Crl. Rev. NO. 1569 of 2011 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Rev. No. 1569 of 20111 (O&M) Date of Decision: August 8, 2011 Sanwal Singh …..Petitioner Vs. Anand and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.RK.Hooda, Advocate for the petitioner. -.- M.M.S. BEDI, J. (ORAL) Petitioner- complainant has challenged the legality and propriety of the order dated April 21, 2011 passed by Additional Sessions Judge, Sonepat, dismissing the application under Section 319 Cr.P.C. filed by the petitioner for summoning respondents No.1 to 6, alongwith Sonu and Pawan Kumar, who are already facing trial, as additional accused. In order to fairly appreciate whether the trial Court has committed any illegality in Crl. Rev. NO. 1569 of 2011 (O&M) [2] dismissing the application under Section 319 Cr.P.C., it is relevant to refer to the facts of the case. Facts which are relevant for adjudication of the present revision petition are that complainant- Sanwal Singh got a case registered on the basis of statement made by the petitioner to the police alleging that his two sons Kuldeep Singh and Surinder were studying in Kurukshetra University. Kuldeep Singh occasionally used to visit his Village Aterna and he had been residing at the said village prior to the occurrence for the last many days. On March 7, 2009 at about 8.30 p.m. Kuldeep called the complainant on his mobile phone and told that Sonu and Vicky sons of Tirath made him to sit on motorcycle and took him towards the brick kiln owned by Mangat where Anand, Ashok, Narender and Dhan Singh were already present. They told Sonu and Vicky to shot dead Kuldeep. On this Vicky and Sonu fired shot at him. The complainant had enquired into the matter. His daughter Varsha had told him that she was in Village and she came to know that her brother after sustaining bullet injuries managed from the site at the tubewell of Ran Singh where he had fallen down. She also rushed to him. Deceased Kuldeep Singh had narrated the incident to Varsha. After investigation the police had challaned Sonu @ Arun and Pawan. The said accused were, after commitment, charged on September 16, 2009. Complainant Sanwal Singh appeared as PW3, Krishan appeared as PW4 and his daughter Varsha appeared as PW5. After examination of all the three witnesses, Sanwal Singh filed an application under Section 319 Cr.P.C. pleading that at the time of lodging of FIR he had named Anand, Narender, Ashok, Dhan Singh Crl. Rev. NO. 1569 of 2011 (O&M) [3] and Nafe Singh but during investigation, the police had dropped their names and kept their names in column No.2. Their names were told to the complainant by Kuldeep Singh himself prior to the death after suffering various bullet injuries at the hands of accused. On the basis of statements of PW3-Sanwal Singh, complainant, PW4 Krishan and PW5 Varsha, the summoning of abovesaid additional accused was sought for. The trial Court considered the statements of PW3-Sanwal Singh, complainant, PW4 Krishan and PW5 Varsha and dismissed the application under Section 319 Cr.P.C. on the following grounds:- i) PW3 had lodged the FIR claiming himself to be the father of deceased Kuldeep Singh but in his cross-examination he has admitted that he is not the real father of deceased Kuldeep Singh. The complainant had not been able to prove that he was married to Raj Kumari, mother of the deceased in the year 1982 and that he had admitted that deceased Kuldeep Singh was the son of Maya; ii) Statement of said witness is full of improvements over his original statement Ex.PB made to the police; iii) The complainant has stated in the cross- examination that FIR was not registered on his statement; Crl. Rev. NO. 1569 of 2011 (O&M) [4] iv) In Ex.PB he had stated that Varsha, PW5 is his daughter but in the cross-examination he admits that she is not his daughter; v) In his application Ex.PB he had stated that Kuldeep Singh was studying in Kurukshetra University but in cross-examination, he stated that the deceased was not attending any college; vi) PW4 Krishan has resiled from his earlier statement and did not support prosecution version. vii) Varsha while appearing as PW5 claimed herself to be daughter of Sanwal Singh whereas Sanwal Singh in cross-examination has denied this fact; viii) Sanwal Singh is not a witness of kidnapping of Kuldeep Singh; ix) PW Varsha claims herself to be eye-witness but in the statement Ex.PB made by the petitioner- complainant, he has not stated that Varsha had witnessed the incident of shooting, rather she had rushed to the tubewell of Ran Singh; x) There are number of contradictions in the statement of Sanwal Singh and statement of Varsha; xi) There being no cogent and convincing incriminating evidence available against the Crl. Rev. NO. 1569 of 2011 (O&M) [5] accused sought to be summoned warranting conviction, the application under Section 319 Cr.P.C. was dismissed. Counsel for the petitioner has vehemently contended that the trial Court has acted illegally and arbitrarily in dismissing the application for summoning of additional accused who are named in the FIR. He has argued that names of the accused who have not been summoned stand mentioned in the original statement made by the complainant on the basis of the statement of the deceased made to him on telephone. Varsha is alleged to have arrived at the spot of occurrence. It has been vehemently argued by Mr.Hooda, counsel for the petitioner that the additional accused Anand, Surender, Narinder, Ashok, Dhan Singh and Nafe Singh should be summoned as additional accused. With the assistance of counsel for the petitioner, I have gone through the original statement Ex.PB of the complainant and his statement made in the Court as PW3 besides going through the statements of Varsha, PW5 and PW4 Krishan. So far as Krishan PW4 is concerned, he has turned hostile and has not supported the case of prosecution. Statement of petitioner as PW3 is made on the basis of statement made to him by deceased Kuldeep Singh on telephone regarding the persons who had fired at him and the persons who were present on the spot. The said statement had been made by Kuldeep Singh after he had received gunshot injuries. It will be debatable whether statement of Kuldeep Singh alleged to have been made to the PW3-petitioner on telephone, could be treated as a dying Crl. Rev. NO. 1569 of 2011 (O&M) [6] declaration. The trial Court seems to have rightly prima facie formed an opinion that the allegations of Sanwal Singh as PW3 made on the basis of a telephonic conversation of the deceased are not prima facie strong enough to warrant the opinion that there is likelihood of conviction of the accused who are sought to be added. The trial Court has rightly observed that it would be debatable whether the statement of Varsha- PW5 could be said to be a direct ocular version in view of the statement of PW3-Sanwal Singh. It does not establish the presence of Varsha on the spot at the time of occurrence. Even the statement of Sanwal Singh that he was told by the deceased on telephone that Anand, Ashok, Surender, Narinder Singh, were present when Kuldeep Singh got of the motorcycle of Sonu and Vicky. Anand, Ashok and Narinder had allegedly fired shot at Kuldeep but as per story of the complainant no shot was fired by any of these three persons causing any injury on the person of Kuldeep. The six persons, who are sought to added, had allegedly spoken the words that deceased should be caught-hold of and should not be permitted to run. They had allegedly run after the Kuldeep when accused Arun was on motorcycle which was driven by Pawan. Varsha has claimed herself to be an eye-witness but she has improved her original version under Section 161 Cr.P.C. PW4 Krishan has not supported the case of prosecution. The statements of Sanwal Singh and Varsha, PW3 and PW5 respectively are not sufficient enough to satisfy the conscience of the Court regarding the involvement of respondents No.1 to 6. Even otherwise, no injury has been attributed to any of the said accused though the witness has stated that all were armed with fire arms. It is a Crl. Rev. NO. 1569 of 2011 (O&M) [7] settled principle of law that objective of provisions of Section 319 Cr.P.C. is to try and acquit even those persons who were originally found innocent during investigation but there is sufficient evidence against them warranting their conviction. In view of the nature of injury having been attributed to the respondents and the various circumstances mentioned by the trial Court in the impugned order, I do not find any ground to set aside the order and to summon the additional accused. The principles laid down in Micheal Machedo Vs. CBI and another, 2000 (2) RCR (Crl.) 75 seem to have been aptly applied by the trial Court. Dismissed. August 8, 2011 (M.M.S.BEDI) sanjay JUDGE