CRR No.2051 of 2011 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CRR No.2051 of 2011 (O&M) Date of Decision:26.11.2011 State of Haryana . . .Petitioner Versus Nafe Singh @ Lillu and others . . . Respondents ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.Sagar Deswal, AAG, Haryana, for the petitioner. Mr.Neeraj Bhutani, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. CRM No.48264 of 2011 Heard. Application is allowed. CRR No.2051 of 2011 This revision petition is directed against the order dated 23.5.2011 passed by the Additional Sessions Judge, Rohtak by which an application filed by the petitioner under Section 319 of the Criminal Procedure Code (for short ‘Cr.P.C.’) for summoning of the accused Nafe Singh @ Lillu, Prem Singh @ Nanha and Surender as additional accused, has been dismissed. The FIR was registered by Umed Singh, who has alleged that he and Ashok were two brothers. On the fateful day, he had seen Dharamraj, Prem Singh @ Nanha, Nafe Singh @ Lillu, Narender, Surender and Devender beating his brother Ashok, who was left at the spot of occurrence lying dead in a pool of blood as there was a wound with a sharp edged weapon on the left side of his neck. After the investigation, challan was presented but the respondents were kept in CRR No.2051 of 2011 (O&M) - 2 - column No.2. Only Nafe Singh @ Lillu and Prem Singh @ Nanha filed application before the learned Court below for the purpose of their discharge. The said application was allowed but it was also observed that “in case the evidence appears against Nafe Singh and Prem Singh they can be summoned as an additional accused under Section 319 Cr.P.C.”. After the statement of complainant Umed Singh as PW1 was recorded after through cross-examination, the prosecution moved an application under Section 319 of Cr.P.C. for summoning of the present respondents as additional accused. The said application has been dismissed by the learned Court below vide its impugned order dated 23.5.2011, firstly on the ground that the order of discharge was not challenged and secondly there was improvement in the first version of the complainant while appearing as PW1 which was not so recorded in the FIR (Ex.DA). Learned counsel for the petitioner has submitted that basically the version of the complainant from the very beginning is that the respondents were also involved in causing injuries to the deceased which is so specifically mentioned by him in the FIR (Ex.DA). He further submits that while appearing as PW1 he has not challenged the stand rather explained the manner in which the injuries were inflicted and has with stand the cross-examination. He further submits that only two of the co-accused namely Nafe Singh and Prem Singh had applied for discharge as the order was passed in their favour on 7.10.2010 and there is no order in favour of Surender (3rd accused) but still the learned Court below has given the advantage of the order of discharge to the 3rd accused Surender as well. He further submits that discharge of the accused Prem Singh and Nafe Singh was not an absolute bar as there was a rider in the said order dated 7.10.2010 that the prosecution can move an application for summoning Prem Singh and Nafe Singh as additional accused under Section 319 of the Cr.P.C. in case of evidence is found against them. As soon as the complainant was examined as PW1, who did not change his stand, present application under Section 319 Cr.P.C. was filed which has been illegally dismissed. CRR No.2051 of 2011 (O&M) - 3 - In reply, learned counsel for the respondents has argued that no doubt it is mentioned in the FIR (EX.DA) that the respondents were also seen causing injuries to the deceased but there is certainly an improvement made by the complainant while appearing as PW1 as he had given specific role to them. He has also referred to the two decisions of the Supreme Court in the cases of “Sarabjit Singh & Anr. Vs. State of Punjab and Anr.” 2009(3) RCR (Criminal) 388 and “Lal Suraj @ Suraj Singh & Anr. Vs. State of Jharkhand” 2009(1) RCR (Criminal) 504 to contend that some strong suspicion is not enough to order summoning under Section 319 Cr.P.C. rather the Court should satisfy that there is a possibility of conviction. I am afraid that these judgments are not applicable to the facts and circumstances of this case because in this case the learned Court below has not allowed the application of the prosecution. I have heard both the learned counsel for the parties and have perused the record from which I have found that the impugned order is patently illegal because the complainant, who happens to be the eye witness, has categorically named the respondents in the FIR and had stated that they were causing injuries just before he discovered his brother lying in the pool of blood. While appearing as PW1 the said witness has only said that the respondents had caught hold of the deceased which cannot be said to be an improvement because on the spur of the moment he could only see the presence of the respondents at the spot who were causing injuries. He must have recollected later on about their respective roles which has been narrated in his statement recorded on oath in Court. Insofar as the order of discharge is concerned that has not pertained to accused No.3 Surender as the application is not filed by him and while disposing of the application, it was categorically observed by the learned Court below that if any evidence appears against respondents No.1 and 2 they could be summoned on an application moved under Section 319 Cr.P.C. In this view of the matter, the impugned order is hereby set aside and the application filed by the prosecution is allowed because the participation of the respondents makes a prima facie case against them CRR No.2051 of 2011 (O&M) - 4 - which would reasonably lead to conviction if they are summoned and tried before the Court below. (RAKESH KUMAR JAIN) NOVEMBER 26, 2011 JUDGE Vivek