JUDGMENT:

V.S. SIRPURKAR, J.

1. Leave granted.

2. Aggrieved by the order passed by the High Court in Criminal Revision, the accused comes up before this Court by way of this appeal.

3. By its impugned order, the High Court allowed the Revision and directed the Trial Court to re-hear the application filed under Section 319 of the Code of Criminal Procedure by applying its judicious mind and to pass the appropriate order according to law.

4. The following facts will be necessary for our purpose. On 12.11.2003 a written report came to be made at Police Station Neem-ka- Thana, District Sikar, Rajasthan by one Rohitas Kumar, contending therein that while he was having his dinner at his home, he was attacked by Ram Prasad Kailash, Pawan Kumar, Krishan Kumar, Chameli and Manju. It was asserted therein that Chemely and Manju also assaulted his wife Maya Devi. On the basis of this report offences were registered under Sections 147, 148, 341, 452, 24/149, 323, 324/149 and 308/149 IPC. The investigation proceeded and a charge-sheet came to be filed. However, in that charge-sheet the present appellant Kailash was not arrayed as an accused. During the course of trial when the prosecution witnesses were examined, the complainant moved an application under Section 319 Cr.P.C. However, that application came to be rejected. In that application, the complainant alleged that the present appellant Kailash was bound to be joined as an accused as it was clear from the records and the evidence that there was enough material against him.

5. This application was opposed by the other accused persons on the ground that there was no material against Kailash and, therefore, there was no basis for taking cognizance on the basis of the application made by the complainant. The State supported the application contending that the witnesses had stated that Kailash had held an axe in his hand that he had hit on the hand and head of Rohitas. The injury on the head of Rohitas was proved from the medical report and that Rohitas, Ram Singh Ramavtar and Maya Devi had also involved Kailash in their statements before the police under Section 161 Cr.P.C.

6. The learned Sessions Judge took stock of the evidence which was led during the trial and came to the conclusion that there was nothing in the First Information Report (Exh.P-1) to suggest that Kailash was having an axe in his hand and that he had caused the injury on the head or finger of the injured Rohitas. He also found that in the statements of the witnesses including injured Rohitas, Ram Singh, Ramavtar and Maya Devi, nobody had stated that Kailash was having an axe in his hand and he caused any injury to Rohitas with axe. He found that Rohitas, in his police statement, has stated to have been hit with a lathi. The Sessions Judge also observed that even if Kailash was presumed to be present at the place of occurrence, it was not proved that he took part in the assault and there was no justification for taking any cognizance against him. He found that Rohitas (PW1) in his statement had improved upon his evidence before the court and had added that Kailash inflicted axe blow on his hand and head, however, his injuries suggested that they were caused by a blunt weapon. It was also found by the learned Sessions Judge that even Ramavtar (PW3) had deposed that nobody struck Rohitas with an axe before him. Even Maya (PW-4) had also not stated in her statement about Kailash to have inflicted injuries to Rohitas with an axe. Although these witnesses had stated in their evidence that Kailash was having an axe in his hand, the Sessions Judge found that they have made improvement in their evidence. He accordingly dismissed the application by his order dated 24.4.2004.

7. It was this order of the Sessions Judge which was challenged by way of a Revision Petition. The Revision remained on pending and in the meantime, however, the other five accused, against whom the prosecution was going on, were acquitted of the charges under Se