Judgment:
ORDER
D.R. Deshmukh, J.
1. This Criminal Revision is directed against the judgment dated 19-4-2006 passed by 1st Additional Sessions Judge, Ambikapur, District Surguja in Sessions Trial No. 270/2004 (State of Chhattisgarh v. Bhokta and Ors.) whereby the applicant herein was, in exercise of powers under Section 319, Cr.PC, impleaded as a co-accused for an offence punishable under Sections 148 and 302 read with Section 149 of the IPC.
2. Brief facts are that Bhokta and six others were facing trial for offences under Sections 148 and 302 read with Section 149, IPC before the Ist Additional Sessions Judge, Ambikapur, Surguja in Sessions Case No. 270/2004 for committing rioting and murder of Phuleshwar @ Feku in furtherance of common intention of their unlawful assembly on 7-3-2004 in Village Belkharikha, P.S. Darima. FIR was lodged by Binesh Marawi (P.W. 1) against the aforesaid accused persons. The applicant herein was not named in the FIR as also in the statement under Section 161, Cr.PC by the witnesses of assaulting Phuleshwar @ Feku at the time of occurrence. The prosecution examined as many as 17 witnesses. The evidence of the prosecution was closed and after hearing final arguments the Sessions Trial was fixed for judgment on 31st March, 2006. On 31 -3-2006, an application was moved by the prosecution under Section 319, Cr.PC to implead the applicant herein as an accused on the ground that prosecution witnesses Binesh Marawi (P.W. 1), Ghuneshwari (P.W. 3), Gupta Prasad (P.W. 4), Chhotu (P.W. 5) and Smt. Teejo Bai (P.W. 14) clearly impleaded Pichharu @ Purushottam, the applicant herein as not only being present at the time of occurrence but to have actively participated in the assault on the deceased-Phuleshwar @ Feku. It was, therefore, prayed that the applicant herein should also be impleaded as an accused.
3. The Trial Court after considering the application and after giving an opportunity of hearing not only to the rival parties but also to the applicant, passed the impugned order dated 19-4-2006 on the ground that there was overwhelming evidence to show that the applicant herein, i.e., Pichharu @ Purushottam had actively participated in dragging the deceased and assaulting him along with other co-accused. On these grounds, the learned Trial Judge, in exercise of the power under Section 319, Cr.PC ordered that the applicant herein be impleaded as an accused.
4. Pursuant to the filing of Criminal Revision against the impugned order by the present application and in compliance of the order dated 20-6-2006 passed by this Court, wherein reliance was placed on Shashikant Singh v. Takeshwar Singh and Anr. : 2002CriLJ2806 , the learned Trial Judge delivered judgment against the accused persons and convicted all the seven accused persons for offences under Sections 148 and 302 read with Section 149, IPC while also convicting accused Hariha @ Baishakh under Section 323, IPC.
5. Shri Manoj Mishra, learned Counsel for the applicant has placed reliance on Michael Machado and Anr. v. Central Bureau of Investigation and Anr. : 2000CriLJ1706 , while contending that since the trial in the Sessions Case had concluded and final arguments had also been heard, the Trial Court was not justified in impleading the applicant herein as an accused merely on the basis of the evidence of some of the witnesses creating a mere suspicion against the applicant herein as being a part of the unlawful assembly which committed rioting and murder of Phuleshwar @ Feku. It was also contended that the applicant was neither named by Binesh Marawi (P.W. 1) in the FIR nor by any of the witnesses in their statement under Section 161, Cr.PC for having taken any part in the assault on Phuleshwar @ Feku. The applicant herein was cited by the prosecution as a witness of seizure of the clothes which were removed from the body of accused persons and also the memorandum of accused Bhokta, Kariman, Krishna and Duhanram on the basis of which the weapon of offence, i.e., Tangia and one Bamboo stick were recovered. In this view of the matter, the Trial Court was wholly unjustified in exercising the discretionary power vested in it under Section 319, Cr.PC in impleading a prosecution witness as an accused at such a belated stage of the trial. On the other hand, Shri Ashish Shukla, learned Govt. Advocate argued in support of the impugned order passed under Section 319, Cr.PC by the learned Trial Judge.
6. Having heard rival submissions, I have minutely perused the record. The testimony of Binesh Marawi (P.W. 1) in Para 19 clearly shows that while lodging the First Information Report he had categorically named Pichharu as the assailant of this father but the same was not recorded truthfully by the Police Officer. Ghuneshwari P.W. 3 has in Para 2 of his testimony categorically stated that Pichharu, the applicant herein, had taken her father to the house of accused Bhokta for slaughtering a goat and while returning the applicant had caught hold of her father and dragged him to the courtyard of Bhokta where besides being assaulted by the other co-accused persons, the applicant Pichharu had also assaulted her father by kicks. In Paras 7 and 8, she has categorically stated that she had narrated the aforesaid facts in her statement under Section 161, Cr.PC. Gupta Prasad, P.W. 4 has also stated in Para 3 that the applicant Pichharu had assaulted Phuleshwar by kicks and had pressed him with his feet while the other co-accused were assaulting Phuleshwar. In Para 8, he also stated categorically that he had mentioned the name of Pichharu as the assailant on Phuleshwar in his statement under Section 161, Cr.PC. Chhotu (P.W. 5) also named the applicant in Para 2 of his testimony by stating that Pichharu had also kicked his grandfather late Phuleshwar @ Feku. Brinda P.W. 6 in Para 2 of her testimony also deposed that Pichharu and Duhan had come to call Phuleshwar. Smt. Teejo Bai (P.W. 14) also deposed in Para 2 that while other co-accused were assaulting Phuleshwar, the applicant Pichharu had pressed the hands and feet of Phuleshwar. In Para 6, she stated that she had mentioned the name of Pichharu in her statement under Section 161, Cr.PC.
7. It is pertinent to note that Investigating Officer Sub-Inspector V. Pradhan (P.W. 13) has admitted in Para 51, on a Court question that Pichharu @ Purushottam had told him that Phuleshwar @ Feku was spreading terror and indulging in robbery and anybody who would interfere was beaten by Phuleshwar. It was also narrated to him by Pichharu that on the date of occurrence, if the accused persons had not killed Phuleshwar, he would have certainly killed one or two of the accused-persons. It thus appears that Purushottam @ Pichharu was undoubtedly present at the scene of occurrent as he was the person who had taken the deceased to the house of Bhoktha. Sub-Inspector V. Pradhan P.W. 13 categorically stated that he did not think it necessary to record the statement of such an important witness. It thus appears that there has been a deliberate attempt on the part of the Investigating Officer to shield the applicant herein Pichharu @ Purushottam. The testimony of Binesh Marawi (P.W. 1) leaves no room for any doubt that he had mentioned the name of Pichharu @ Purushottam in the FIR lodged by him which was not recorded by the Police. Other witnesses as mentioned above have also categorically stated about the involvement of the applicant herein in the assault on Phuleshwar @ Feku. It is also borne out that the applicant herein was the person who had brought Phuleshwar @ Feku to the house of Bhoktha.
8. It is also pertinent to note that Pichharu @ Purushottam who was examined as a prosecution witness has clearly lied by stating that he was in his house and the police had falsely named him as a witness of seizure of the weapon of murder used by the accused-persons. He thus deliberately concealed the truth since his testimony in Paras 9, 10 and 11 leaves no room for any doubt that he was present at the place of occurrence.
9. It is true that the power under Section 319, Cr.PC is an extra-ordinary power conferred upon the Court and should be used sparingly and only if compelling reasons exist for taking cognizance against other persons against whom prosecution has not been initiated. Applicant Purushottam @ Pichharu was not impleaded as an accused by the prosecution and the aforesaid discussion prima facie goes to show that the applicant had in fact brought the deceased to the house of Bhoktha and had actively participated with other accused-persons in assaulting Phuleshwar @ Feku with kicks. Therefore, in the facts and circumstances of the case, it cannot be said that the learned Trial Judge had ordered impleading of the applicant herein as an accused without any justification. There is evidence of as many as 6 witnesses which goes to show the complicity of the applicant in the crime resulting in the murder of Phuleshwar @ Feku. It can also not be ruled out that the Investigating Officer has deliberately attempted to shield the applicant herein by not recording his name in the FIR and also by not recording his statement under Section 161, Cr.PC although he was undoubtedly present at the scene of occurrence. Explanation offered by the Investigating Officer in Para 51 is wholly unsatisfactory.
10. In view of the above discussion, it cannot be said that the discretion exercised by the learned Trial Judge in impleading the applicant herein as an accused for offences under Sections 148 and 302 read with Section 149, IPC vide order dated 19-4-2006 was in any manner contrary to law or unjustified in the facts and circumstances of the case. No ground for interference in the impugned order in exercise of revisional jurisdiction is thus made out.
11. In the result, this Criminal Revision being devoid of merit is dismissed. Since the trial against Bhoktha and six other accused persons has already been concluded resulting in their conviction vide judgment dated 11-7-2006 passed by the learned First Additional Sessions Judge, Ambikapur, Dist. Sur-guja, the applicant herein shall be tried separately now for the offences under Sections 148 and 302 read with Section 149, IPC.
12. A copy of this order be given to Government Advocate for ensuring compliance. A copy of this order be also sent to learned 1st Additional Sessions Judge, Ambikapur, Dist. Surguja for necessary compliance.