Punjab-Haryana High Court
Rajiv @ Rinku And Another vs State Of Punjab on 4 April, 2022
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
246
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRM-M No. 4564 of 2019
Date of Decision: 04.04.2022
Rajiv @ Rinku and another
.......... Petitioners
Versus
State of Punjab
.......... Respondent
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
Present: Mr. P.L. Verma, Advocate
for the petitioners.
Ms. Bhavna Gupta, Deputy Advocate General, Punjab
****
SURESHWAR THAKUR, J. (ORAL)
1. The petitioners become aggrieved by an affirmative order, of 07.06.2018 (Annexure P-2), as, made by the learned Judicial Magistrate concerned, upon the prosecutor's application cast under Section 319 of the Cr.P.C., wherethrough they became added an accused alongwith the other co-accused named in FIR No. 140 of 03.11.2015, registered at Police Station Urban Estate, Patiala. The above order was affirmed on 18.10.2018 (Annexure P-3), by the learned Revisional Court concerned.
2. The complainant had, in the apposite complaint, assigned an incriminatory role to one Rajiv @ Rinku, and, Surinder Modgil (the present petitioners), inasmuch as, their committing an assault, upon his person.
3. However, the Investigating Officer (IO) concerned, appears to have not incorporated the name of the above in the report, filed under Section 173 of the Cr.P.C, before the learned Magistrate concerned. Nonetheless, upon the complainant stepping into the witness box, he made a testification, that the above were also the assailants, and, obviously were present at the crime site. The above factum, became supported by their 1 of 5 ::: Downloaded on - 12-07-2022 02:40:52 ::: CRM-M No. 4564 of 2019 -2- names occurring in the complaint, as, became lodged by the complainant in the police station concerned.
4. Though, the learned counsel for the petitioner argues, that the want of incorporation of the above in the report, filed under Section 173 of the Cr.P.C., by the IO concerned, before the learned Magistrate concerned, tantamounts to theirs becoming exonerated or exculpated, by the IO concerned.
5. However, the afore made submission is completely misplaced, as the non-incorporation of any accused persons, and, to whom an incriminatory role is with specifity assigned in the FIR concerned, becomes completely waned, upon, the complainant concerned, upon, stepping into the witness box, rather making testification(s) carrying echoings, hence meteing the completest corroboration(s), to their namings in the apposite complaint, and, to whom he thereins also assigns an incriminatory role in the commission of the relevant offence. Therefore, the mere non-inclusion of the accused concerned, in the report filed under Section 173 of the Cr.P.C., before the learned Magistrate concerned, is not sufficient, rather the testification made by the complainant concerned, upon his stepping into witness box, wherein in his examination-in-chief, he metes corroboration to the relevant inculpatory contents occurring in the apposite complaint, rather does hold, the relevant evidentiary worth.
6. Though, in respect of prosecution witness(es) concerned, especially the complainant, or, the informant, and, who during their respective examinations-in-chief mention with completest details, hence the incriminatory participation in the relevant occurrence of the accused 2 of 5 ::: Downloaded on - 12-07-2022 02:40:52 ::: CRM-M No. 4564 of 2019 -3- concerned, and, besides when the afore echoings mete the completest corroboration to the relevant contents, carried in the FIR concerned, the expostulation of law made in case titled as "Hardeep Singh Vs. State of Punjab, reported as 2014 (3) SCC, becomes aroused, whereins, a mandate is made upon the learned Magistrate concerned, to without waiting, for the recording of the cross-examinations, of the above, to rather proceed to allow the prosecutor's application cast under Section 319 of the Cr.P.C. However, other prosecution witnesses, who also upon assigning in their respective examinations-in-chief, an incriminatory role to the accused, and, when upon readings of theirs examinations-in-chief, it becomes concluded, that their testifications in their examinations-in-chief, are in consonance with their respectively made previous statements in writing, thereupon, too the learned Magistrate concerned, becomes empowered to assign credit thereto, and, to add the persons concerned, in the array of accused, rather without waiting for their respective cross-examinations being recorded. However, upon, the PW concerned, despite during theirs respective examinations-in-chief, making any inclulpablity against the previously unarrayed accused persons, and, though the expostulation of law made in verdict (supra), empowers the learned Magistrate concerned, to yet add them in the array of accused, but since the afore addings, would become well merited, only, upon, a keenest application of judicial mind, being made qua veracity thereof. Therefore, the learned Magistrate concerned, becomes obviously enjoined to suo moto made a comparative study of theirs respective examinations-in-chief, and, of their previously made statements in writings, for gauging therefrom, whether they hence grossly improve or embellish upon their previously made 3 of 5 ::: Downloaded on - 12-07-2022 02:40:52 ::: CRM-M No. 4564 of 2019 -4- unsigned statements in writing. Resultantly he may not await for the recording of their cross-examinations, but may accordingly take to either include them in the array of accused or omit their addings therein.
7. However, since the complainant as stated (supra), has upon his stepping into the witness box, has in his examination-in-chief testified with absolutest corroboration, to his naming in the apposite complaint, rather the persons concerned, as the assailants, thereupon, without waiting for his cross-examination(s), being made, by the learned defence counsel, it was open for the learned Courts below, to allow the prosecutor's application cast under Section 319 of the Cr.P.C.
8. Therefore, this Court does not find any valid reasons to interfere with the impugned orders, and, the same are affirmed and maintained.
9. Nonetheless, the learned counsel for the petitioner, makes an argument, before this Court, that at the relevant time of the occurrence, happening at the crime site, the petitioners were not present. Therefore, he propounds the plea of alibi, and, in respect of the afore, he places on record a CCTV footage, as, finds reflection in a document prepared by an educational institution concerned. The afore plea of alibi is, however, permissible to be canvassed as a plea in defence through meteings of suggestions to the complainant or to the IO concerned. However, the above document(s), as, placed on record, by the learned counsel for the petitioners, cannot be either taken on record, by this Court, as rather it is required to be tendered, before the learned trial Judge concerned, and, that too, only after leave for adducing the above, as evidence being granted, to the accused, if 4 of 5 ::: Downloaded on - 12-07-2022 02:40:52 ::: CRM-M No. 4564 of 2019 -5- permissible under law, qua his application cast under Section 311 of the Cr.P.C. Therefore, it is open to the petitioners, to, before propagating the afore plea, rather through his putting the apposite suggestions to the prosecution witnesses concerned, to move an application under Section 311 of the Cr.P.C. before the learned Court concerned, seeking leave from it, to adduce into evidence the apposite documents, rather exhibiting the presence of the accused in the educational institutions concerned, and, his absence at the crime site. Upon preferment of the afore application, the learned trial Judge concerned, shall expeditiously, and, after hearing all the concerned, make a decision thereons, in accordance with law.
10. Disposed of.
April 04, 2022 ( SURESHWAR THAKUR )
'dk kamra' JUDGE
Whether Speaking/reasoned Yes
Whether Reportable Yes
5 of 5
::: Downloaded on - 12-07-2022 02:40:52 :::