Punjab-Haryana High Court
Harshdeep Singh And Ors vs State Of Haryana And Anr on 16 September, 2022
Author: Pankaj Jain
Bench: Pankaj Jain
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on 7th of September, 2022
Pronounced on 16th of September, 2022
CRR No.2269 of 2019 (O&M)
Harshdeep Singh and others
.....Petitioners
versus
State of Haryana and another
.....Respondents
CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN
Present : Mr. Suvir Sidhu, Advocate
for the petitioners.
Mr. Ramesh K. Ambavta, Asstt. A.G., Haryana
for respondent No.1/State.
PANKAJ JAIN, J. (ORAL)
Petitioners herein have been summoned as additional accused in FIR No.265, dated 5th of May, 2017 registered for the offences punishable under Sections 148/307/323/452/506 r/w Section 149 of the Indian Penal Code, 1860 (for short, 'the IPC') and Section 25-54-59 of the Arms Act, 1959, at Police Station Assandh, by resorting to Section 319 Code of Criminal Procedure (for short, 'the Cr.P.C.) vide impugned order dated 16th of August, 2019.
2. FIR was registered on 5th of May, 2017 on the statement of 1 of 14 ::: Downloaded on - 31-12-2022 00:58:58 ::: CRR No.2269 of 2019 (O&M) 2 Avtar Singh, who stated as under :-
"Statement of Avtar Singh son of Sadha Singh, caste Jat Sikh, resident of village Habri, Police Station Pundri, District Kaithal, aged 70 years, Mobile # 8529220532. Stated that I am residing at above noted address and is agriculturist by profession. My daughter Sarabjit Kaur is married with Hira Singh son of Chandan Singh, caste Jat Sikh, resident of village Chaugama since past about 17 years. I often use to visit village Chaugama in order to meet my daughter Sarabjit Kaur and stay in her house for a couple of days. Due to this reason, the persons residing in the surrounding houses are known to me. Yesterday, on 4.5.2017, I had come to my daughter Sarabjit Kaur. My son in law Hira Singh had purchased land measuring one acre, situated near his house, from one Jhanda Singh son of Pritam Singh, caste Jat Sikh, resident of Dera Chaugama about 7/8 years back, in which, Hardeep Singh son of Mahabir Singh, caste Jat Sikh, resident of village Chaugama is having hare to the extent of two Kalan. Today, in morning hours, when we are present in Dera (house) with Sonu son of Nishan Singh, caste Mazbi Sikh, resident of village Kheri Sarfali, Joginder Singh son of Dalip Singh, caste Mazbi Sikh, resident of village Kheri Sarfali, Gurpal Singh son of Channan Singh, caste Jat Sikh resident of village Chaugama, Hira Singh son of Chanan Singh, caste Jat Sikh, resident of Dera Chaugama, Daljit Singh son of Gurpal Singh, caste Jat Sikh, resident of Dera Chaugama, Shamsher Singh son of Gurpal Singh, caste Jat Sikh, resident of Dera Chaugama, Gurjant Singh son of Sahib Singh, caste Jat Sikh, resident of village Chaugama, Simarjit Kaur wife of Sahib Singh, caste Jat Sikh, resident of Dera Chaugama & Sarabjit Kaur wife of Hira Singh, caste Jat Sikh, resident of Dera
2 of 14 ::: Downloaded on - 31-12-2022 00:58:58 ::: CRR No.2269 of 2019 (O&M) 3 Chaugama, where we left land measuring 2 Kanal, belonging to Hardeep Singh and were carving out passage with the help of tractor, when at about 12.00/12.30 P.M., Hardeep Singh son of Mahabir Singh caste Jat Sikh, resident of Dera Chaugama, came over there, who was carrying a country made pistol, Harsh Deep Singh son of Hardip Singh, caste Jat Sikh, resident of Chaugama, carrying gandassi, Satender Singh son of Kashmir Singh, caste Jat Sikh, resident of Dera Chaugama, having .315 bore gun, Subeg Singh son of Bhagwan Singh, caste Jat Sikh, resident of Dera Chaugama, carrying pistol, Jujhar Singh son of Harbhajan singh, caste Jat Sikh, resident of Dera Chaugama, having .12 bore gun, Amrit Pal Singh son of Harbhajan Singh, caste Jat Sikh, resident of Chaugama, carrying .315 bore gun, Gulzar Singh son of Jassa Singh, caste Jat Sikh, resident of Chaugama, carrying .315 bore gun, Harbhajan Singh son of Arjan Singh, caste Jat Sikh, resident of Chaugama, having gandassi, Sahib Singh son of Angrej Singh, caste Jat Sikh resident of Dera Chaugama, carrying lathi,, Kuldip Singh son of Jassa Singh, caste Jat Sikh, resident of Dera Chaugama, having lathi, Mukhtar Singh son of Hazur Singh, caste Jat Sikh, resident of Dera Chaugama, carrying lathi, Kalu son of Mukhtiar Singh, caste Jat resident of Dera Chaugama, carrying gandassi & Mahabir Singh son of Angrej Singh, caste Jat Sikh, resident of Dera Chaugama, carrying gandassi, who all raised lalkara by saying that they may be taught a lesson today for carving out passage from field. Harbhajan Singh asked Jhujhar Singh while raising lalkara that you may fire on Gurbaj & Hira, on which, he fired with .12 bore gun on Gurbaj & Hira. Mahabir asked Subeg Singh by raising lalkara that you may hit Joginder, on which, Subeg Singh fired with his pistol on Joginder Singh. As the firing commenced, we all rushed 3 of 14 ::: Downloaded on - 31-12-2022 00:58:58 ::: CRR No.2269 of 2019 (O&M) 4 towards house. All the assailants were firing on us. While fleeing, I received a pallet of gun shot on my left cheek . Sonu also received bullet injury while fleeing from the spot. All the assailants were raising lalkara and saying that they may not be spared today. We all rushes inside the rooms of house, on which, all the assailants entered our house and kept on firing with their arms. Firing marks are appearing in our house. All the said persons have fired on us with a motive to kill us. The firing attracted a number of persons from surrounding houses. As they arrived at the spot, the assailants with their respective weapons fled away from the spot. Hence stern legal action may be taken against the said accused. Statement got recorded, heard, it is correct. Sd/- Avtar Singh. Attested - Sd/- ASI Parveen Kumar, Police Station Asandh. Dated: 5.5.2017."
3. It needs to be noticed that the statement of Avtar Singh was recorded in hospital after Doctors opined him to be fit. Report under Section 173 Cr.P.C. was filed against eight accused. Rest of five were found to be innocent. After the trial commenced complainant appeared as PW-1, one Gurbaj Singh appeared as PW-4 and reiterated the allegations against all the accused including the present five petitioners (who were declared innocent during investigation).
Application under Section 319 Cr.P.C. was moved to summon them as additional accused to face trial. Vide impugned order said application under Section 319 Cr.P.C. stands allowed.
4. Ld. Counsel for the petitioners has argued that the 4 of 14 ::: Downloaded on - 31-12-2022 00:58:58 ::: CRR No.2269 of 2019 (O&M) 5 allegations levelled against the present petitioners are not corroborated by the medical evidence and, thus, the Ld. Trial Court erred in allowing the application under Section 319 Cr.P.C. He relies upon law laid down by Constitutional Bench of Supreme Court in the case of 'Hardeep Singh vs. State of Punjab', 2014(3) SCC 92, to contend that power vested under Section 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly. He further submits that it is not one of those cases where the circumstances so warrant as the Court has to be satisfied that there is 'more than prima facie case' made out against the accused before invoking Section 319 of the Code.
5. Per contra, Ld. State Counsel also relies upon the questions of law answered in Hardeep Singh's case (supra) to contend that there is no bar to exercise power under Section 319 Cr.P.C. when the Investigating Agency has found accused to be innocent. He submits that Trial Court is not helpless. In case the Court is satisfied that there are circumstances for summoning a person, the Court is well within its power to invoke Section 319 Cr.P.C. Counsel further refers to the impugned order and submits that bare perusal thereof shall reveal that the test as laid down in Hardeep Singh's case (supra) stands satisfied and, thus, no fault can be found with the orders passed by the Trial 5 of 14 ::: Downloaded on - 31-12-2022 00:58:58 ::: CRR No.2269 of 2019 (O&M) 6 Court. Further reference has been placed upon the law laid down by the Apex Court in case of Sartaj Singh vs. State of Haryana and another 2021 (5) SCC 337.
6. I have heard Ld. Counsel for the parties and have carefully gone through the evidence on record.
7. The question is : 'Whether the Trial Court has applied the test of 'more than prima facie case' as prescribed under Hardeep Singh's case (supra) in the present case before summoning the petitioners under Section 319 Cr.P.C. or not ?' The relevant portion of the order passed by the Trial Court needs to be culled out here :
"14. During the course of investigation, I.O. recorded statements under section 161 Cr.P.C. of other victims and members of complainant party, which included Daljit Singh, Shamsher Singh, Gurjant Singh, Ms. Simarjeet Kaur, Ms. Sarabjeet Kaur, Hira Singh, Joginder Singh, Sonu and Balkar Singh. All these witnesses in their said statements reiterated allegations of attack against all the 13 accused including five additional accused in question. But Shri Dalbir Singh, DSP Assandh in his investigation found five accused in question as innocent. But no reasons have been given by said Investigating Officer in support of his opinion that what evidence came to distinguish between eight accused facing trial and five accused found innocent, whereas as per final police report under section 173 Cr.P.C. filed against eight accused, itself contained a fact that some of the accused made an attempt to create a crosscase by attributing injuries to 6 of 14 ::: Downloaded on - 31-12-2022 00:58:58 ::: CRR No.2269 of 2019 (O&M) 7 them at the hands of complainant party, but such falsity was detected and said accused, there aide and a doctor were booked.
15. Further, these are facts on record that victims Avtar Singh (PW3) and Gurbaj Singh (PW4) in their respective examination-in-chief on oath before this court reiterated above referred allegations against all the 13 accused which includes five additional accused in question. Such evidence beside depicting active role of five additional accused alongwith eight accused facing trial also points out that they were members of unlawful assembly attracting their constructive criminal liability and warranting their summoning under section 148, 307, 323, 506 read with section 149 IPC. Since Investigating Agency erred, so summoning under Arms Act could not be made because no recovery of pistol was made from accused Subeg Singh and no recovery of gun was made from Jhujar Singh and similarly no recovery of gun was made from accused Gulzar Singh.
16. As such, in the present facts and circumstances, depicted above, it is imperative to refer ruling of Hon'ble Supreme Court of India in Hardeep Singh Vs. State of Punjab and others 2014(1) RCR (Criminal) 723 (SC), in which it has been held that at the time of considering summoning in exercise of powers under section 319 Cr.P.C. test 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.
17. In the case in hand, above referred evidence, in the opinion of this court, squarely meets the test as laid down in 7 of 14 ::: Downloaded on - 31-12-2022 00:58:58 ::: CRR No.2269 of 2019 (O&M) 8 Hardeep Singh's case (supra) that such evidence is one which is more than prima facie 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. Further, there is no material on record, which made to distinguish culpability of five additional accused from eight accused facing trial."
8. Admittedly, Avtar Singh PW-1 is an injured witness, who stated as under :-
"On 05.05.2017, I alongwith Heera Singh, Sonu son of Nishan Singh, resident of Kheri Serfali, Joginder Singh son of Dalip Singh, resident of Kheri Serfali, Gurbaj Singh and Heena Singh sons of Chanan Singh, resident of Chogama, Daljit Singh and Shamsher Singh sons of Gurbaj Singh, resident of Chogama, Gurjant Singh son of Sahab Singh, resident of Chogama, Simranjeet Kaur wife of Sahab Singh and Sarabjeet Kaur wife of Heera Singh, residents of Chogama were present in our field and were making a path by using a tractor in the land which we purchased from Jhanda Singh after leaving two canal land belonging to Hardeep Singh. It was about 12.00/12.30 noon time, at that time Hardeep Singh son of Mahabir Singh, resident of Chogama having a country-made pistol in his hand, Harshdeep Singh son of Hardeep Singh, resident of Chogama having a gandasi in his hand. Satinder Singh son of Kashmir Singh, resident of Chogama having a 315 bore Gun in his hand. Shabeg Singh son of Bhagwan Singh, resident of Chogama having a pistol in his hand, Jhujhar Singh son of Harbhajan Singh, resident of Chogama having a 12 bore Gun in his hand, Amritpal Singh son of Harbhajan, resident of Chogmaa having a 315 8 of 14 ::: Downloaded on - 31-12-2022 00:58:58 ::: CRR No.2269 of 2019 (O&M) 9 bore Gun in his hand, Mukhtiar Singh Gulzar Singh son of Jassa Singh, resident of Chogama having 315 bore Gun in his hand, Harbhajan Singh son of Arjun Singh, resident of Chogama having a gandasi in his hand, Sahab Singh son of Angrej Singh, resident of Chogama having a lathi in this hand, Kuldeep Singh son of Jassa Singh having a lathi in his hand, Mukhtiar Singh son of Hajoor Singh, resident of Chogama was also having a lathi in his hand, Kalu son of Mukhtiar Singh, resident of Chogama having a gandasi and Mahabir Singh son of Arjun Singh, resident of Chogama having a gandasi in his hand and came there a gave a lalkara. Harbhajan Singh and other accused gave a lalkara by saying that taught them a lesson for making a passage from the field. Harbhajan gave a lalkara and asked Jhujhar Singh to fire a shot at Gurbaj Singh and Heera Singh on which the accused Jhujhar Singh fired a shot from his 12 bore Gun upon the Gurbaj Singh and Heera Singh and the pellet hit in the right eye of the Gurbaj Singh. Mahahir gave lalkara and asked Shabeg Singh to fire upon Joginder Singh on which Shabeg Singh fired upon Joginder Singh from his pistol and when this firing was taking place, we all ran towards our dera and all the accused were firing with their respective weapons when we were running towards our dera and one pellet hit me on my right cheek. Sonu and Joginder also received pellet injuries. We hide ourselves in the rooms of our dera. All the accused had fired upon us with intention to kill. All the accused also fired upon our dera indiscriminately. On hearing the noise of the firing, many persons from the surrounding deras reached there and on seeing them coming, all the accused fled away from the spot with their respective weapons."
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9. Similarly, Gurbaj Singh appeared as PW-4 and stated that :-
"We were making the path on our land with our tractor which we purchased him from Jhanda Singh. Meanwhile, at 12.30 p.m. Hardeep Singh son of Mahabir Singh, resident of Chogama came there who was having a country-made pistol in his hand, Harshdeep son of Hardeep Singh having gandasi in his hand, Satinder son of Kashmir Singh having a gun of 315 bore in his hand, Subeg Singh son of Bhagwan Singh was having a pistol in his hand, Jhujhar Singh son of Harbhajan Singh having 12 bore gun in his hand, Amritpal Singh son of Harbhajan Singh having 315 bore in his hand, Gulzar Singh @ Mukhtiar Singh son of Jassa Singh having a 315 bore gun in his hand, Harbhajan Singh son of Arjun Singh having a gandasi in his hand, Sahab Singh son of Angrej Singh having a lathi in his hand, Kuldeep Singh son of Jassa Singh was also having a lathi in his hand, Mukhtiar Singh son of Hajur Singh having a lathi in his hand, Kalu son of Mukhtiar Singh having a gandasi in his hand, Mahabir son of Arjun Singh having a gandasi in his hand, all residents of village Chogama who are already known to me being my co-villager, came there. All of them gave a lalkara that teach them a lesson for making a path from the field. Harbhajan Singh while giving a lalkara said to Jhujhar Singh fired a shot at Gurbaj Singh and Heera Singh on which Jhujhar Singh fired a direct shot upon me and my brother Heera Singh with 12 bore gun which he was having in his hand. Due to this fire by Jhujhar Singh, one pellet hit on my right eye and due to this my eye was got damaged. Mahabir Singh after giving a lalkara said to Subeg Singh that fired a shot at Joginder on
10 of 14 ::: Downloaded on - 31-12-2022 00:58:58 ::: CRR No.2269 of 2019 (O&M) 11 which Subeg Singh fired a shot from his pistol upon Joginder Singh. Due to the firing, we all ran towards our dera. All the accused armed with deadly weapons were firing upon us. While running one pellet also hit to Avtar Singh and while running I also received a bullet injury on my left thigh. My brother Heera Singh also received pellet injuries on his chest, face and left arm. Sonu son of Nishan Singh also received pellet of the bullets on his arm and hand. Joginder Singh also received pellet injuries on his legs and below the abdomen. All the accused were raising the lalkaras that today we should not be left alive. We after running went inside the rooms of our dera. All the accused persons armed with weapons also entered into our dera and fired many shots there. Many bullet marks are still present on the walls of our dera. All the accused after forming the unlawful assembly armed with deadly weapons had attacked upon us in order to kill us. On hearing the noise of firing, many persons from the nearby deras had also come there and on seeing them coming all the accused ran away from the spot alongwith their respective weapons."
10. Investigating Agency in its report under Section 173 Cr.P.C. while referring to the present petitioners observed :-
"During the course of investigation, Harsh Deep son of Hardeep Jhujhar son of Harbhajan, Mukhtiar @ Gulzar Singh son of Jassa Singh, Subeg son of Bhagwan Singh, Sahib Singh son of Angrej Singh, caste Jat Sikh, residents of village Chaugama, are found to be innocent."
11. No reason whatsoever has been given by the Investigating 11 of 14 ::: Downloaded on - 31-12-2022 00:58:58 ::: CRR No.2269 of 2019 (O&M) 12 Agency which forms basis of its afore-referred conclusion.
12. In the case of Rajesh vs. State of Haryana, 2019 (6) SCC 368, Apex Court while referring to the dictum of law laid down in Hardeep Singh's case (supra) held that even in a case where the stage of giving opportunity to the complainant to file a protest petition has gone Court is not powerless. It can by virtue of Section 319 Cr.P.C.
summon even those persons who are named in FIR but not implicated in chargesheet to face trial provided during the trial some evidence surfaces against the proposed accused.
13. Applying the aforesaid law laid down by Apex Court, Supreme Court in Sartaj Singh's case (supra) held that -
"7. Applying the law laid down by this Court in the aforesaid decisions to the case of the accused on hand, we are of the opinion that learned Trial Court was justified in summoning the private respondents herein to face the trial as accused on the basis of the deposition of the appellant - injured eye witness. As held by this Court in the aforesaid decisions, the accused can be summoned on the basis of even examination-in-chief of the witness and the Court need not wait till his cross-examination. If on the basis of the examination-in-chief of the witness the Court is satisfied that there is a prima facie case against the proposed accused, the Court may in exercise of powers under Section 319 Cr.P.C. array such a person as accused and summon him to face the trial. At this stage, it is required to be noted that right from the 12 of 14 ::: Downloaded on - 31-12-2022 00:58:58 ::: CRR No.2269 of 2019 (O&M) 13 beginning the appellant herein - injured eye witness, who was the first informant, disclosed the names of private respondents herein and specifically named them in the FIR. But on the basis of some enquiry by the DSP they were not charge- sheeted. What will be the evidentiary value of the enquiry report submitted by the DSP is another question. It is not that the investigating officer did not find the case against the private respondents herein and therefore they were not charge-sheeted. In any case, in the examination-in-chief of the appellant-injured eye witness, the names of the private respondents herein are disclosed. It might be that whatever is stated in the examination-in-chief is the same which was stated in the FIR. The same is bound to be there and ultimately the appellant herein - injured eye witness is the first informant and he is bound to again state what was stated in the FIR, otherwise he would be accused of contradictions in the FIR and the statement before the Court. Therefore, as such, the learned Trial Court was justified in directing to issue summons against the private respondents herein to face the trial."
14. Keeping in view the fact that no reason has been assigned by the Investigating Agency to absolve the petitioners of the allegations levelled against them. No material finds reference in the report filed under Section 173(2) which can have an effect to rebut the allegations levelled by the complainant in FIR. After injured witnesses had reiterated the version given in the FIR, no fault can be found with the Trial Court, who has rightly applied the test as laid down in 13 of 14 ::: Downloaded on - 31-12-2022 00:58:58 ::: CRR No.2269 of 2019 (O&M) 14 Hardeep Singh's case (supra) to allow the application filed by the prosecution. The complainant, who happens to be an injured-witness is consistent and uniform in his version. Thus, there is no ground to interfere in the order passed by the Ld. Trial Court summoning the accused to face trial in exercise of powers conferred under Section 319 Cr.P.C.
15. Consequently, the present revision petition is dismissed being without merit.
September 16, 2022 (PANKAJ JAIN)
Dpr JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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