Punjab-Haryana High Court
Nirvail Singh vs State Of Punjab on 20 July, 2009
Author: L.N. Mittal
Bench: L.N. Mittal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Revision No. 647 of 2009
Date of decision : July 20, 2009
Nirvail Singh
....Petitioner
versus
State of Punjab
....Respondent
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. Bimal Chandan Bitta, Advocate, for the petitioner
Mr. Gaurav Garg Dhuriwala, AAG Punjab
L.N. Mittal, J. (Oral)
Nirvail Singh has filed this revision petition impugning order dated 20.11.2008 passed by learned Additional Sessions Judge, Tarn Taran thereby accepting prosecution application filed under section 319 of Code of Criminal Procedure (for short, Cr.P.C.) and ordering summoning of the petitioner and his brother Harmail Singh as additional accused to face trial along with their father Dara Singh who is already facing the trial in case FIR No. 377 dated 17.12.2007, under sections 307, 506 read with section 34 IPC and section 27 of the Arms Act, Police Station City Tarn Taran.
According to the prosecution version as contained in the FIR, Dara Singh accused brought a double barrel loaded gun and handed it over to petitioner Nirvail Singh and exhorted him to finish the family of Bhagwan Singh so as to settle the dispute of passage once for all. Thereupon, the Criminal Revision No. 647 of 2009 -2- petitioner fired shot hitting Bhagwan Singh on face, chest and neck. Bhagwan Singh fell down. Harmail Singh raised lalkara and asked the petitioner not to allow the complainant to escape. Gian Kaur mother of the complainant had fallen on her injured son Bhagwan Singh who was lying on the ground. The petitioner fired a shot hitting back of Gian Kaur. Some pallets also hit Kulwant Kaur. After investigation, the prosecution challaned Dara Singh only. Charge was framed against him. Complainant Gurbhej Singh appeared in the witness box and reiterated his aforesaid version. Thereafter prosecution moved application under section 319 Cr.P.C. which has been allowed by the trial court.
I have heard learned counsel for the parties and perused the case file.
In the FIR itself, the petitioner has been portrayed as the main accused. It was the petitioner who fired 2 or 3 shots injuring three persons. The same version has been reiterated by the complainant in the witness box. It is, therefore, apparent that there is sufficient material for proceeding against the petitioner as additional accused to face trial in the aforesaid case.
Learned counsel for the petitioner contended that the complainant was not even cross-examined and therefore, his statement cannot be used as evidence. The contention cannot be accepted because the petitioner who was not accused in the case as presented by the police, was not present before the trial court and therefore, the complainant could not have been cross-examined on behalf of the petitioner. It has well been settled by now that examination-in-chief of the witnesses can be used as evidence for the purpose of section 319 Cr.P.C.
Criminal Revision No. 647 of 2009 -3-
Learned counsel for the petitioner next contended that a person should not be summoned as additional accused unless the court comes to the conclusion that there is reasonable prospect of his conviction. Reliance, in support of this contention, has been placed on a judgment of the Hon'ble Apex Court in case Hardeep Singh versus State of Punjab and others, 2008(4) RCR (Criminal) 947. However, by this judgment, the aforesaid questions whether powers under section 319 Cr.P.C. can be used only if the court is satisfied that the accused to be summoned in all likelihood would be convicted and whether application under section 319 Cr.P.C. is not maintainable unless cross-examination of the witness is complete, have been referred to a Larger Bench. Consequently, this contention cannot be accepted.
On the other hand, section 319 Cr.P.C. says that if from the evidence it appears that any person not being accused has committed an offence for which he could be tried together with the accused, the court may proceed against such person. Thus, in section 319 Cr.P.C. the expression used is 'it appears'.
In the instant case, the petitioner was named as main culprit in the FIR and in the statements of eye witnesses and has also been named as main culprit by the complainant in the witness box. There is, therefore, sufficient material on record to proceed against the petitioner as an additional accused.
In view of the aforesaid, I find no merit in the instant revision petition which is accordingly dismissed.
( L.N. Mittal )
July 20, 2009 Judge
'dalbir'