U.S. Tripathi, J.
1. This revision has been directed against the order dated 3-9-2002 passed by Additional Sessions Judge (Court No. 3), Aligarh in Sessions Trial No. 143 of 2002 summoning the applicants under Section 319, Cr.P.C. for trying them along with other accused of the said case.
2. The facts giving rise in this revision, briefly stated, are as below :--
On 14-4-2001 Onkar Singh opposite party No. 2 lodged a report at P.S. Gonda district Aligarh with the allegations that on 14-4-2001 his cousin brother Rajendra Singh alias Lonu had gone to Aligarh for his personal work. The opposite party No, 2 (complainant) had also gone along with his cousin brother on a scooter. The scooter was being driven by his Samadhi, Dalbeer Singh and Rajendra Singh was proceeding on a motor cycle. The above three persons were returning to their village in the same position (i.e. Rajendra Singh was on motor cycle and opposite party No. 2 and his Samadhi were on scooter). Motor cycle of Rajendra Singh was few steps ahead. Near Pipali turning the applicants Brijesh Kumar, Deoraj and Ram Kishan Singh came on a motor cycle and crossed the scooter on which the complainant was sitting. The applicant Deoraj reaching near Rajendra Singh at about 5.30 p.m. fired country made pistol on him (Rajendra Singh). Rajendra Singh fell down on the road. The complainant got down from the scooter, on which he was travelling, stopped and found that Rajendra Singh died on the spot and the applicants went away towards Gonda on their motor cycle.
3. On the basis of above report of a case at crime No. 62215201077 of 2001 was registered. After investigation the police did not submit charge sheet against the applicants, but submitted charge sheet against other three persons namely Moti. Naseeruddin and Ajeet. The learned Magistrate took cognizance and committed the case to the Court of Session where it was registered as Sessions Trial No. 143 of 2002. During trial Onkar Singh (PW 1), Jai Narain (P. W 2), Khajan Singh (PW 3), Udaiveer Singh (P.W. 4) and Dalveer Singh (P.W. 4) were examined before the Court.
4. An application under Section 319, Cr.P.C. was moved from the side of prosecution for summoning the applicants as accused for trial along with other accused of the case on the ground that they were involved in the offence.
5. The learned Sessions Judge on considering the evidence which was before him and submissions of the learned counsel for the parties held that Onkar Singh (P.W. 1) and Dalveer Singh (P.W. 5) have categorically stated about the involvement of the applicants in the offence that there was sufficient ground for summoning them for trial as provided under Section 319, Cr.P.C. With these findings he allowed the application and summoned the applicants for trial along with other accused.
6. The above order has been challenged in this revision.
7. Heard Sri V.P. Srivastava learned counsel for the applicants, Sri Dharmendra Singhal appearing for opposite party No. 2 and learned A.G.A. and perused the record.
8. The learned counsel for the applicants contended that though the accused were named in the F.I.R. but during investigation their Implication was found false and charge sheet was submitted against other set of accused. He further contended that the witnesses examined in the Court namely Jai Narain (P.W. 2), Khajan Singh (P.W. 3) and Udaiveer Singh (P.W. 4) have not stated about the involvement of the applicants in the offence. He further contended that persons summoned under Section 319, Cr.P.C. has to be tried "together" with the accused. That according to the prosecution other set of accused against whom charge sheet was submitted had committed the offence while according to opposite party No. 2 the applicants the other set (the applicants) had committed the accused is not possible. He also placed reliance on single Judge decision of Kerala High Court in Annamma Cherian v. State of Kerala, 1990 Cri LJ 1796 and another single Judge decision of same High Court in Plywood House v. Wood Craft Products Ltd. 1994 Cri LJ
9. Section 319, Cr. P.C. reads as below :--
"(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeded against any person under Sub-section (1) then --
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the Inquiry or trial was commenced."
10. It appears that the learned Sessions Judge considering the evidence of Onkar Singh (P.W. 1) and Dalveer Singh (P.W. 5), examined before the Court was of the view that the applicants not being the accused before him have committed an offence for which they could be tried together with the accused and therefore, he summoned them.
11. So for the prima facie evidence regarding involvement of the applicants in the offence is concerned there is evidence of Onkar Singh (P.W. 1) and Dalveer Singh (P.W. 5). These witnesses have stated the involvement of the applicants in the offence and corroborated F.I.R. version. However, three other witnesses Jainarain (P.W. 2), Khajan Singh (P.W. 3) and Udaiveer Singh (P.W. 4) have not stated about the involvement of the applicants. But at this stage it cannot be said as to which of the witnesses are reliable and which are concealing the truth before the Court. The reliability of the witnesses shall be decided by the trial Court at the appropriate stage. It is sufficient for purposes of this revision to observe that the two witnesses have stated about the involvement of the applicants and therefore, there was sufficient ground for the learned Sessions Judge to summon the applicants under Section 319, Cr. P. C.
12. The next contention of learned counsel for the applicants was that since the witnesses have introduced two sets of accused, the applicants cannot be tried together with the accused already facing trial and therefore, they could not be summoned. I find no force in the above contention. The dictionary meaning of word "together" given in THE NEW LEXICON WEBSTER'S DICTIONARY, (revised and updated edition 1987 is 'in or into contact' or 'union' or 'in or into same place, group etc.' or 'with each other or' by combined action',
13. On the plain reading of Section 319, Cr.P.C. the word 'together' occurring in it means the persons summoned under Section 319, Cr.P.C. be tried along with other accused already facing trial subject to the condition laid down in Sub-section (4) of the Section 319.
14. If the witnesses stated about difference two wet (sic) of assailants it will not affect the trial of applicants together with other co-accused as the trial Court has to decide on the basis of evidence on record as to which particular accused or set of accused committed the offence. Therefore, there will be no difficulty in the trial of the applicants together with the accused already facing trial. The question whether the applicants actually committed offence or they were falsely implicated and offence was committed by some other persons is to be decided by the trial Court and no finding was required to be recorded by the Sessions Judge at this stage.
15. The decision in Annamma Cherian case (supra) is of no help, because in the said case the prosecution was going on under the Essential Commodity Act and additional accused was impleaded by invoking Section 319, Cr.P.C. for fresh charge and the charge against the newly added accused was Independent and had no nexus to the offences alleged against accused alrea'dy on party array and the newly added accused was tried and convicted for offences other than the offences already taken cognizance. In this case the position is totally different as the accused already being tried for the offence punishable under Section 302, I.P.C. and the applicants have also been summoned for trial of the same offence. Moreover, the case has been committed to the Court of Session and not an individual accused or a particular offence. The offence which the applicants committed will be decided on the basis of allegations and evidence.
16. The other decision in Plywood House v. Wood Craft Products Ltd. (1994 Cri LJ 543) (supra) also does not help the applicants and in the said case settled view that a Court takes cognizance only of the offence and not of any offender was reiterated. The view of Apex Court in Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167 that "once cognizance has been taken by the Magistrate, he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons," was followed.
17. In this way there will no procedural defect in the trial of applicants together with the accused already arrayed accused because the case may proceed as if such persons (the applicants) had been accused persons when the Court took cognizance of the offence upon which the enquiry or trial commenced (vide Sub-section (4) of Section 319).
18. In view of the above discussions and observations. I find that there is no illegality or irregularity in the order under revision.
The revision has no force and is accordingly, dismissed.