Criminal Revision No.2050 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.2050 of 2009 Date of decision:- 07.02.2011 Kanwar Singh ...Petitioner Versus Mohinder Singh and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Y.P. Singh, Advocate for the petitioner. Mr. Balraj Gujjar, Advocate for respondent Nos.1 to 5. Mr. P.S. Virk, DAG Haryana for respondent No.6-State. RITU BAHRI J. This criminal revision is against the order dated 13.7.2009 passed by the Additional Sessions Judge, Bhiwani vide which the application under Section 319 of Code of Criminal Procedure, filed by the petitioner for summoning of respondent Nos.1 to 5 as accused has been dismissed. An FIR No. 145 dated 11.4.2009 under Sections 148,149 and 324 IPC was registered on the statement of Azad Singh, brother of the petitioner, at Police Station Sadar, Bhiwani, District Bhiwani. The petitioner was injured and unfit to make the statement as he had received total eight injuries at the hands of the accused. Later the statement of the petitioner was recorded under Section 161 of the Code of Criminal Procedure in which, the petitioner also named respondent Nos.1 to 5 and attributed the specific roles to them for inflicting injuries upon him. On the basis of the injuries and the opinion of the Criminal Revision No.2050 of 2009 -2- doctor, the offence under Sections 307 and 326 IPC was added. It was stated by the police in the challan that respondent Nos.1 to 4 were harvesting the crop at the time of incident whereas respondent No.5-Suresh was in the Army at that time. One of the person namely Ram Kumar son of Sat Narayan Pandit resident of Dhareru was cited as witness to support the plea of alibi by the police but there is no such person in village Dhareru. After submission of challan, during trial, petitioner and his brother Azad appeared as witnesses and again stated on oath that the accused/respondent Nos.1 to 5 were involved in the incident. The petitioner submitted an application under Section 319 of the Code of Criminal Procedure for summoning of respondent Nos.1 to 5 but the same was dismissed by the trial Court. Mr. Y.P. Singh, Advocate for the petitioner argues that the trial Court has not considered the case in right perspective. Respondent Nos.1 to 5 have been named in the FIR and also in the statement under Section 161 Cr.P.C. They have been subsequently named in the statements before the trial Court. One Ram Kumar son of Sat Narayan Pandit was cited as witness to support the plea of alibi by the police but no such person was found in the Village Dhareru. That witness could not produced by the prosecution in the trial Court. Therefore, the benefit of plea of alibi cannot be given to the prosecution at the stage of summoning as the same is required to be proved like other facts. He has placed reliance on the judgment of Supreme Court in case Lok Ram v. Nihal Singh 2006(2) RCR (Criminal) 707 and of Allahabad High Court in case Shiv Sahain Mishra alias Raju and others v. State of U.P. and another 2000 Crl.L.J. 2761. Learned counsel for the petitioner has referred to the statement made by Kanwar Singh and argues that in his statement specific role has been attributed to all the respondent Nos.1 to 5 in relation to the injuries inflicted upon him. There are total eight injuries inflicted upon him with sharp edged weapon as per medical report (Annexure P-10). The challan has been presented Criminal Revision No.2050 of 2009 -3- in this case against three accused i.e. Rakesh, Gora Singh and Santosh. As per the investigation Mahinder, Sandeep, Sanju, Suresh and Birmati were found innocent. It is mentioned in the challan that respondent No.5-Suresh was on duty in the Army and remaining were harvesting wheat crop in their field. Mr. Y.P. Singh, Advocate counsel for the petitioner vehemently argued that it is not humanly possible to inflict eight injuries on a person by three persons, who have been found accused, against whom the challan has been presented. The trial Court should have allowed the application under Section 319 Cr.P.C. and summoned Mahinder, Sandeep, Sanju, Suresh and Birmati as accused as there was sufficient evidence against them for conviction. Learned counsel Mr. P.S. Virk, DAG Haryana for the State has argued that a specific inquiry was made from the Army headquarters and the Commanding Officer, 18 Guards C/o 56 APO informed vide letter dated 29.4.2008 that Soldier No.15617948X Guardsman Suresh Kumar son of Gora Singh resident of Village Nangal, District Bhiwani was physically present in the Unit from 22.2.2008 till date. As per the investigation made by DSP Headquarters, Bhiwani, during interrogation Sube Singh son of Duli Chand and Raj Kumar son of Satya Narain submitted that on 10.4.2008 at 5.30 PM Mohinder Singh, his wife and his two sons were cutting crops of wheat in their fields. Verification was done by DSP Bhiwani from the eye witnesses, who informed that on 10.4.2008 Kanwar Singh had quarreled with accused Gora under the influence of liquor. On becoming angry Gora inflicted injuries on Kanwar Singh at the 'Bara' of Jai Narain. Accused Rakesh inflicted injuries with sword and Smt. Santosh daughter-in-law of Gora was also present at the spot. These eye witnesses told the DSP that Kanwar Singh was rescued by the villagers and Gora and his son have participated in this attack and rest of the accused have been falsely implicated. In view of the investigation, Army Headquarters has also clarified that Suresh was in the Unit w.e.f. 22.2.2008 till 29.4.2008, the plea of Criminal Revision No.2050 of 2009 -4- the petitioner that all these accused were present and inflicted injuries to him on 10.4.2008, is falsified. As per the eye witnesses and report from the Army Headquarters, the order of the trial Court dismissing the application under Section 319 Cr.P.C. calls for no interference. Mr. Balraj Gujjar, Advocate for respondent Nos.1 to 5 has adopted the arguments and contentions raised by learned counsel for the State and placed reliance on the judgments Sarabjit Singh and another v. State of Punjab and another 2009(3) RCR (Criminal) 388 and Guriya @ Tabassum Tauquir and others v. State of Bihar and another 2008(1) Criminal Court Cases 549 to contend that a person should not be summoned to face trial if prima facie case was not made against him. He should be summoned only when the Court finds that evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. I have heard learned counsel for the parties and have gone through the case file carefully. In the present case after the FIR registered and investigation conducted by the police, it has been found as a matter of fact that allegation against respondent No.5- Suresh that he was present at the time of attack on 10.4.1988 is falsified by the verification done by the police from Army Headquarters. Hence, no prima facie case is made out against respondent No.5- Suresh. In case of Mohinder, Sandeep, Sanju and Birmati, statements of eye witnesses have been recorded, in which it has been mentioned that there was a quarrel between Kanwar Singh and Gora under the influence of liquor. Rakesh had attacked on him with sword and Smt. Santosh was present on the spot. Kanwar Singh was rescued by the villagers. The eye witnesses have not named Mohinder, Sandeep, Sanju and Birmati. Sarpanch of the village Ram Kumar has also stated that 4-5 months back a criminal case was pending between Kanwar Singh and Gora and that was later on compromised. Criminal Revision No.2050 of 2009 -5- After going through the case file and perusing the record, produced by the State, order passed by Additional Sessions Judge dated 13.7.2009 calls for no interference at this stage. The criminal revision is dismissed with no costs. February 07, 2011 ( RITU BAHRI ) Vijay Asija JUDGE