JUDGMENT

S.B. SINHA, J.

1. Leave granted.

2. A First Information Report was lodged against the appellant herein by one Rafiq on 10.11.2005 alleging commission of an offence under Section 307/324 IPC. In view of the death of the injured, the case was converted to one under Section 302 IPC. The police submitted a chargesheet only against one Karimullah @ Aarif. No chargesheet was submitted as against the appellant herein. After the matter was taken up for hearing before the learned Trial Judge, respondent No. 1 examined himself as P.W. 1. In his examination-in-chief, he alleged that the incident had taken place in his presence and the appellant had taken part in the incident. An application was filed for summoning the appellant herein under Section 319 of the Code of Criminal Procedure only on the basis thereof. The learned Sessions Judge refused to accede to the said prayer stating:-

"File is taken up. Statement has been perused in regard to the application under Section 319 CrPC. On perusal of the statement of the witness PW1 Rafiq, until now, witnesss chief examination is only done. The witness had stated the incident has taken place in his presence and has further stated to reach the