Punjab-Haryana High Court
Dharam Pal vs State Of Haryana And Others on 8 August, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
Crl. Revision No.75 of 2012 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Revision No.75 of 2012 (O&M)
Date of decision: 08.08.2012
Dharam Pal
....Petitioner
Versus
State of Haryana and others
....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
Present: - Mr. Deepender Singh, Advocate, for the petitioner.
Mr. Sidharth Sarup, DAG, Haryana.
Mr. R.S. Rai, Sr. Advocate, with
Mr. Swarn Tiwana, Advocate, for respondents No.2 and 3.
*****
PARAMJEET SINGH, J. (ORAL)
Crl. Misc. No.1613 of 2012 For the reasons stated in the application, Crl. Misc. is allowed and delay of 8 days in filing the revision is condoned. Crl. Revision No.75 of 2012
The challenge in the present petition is to the order dated 1.10.2011 passed by learned Additional Sessions Judge, Faridabad, whereby the application of the petitioner under Section 319 Cr.P.C. summoning the respondents No.2 and 3 as additional accused in case FIR No.675 dated 18.12.2010 under Section 302/34 IPC, registered at Police Station City Ballabgarh, has been declined.
The prosecution case was registered on the complaint of Dharam Pal - petitioner on the allegation that on 17.12.2010 his son Suresh had gone to attend his duty on motorcycle bearing No. HR-29-S- 3614 make Hero Honda. On 18.12.2010 he received information that Crl. Revision No.75 of 2012 (O&M) -2- dead body of Suresh was lying in Daulat Colony in front of the house of Satish alias Babli. On this, complainant Dharam Pal along with his son Naresh went to that place and saw that his deceased son had injuries on his forehead, nose and head and he had been killed by Satish alias Babli son of Rajpal, Hari (Advocate), son of Satish, wife of Satish and maternal uncle of Satish, namely, Chandi. As a result of it FIR was registered.
The police after investigation presented challan against other accused, however, Hari Ram and Chandi (respondents herein) were not challaned. During the course of recording of the evidence, prosecution examined PW1 Gulshan son of Rampal, the eyewitness.
In his statement before the Court (Annexure P-5) PW1 Gulshan stated as under: -
"Then I left for my house but on reaching Ambedkar Chowk, it occurred to me that Suresh was also on visiting terms with Satish, who was residing in Dault Colony. I reached there at about 4:30-5:00 a.m. and noticed that Suresh was being assaulted by Satish, his wife and Hari Ram, Advocate, Chandi and one or two more by means of lathies, rods and bricks. When I attempted to intervene, then those persons rushed towards me. As I was alone, so I rushed towards the police station City Ballabgarh and reached their at about 6/6:30 a.m. There some clerk was sitting and I told him about the incident. He stated that they were coming and I should bring some responsible persons from the village from my house. I then set out for my house. By that time I came to know that Suresh had already died and my uncle Dharampal and his elder son had already left the village. I again came back to the spot where the incident taken place and reached there at about 8-8:30 a.m. I found the dead body of Suresh lying Crl. Revision No.75 of 2012 (O&M) -3- there. My uncle Ram Pal was also there and I narrated him the entire incident. The police was intimated in this regard by my uncle Dharam Pal at the spot. Thereafter the police also recorded my statement under Section 161 Cr.P.C."
In addition to it, the statement of Gulshan recorded under Section 161 Cr.P.C. (Annexure P-2), immediately after the occurrence, is also similar, wherein Gulshan has stated that he saw Satish, Hari Ram, Chandi and wife of Satish, Bhupinder son of Satish and one more person, whom he can identify, were giving beatings to Suresh after catching hold of him by iron road (saria), lathi, bricks. After recording of the statements of the PWs, an application was moved by the complainant for summoning respondents No.2 and 3 under Section 319 Cr.P.C. The learned trial Court, while exercising its jurisdiction, dismissed the application vide order dated 1.10.2011. Hence this revision petition.
Learned counsel for the petitioner vehemently argued that there is a categorical statement of eyewitness Gulshan under Section 161 Cr.P.C., which was recorded on 18.12.2010. Besides this, Gulshan had appeared as PW1 and categorically made statement that he had seen Hari Ram and Chandi along with others beating Suresh with iron roads and bricks, as a result of which he died. Learned counsel submits that despite specific allegation by the eyewitness, respondents No.2 and 3 have not been summoned. As such the order of learned Additional Sessions Judge is not sustainable in the eyes of law, being illegal, perverse and manifestly wrong. Learned counsel for the petitioner further referred to the post-mortem report showing ten injuries, which are lacerated in nature, which could be caused by blunt weapon, to Crl. Revision No.75 of 2012 (O&M) -4- contend that it is an indicative of the fact that the incident had occurred in the manner narrated by PW1 Gulshan.
Learned counsel for the petitioner relied upon the judgments of the Hon'ble Supreme Court in the case of Ram Pal Singh and others vs. State of U.P. and another, 2009(2) RCR(Criminal) 131 and in the case of Suman vs. State of Rajasthan and another, 2009(4) RCR (Criminal) 908.
On the other hand, learned Senior counsel for respondents No.2 and 3 stated that it is a discretion of the Court to summon a person under Section 319 Cr.P.C. as such the same cannot be interfered with. Learned Senior counsel for respondents No.2 and 3 relied upon the judgment of Hon'ble Supreme Court in Michel Machado and another vs. Central Bureau of Investigation and another, (2000) 3 SCC 62. Learned Senior counsel further contended that trial is almost at the fag end and is for recording the statement under Section 313 Cr.P.C. as such the petition should be dismissed. Learned Senior counsel further submitted that eyewitness count of Gulshan PW1 cannot be accepted as there is no probability of conviction of the respondents.
I have considered the rival contentions of the learned counsel for the parties and perused the record.
The learned trial Court has not properly appreciated the evidence of PW1 in Court and his statement under Section 161 Cr.P.C. In the statement before the Court, a sufficient evidence has been brought, which specifically states the manner in which the injuries were inflicted upon the deceased (Suresh) by Hari Ram and Chandi. The injuries are in consonance with the medical evidence, which is placed on the file of the Crl. Revision No.75 of 2012 (O&M) -5- Court. Keeping in view this, the material evidence brought before the Court is prima facie sufficient to summon the accused to face trial.
The finding of the learned Additional Sessions Judge that name of Gulshan is not mentioned in the FIR, which adversely affects the merits of the case and it cannot be formed as a basis for accepting the prayer for summoning the accused in terms of Section 319 Cr.P.C. as there is no fresh evidence brought before the Court, is erroneous for the reason that mere registration of FIR is just to set law into motion and it is not supposed to contain all minute details of the incident. In the case of Babu Singh vs. State of Punjab, 1996 (2) RCR (Criminal) 818 Hon'ble Apex Court has held that mere non-mentioning of name of the PW in the FIR is not sufficient to impeach his veracity. If the witness is found to be independent and reliable and is believed to be present during the occurrence then his evidence cannot be rejected on the sole ground that his name was not mentioned in the FIR.
In the case of Nirpal Singh and others v. State of Haryana, (1977) 2 SCC 131 the Hon'ble Supreme Court has held that the name of the witness examined during trial, not having been given in the FIR though may be of some relevance but by itself would not entail rejection of his evidence. On examining the First Information Report I find that no mention has been made as to who are the witnesses to the occurrence. That by itself cannot be the ground to discard the evidence of witness who is stated to have witnessed the occurrence, if intrinsically nothing has been brought out in the cross-examination to impeach his testimony. In these circumstances the Hon'ble Judges of the Hon'ble Supreme Court observed that they were unable to persuade ourselves to agree with the Crl. Revision No.75 of 2012 (O&M) -6- submission of the learned counsel for the appellant that non-mentioning of the name of Jai Narayan in the FIR is sufficient to impeach his veracity.
Hon'ble Supreme Court in the case of Pramod Mahto vs. State of Bihar, 2003 (9) SCC 215 has held that Investigating Officer during investigation came to know the names of other PWs. No adverse inference could be drawn, merely because the names of PWs 1 and 5 are not mentioned in the FIR.
In view of the settled proposition of law, the finding of the learned Additional Sessions Judge cannot be sustained that non- mentioning of the name of the PW in the FIR will affect the prosecution case, therefore, said finding being perverse and unwarranted is not sustainable.
In the present case, names of respondents No.2 and 3 have been mentioned in the FIR along with others, but no challan has been presented against them. PW1 in his testimony before the Court named the said persons being involved in causing the death of the deceased, therefore, the said persons can be summoned.
Hon'ble Supreme Court has considered the similar situation in Ram Pal (supra) and held as under: -
"16. All that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. It is also clear that the discretion is left to the Court to take a decision on the matter.
17. In the instant case, although, the appellants were named Crl. Revision No.75 of 2012 (O&M) -7- in the F.I.R., they were not named as accused in the charge-
sheet during the trial. However, P.W.1 in his
evidence, has named the appellants as persons
who were involved in the incident causing the death of
Brijesh Kumar Singh and injuries to Manvender
Singh. Despite the above, the trial Court, on two
separate occasions, rejected the prayer made by the Respondent No.2 for summoning the appellants herein under Section 319 Cr.P.C. The High Court, after considering the evidence of P.W.1, Kamlesh Singh, thought it necessary for the appellants to be summoned.
18. Although, certain other observations made by the High Court regarding the orders passed by the Trial Court could and should have been avoided, we are also of the view that the High Court had not committed any error in directing that the appellants be summoned to stand trial along with the co-accused, in view of the evidence of P.W.1 during the trial itself."
In the present case, names of respondents No.2 and 3 find mention in the FIR and the PW1, who is the eyewitness to the incident, has specifically attributed the role to respondents Hari Ram and Chandi.
Similar view was expressed by Hon'ble Supreme Court in the case of Suman vs. State of Rajasthan and another, 2009(4) RCR (Criminal) 908, wherein the Hon'ble Supreme Court has held that a person who is named in the first information report or complaint with the allegation that he/she has committed any particular crime or offence, the Court is to be prima facie satisfied that such person has committed any offence for which he can be tried with other accused.
The contention of learned Senior counsel for respondents No.2 and 3 that case is at the fag end and is at the stage of recording of the Crl. Revision No.75 of 2012 (O&M) -8- statement under Section 313 Cr.P.C., therefore, respondents cannot be summoned after long delay, cannot be sustained in view of the law laid down by Hon'ble Supreme Court in Bholu Ram vs. State of Punjab and another, 2008(4) RCR (Criminal) 187, wherein a person was summoned as additional accused after 8 years of filing of FIR and commencement of trial. The Hon'ble Supreme Court has held as under: -
"25. We are unable to uphold the contentions. We have quoted Section 319 of the Code. It nowhere states that such an application can be filed by a person other than the accused. It also does not prescribe any time limit within which such application should be filed in the Court.
38. Construing the provision liberally, the Court proceeded to state;
"Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused
already before it. If it is satisfied that any person other than accused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word `evidence' in Section 319 contemplates that evidence of witnesses given in Court. Under sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person Crl. Revision No.75 of 2012 (O&M) -9- had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned". (emphasis supplied).
40. In our opinion, therefore, the learned Magistrate had power and jurisdiction to entertain applications filed by the appellant-accused under Section 319 of the Code and to issue summons to respondent No. 2 by adding him as accused. The said order could not be said to be illegal, unlawful or otherwise objectionable."
Once the Court comes to a conclusion that there is sufficient evidence, the accused can be summoned under Section 319 Cr.P.C. Perusal of the evidence brought before the trial Court reveals that prima facie there is sufficient evidence before the trial Court to summon Hari Ram and Chandi as additional accused. Section 319 Cr.P.C. does not prescribe any time limit within which such application should be filed in the Court. The findings recorded by the learned Additional Sessions Judge are perverse and warrant interference by this Court.
In view of the above, present petition is allowed. Order dated 1.10.2011 passed by learned Additional Sessions Judge, Faridabad is hereby set aside and application for summoning accused is allowed and respondents No.2 and 3 are directed to face trial.
(Paramjeet Singh) Judge August 08, 2012 R.S.