JUDGMENT

Syed Aftab Husain Rizvi, J. - Heard learned counsel for the revisionist, learned counsel for opposite party no.2 as well as the learned A.G.A. and perused the material placed on record.

2. The revisionist, by way of filing the present revision, has sought to quash the impugned judgement and order dated 15.05.2019 passed by Additional Session Judge/Special Judge (POCSO Act), Court No.8, Allahabad in Session Trial No.793 of 2015 (State v. Lallu Ram and others) arising out of Case Crime No. 273 of 2015 under Section 302 I.P.C., Police Station Handiya, District Prayagraj/Allahabad. By the impugned order, learned trial court, on an application filed by the prosecution under Section 319 Cr.P.C., has summoned the revisionist to face trial with co-accused, Lallu Ram.

3. An F.I.R. was lodged on 22.06.2016 alleging therein that today father of complainant, Jagmal Prasad was returning from Allahabad,on the way, at 5.30 p.m. when on his Vikki motorcycle, he reached near Village Chaknandu Nahar Puliya, Lallu Ram Yadav and Bhola Yadav due to old enmity opened fire on the head of Jagmal Prasad by a country-made pistol. He died on spot. At the same time, Samar Bahadur, brother and Ram Prasad, uncle of the complainant, who were returning home, hearing the sound of fire, reached at the spot, then accused persons, waving the country-made pistols ran away from the spot. After investigation charge-sheet was submitted only against one accused, Lallu Ram Yadav. The other named accused, Bhola Yadav was exonerated. During course of trial three witnesses, Amar Bahadur PW 1, Samar Bahadur PW 2 and Ram Prasad PW 3 were examined. Thereafter, an application under Section 319 Cr.P.C. was filed by the prosecution on the grounds that the complainant in the F.I.R., in his statement under Section 161 Cr.P.C. and in testimony before the court has corroborated the allegations of the F.I.R. that Lallu Ram Yadav on the exhortation of Bola Yadav with intention to kill has opened fire on Jagmal Prasad causing his death. There are other eye-witnesses,Samar Bahadur PW 2 and Ram Prasad PW 3, who also in their statement under Section 161 Cr.P.C. and before the trial court, have fully corroborated aforesaid statement. The Investigating Officer has submitted charge-sheet only against Lallu Ram while it is clear that Bhola Yadav is also involved in the incident with co-accused Lallu Ram Yadav. Prayer was made to summon the accused, Bhola Yadav. Learned trial court has allowed the application and summoned the revisionist-accused.

4. It is contended by the learned counsel for the revisionist that there is no evidence against the revisionist fulfilling conditions required for summoning under Section 319 Cr.P.C., hence the impugned order is not sustainable in the eye of law. It is further contended that from the statements of Amar Bahadur PW 1, Samar Bahadur PW 2 and Ram Prasad PW 3 who are alleged to be eye-witnesses of the incident, it is clear that they were not present at the time of the incident, but they came later on. It is next contended that Investigating Officer during the course of investigation has collected the evidence of the fact that the revisionist-accused was employed at Mumbai and at the relevant time he was at Mumbai in relation to his employment. The Investigating Officer has collected reliable and cogent evidence in this respect and on these grounds exonerated the revisionist-accused. Learned trial court while passing the impugned order has lost sight of the evidence collected by the Investigating Officer that revisionist-accused was not present in the village at the time of occurrence. Learned counsel ha