IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.661-MA of 2008 Date of Decision: 29.04.2009 Union Territory, Chandigarh Applicant/appellant Versus Ramu and another Respondents CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Mr.Hemant Bassi, Advocate for the applicant/appellant Ms.Ekta Thakur, Advocate for the respondents ….. Jasbir Singh, J. Union Territory Chandigarh has filed this application under Section 378(3) Cr.P.C. with a prayer for grant of leave to file an appeal against judgment dated 25.8.2008, acquitting the respondents, of the charges framed against them. It was allegation against the respondents that on 8.2.2007, they had caused injuries to Top Bahadur, who died on 14.2.2007. The trial Court in paragraph No.2 of the impugned judgment has noticed the contents of case of the prosecution as under:- Criminal Misc. No.661-MA of 2008 2 “Tersely put, it is the case of the prosecution that on 8.2.2007, a telephonic message was received from police post Sector 24, Chandigarh regarding the admission of an injured Top Bahadur son of Chet Bahadur, resident of house No.2022, Sector 25, Chandigarh, in PGI, Chandigarh. On this, ASI Nand Kishore along with other police officials reached PGI where the doctor opined that the patient is not fit to make statement. He obtained the MLR of the injured in which the doctor opined the nature of injury dangerous to life. There, Lal Bahadur son of Sh.Nar Singh companion of the injured met him and got recorded his statement that he has been residing on the said address alongwith Top Bahadur and his brother Jhup Bahadur since last three months. They are doing the work of watchman in Chandigarh. He does the work in Sector 29, Jhup Bahadur works in Sector 12, PGI Colony and Top Bahadur in Sector 24, Chandigarh. On that day at about 10.30 p.m. they went for their duties on their respective cycles. He was to go to his village, therefore, he deputed his relative to do the work in his place and after making him understand with the area at about 2.30 a.m., he was coming back to his room via Sector 24-C, Chandigarh for meeting Top Bahadur. When he was going towards Sector 24-C, Chandigarh after crossing the ground from Valmiki Mandir, Sector 24, Chandigarh he noticed that two persons were beating his companion Top Bahadur. One person was having stick in his hand and other person was Criminal Misc. No.661-MA of 2008 3 inflicting leg blows on Top Bahadur after laying down on the earth. The first person inflicted the stick blow straightly on the head of Top Bahadur with the result blood started oozing out. Upon seeing this, both the persons ran away from the spot. Top Bahadur disclosed their names as Sunder and Ramu. He took the injured Top Bahadur to PGI for treatment in a rickshaw. The said Ramu and Sunder in prosecution of their common intention have caused injuries on the head of Top Bahadur with an intention to kill him.” Process of criminal law was set in motion on a statement made by Lal Bahadur, at whose instance, FIR No.51 was registered against the respondents on 8.2.2007 under Section 308/34 IPC. Top Bahadur succumbed to his injuries on 14.2.2007 at 9.30 PM. Thereafter, offence under Section 302 IPC was added in the FIR. In the meantime, the investigating officer went to the place of occurrence, got site plan prepared, recorded statements of the witnesses and on completion of investigation, submitted final report in Court for trial. The respondents were charge sheeted for commission of an offence under Section 302 IPC to which they pleaded not guilty and claimed trial. During trial, the prosecution examined 13 witnesses. Further opportunity was sought to produce Lal Bahadur (PW), an eye witness to the occurrence, which was declined, vide order dated 25.8.2008. Finding no incriminating material on record against the respondents, recording of their statements under Section 313 Cr.P.C. was dispensed with. Criminal Misc. No.661-MA of 2008 4 The trial Court, after hearing arguments of counsel for the parties, acquitted both the accused vide impugned judgment dated 25.8.2008. Hence, this application. After issuance of notice of motion, record of the trial Court was summoned. Counsel for the parties heard. Mr.Hemant Bassi, Advocate appearing for the applicant has vehemently argued that the trial Court was not justified in closing evidence of the prosecution and then acquitting the respondents of the charges framed against them. By making reference to several interim orders, he made an attempt to show us that the prosecution remained vigilant throughout, had produced 13 witnesses in Court, however, Lal Bahadur, an eye witness could not be produced because he has shifted to Nepal. Mr.Bassi further, by making reference to documents Annexure A-1 to A-2, annexed with this application, argued that efforts were being made to serve the above named witness through Ministry of Home Affairs, Government of India. By stating that the trial Court has unnecessarily closed evidence of the applicant, he prayed that judgment, under challenge, be set aside and matter be remanded to the trial Court for further proceedings. Prayer made has vehemently been opposed by counsel for the respondents. She, by making reference to contents of the impugned judgment, argued that numerous opportunities were given to the prosecution to produce its evidence, when failed, its evidence was closed by order on 25.8.2008. She further argued that both the respondents were in jail, under the circumstances, the trial Court has passed the order, acquitting them when Criminal Misc. No.661-MA of 2008 5 the prosecution has failed to bring on record any material evidence against them. She prayed that the application having no substance, be dismissed. After hearing counsel for the parties, we are satisfied that it is a case where leave to file an appeal is required to be granted. We accordingly, grant the same. Registry is directed to register and number the appeal. With consent of counsel for the parties, appeal was heard on merits. Respondents were charged with serious offence of committing murder. It was allegation against them that they on 8.2.2007, had caused injuries to Top Bahadur, who died on 14.2.2007. The occurrence was witnessed by Lal Bahadur (PW), at whose instance FIR was registered. Perusal of record indicates that the prosecution had been making all out efforts to complete its evidence. In interim order dated 4.10.2007, it is mentioned that summons sent to PW Lal Bahadur were received back with a report that he had gone to Nepal and has not come back. The matter was adjourned to 2.11.2007. As per report, on that date, service upon Lal Bahadur (PW) was not complete. Interim order dated 25.2.2008 also indicates that summons issued to Lal Bahadur (PW) were received back un- executed. Statement of Sub-Inspector Chhatar Singh was recorded in Court who has stated that he had personally gone to effect service of summons, upon the witness, however, due to unrest and demonstrations in Nepal on 18.2.2008, he failed to effect service. He has put on record report (Ex.PY) written by Mukesh Kumar Singh DSP of Nepal police. Taking note of above said fact, fresh notice was issued to the witness, named above, for 9.4.2008. On that date, it was noticed by the trial Court that summons could not be issued upon the eye witness because necessary permission to go to Nepal was Criminal Misc. No.661-MA of 2008 6 not granted. Then, it was ordered that service upon Lal Bahadur (PW) be effected for 16.5.2008. On the above said date, statements of eight PWs were recorded. Trial was adjourned to 31.5.2008, on which date, examination-in- chief of two prosecution witnesses was recorded and their cross-examination was deferred, as their counsel was not available. With a view to enforce presence of the prosecution witnesses, the trial Court attached salary of the officer concerned. On 25.8.2008, statements of four prosecution witnesses were recorded. The State counsel made a request for adjournment to complete prosecution evidence, which was declined, evidence was closed by order. Finding no incriminating material on record against the respondents, statements under Section 313 Cr.P.C. were dispensed with and they were acquitted. We feel that the trial Court was not justified in closing evidence of the prosecution by order. Narration of facts mentioned above, clearly indicates that the prosecution was making all out efforts to secure presence of Lal Bahadur, an eye witness, in Court. At one time, a police official even went to Nepal, however, summons could not be effected because of unrest in that country. It is also apparent from the records that with a view to secure presence of Lal Bahadur (PW), Chandigarh police made a request to the Ministry of Home Affairs. In view of that, a letter was written on 9.7.2008 by the above said office to Embassy of India in Nepal at Khadmandu to effect service upon Lal Bahadur (PW). Letter (A-2) dated 25.8.2008 indicates that Ministry of Home Affairs wrote a letter to Inspector General of Police, UT Chandigarh, intimating that request to execute summons has been forwarded to Embassy of India in Nepal. On execution intimation will be sent to the Criminal Misc. No.661-MA of 2008 7 officer concerned. Letter further mentions that Indian Embassy requires at least 8 to 10 weeks after receipt to execute the summons. In the face of facts mentioned above, we feel that it was not desirable for the trial Court to close evidence of the prosecution by order. The prosecution may be somewhat lethargic but on that account process of justice cannot be allowed to be defeated. Inaction or lapse on the part of the prosecution agency cannot be made basis to acquit an accused charged with serious offence of committing murder. In view of facts mentioned above, we allow this application/ appeal, set aside the judgment, under challenge, remit the matter to the trial Court with a direction to proceed ahead from the stage of closing of evidence of the prosecution by order on 25.8.2008. The trial Court shall grant three effective opportunities within a span of five months to the prosecution to complete its evidence. Requisite summons be issued to secure presence of Lal Bahadur(PW). Prosecution is also directed to make serious efforts to secure presence of above named witness in Court for examination. The trial Court shall conclude the trial preferably within a period of six months. The respondents are directed to appear through their counsel before the trial Court on 15.5.2009. The trial Court shall enlarge them on bail on their furnishing surety bonds in the sum of Rs.20,000/- each. Registry to despatch copy of order to the trial Court forthwith. (Jasbir Singh) Judge 29.04.2009 (Jora Singh) gk Judge Criminal Misc. No.661-MA of 2008 8