Punjab-Haryana High Court
Akash Rana vs State Of Punjab And Others on 11 October, 2021
Equivalent citations: AIRONLINE 2021 P AND H 1260
Author: Gurvinder Singh Gill
Bench: Gurvinder Singh Gill
In the High Court for the States of Punjab and Haryana
At Chandigarh
CRM-M-15570-2020 (O&M)
(1) Akash Rana ... Petitioner
Versus
State of Punjab and others ... Respondents
(2) CRM-M-33536-2020 (O&M)
Darshan Lal @ Darshi ... Petitioner
Versus
State of Punjab and another ... Respondents
Date of Decision:- 11.10.2021
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
Present:- Mr. Jasraj Singh, Advocate for the petitioner
in CRM-M-15570-2020.
Dr. Anmol Rattan Sidhu, Senior Advocate with
Mr. Pratham Sethi, Advocate for the petitioner
in CRM-M-33536-2020.
Mr. Harbir Sandhu, AAG, Punjab,
assisted by ASI Lakhvir Singh.
(proceedings conducted through video conferencing)
*****
GURVINDER SINGH GILL, J.
1. This order shall dispose off the below mentioned two petitions as both the said petitions arise out of the same FIR and the prayer made in both the said petitions is as regards investigation in the matter :-
(i) CRM-M-15570-2020 - Akash Rana Vs. State of Punjab and others :
The said petition has been filed by complainant Akash Rana (hereinafter referred to as 'the complainant/petitioner') wherein a KAMAL KUMAR 2021.10.12 11:06 I attest to the accuracy and integrity of this document (2) CRM-M-15570-2020 (O&M) & CRM-M-33536-2020 (O&M) prayer has been made for transfer of investigation pertaining to FIR No.198 dated 12.12.2019 registered at Police Station Garhshankar, District Hoshiarpur to District Hoshiarpur by constituting a Special Investigation Team under supervision of a senior police officer.
(ii) CRM-M-33536-2020 - Darshan Lal @ Darshi Vs. State of Punjab and another : The said petition has been filed by one of the accused namely Darshan Lal @ Darshi (hereinafter referred to as 'the accused/petitioner') seeking issuance of a direction for transferring the investigation of the FIR in question from the State of Punjab to Central Bureau of Investigation.
2. A few facts necessary to notice for disposal of the aforesaid two petitions are that the FIR in question was lodged at the instance of the complainant/petitioner Akash Rana against seven accused including accused/petitioner Darshan Lal wherein it is alleged that on the day of occurrence i.e. on 12.12.2019 at about 3 p.m. when he alongwith his brother Davinder Pratap Singh @ Banti were present at home, then Darshan Lal @ Darshi armed with a 'pistol', his brother Mahinder Pal armed with a 'pistol', Ajay Kumar armed with a 'gandasa', Lucky armed with a 'gandasa', Ashok Kumar @ Shoky Panch, Gholu and Mattu who were armed with 'swords' alongwith 8-9 unknown persons who were also carrying 'gandasas' and 'kirpans' entered into their house. It is alleged that Darshan Lal and Mahinder Pal fired two shots with pistols. Darshan Lal raised a lalkara stating that they would teach them a lesson for raising a dispute with them and that they would be eliminated. The complainant and his brother ran inside and bolted the door from inside but the assailants broke open the door. KAMAL KUMAR 2021.10.12 11:06 I attest to the accuracy and integrity of this document
(3) CRM-M-15570-2020 (O&M) &
CRM-M-33536-2020 (O&M)
After coming inside, Ajay Kumar hit the complainant's brother Davinder Partap Singh on his face with a 'gandasi'. Lucky also caused an injury with a 'gandasi' on the neck of Davinder Partap Singh, upon which the complainant's brother fell down. The assailants dragged Davinder Partap Singh from inside the room where Ashok Kumar gave a blow with 'kirpan' on the left ear of Davinder Partap Singh. Mattu is stated to have given a blow with 'kirpan' on the face of Davinder Partap Singh. Darshan @ Darshi took 'gandasa' from Lucky and gave blow with the same on the head and arms of Davinder Partap Singh. On account of the said injuries, blood started oozing out from body of complainant's brother Davinder Partap Singh. When the complainant raised alarm, his uncle's son Balram Singh was attracted to the spot who also raised alarm which attracted the families residing in the neighbourhood. The accused smashed the windows of their house and also the almirahs and the cars which were parked outside and fled away while issuing threats. The injured Davinder Partap Singh who was in an unconscious state was taken to civil hospital where he was declared dead.
3. The matter was investigated by the police and a challan was presented against six of the accused while two of the accused namely Darshan Lal @ Darshi and Mahinder Pal sons of Sant Ram were kept in column No. 2 on the ground that the said persons are yet to be arrested. The said accused Darshan Lal @ Darshi and Mahinder Pal are arrayed as respondents No. 7 and 8 in CRM-M-15570-2020 (Akash Rana Vs. State of Punjab).
4. The complainant/petitioner Akash Rana in his petition has asserted that the accused Darshan Lal and Mahinder Pal are real brothers of Surinder Chand, Deputy Superintendent of Police, Phagwara, District Kapurthala and on KAMAL KUMAR 2021.10.12 11:06 I attest to the accuracy and integrity of this document (4) CRM-M-15570-2020 (O&M) & CRM-M-33536-2020 (O&M) account of which the police is all out to extend favours to them and did not even arrest them though they are specifically named in the FIR and there are specific allegations against them. It is further the specific case of complainant that the said accused, taking advantage of the fact that they had not been arrested, filed a representation for enquiry into the matter to the Inspector General of Police, Jalandhar Range. On the basis of said representation an enquiry was marked to Superintendent of Police (P.B.I O.C. Narcotic), District Kapurthala where the real brother of the accused Darshan Lal @ Darshi and Mahinder Pal was also posted. It is further the case of the complainant that during the course of investigation, the police had intentionally withheld statements of four witnesses recorded by ASI Satwinder Singh under Section 161 Cr.P.C. as the same showed involvement of the accused Darshan Lal @ Darshi and Mahinder Pal. The said witnesses are stated to be Paramjit Singh, Hira Lal, Sanjogita Devi and Vijay Kumari. It is further the case of the complainant Akash Rana that two material witnesses including Aarti Minhas, who had videographed a part of the occurrence which clearly shows Darshan Lal and one Neelam Devi have not been cited as witnesses though their statements under Section 161 Cr.P.C. had been recorded.
5. When the aforesaid matter i.e. CRM-M-15570-2020 - Akash Rana Vs. State of Punjab was taken up for hearing on 8.7.2020, after issuance of notice of motion, the following order was passed :-
"Prayer in this petition is for transfer of investigation in case FIR No.198 dated 12.12.2019 registered at Police Station Garhshankar, District Hoshiarpur under Sections 302, 452, 148, 149, 427 IPC alongwith Sections 25 and 27 of the Arms Act back KAMAL KUMAR 2021.10.12 11:06 I attest to the accuracy and integrity of this document (5) CRM-M-15570-2020 (O&M) & CRM-M-33536-2020 (O&M) to District Hoshiarpur and to constitute a Special Investigation Team (SIT) with regard to the investigation being carried out qua respondents No.7 and 8, who are nominated as accused in the FIR.
Counsel for the petitioner submits that respondent No.6 is real brother of respondents No.7 and 8 and, he is serving as Deputy Superintendent of Police, Phagwara, District Kapurthala. Counsel for the petitioner has also submitted that the report under Section 173(2) Cr.P.C. was prepared on 5.2.2020 and was presented before the Illaqua Magistrate at Garhshankar on 9.3.2020, in which it is stated that Darshan Lal @ Darshi- respondent No.7 and Mahinder Pal-respondent No.8 are yet to be arrested and after their arrest supplementary challan will be presented.
Counsel for the petitioner further submits that under the influence of respondent No.6, respondents No.7 and 8 managed to get the investigation of the case transferred in District Kapurthala, where their real brother is serving as Deputy Superintendent of Police, Phagwara. Counsel has further submitted that since there are serious allegations against these persons, the further investigation, if any, should be transferred back to district Hoshiarpur by constituting a SIT.
Counsel for the petitioner has further argued that even the persons who have been arrested on 18.12.2019 are extending threat to the brother of deceased and two independent witnesses as they have posted such threat on their face-book page on 23.1.2020, despite being in Kapurthala jail.
Reply by way of affidavit of Deputy Superintendent of Police, Sub Division Garhshanker, District Hoshiarpur has been filed and as per the same, it is stated that a relative of respondents No.7 and 8 had given application to the Director General of Police, Chandigarh, which was marked to the Inspector General of Police, Jalandhar and it was then marked to the Senior KAMAL KUMAR 2021.10.12 11:06 I attest to the accuracy and integrity of this document (6) CRM-M-15570-2020 (O&M) & CRM-M-33536-2020 (O&M) Superintendent of Police, Kapurthala, who has marked the same to conduct further investigation and the outcome of the said investigation is still awaited.
No one has appeared on behalf of the private respondents through video conferencing.
List again on 20.8.2020.
In the meantime, it is directed that the further investigation, if any, on the representation given on behalf of respondents No.7 and 8 be conducted by the Special Investigation Team, comprising of three police officials, headed by Senior Superintendent of Police, Hoshiarpur. The further investigation be transferred to the Special Investigation Team, immediately.
Fresh affidavit of the Senior Superintendent of Police, Hoshiarpur be filed regarding the investigation.
6. The learned counsel for the complainant/petitioner Akash Rana has submitted that pursuant to issuance of aforesaid direction on 8.7.2020, a Special Investigation Team (SIT) was constituted to inquire into the matter which has submitted its report (Annexure R1/T) [attached with reply filed by the State] as per which Darshan Lal @ Darshi and Mahinder Pal (respondents No. 7 and 8 in CRM-M-15570-2020 (Akash Rana Vs. State of Punjab) have been found to have duly participated in commission of offences in question and it has been recommended that Darshan Lal @ Darshi and Mahinder Pal be arrested and a challen be prepared and presented against them.
7. On the other hand, the accused/petitioner Darshan Lal in his petition places reliance upon the inquiry report dated 9.7.2020 (Annexure P-5) submitted by Superintendent of Police, (P.B.I., O.C. Narcotics), Kapurthala which was conducted pursuant to a representation submitted by Jasveer Kumar (nephew of accused Darshan Lal and Mahinder Pal) wherein while noticing that KAMAL KUMAR 2021.10.12 11:06 I attest to the accuracy and integrity of this document (7) CRM-M-15570-2020 (O&M) & CRM-M-33536-2020 (O&M) accused Darshan Lal is not seen in a video clip, has recommended that a deeper investigation is required. It has, thus, been prayed by the accused/petitioner Darshan Lal that the matter be referred to a specialized premium agency i.e. Central Bureau of Investigation so as to get a fair investigation conducted in the matter.
8. I have heard the learned counsel for the petitioners in both the cases and also the State counsel.
9. A perusal of the FIR would show that the complainant has specifically named 8 accused including Darshan Lal and Mahinder Pal. While the said Darshan Lal and Mahinder Pal are stated to be armed with pistols, the others are armed with weapons like 'gandasis' and 'kirpans'. While both of them are alleged to have fired from their respective weapons immediately upon entering the house, later, all the accused entered into the room where the complainant and his brother had locked themselves in and all the accused caused injuries. Darshan Lal @ Darshi is stated to have grabbed a 'gandasa' from co-accused Lucky and is specifically alleged to have given blows with the same on the head and arms of the complainant's brother. The deceased was found to have sustained as many as 28 injuries including 17 incised wounds and was declared dead immediately upon his arrival in the hospital. It remains unexplained as to why the said Darshan Lal and his brother Mahinder Pal could not be arrested by the police, though the other six were duly arrested. The only possible explanation can be that the local police had extended undue favours to the said two accused who were real brothers of Surinder Chand, DSP, Phagwara.
KAMAL KUMAR 2021.10.12 11:06 I attest to the accuracy and integrity of this document
(8) CRM-M-15570-2020 (O&M) &
CRM-M-33536-2020 (O&M)
10. When the matter was enquired into by the SIT, constituted pursuant to order dated 8.7.2021 passed in CRM-M-15570-2020, it has clearly indicted accused Darshan Lal and Mahinder Pal and it has been reported that they cannot be held to be innocent and it has been recommended that they be arrested and challan be presented against them. In the said inquiry report, the statements of several persons residing in the locality have been recorded including that of Neelam Devi, Aarti Minhas, Vijay Kumari, Sanjogita Devi and Paramjit Singh, who have all stated consistently to the effect that on 11.2.2019 at about 2:30-3:00 p.m. 15-16 persons riding motorcycles, who were armed with weapons like pistols, 'kirpans' etc., had come in their locality and they had heard firing of shots. The statement of Aarti Minhas who had made video recording of part of the accident has stated as follows :-
"She is the resident of the abovesaid address and I am reading in B.Ed. On 11/12/2019 at about 02:50 P.M. I was preparing tea in my house when I heard the voice of gunshots and the voice of a motorcycle. I at once came at the gate of my house. I saw Mohinder Singh and Darshan Lal. Mohinder Singh was armed with Pistol and Kirpan and Lakhwinder Singh @ Lucky were armed with sharp weapons. Gurmukh Singh R/o Bhanoon was also having a sharp- edged weapon. Other 10-15 unidentified persons are having a sharp- edged weapons. When I started clipping video side the gate of one house, the Mohinder Singh came running towards me with his weapons and said that no one would make a video. He threatened that whatsoever. Then Darshan Lal @ Darshi said that they can't do anything. We should do what we have come to do. When Mohinder Singh caused me to fear I alongwith Mobile entered in. Thereafter Mohinder Singh, Darshan Lal @ Darshi, Ajay and alongwith Gurmukh showered Bullets on Banti and all of them also invaded on Banti with their sharp weapons. While going Mohinder Singh and Darshan Lal @ Darshi threatened that Govt. is theirs, D.S.P. theirs, KAMAL KUMAR 2021.10.12 11:06 I attest to the accuracy and integrity of this document (9) CRM-M-15570-2020 (O&M) & CRM-M-33536-2020 (O&M) Goldi whosoever would depose against us would also meet the same fate. I have seen the occurrence from the stairs of my house after entering my house."
11. The aforesaid statement of Aarti Minhas shows that while she was making recording, she was threatened by accused Mahinder Pal not to make the same and that due to fear she went inside alongwith her mobile. Keeping in view the consistent statements of the residents of the locality, the fact that the video recording does not show the presence of Darshan Lal @ Darshi may be insignificant as a video recording cannot always completely capture the entire area where some activities/action is going on as some persons/articles/portion would always be out of frame. While, it may be said that CCTV footage/video recording can be used for positive evidence for ascertaining the presence of a person at the place of incident but video recording/CCTV footage may not always be useful for negative evidence i.e. for discounting the presence of a person at the place of incident as at a given point of time, the person may be out of frame of the camera and some part of the occurrence may have taken place a little out of frame of camera. In such cases, it is the ocular version of the eye-witnesses which would came in handy to re-enact the occurrence. The SIT was headed by a senior officer of the rank of S.P. and in these circumstances, this Court does not find any reason to discard the said report which has been placed on record alongwith reply filed by the State. In the absence of anything to show that the report of the SIT is tainted or is biased, this Court does not find any ground to handover the investigation to the CBI. Consequently, the petition filed on behalf of Darshan Lal @ Darshi i.e. CRM-M-33536-2020 is found to be sans merit and is hereby dismissed.
KAMAL KUMAR 2021.10.12 11:06 I attest to the accuracy and integrity of this document
( 10 ) CRM-M-15570-2020 (O&M) &
CRM-M-33536-2020 (O&M)
12. As far as the petition filed by the complainant Akash Rana is concerned, since by virtue of interim directions issued on 8.7.2020, a Special Investigation Team had already been constituted which has now also submitted its report, no further direction in this regard is required to be issued. The said petition i.e. CRM-M-15570-2020 is disposed off, having been rendered infructuous.
13. Since it has been informed by the learned State counsel that accused Darshan Lal and Mahinder Pal (respondents No. 7 and 8 in CRM-M-15570-2020 - Akash Rana Vs. State of Punjab) have not been arrested yet and that proceedings under Section 82 Cr.P.C. have been initiated, the S.S.P. Hoshiarpur is directed to ensure that all necessary steps are taken for effecting arrest of the aforesaid two accused and that a supplementary report in terms of Section 173 Cr.P.C. is filed at the earliest qua the said accused.
14. It is further directed that SSP, Hoshiarpur shall get the needful done for getting statements of material eye-witnesses as mentioned in report of SIT, especially that of Ms. Aarti Minhas, recorded in terms of Section 164 Cr.P.C. at the earliest, preferably within less than one week from today. It shall also be ensured that no harm is caused to them in any manner and that no threat is extended to them.
15. The District Judge, Hoshiarpur shall also ensure that needful is done in this regard for facilitating expeditious recording of statements under Section 164 Cr.P.C. If need be, the Chief Judicial Magistrate, Hoshiarpur or any other Magistrate, in addition to Illaqa Magistrate may also be deputed for the purpose for expediting the process of recording statements u/s 164 Cr.P.C.. KAMAL KUMAR 2021.10.12 11:06 I attest to the accuracy and integrity of this document
( 11 ) CRM-M-15570-2020 (O&M) &
CRM-M-33536-2020 (O&M)
16. A copy of this order be sent to the District Judge/Senior Superintendent of Police, Hoshiarpur for necessary compliance. The complainant is also at liberty to move application in this regard to Senior Superintendent of Police, Hoshiarpur and District Judge/CJM/Illaqa Magistrate concerned.
11.10.2021 ( Gurvinder Singh Gill )
kamal Judge
Whether speaking /reasoned Yes / No
Whether Reportable Yes / No
KAMAL KUMAR
2021.10.12 11:06
I attest to the accuracy and
integrity of this document