Surinder Pal vs State Of H.P on 31 August, 2023

[Cites 19, Cited by 2]

Himachal Pradesh High Court

Surinder Pal vs State Of H.P on 31 August, 2023

Bench: Virender Singh

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No.306 of 2022 .

                                              Reserved on : 15.06.2023





                                              Decided on : 31.08.2023

    Surinder Pal                                                             ...Petitioner





                                              Versus

    State of H.P.                                                          ...Respondent




                                                   of
    Coram

The Hon'ble Mr. Justice Virender Singh, Judge.

rt Whether approved for reporting?1 Yes.

For the petitioner : Mr. N.S. Chandel, Senior Advocate with Mr. Vinod Kumar Gupta, Advocate.

For the respondent : Mr. Mohinder Zharaick, Mr. Tejasvi Sharma, Mr. H.S. Rawat, Additional Advocates General with Ms. Avni Kochhar & Ms. Leena Guleria, Deputy Advocates General.

Virender Singh, Judge PetitionerSurinder Pal has filed the present revision petition under Section 397 read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.PC'), for setting aside the order dated 13.4.2022, passed by the Court of learned Additional Sessions Judge 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.

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I, Kangra at Dharamshala (hereinafter referred to as the 'Appellate Court') .

2. By way of the order dated 13.4.2022, the learned Appellate Court has dismissed the application, under Section 391 Cr.PC, moved by the petitioner, for leading additional evidence.

3. The brief facts, leading to filing of the present revision petition before this Court, may be summed up, as rt under: 3.1. After registration of the FIR No.176/1996, with Police Station, Nurpur, the Police has conducted the investigation and submitted the chargesheet against petitioner Surinder Pal, Joga Singh, Tarsem Lal and Jarnail Singh.

3.2. When the trial against the said accused persons was pending, the prosecution has moved an application under Section 319 Cr.PC, for summoning the additional accused Surjeet Singh and Manmohan Singh. The said application was allowed and both the above persons were summoned, as additional accused, to face the trial.

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3.3 Unfortunately, during the pendency of those proceedings, accused Manmohan Singh had died, as such, .

proceedings against him were ordered to be dropped, being abated, whereas, charges under Sections 365, 342, 330 IPC were framed against accused Surjeet Singh.

3.4. It is the further case of the petitioner that by of the time, when the charges were framed, the trial against the petitioner, Jarnail Singh, Surinder Pal, Tarsem Lal and rt Joga Singh, were almost concluded and at that time, the case against them, was fixed for defence evidence.

3.5. Considering the said fact, a direction was issued to the prosecution to file separate chargesheet against accused Surjeet Singh. Accordingly, the separate trial against him was commenced. Case against accused Joga Singh, Jarnail Singh Tarsem Lal and Surinder Pal (petitioner) was decided vide judgment of conviction and order of sentence dated 8.9.2014.

3.6. In the trial against Surjeet Singh, same set of evidence was examined. Since, these witnesses have not supported the prosecution case against accused Surjeet Singh, as they have deposed that petitioner Surinder Pal ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 4 and other coaccused Joga Singh and others had not committed the alleged offence.

3.7. On the basis of the alleged evidence, accused Surjeet Singh was acquitted by the Court vide judgment dated 31.12.2016.

4. On the basis of the above fact, the application, of under Section 391 Cr.PC, has been moved to place on record the certified copy of judgment dated 31.12.2016, rt passed by learned Additional Chief Judicial Magistrate, Nurpur, District Kangra, H.P. (hereinafter referred to as the 'trial Court'), in Criminal Case No.2AII/14/1997, as well as, the statement of witnesses, which are stated to be necessary, for the just decision of the appeal.

5. This application has been contested by the State. The factual position has not been disputed, however, it is the case of the respondentState that the statements of the witnesses are not, at all, relevant, as separate trial has been conducted against the accused.

Consequently, the application was dismissed on 13.4.2022.

6. The said order of dismissal has been assailed, before this Court, on the ground that the learned Appellate ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 5 Court, while dismissing the application, has completely lost the sight of the matter that the same set of witnesses .

has been examined against Surjeet Singh and they have not supported the case of the prosecution.

7. According to the petitioner, learned Appellate Court has also fallen into the error, while recording that of the said statement has been recorded in a separate trial as the trial against Surjeet Singh, was also arisen out of FIR rt No.176 of 1996 and the same set of witnesses was examined in both the cases.

8. The findings have also been assailed, on the ground that while dismissing the application under Section 391 Cr.P.C., learned Appellate Court, on the one hand, has concluded that the statements of witnesses, as well as, the judgment of acquittal, are per se admissible, but according to the learned Appellate Court, it has not been shown, under which provisions of law, the copy of judgment and copies of statements of witnesses, form part of the record.

9. On the basis of the above facts, Mr. N.S. Chandel, learned Senior Advocate assisted by Mr. Vinod Kumar Gupta, Advocate has prayed that the revision ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 6 petition, may kindly be allowed, by setting aside the order impugned herein.

10. The prayer, so made, in the revision petition, has been opposed, by Mr. Mohinder Zharaick, learned Additional Advocate General, on the grounds that the learned Appellate Court has rightly dismissed the of application, as the learned Appellate Court, has rightly held that the judgment, as well as, the statements, so rt recorded, cannot be taken into consideration.

11. A perusal of the record shows that the FIR No.176/1996, dated 19.07.1996, has been registered under Sections 365, 342, 330 IPC read with Section 34 IPC, in Police Station, Nurpur.

12. After completion of the investigation, the police has filed the report under Section 173(2) Cr.PC, against Joga Singh, Surinder Pal (petitioner), Taresem Lal and Jarnail Singh. Thereafter, the charges were framed against them on 27.6.2000.

13. When the charges, so framed, were put to the above four accused, they have not pleaded guilty and ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 7 claimed to be tried. As such, the prosecution has been directed to adduce evidence.

14. During the pendency of the trial, on 19.12.2002, the prosecution has moved an application under Section 319 Cr.PC, for summoning Surjeet Singh and Manmohan Singh, as accused.

15. Vide order dated 29.10.2007, the proceedings against accused rt Manmohan Singh, who has been summoned, under Section 319 Cr.PC, have been ordered to be abated, on account of his death.

16. The charges, under Sections 365, 342, 330, read with Section 34 IPC, were framed against accused Surjeet Singh, on 11.3.2008. The charges, so framed, when put to accused Surjeet Singh, he had not pleaded guilty and claimed to be tried. When, the orders were passed in the application under Section 319 Cr.PC, on 19.12.2002, the prosecution evidence, against all four accused, was almost complete.

17. Accused Surjeet Singh, who has been summoned, under Section 319 Cr.PC, has assailed the ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 8 order dated 11.3.2008, passed by the learned trial Court, by virtue of which, charges have been framed against him.

18. The said revision petition was registered as RBT No.12N/X/2008 and has been decided on 10.12.2013.

While dismissing the revision petition the learned Appellate Court, has passed the following orders: of "9. In view of my findings on the point No.1, as discussed above, the revision petition fails and the same is hereby rt dismissed. Consequently, the order dated 11.3.2008, passed by Ld. Additional Chief Judicial MagistrateI, Nurpur, whereby in case titled State versus Jogga Singh etc., bearing No.100II/97, charge was framed against the revisionist/accused under sections 365, 342, 330 read with section 34, IPC, is affirmed. The Ld. Trial court is directed to dispose of this case expeditiously, within a period of six months from the date of receipt of this order. A copy of this order along with record be sent to the ld. Trial court forthwith. The file of this court after its due completion be consigned to the record room."

19. In pursuance of the said order, the case was thereafter transferred to the Court of learned Judicial Magistrate First Class, Court No.2, Nurpur. On 13.3.2014, the Court of learned Judicial Magistrate First Class, Nurpur has passed the following orders: ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 9 "8. In the totality of the facts and circumstances of the case, as mentioned supra, as trial qua the four accuseds except .

Surjeet Singh has already been almost concluded and the case was due for their defence evidence and qua accused Surjeet Singh, evidence has to be recalled denovo and it may take time, so, in these facts the circumstances of the case, to my mind, it appears that it would be expedient to disjunct/separate the trial of four accuseds of namely Joga Singh, Surmder Pal, Tarsem Lal and Jarnail Singh on the one hand and that of remaining accused Surjeet Singh on the other hand, as their joint trial may rt embarrass the trial as well as may cause unnecessary and further harassment of the accuseds namely Joga Singh, Surinder Pal, Tersam Lal and Jarnail Singh and qua them, the case may be disposed off expeditiously.

9. In view of above, prosecution is directed to file separate chargesheet and separate documents for further trial of the accused Surjeet Singh. However, original record of this case may also appropriately used for the purpose.

10. In view of the above, prosecution is directed to do the needful accordingly expeditiously for proceeding further separately with the trial against accused Surjeet Singh and than let PW nos. Ito4 be summoned for 23.04.2014, PW nos. 6 to 8 & 10 be summoned for 24.04.2014, PW nos. 11 to14 be summoned for 25.04.2014 and RPWs be summoned for 26.04.2014. Witnesses be summoned through special messenger.

11. Qua witness nos. 5&9, it is reported that they have expired, prosecution is directed to verify the same and furnish report in that regard by the next date and as ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 10 the case is very old and targeted, so, the witnesses be summoned through special messenger and their presence be ensured.

12. So far as for proceeding further with the trial separately qua the four accuseds Joga Singh, Surinder Pal, Tersam Lal and Jarnail Singh, let entire defence evidence as may be intended to produced by them be produced on 22.04.2014. Dasti summons, if applied, be issued on usual terms.

13. For avoiding inconvenience and for the of purpose of reference, let a copy of this order sheet be filed in each of the file separately."

20. After passing of this order, the trial against rt accused Joga Singh, Surinder Pal (petitioner), Tarsem Lal and Jarnail Singh, has been completed.

21. Vide judgment of conviction and order of sentence dated 8.9.2014, all of them, were convicted for the commission of offences punishable under Sections 365, 342, 330 read with Section 34 IPC and were sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.5,000/, each for the commission of offence punishable under Section 365 IPC, rigorous imprisonment for a period of seven years and to pay a fine of Rs.5000/, each, for the commission of offence punishable under Section 330 IPC and simple imprisonment for a period of one year and to pay a fine of ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 11 Rs.1,000/ each, for the commission of offence punishable under Section 342 IPC. In default of payment of fine, they .

have further been directed to undergo imprisonment for six months. All the sentences, were ordered to run concurrently.

22. The trial of the case against accused Surjeet of Singh, who has been summoned, under Section 319 Cr.PC, has been commenced, before the Court of learned Judicial rt Magistrate First Class, Nurpur. However, on 23.5.2014, the same has been transferred to the learned trial Court.

23. After closure of the prosecution evidence and after recording the statement of accused Surjeet Singh, under Section 313 Cr.PC, the learned Court, has acquitted accused Surjeet Singh, vide judgment dated 31.12.2016.

24. Against the judgment of conviction and order of sentence dated 8.9.2014, passed by the learned trial Court, an appeal was preferred by the convicts.

25. During the pendency of the appeal, the accused Surinder Pal has filed the application, under Section 391 Cr.PC, on 31.8.2017, for producing additional evidence.

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This application had been registered as Cr.MA No.325 of 2019.

26. The application had been moved by reiterating the factual position, as referred to above, on the ground that during the trial of accused Surjeet Singh, the same set of witnesses, who were examined by the prosecution, has of not supported the case of prosecution, against accused Surjeet Singh and they have also stated that accused Joga rt Singh etc., had also not committed offence, as alleged by the prosecution.

27. On the basis of the above facts, the indulgence of the Appellate Court had been sought, by leading additional evidence, by producing certified copy of judgment dated 31.7.2016, in Criminal Appeal No.2A II/14/1997, titled as State of H.P. versus Surjit Singh, as well as, the certified copies of statements of witnesses, namely, Ram Prashad, Champa Devi, Suresh Kumar, Paramjeet Singh, Yash Pal Singh, Dr. D.R. Rayal, Darshan Singh, Janji Lal and Inderjeet Singh.

28. The said application had been contested by the State, in which, the factual position had not been disputed, ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 13 but, according to the stand, as taken, the prosecution witnesses, who were examined, in case titled as State of .

H.P. Versus Surjeet Singh, had no relevance in the case against the convict Surinder Pal Singh. Hence, it had been prayed that he can not take the benefit of those documents.

29. After hearing the learned counsel for the convicts, as well as, learned Public Prosecutor, learned rt Appellate Court has dismissed the application, vide order dated 13.4.2022.

30. These findings have been assailed, before this Court, by way of the present revision petition. The order passed by the Appellate Court has been assailed, on the ground that the learned Appellate Court, has failed to appreciate the admitted factual position, involved in the present case, as the same set of witnesses, has been examined against all the four accused, as well as, against accused Surjeet Singh.

31. The findings have further been assailed on the ground that the learned Appellate Court has held that the judgment, as well as, statements of the witnesses are per ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 14 se admissible, but, relief has been declined, on the ground that the convict could not point out the provisions, under .

which, those statements can be read.

32. According to the convict, application under Section 391 Cr.PC, has been filed, for placing on record, the certified copy of judgment, as well as, certified copies of of statements of witnesses, and once the permission has been granted, he would have been moved an application under rt Section 311 Cr.PC, for recalling the witnesses, for the purpose of further crossexamination.

33. On the basis of the above grounds, a prayer has been made to allow the petition.

34. The prayer so made, by learned Senior counsel has been opposed by Mr. Mohinder Zharaick, learned Additional Advocate General, on the ground that the learned trial Court has rightly dismissed the application under Section 391 Cr.PC.

35. In this case, it is the admitted factual position that initially FIR No.176 of 1996, in Police Station, Nurpur, was registered only against four accused namely Joga ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 15 Singh, Surinder Pal (petitioner), Taresm Lal and Jarnail Singh.

36. Thereafter, when prosecution has moved an application under Section 319 Cr.PC, accused Surjeet Singh and Manmohan Singh, were summoned.

Unfortunately, accused Manmohan Singh, has expired, of during the pendency of the trial, as such, the trail against him, was ordered to be abated.

37. Considering the fact that accused Surjeet Singh and Manmohan Singh were summoned, at the fag end of the trial, as such, vide order dated 13.03.2014, a direction had been issued to the prosecution to file separate charge sheet against accused Surjeet Singh. The same set of witnesses has been examined in both the trials.

38. On the basis of the evidence of the same set of witnesses, accused Surjeet Singh has been acquitted, as the witnesses have turned hostile and have not supported the prosecution case, whereas, in the trial against Surinder Pal and three others, has resulted into their conviction.

39. By way of application under Section 319 Cr.PC, a prayer has been made to permit him to place, on record ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 16 the certified copy of judgment, as well as, statements of witnesses recorded, in the trial against Surjeet Singh.

40. The provisions of Section 391 Cr.P.C., are reproduced, as under: "391. Appellate Court may take further evidence or direct it to be taken.

of (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such rt evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."

41. The scope of Section 391 Cr.PC, has elaborately been discussed by the Hon'ble Apex Court in Brig.

Sukhjeet Singh (Retd.) MVC versus The State of Uttar ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 17 Pradesh & Others, (2019), 16 Supreme Court Cases 712, relevant paragraphs No.24 to 26, of the judgment are .

reproduced here as under: "24. Power to take additional evidence under Section 391 is, thus, with an object to appropriately decide the appeal by the Appellate Court to secure ends of justice. The scope and ambit of Section 391 Cr.P.C. has of come up for consideration before this Court in Rajeswar Prasad Misra Vs. State of West Bengal and Another, AIR 1965 SC 1887. Justice Hidayatullah, speaking for the Bench rt held that a wide discretion is conferred on the Appellate Courts and the additional evidence may be necessary for a variety of reasons. He held that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. Following was laid down in Paragraph Nos. 8 and 9: "8. .......Since a wide discretion is conferred on appellate courts, the limits of that courts' jurisdiction must obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is, no doubt, some analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 18 the aid of observations made by this Court in the interpretation of the other section.

9. Additional evidence may be necessary .

for a variety of reasons which it is hardly proper to construe one section with the aid of observations made to do what the legislature has refrained from doing, namely, to control discretion of the appellate court to certain stated circumstances. It may, however, be said of that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice rt without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise..............................."

25. This Court again in Rambhau and Another Vs. State of Maharashtra, (2001) 4 SCC 759 had noted the power under Section 391 Cr.P.C. of the Appellate Court. Following was stated in Paragraph Nos.1 and 2: "1. There is available a very wide discretion in the matter of obtaining additional evidence in terms of Section 391 of the Code of Criminal Procedure. A ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 19 plain look at the statutory provisions (Section 391) would reveal the same........................

2. A word of caution however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nature of the case against the accused. This Court in the case of Rajeswar Prasad of Misra v. State of W.B. in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed rt of it. This Court was candid enough to record however, that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard."

26. From the law laid down by this Court as noted above, it is clear that there are no fetters on the power under Section 391 Cr.P.C. of the Appellate Court. All powers are conferred on the Court to secure ends of justice. The ultimate object of judicial administration is to secure ends of justice.

Court exists for rendering justice to the people."

42. Judging the facts and circumstances of the present case, in the light of the decision of the Hon'ble Supreme Court, in Brig. Sukhjeet Singh's case (supra), this Court is of the view that the learned trial Court has ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 20 fallen into error by rejecting the application moved by the convicts under Section 319 Cr.PC.

43. Had this application been considered by the learned trial Court, keeping in view the object of Section 391 Cr.PC, which is to secure ends of justice, then the application should have been allowed, as there are two of different types of decisions, on the basis of the same set of witnesses. rt

44. As referred to above, the witnesses, in the case against Surjeet Singh, were examined, on and after 24.4.2014, whereas, the learned trial Court, has convicted accused Surinder Pal and three others, on 8.9.2014.

45. The trial against accused Surjeet Singh was resulted into acquittal, vide judgment dated 31.12.2016.

Accused is presumed to be innocent and prosecution is bound to prove the guilt of the accused, by adducing the evidence, which proves the guilt beyond any reasonable doubt. The accused is free to take, as many as, defences and he has the golden right to remain silent.

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46. The application, under Section 319 Cr.PC, has been filed on 31.8.2017, whereas, the appeal was filed on .

16.9.2014.

47. It has also not been disputed that the prosecution witnesses, in the trial against accused Surjeet Singh, have turned hostile.

48. Perusal of the record shows that PW1 Suresh Kumar, in the trial against Surjeet Singh, has been rt examined, as PW4, in the trial against accused Joga Singh and three others. Interestingly, in the trial against Surjeet Singh, he had not supported the case of the prosecution and on the request of learned APP, he has been declared hostile.

49. PW2, Champa Devi, in the trial against Surjeet Singh, has been examined, as PW1, in the trial against Joga Singh and others. She has also been declared hostile, when, she has not supported the case of the prosecution, in the trial against accused Surjeet Singh.

50. When, the same set of witnesses, appeared in two different trials, arising out of the same FIR, then, the convict has every right to produce, those documents before ::: Downloaded on - 02/09/2023 20:34:15 :::CIS 22 the Appellate Court as the main object of the procedural law is for the advancement of justice and justice should .

not be denied, only on the technical grounds.

51. When the learned Appellate Court has held that the judgment, in the case State Vs. Surjeet Singh, as well as, the certified copies of the statements of witnesses, in of the said trial, are per se admissible, in evidence, then, there was no occasion for the learned Appellate Court to rt dismiss the application. Every accused should be given opportunity to prove his innocence.

52. Considering all these facts, the petition is allowed and the order dated 13.4.2022, passed by the learned Appellate Court, is set aside and the application, under Section 391 Cr.PC, is allowed, as prayed for.

53. Accused, through his counsel, is directed to appear before the learned Appellate Court on 25th September, 2023, at 10.00 a.m. record be sent down.

( Virender Singh ) Judge August 31, 2023(ps) ::: Downloaded on - 02/09/2023 20:34:15 :::CIS

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