IMPORTANT POINT
The power under section 319 of the Code of Criminal Procedure should be used cautiously and requires strong and reliable evidence to summon an additional accused.

JUDGMENT :

1. The present appeal is filed under section 14A(2) of the Schedule Cast & Schedule Tribe (Amendment) Act, 2015 challenging the order passed below Exh.60 in Special Atrocities Case No.13 of 2021 whereby, the applicant is ordered to be joined as accused no.4 by exercising the power under section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C).

2. It is the case of the prosecution that FIR came to be lodged by Kalpanaben wife of Manojbhai Valjibhai Parmar for the offences punishable under section 302, 307, 323, 294b, 506(2), 120b, 34 of Indian Penal Code, 1860 and section 135 of the Gujarat Police Act on 16.02.2021 around 8:30 in the night alleging three named accused persons and one unnamed person armed with deadly weapons attacked and killed the husband and caused serious injuries to her father-in-law.

2.1. On setting criminal law in motion, the Investigating Officer recorded the statement of 22 witnesses including the eye-witness namely Kalavatiben Jitubhai Vankar, and statement recorded under section 164 of Cr.P.C of complainant Kalpanaben, Kalavatiben and Valjibhai Parmar on 03.03.2021 produced before the learned trial court below Exh.55 wherein also, this witness has stated that applicant came on the spot on his bike and inflicted blows with knife on the throat of the deceased and thereafter, fled on his bike. The description of the clothes put on by Sunil Parmar, the applicant, was also given by the present witness.

2.2. Thereafter, Investigating Officer interrogated the applicant at the police station. However, instead of arraigning him as an accused, he was shown as witness no.33. Likewise the applicant, his mother namely Radhaben was also named by this witness alleging that she was instigating the other accused persons to kill the deceased. However, during the statement recorded under section 164 of Cr.P.C, no allegations were made against the mother namely Radhaben and she was also shown as witness no.39 in the charge-sheet dated 11.04.2021.

2.3. On filing the charge-sheet, the application was moved by the father of the deceased namely Manojbhai Valjibhai Parmar below Exh.9 on 07.09.2021 raising grievance that though name of the applicant and his mother was stated in the statement recorded under section 161 of Cr.PC, as well as daughter who was the eye-witness has identified the applicant from the CCTV footage of the place of offence, the Police Officer in connivance with the applicant and his mother, has exonerated the present applicant and his mother without filing any report before the Court of law.

2.4. It is further stated in the application that the complainant who is daughter-in-law has left the house after the death of the son and she is not maintaining any relations with the witnesses who are parents and sister of the deceased. It was further contended in the application that statement which was recorded by the applicant i.e the father of the deceased under section 164 of Cr.P.C, name of the applicant though mentioned, the Police Officer did not array the applicant as accused and thereafter, though complaint was made, no actions were taken by the Police Officer. It is submitted that due to old age and the injury which was caused by the accused persons, the movement in his one hand was restricted. It is prayed in the application below Exh.60 to array the applicant and his mother namely Radhaben as accused in the offence. This application was filed on 07.09.2021 i.e immediately after the charge-sheet was submitted. The aforesaid application was permitted to be withdrawn vide order dated 26.01.2022 with a liberty to file afresh at the stage of recording of evidence.

2.5. Thereafter, the evidence of the witness namely Kalavatiben was recorded below Exh.51 on 20.07.2023. During the chief-examination, she narrated the incident by deposing when they were returning from the Makarpura Railway Station in the rickshaw all the accused including the applicant has brutally assaulted the