Smt. Bhouti vs State of Rajasthan and Another

B.J. Shethna, J.—Learned Counsel for the petitioner seeks permission to delete the name of Non-petitioner No. 2.

Permission is granted.

The name of non-petitioner No. 2 is accordingly deleted from the cause-title of the petition.

Admit.

Issue notice to the respondents.

Mr. M.L. Goyal accepts notice on behalf of N.P.No. 1.

Heard learned Counsel for the parties.

The petitioner Smt. Bhouti is a widow of deceased Mohru Lal, who is alleged to have been murdered by 6 accused persons including Ram Charan respondent No. 2 herein. His name has already been disclosed in FIR. An application was presented u/s 319 Cr.P.C. by the petitioner complainant before the learned trial court to take cognizance against the non-petitioner Ram Charan S/o Girraj Meena for the offences punishable under Sections 147, 148, 149, 447 and 302 IPC. The said application was rejected by the learned trial Judge by his order dated 19.4.1995. The petitioner has challenged the said order (Annexure-2) by way of this petition.

Going through the reason assigned by the learned trial Judge, it is clear that the learned trial Judge has tried to weigh the evidence at the stage of taking cognizance against the accused, which was not permissible for him under the law. The name of accused Ramcharan was already disclosed in FIR at the earlier point of time. The defence of accused was one of ''alibi'' which is a matter of evidence and cannot be decided at this stage. There is evidence of 3 eye witnesses who have given the name of accused Ram Charan in his statement recorded by the police. However, the learned Judge was of the opinion that independent witnesses PW 6 and PW 7 have not implicated the accused Ram Charan and not shown his presence at the time of commission of offence, therefore, he was of the opinion that Ramcharan was not there at the of commission of offence. This reasoning of the learned Judge is wholly unsustainable. Even at the end of conclusion of trial, the learned Judge has to consider the evidence of other witnesses along with independent witnesses. If the evidence of other witnesses is found otherwise acceptable, then there is no reason for the court not to convict the accused against whom there is an evidence.

In view of the above discussion, this petition has to be allowed. Accordingly, this petition is allowed. The impugned order (Annexure-2) dated 19.4.1995 passed by the learned Additional Sessions Judge, Rajgarh (Alwar) in Sessions Case No. 106/93 is set-aside and the application filed by the petitioner complainant u/s 319 Cr.P.C. against the accused Ramcharan is allowed. The learned trial Judge is directed to proceed against the accused Ramcharan for the offence punishable u/s 302, read with Sections 147, 148, 149 and 447 IPC along with the other accused and decide the case in accordance with law.

The office is directed to sent a copy of this order to the trial court forthwith.