Punjab-Haryana High Court
Manender vs State Of Haryana And Anr on 6 May, 2022
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
CRR No. 4034 of 2017 (O&M) -1-
In the High Court of Punjab and Haryana at Chandigarh
CRR No. 4034 of 2017 (O&M)
Date of Decision: 06.5.2022
Manender ......Petitioner
Versus
State of Haryana and others ......Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
Present: Mr. Rakesh Nehra, Senior Advocate with
Mr. Atul, Advocate and
Mr. Reetesh Kumar, Advocate
for the petitioner.
Mr. Tanuj Sharma, AAG, Haryana.
Mr. Ashwani Gaur, Advocate
for respondent No. 9.
Mr. Akashdeep Singh, Advocate
for respondent No. 10.
****
SURESHWAR THAKUR, J. (ORAL)
1. FIR No. 726 of 13.12.2016 became registered at Police Station Kalanaur, District Rohtak. The offences constituted thereins are embodied in Sections 302, 323, 148, 149 IPC.
2. After the conclusion of investigations into the FIR (supra), by the investigating officer concerned, the latter proceeded to institute an affirmative report under Section 173 Cr.P.C., before the learned Committal Court concerned. However, thereins he arrayed Balwan, Vijay, Rahul, Ram Kumar, and, Ram Niwas, as accused, in the commission of offences (supra). However, he excluded thereins, the names of Ram Kishan, Manju, Rajni, Kamlesh, Bharti, Krishna, Kela, Gurjit, and, Ravi. Consequently, only the For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR THAKUR 1 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -2- included, in the affirmative report filed under Section 173 Cr.P.C., rather became committed for trial by the Committal Court, to the learned Sessions Court concerned, for theirs facing charge(s) for the offences (supra), as become embodied in the FIR (supra).
3. After charge being put to the afore accused, whose names became included in the affirmative report filed under Section 173 Cr.P.C., hence the trial against them opened. After opening of trial against the above named accused, one of the prosecution witness, namely one Maninder, stepped into the witness box as PW-1, and, in his deposition, comprised both in his examination in chief, and, in his cross-examination, rather he in the completest tandem, with his previous statement, recorded in writing, by the investigating officer concerned, attributed to the exonerated persons (supra), an inculpatory role. The above made inculpation by PW-1, led the public prosecutor concerned, to institute an application, cast under Section 319 Cr.P.C., before the learned trial Judge concerned. However, thereons, a disaffirmative order became pronounced, and, has hence caused pain to the aggrieved complainant, and, has led him to cast a challenge thereto, through his instituting the instant petition before this Court.
4. Before proceeding to determine the validity of the afore made disaffirmative order, as made by the learned trial Judge concerned, upon, the prosecutors application, cast under Section 319 Cr.P.C., it is imperative, to bear in mind the factum, that the learned counsel for the aggrieved complainant, has made a statement, at the bar, that he would be challenging only that part of the impugned order, insofar as it appertains to one Gurjit Singh, and, one Ravi @ Mohit. Therefore, only to the extent of the above being amenable or not, for theirs being summoned for theirs facing trial For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR THAKUR 2 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -3- along with the already appearing accused, this Court would proceed to determine, the validity of the order, challenged before this Court.
5. The reasons which prevailed upon the learned trial Judge concerned, to make the disaffirmative order, on the prosecutors application, cast under Section 319 Cr.P.C., are carried in paragraph 4 of the impugned order, relevant para whereof is reproduced hereinafter.
"4. The complainant-Mahender had appeared as PW1 in the instant case and he has reiterated the averments made by him in the original complaintEx. P1. No fresh material has been brought on record by him. The statement made by him was duly considered by the Investigating Agency during the course of investigations and as has been highlighted above, the persons now proposed to be arrayed as accused were found innocent. There is absolutely no dispute with the case law relied upon by the prosecution/complainant to accentuate the fact that merely because some persons were found innocent by the Investigating Agency, the Court cannot refrain from summoning them as accused if cogent evidence is found against them. It may be pointed out here that the relevant word here is "cogent material". It is only if any cogent material is available against the proposed accused that they can be summoned. In the instant case, aside from a bald repetition of the facts, there is no other material on record against any of the proposed accused. The allegations against them had been duly investigated and verified but their complicity in the incident was not found. In fact, in his examination-in-chief, Mahender Singh (PW1) did not make any specific or fresh reference to any of the proposed accused. When a specific query was put to him in the cross-examination, he claimed that Gurjit Singh had assaulted his father with a jaili while all the other persons proposed as co-accused had pelted brickbats upon him and others. The MLR of Mahender shows that he was referred to dental opinion, but he did not get himself treated or examined. While deposing as PW1, he has stated that he was admitted to the hospital and that he had handed over a broken tooth to the concerned dental doctor. No such medical evidence is available on record. His testimony thus belies the medical record. Similarly, the witness Devender has stated in his statement under Section 161 Cr.P.C. that he suffered a broken tooth, but the medical opinion shows that there is no corresponding injury on his lips. No doubt, it was specifically stated by the complainant in the statement-Ex. P1 that Gurjit Singh had inflicted a jaili blow on the head of deceased Attar Singh. However, during investigations, Gurjit Singh was not found to be involved in the incident at all. No material particulars For Subsequent orders see to prove CRM-9275-2022 the by Decided presence HON'BLEand MR.involvement of Gurjit JUSTICE SURESHWAR THAKUR 3 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -4- has been produced before the Court which would justify summoning him. The medical opinion also indicates that the fatal injury on Attar Singh could only have been caused by "a heavy object which was blunt in nature and force." The deceased did not suffer from any sharp edged weapon injury. Vague and general allegations have been made against the remaining persons that they had pelted brickbats. These allegations remained uncorroborated during investigations and even now no cogent material has been found against them. In these circumstances, this Court is of the considered opinion that merely because the complainant has reiterated the contents of his complaint, is no reason to summon the proposed accused. There has to be some evidence beyond such oral reiteration which would justify the summoning of the accused and that too only if it indicated the complicity of the persons who are now sought to be summoned which is not the case at hand. Cognizance of an offence can be taken against a person not named as an accused or not arrayed as an accused if material is available on record against such a person. Mere suspicion is insufficient to summon a person as an accused howsoever tempting it may be. In the instant case, the allegations of pelting of brickbats qua most of the proposed accused is not fortified from the MLRs. Therefore, this Court is of the considered opinion that there is no justification in summoning any of the persons named in the application as co- accused in the instant case. Resultantly, the application, under disposal, is dismissed."
6. Though, in view of the expostulations of law, as carried in the case of Hardeep Singh versus State of Punjab and others, reported in 2014(1) R.C.R. (Criminal) 623, rather even the untested through cross- examination, any statement embodied in the examination-in-chief of the prosecution witness concerned, whereins, a penal inculpation is attributed to the persons, who are earlier exonerated by the investigating officer, in his report filed under Section 173 Cr.P.C., before the Court concerned, is declared thereins, to be sufficient to enjoin, the learned Court concerned, to make an order for summoning the persons concerned, to face trial along with the already appearing accused qua the charges concerned. However, in the instant case, the above PW-1, even became cross-examined, and, thereins no compatible exculpatory suggestion(s), for shredding the efficacy of his For Subsequent inculpatory orders deposition(s) see CRM-9275-2022 qua bythe Decided persons HON'BLE MR.concerned, who were JUSTICE SURESHWAR THAKUR 4 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -5- excluded by the investigating officer concerned, in his report under Section 173 Cr.P.C., rather become meted to him nor became either accepted or denied by him. Though, the above unshaterred deposition of PW-1 may be, a sequel of the above persons concerned, becoming not then defended by a defence counsel, and, hence obviously no suggestions to rip apart the inculpation made by PW-1, qua them, was ever available then, to be recoursed, at their instance, rather when the afore opportunity may become availed only after PW-1, becoming recalled at the instance of the above persons hence for enabling the defence counsel concerned, to mete the relevant exculpatory suggestions to him. However, since it is stated, at the bar, by the learned counsels appearing for the contesting litigants, that PW-1 is no longer surviving, therefore the afore opportunity may not be available to be recoursed by the above named persons, but yet the investigating officer concerned, can be yet become meted certain relevant exculpatory suggestions, by the learned defence counsel, with respect to the tenability or otherwise of his excluding, the above named persons rather from the array of accused.
7. Be that as it may, and, if so, the exoneration as made by the investigating officer concerned, with respect to the above named persons, is yet available to be tested, through the counsel concerned, meteing certain relevant exculpatory suggestions to the investigating officer concerned, upon his stepping into the witness box, thereupon, the summoning order cannot be faulted, at this stage, as at the above stage, no prejudice in trial would accrue to the persons concerned.
8. The above extracted reasons, which prevailed upon the learned trial Judge concerned, to make the disaffirmative order, upon the For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR THAKUR 5 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -6- prosecutors application, cast under Section 319 Cr.P.C., do at this stage, enjoin this Court to test the validity of the above order. The test for determining the validity of the afore order, is to be made, on anvil of the pronouncement, as made by the Hon'ble Apex Court in the verdict (supra), more specifically in the light of the expostulations occurring in paragraphs 98, and, 99 thereof, paras whereof become extracted hereinafter.
"98. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused."
9. orders see For Subsequent TheCRM-9275-2022 rule as propounded Decidedthereins, is that, by HON'BLE the satisfaction MR. JUSTICE SURESHWARto be THAKUR 6 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -7- drawn by the learned trial Judge concerned, upon, the prosecutors application cast under Section 319 Cr.P.C., becomes rested in the salient rubric, that the learned trial Judge concerned, becoming enjoined to draw an objective satisfaction, with respect to the inculpation, as is made against the persons concerned, not only on anvil of the statement, as made by the prosecution witness concerned, and, as comprised in his examination in chief, but obviously also upon the learned trial Judge concerned, rather along therewith, also keenly analysing the evidentiary worth of the other incriminatory evidence, both oral as well as documentary, as becomes appended by the investigating officer concerned, with his report filed under Section 173 Cr.P.C. However, the objectivity of the afore satisfaction, is, again embedded in the fine principle, that the evidence (supra), if goes unrebutted, may would lead to conviction, hence the persons concerned being amenable to be tried together with the appearing accused, and/or there being a triable case against the persons concerned, qua the charges framed. Moreover, the above power of summoning, as engrafted under Section 319 Cr.P.C., is to be exercised sparingly, and, not in a casual, and, cavalier manner.
10. Therefore, bearing in mind the afore principle of law, it has to be determined whether the satisfaction, as drawn by the learned trial Judge concerned, is objectively made, and/or, is made on principles which rather govern the triability of the persons concerned along with the already appearing accused persons, qua the apposite charges concerned. Obviously after adhereing to the above alluded fine principles, the learned Court concerned was required to be assessing the qualitative worth of the entire evidence, collected by the investigating officer concerned, and, in respect For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR THAKUR 7 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -8- whereof he made a report under Section 173 Cr.P.C., before the learned Court concerned.
11. In consequence, the analyses, as made by the learned trial Judge concerned, qua the testification of PW-1, is completely infirm, and, requires its being annuled.
12. The reasons for well forming the afore inference, becomes embedded in the factum, that the learned trial Judge concerned, has completely ignored the PMR, as became appended with the report filed, under Section, 173 Cr.P.C., and, as appertained to deceased one Attar Singh. The relevant portion of the PMR is extracted hereinafter. Conspicuously, the PMR concerned, comprised the most important incriminatory material against the persons concerned, as it, for the reasons hereinafter corroborated the testifiation of PW-1.
x x x x x
Examination of External Injuries
Sr. Injuries Marked Injury
No. Number
1. 1. A stitched wound of 2 cm length with 1 No 1
stitch of situ was present obliquely over the scalp at right frontal area, being situated 2 cm above the lateral end of right eyebrow, 6 cm from midline and 8 cm from right ear.
On removal of the stitch, wound margins were irregular. On dissection, underlying soft tissues were ecchymosed. On retraction of scalp, temporopareital region of scalp and left temporalls muscle were found to be contused. On further dissection, a depressed fracture, rectangular in shape measuring 3 x 2.5 cm was present over the left parietal bone just above the end of temporal bone.
From the lower end of this depressed fracture, a linear fracture of 10 cm length was found to be radiating towards temporal frontal area. Another linear fracture was present for 16 cm in curvilinear manner towards right side and ending over the occipital bone at right side. The fractured ends of bones show infiltration of blood in their bony trabeculae. On removing the skull and cutting through the dura, diffuse subdural and subarachnoid haemorrhage was For Subsequent orders see CRM-9275-2022 Decided present all over by HON'BLE the brain. MR. JUSTICE SURESHWAR Hemorrhagic THAKUR 8 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -9- contusions of size 4 x 2 and 3 x 1.5 cm were present over the left tempropocciptal and right temporal areas of brain. On removing the brain, bilateral orbital plates were found to be fractured. The fractured ends of bones show infiltration of blood in their bony trabeculae.
2. 2. A reddish abraded contusion of size 2.5 x No 2 0.5 cm was found to be present over the scalp at right side, 4 cm above the middle of right eyebrow and 5 cm from the midline in oblique manner. On dissection, underlying soft tissues were ecchymosed.
3. 3. A reddish abraded contusion of size 6 x 2 No 3 cm was present over the top of right shoulder in oblique manner. On dissection, underlying soft tissues were ecchymosed.
4. 4. A reddish contusion of size 5 x 2.5 cm No 4was present obliquely over the left cubital fossa. On dissection, underlying soft tissues were ecchymosed.
5. 5. A reddish contusion of size 4 x 2 cm was No 5present obliquely over front of upper one third of left forearm, 6 cm below the cubital fossa. On dissection, underlying soft tissues were ecchymosed.
6. 6. A reddish abrasion of size 1 x 0.5 cm was No 6present over the prominence of left knee.
Internal Examination
Sr. Component Remarks
No.
1. Cranium and spinal Cord (Brain must be exposed in every case, Spinal Cord need not to be examined except in cases of injury to vertebral column/Spinal Cord) Scalp Described Skull Described Meninges and Vessels Described Brain Described Vertebrae and Spinal Cord (Not legible) spinal cord not opened
2. Mouth, Pharynx and Oesophagus Mouth described, Pharynx and oesophagus were healthy
3. Neck Condition of next tissues Thyroid Healthy Hyoid bone Intact Larynx and Trachea Healthy
4. Thorax Chest wall, Ribs/Sternum and Cartilage Healthy Pleura/pleural Cavity Intact Lung (Rt) Congested on cut section.
Lung (Lt) Congested on cut section.
Pericardium Intact
For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR THAKUR 9 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -10- Heart Right side filled with blood and left side empty.
Coronary Arteries and Large Blood Healthy Vessel
5. Abdomen Peritoneum, Retroperitoneum Intact Stomach and its contents Contained about 50 cc of yellowish liquid material.
Mucosa was hyperemic Small intestine and its content Contained liquid material Large intestine and its content Contained fecal mattor and gases.
Liver and Gall Bladder Congested on cut section.
Spleen Congested on cut section
Pancreas Congested
Kidney (Rt.) Congested on cut section
Kidney (Lt.) Congested on cut section
Urinary Bladder Empty
(Male)
Testes (Rt.) Healthy
Testes (Lt.) Healthy
x x x x x
13. A reading of the hereinabove extracted relevant portion, of the PMR concerned, as prepared by the doctor, after his making examination on the body of deceased Attar Singh, rather reveals that his head had been encumbered with injuries. The afore injuries are revealed in the deposition of PW-1, to be sequel of one Gurjit Singh, striking the head of deceased Attar Singh, through his using a "jaili". Though, the learned counsel for the above Gurjit Singh submits, with much vigour before this Court, that "jaili" is a sharp edged weapon, and, that deep incised wounds were to be hence occurring on the relevant parts of the body of deceased Attar Singh, whereas, with lateral injuries being reflected in the PMR to occur thereons, thereupon, the striking by one Gurjit Singh, with "jaili", hence the head of deceased Attar Singh, becomes completely belied, and, he further contends that the impugned order does not merit any interference.
14. However, the afore made submission is completely misfounded, For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR THAKUR 10 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -11- and, is amenable for its rejection. The reason for making the afore conclusion, arises from the factum, that one Gurjit Singh, is not echoed either in the FIR or in PWs deposition, to be striking the head of deceased Attar Singh, significantly with the sharp edged portion of "jaili". Consequently, prima facie, at this stage, even if only lacerated wounds were encumbered upon the head of deceased Attar Singh, thereupon, prima facie, it appears rather not the sharp edged portion of the "jaili", but the blunt portion of the "jaili"may have been used by one Gurjit Singh, to strike the head of deceased Attar Singh. Conspicuously also, when PW-1, as afore stated, has neither in his previous statement, recorded in writing nor in his deposition, has echoed with the completest candour, that only the sharp edged portion of the jaili, became wielded, and, also became used by one Gurjit Singh to strike the relevant portion of the head of deceased Attar Singh.
15. As afore stated, the learned trial Judge concerned, has completely discarded, the above trite factum, whereas, the principle as propounded in Hardeep Singh's case (supra) is comprised, in the factum that all the incriminatory documentary material, besides the statements' of the prosecution witnesses concerned, are all required to be objectively evaluated, for forming a conclusion with respect to the prosecutors application, cast under Section 319 Cr.P.C., being amenable for acceptance or dismissal. The lack of the above objective appraisal of the statement of PW-1 along with an appraisal in conjunction therewith of the PMR of deceased Attar Singh, has resulted in a completely infirm conclusion, becoming drawn by the learned trial Judge concerned.
16. However, at this stage, the learned counsel for Gurjit Singh, has For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR THAKUR 11 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -12- yet proceeded to make a very vehement submission before this Court, that prima facie even, at this stage, the inculpation drawn against Gurjit Singh, and, as may be founded upon the above referred material rather is completely fallible. He has raised the above conclusion, on anvil of the investigating officer concerned, rearing a valid exculpatory plea of alibi qua the relevant occurrence. Therefore, he submits that the testimony of PW-1, as also a conjoint reading therewith rather of the PMR of deceased Attar Singh, cannot yet make any conclusion, that both the above are to be at this stage, imputed any credence, and, consequently, he argues that the verdict drawn by the learned trial Judge concerned, is merit-worthy, and, does not warrant any interference.
17. He raised the above submission on anvil of a judgment, made by the Hon'ble Apex Court, in case titled Brijendra Singh and others versus State of Rajasthan, to which Criminal Appeal No. 763 of 2017 is assigned. He refered to paragraph 14 thereof, para whereof stands extracted hereinafter.
"When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police For Subsequent orders see CRM-9275-2022 investigation Decided revealed by HON'BLE that MR. JUSTICE the statements SURESHWAR of these persons THAKUR 12 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -13- regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct."
18. Therefore, he argues that when alike the instant case also, in the verdict (supra), the inculpatory statement made by the prosecution witness concerned, against the unarrayed along with the appearing accused, was not imputed any credence, rather on anvil of a plea of alibi becoming accepted. Therefore, he argues that the plea of alibi, in the instant case, and, as became accepted by the investigating officer concerned, to make an exoneration qua Gurjit Singh, is merit worthy, and, also makes it fall within the ambit of the afore expostulation of law, as carried in the above extracted paragraph of the verdict (supra), as made by the Hon'ble Apex Court. Therefore, he contends that an alike therewith benefit be accorded to one Gurjit Singh. He further fortifies, the above submission on the basis of a duty certificate, authored by District Radio Oficer, Police Control Room, Bhiwani, which became appended, with the report under Section 173 Cr.P.C. He refers to echoings thereins that qua on the relevant date, as per duty roster, one Gurjit Singh performing his duties on SWAN/Simplex channels from 121245/12/16 to 121945/12/16 in Police Control Room, Bhiwani. He further submits, that when the relevant penal occurrence, occurred at the crime site at about 9.30 P.M. as such, when the duty certificate concerned, reflects his presence on duty at the Police Control Room, Bhiwani. Therefore, the above Gurjit Singh was not available at the crime site, and, rather he contends that the investigating officer concerned, has tenably exonerated his presence at the crime site. For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR THAKUR 13 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -14-
19. However, the learned counsel for the above Gurjit Singh has remained unmindful to the echoings made thereins, that Gurjit Singh remained off duty from 121945/12/16 to 130745/12/16, and, the relevant occurrence taking place at the crime site, on 12.12.2016, at 9.30 P.M. As such, assuming even if the above Gurjit Singh, had been performing his duties, on 9.45 P.M., yet since the occurrence happened 15 minutes earlier, nonetheless, at this stage, completest credence cannot be meted to the above duty certificate appertaining to Gurjit Singh, as apart from it, becoming merely collected by the investigating officer concerned, during the course of his holding investigations, he has not recorded the statement of all other co- employees of Gurjit Singh, who, at the relevant time, were also performing duties along with Gurjit Singh rather at SWAN/Simplex channels, Bhiwani, besides has not placed on record the signatured by the accused, the apposite entries concerned, as carried in the duty register, and, theirs being counter signatured by the controlling officer concerned, nor the best electronic evidence has been placed on record, whereas, the latter, and, the recording of the testimonies of the co-employees concerned, were all imperative, for removing or erasing any possible inference, that since Gurjit Singh, is a police official, he may have enabled the preparation of the duty certificate hence by the author thereof, rather only for his building a plea of alibi. Furthermore, another reason for prima facie, at this stage, dispelling the evidentiary sanctity, of the duty certificate, whereons, the plea of alibi becomes erected by Gurjit Singh, is also comprised in the factum, of the submission made with the completest confidence, at the bar, by the learned senior counsel, for the petitioner, that the distance inter se the Police Control Room, Bhiwani, and, the site of occurrence, is coverable For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR THAKUR 14 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -15- within 20/25 minutes. Though, the afore submission, made at the bar, is believable but yet veracity of all the above are to be tested through compatible therewith exculpatory suggestions, being purveyed to the investigating officer concerned, by the defence counsel, rather during the stage of the holding to cross-examination, the investigating officer concerned. Therefore, at this stage, for the reasons (supra), prima facie, plea of alibi cannot become meted the completest credence, nor begets any sequel qua the exculpation, drawn by the investigating officer concerned, against Gurjit Singh, is completely infallible, moreso, when for the reasons (supra), the vital fatal head injury, suffered by deceased Attar Singh, is prima facie, at this stage, not only supported by the testification of PW-1, but is also supported by the PMR drawn, with respect to deceased Attar Singh.
20. In addition, the afore distance inter se the crime site, and, the office concerned, where Gurjit Singh was purportedly, performing his duties, is rather minimal, thereupon, rather when the distance inter se the crime site, and, the office of performance of duties by the aggrieved accused thereins, one Brijendra Singh, in Brijendra Singh's case (supra), rather was 175 kilometers. Therefore, the acceptance by the Hon'ble Apex Court, in judgment (supra), of the plea of alibi, as reared by the aggrieved litigant therein, is obviously completely sanctified, and, is reverable, but the above facts, carried thereins, are to be also applied to the facts at hand. However, on perusal, and, applications of facts thereins, to the facts at hand, rather reveal that the facts thereins are completely dissimilar to the facts at hand, especially in respect of the extant distance inter se the crime site, and, the place where one Gurjit Singh was, at the relevant time, purportedly For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR THAKUR 15 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -16- performing his duties, rather being prima facie minimal, whereas thereins the relevant distance being immense. Therefore, the expostulation of law, as made in the verdict (supra), is prima facie not applicable to the factual scenario here.
21. The learned counsel appearing for one Ravi @ Mohit, has also argued that the exculpation drawn by the investigating officer concerned, qua Ravi is well founded, and, while making the afore argument, he has drawn the attention of this Court towards the contents of the FIR appertaining to Ravi @ Mohit, whereins, there occur echoings that Vijay son of Ram Chander, and, Ravi son of Ram Chander, inflicting grievous injuries with lathis, upon one Devender, on his head, and, other parts of the body. Consequently, he submits that the afore attribution, as made in the FIR, which is also supported by the testification made in the Court by PW-1, becomes completely denuded qua its evidentiary vigour, inasmuch as, the MLR of one Devender, relevant portion whereof extracted hereinafter, reflecting that only a singular head injury becoming encumbered upon his head.
x x x x x
Sr. Injuries Marked Injury
No. Number
1. L.W size 4 x 2 cm present on right parietal No 1
region of the skull
2. C/O Back pain No 2
Nature of injuries (Simple, Grievous, Dangerous or pending for observation KUO Probable Duration of Injury 24 hr Kind of weapon used (Sharp, Blunt, Firearm, Fire, Position etc.) blunt For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR x x x x x THAKUR 16 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -17-
22. Therefore, he contends that if both Vijay, and, Ravi, with user of lathis, allegedly inflicted injuries on the head of one Devender, thereupon, in the MLR concerned, multiple injuries on the person of Devender, were to be occurring, rather than a singular injury becoming observed thereins to become inflicted upon him. However, even the afore submission becomes completely unhinged of its tenacity, and, the reason for making the afore conclusion, is that, the learned counsel, has not incisively, and, thoroughly read, the above attribution of an incriminatory role to both the above named accused, as rather made consistently in the FIR, and, in the deposition recorded on oath, by PW-1, whereas if he had completely, and, incisively read both, whereins not only both are alleged to have inflicted blows, with user of lathis, not only on the head of Devender, but rather also are alleged to strike with user of lathis, the other portion of the body of one Devender. Therefore, the consequence thereof, is that apart from the head of Devender, other injuries on the other regions of the body of Devender, rather becoming entailed thereons. Therefore, if one singular injury was meted on the head of Devender, and, it was meted by one Vijay, and, not by one Ravi @ Mohit, latter whereof rather is also alleged to use lathis, and, with user thereof strike the other regions of the body of one Devender, thereupon, he too can prima facie, at this stage, be concluded to strike the regions of the body of Devender other than the latter's head.
23. Consequently, the instant petition is allowed, and, the impugned order is quashed, and, set aside.
24. The above observations are only for the disposal of the instant petition, and, shall not prejudice in any manner the verdict to be made by For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR THAKUR 17 of 18 ::: Downloaded on - 24-07-2022 06:21:58 ::: CRR No. 4034 of 2017 (O&M) -18- the trial Judge concerned, upon the FIR concerned.
(SURESHWAR THAKUR)
JUDGE
May 06, 2022
Gurpreet
Whether speaking/reasoned : Yes
Whether reportable : Yes
For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR THAKUR 18 of 18 ::: Downloaded on - 24-07-2022 06:21:58 :::