JUDGMENT
K.S. Garewal, J.
1. Gurpal Singh and Nirbhey Singh have filed this petition to challenge the order of the learned Addl. Sessions Judge, Ambala dated November 15, 2000, whereby the petitioners have been summoned to stand trial along with six accused on the basis of an application under Section 319, Cr.P.C. moved by the Public Prosecutor,
which was allowed.
2. Ravinder Kumar@ Dr. Bobby, Darshan Singh@ Arjun, SurinderKumar@ Bhura, Smt. Manju @ Sapna, Dharamvir @ Rakesh and Surinder Singh @ Chinda were sent up by the police for offences under Sections 302, 201, 343, 395 and 120B, IPC, in respect of which FIR No. 86 dated May 23, 1999 has been registered at Police Station Mahesh Nagar, Ambala concerning the murder of Joginder Singh and the subsequent disposal of his dead body.
3. The learned Addl. Session Judge was.of the view that there was evidence on record which was not required to be minutely scrutinised and it was not to be seen whether the credibility of the witnesses had been impeached. The evidence of Jasbir Singh PW-2 to the effect that he had heard Gurpal, Darshan Singh, Nirbhey and Surinder Chhindatalking between themselves near the vegetable rehri at bus stand, Mahesh Nagar when he was purchasing the vegetables and that they were saying that they should not delay and Joginder Singh should be done away with. This was the only evidence on the basis of which Gurpal Singh and Nirbhey Singh had been summoned by the learned Addl. Sessions Judge.
4. Learned counsel has placed reliance on the decision of the Supreme Court in Michael Machado and another v. Central Bureau of Investigation and another, 2000(2) RCR (Crl.) 75 (SC) : AIR 2000 SC 1127 and has argued that in that case statements of three witnesses had been placed before the Hon’ble Supreme Court and it was held as under :-
“The court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraint imposed by the first limb of the sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined….. Unless the Court is hopeful that there^s reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned, we would say that the Court should refrain from adopting such a course of action.”
5. Furthermore, the Hon’ble Supreme Court came to the conclusion that the statements of witnesses may create some suspicion, but suspicion was not sufficient to hold that there was a reasonable prospect of convicting the appellants of the offence of criminal conspiracy. In the present case the evidence of Jasbir Singh PW-2 has been carefully scrutinised. Although he states that Gurpal Singh, Darshan Singh, Nirbhey Singh and Surinder Chhinda were talking with each other and had said that they should not delay and Joginder Singh should be done away with. This conversation had been over- heard by Jasbir Singh. The witness on cross-examination had testified that he had stated before the police regarding the conversation over-heard by him near the vegetable rehri, but when confronted with his statement Ex.DA, it was found that it was not so mentioned. According to the learned prosecutor there was a supplementary statement by the witness, where he had so stated.
6. The deceased was Jasbir Singh’s uncle. On hearing about the discovery of dead body, the witness had gone to the spot and identified the dead body. This was the stage at which the witness would have naturally disclosed what he had over-heard. His failure to do so at the initial stage cannot be overcome by a subsequent supplementary statement regarding the conspiracy, which the prosecution relied upon when the statement under Section 319 Cr.P.C. was filed. The petitioners were not sent up for trial along with co-accused after the investigation had been completed, for the obvious reason that the investigator found that there was insufficient evidence against the petitioners. At that stage the investigator must have considered both, the main and the supplementary statements of Jasbir Singh PW2. The testimony of Jasbir Singh is not and can never be enough to find the petitioner guilty of conspiracy. There was no other evidence before the learned Addl. Sessions Judge to summon the petitioners. Since the evidence relied upon is deficient, the case is covered by the decision of the Supreme Court in Michael Machado and another (supra).
7. In view of the above, this petition is accepted and the order of the learned Addl. Sessions Judge, Ambala, is set aside.
8. Petition allowed.