time of filing first application, no prayer was made for impleading Hussan Ali and Noor Ahmed as co accused in the case.
In Michael Machado and others (supra) the Supreme Court has held that it is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. It has also been held that unless the Court is hopeful that there is a reasonable prospect of the case as against the newly brought accused ending in being convicted of the offence concerned, the Court should refrain from adopting the impleadment of new accused. The Supreme Court in Kavuluri Vivekananda Reddy and another (supra) has again held that the court should not turn against another whenever it comes across evidence connecting that other person also with the offence. The provisions of Section 319 of the Code are required to be used sparingly. In Ram Singh and others (supra), it has also been held that it is necessary for the court to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as accused in the case.
There was no question of cross-examination of the prosecution witnesses recorded till now on behalf of Hussan Ali and Noor Ahmed. PW-1, PW-3 and PW-5 have not specifically stated about the part played by Hussan Ali and Noor Ahmed, only PW-4 Talib Hussain has stated about the part played by Hussan Ali and Noor Ahmed. But the statement of this witness has not been corroborated by other witnesses so far alleged part attributed to Hussan Ali and Noor Ahmed. The learned trial Court has observed that the application has been filed for impleading these two persons after six years of the recording of the statement of PW-5. The trial Court declined to exercise discretion on account of delay. It has also been observed that the witnesses have contradicted with reference to their previous statements recorded by the police. The accused party is also facing Sessions Trial No. 7 of 2006. The vague statements of PW-1, PW-3 and PW-5 are not enough for impleading Hussan Ali and Noor Ahmed as co-accused in the case.
In the facts and circumstances of the case it cannot be said that the sole testimony of PW-4 that Hussan Ali inflicted injury with sword to him and Noor Ahmed with axe blow is sufficient that the case against proposed accused would result in conviction. The Supreme Court in Municipal Corporation of Delhi (supra) has held that extraordinary power u/s 319 of the Code should be used very sparingly and only if compelling reasons exist for taking cognizance against the other persons. The trial is ripe for final arguments. The accused have led even defence evidence. In view of delay in moving the application and the stage of the trial coupled with unsatisfactory evidence regarding the part played by Hussan Ali and Noor Ahmed, it cannot be said that the trial Court has erred in exercising jurisdiction in not impleading Hussan Ali and Noor Ahmed as co-accused u/s 319 of the Code in the case.
In view of above discussion, there is no merit in both the petitions which are accordingly dismissed. All pending applications are also disposed of. The parties through their counsel are directed to appear before the trial Court on 02.12.2011. The record of the Court below be sent back immediately so as to reach before the date fixed.