JUDGMENT

Manju Goel, J. The present petition challenges the order dated 23.9.2004 whereby the learned Additional Sessions Judge confirmed the earlier order of his court for summoning the petitioner as an accused in case FIR No. 248196 under Sections 302/34 IPC and 25/54/59 of Arms Act of P.S. Chandni Mehal in exercise of power under Section 319 of the Code of Criminal Procedure (In short `Cr.P.C.')

2. The FIR was registered on the murder of one Chander Shekhar committed by accused Kanshi Ram in broad day-light on 27.12.1996. The information of the murder was given to the police by the brother of the deceased Dinesh. The accused Sagir Ahmed was arrested on 30.12.1996 and on his disclosure accused Kanshi Ram was arrested on 31.12.1996. The petitioner was named by the complainant after nearly a gap of 15 days. Investigation, however, did not find sufficient evidence against the petitioner. He was named in the column No.2 of the FIR. After the challan was filed, the public prosecutor moved an application under Section 319 on the basis of the statement under Section 161 Cr.P.C. The application was allowed and the petitioner summoned. This order was set aside by this Court on 5.9.1999. A application under Section 319 was again moved after the witnesses deposed before the Court of Sessions and named the petitioner as one who exhorted the alleged murderer to kill the victim. The application was allowed, this order dated 5.9.2002 was again challenged before the High Court. The High Court disposed of the revision petition with the observations that the points raised before the High Court be raised afresh before the Sessions Court so that the Sessions Court could reconsider. Its earlier order under Section 319 Cr.P.C. The matter was then re-heard. The trial court, by Impugned order, maintained its earlier stand of summoning the petitioner under Section 319 Cr.P.C.

3. Before proceedings further the testimonies of witness produced before the trial court, relevant for the purpose for the disposal of this petition is required to be examined.

4. PW-1, Mahender Prasad describing the incident as an eye witness says that when he reached the site outside the gall of Katra Deena Nath, he found Kanshi Ram with a knife along with Mohd. Rahish and Sagir Ahmed. He says that Sagir Ahmed caught hold of Chander Shekhar while Mohd. Rahish @ Haddi exhorted the accused Kanshi Ram to finish Chander Shekhar. He then names the petitioner, Santosh Kumar Gupta, and says that he also exhorted Kanshi Ram saying "that he should be finished Chander Shekhar and he will see to it" (sic). What is meant by the witness is that the petitioner exhorted Kanshi Ram to finish Chander Shekhar and that he (petitioner) will take care of the consequence. The witness describes the entire incident that followed thereafter in which the witness also received stab injuries on his left arm & shoulder and Chander Shekhar in his abdomen, on his left shoulder and back. The witness was cross-examined by the accused who were facing the trial. The witness stands by his chief examination on the point in issue before this court.

5. PW-3 Rekha is the sister of the deceased. She also claims to be the eye-witness. She says "At that time, Santosh Kumar Gupta, who is running atta shop near the Katra was also present outside his shop and lie was also exhorting the accused persons to kill my brother Chander Shekhar". She has also been cross-examined.

6. PW-5 Dinesh Gupta, brother of the deceased, inter alia, stated "I heard Lala Santosh telling Kanshi Ram on the date of incident to kill my brother Chander Shekhar the deceased and that he would see to it" PW.9, Naveen Kumar, another eye-witness says "At that time" Santosh Gupta was present at his shop which is situated opposite to the place of occurrence and told Kanshi Ram and other accused persons laughing "Tu Mar Baki Main Dekh Loonga". I disclosed to the police but they did not record the fact.

7. The question is whether on the basis o