IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 2051 of 2003 Date of decision : 13th August, 2008 Dinesh Kumar … Petitioner Versus U.T. Chandigarh … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mrs. Baljit K. Mann, Advocate for the petitioner. Mr. N.S.Shekhawat, Advocate for U.T. Chandigarh. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition has been filed assailing the order passed by the trial Court on 13th October, 2003 under Section 319 Cr.P.C. Mrs. Mann appearing for the petitioner has read the FIR, which has been reproduced in para 3 of the grounds of revision and for convenience, the same is reproduced below: “Statement of Varinder Singh alias Binda son of Surinder Singh, resident of House No.52, Village Badheri, U.T. Chandigarh, aged about 16-17 years – Stated that I am residing with the parents at the above mentioned address. I am working as a car mechanic apprentice with Shri Ranjit Singh mechanic in Sector 7-C market. My father is employed in the Water Works Department, Chandigarh. Earlier he was posted at the tubewell of village Kaimwala but these days he is posted in village Khuda Ali Sher. On that account, the boys of the CRR 2051 of 2003 village Kaimwala who supply milk in Sector 7, Chandigarh, know me, as they get their scooter etc repaired from near our shop in the market. Today the mechanics of Sector 7 market were conducting a Jagrata in the ground of Sector 7-A. Tonight at about 9.30 p.m., I reached the place where the Jagrata was to be held. There I met Ashok Kumar, Kewal, Davinder Kumar, Jaspal Singh, Gurdev Singh and Som Nath, residents of village Kaimbala, whom I knew earlier. By that time, the Jagrata had not yet started. Therefore, all of us went to the Sector 7-B, Chandigarh, where the Ram Leela was being held. At about 11 p.m., we came across Dinesh resident of House No.1048-F, Sector 7-B, Chandigarh and Vishal alias Raju son of the owner of Vijay Furniture, Sector 7 market, met us on the road in front of Garhwala Ram Leela. I told Dinesh that his younger brother Gaurav was saying wrong things against me and he should make him understand. Upon this, Dinesh and Vishal alias Raju replied that they will make understand. All of us again went back to the place of the Jagrata, from Ram Leela and then sat in the Pandal. At about 12.30 during the night, Vishal alias Raju, his younger brother Vikas alias Niku and their friend Umesh Gupta resident of House No.482, Sector 7-A, Chandigarh came to the place where the Jagrata was being held. Vikas alias Niku came inside the Pandal and called me by pointing towards me. When we looked towards him, he signaled us to come out. Upon this, all of us came out. We had hardly proceeded to some distance from the Jagrata place, when Vishal alias Raju gave a danda blow which he was holding in his hands and it hit Jaspal on his head. He thereafter threw the danda away and took out a knife from the right pocket of the pant worn by him and gave a thrust blow in the abdomen of Jaspal. When Kewal stepped forward to rescue Jaspal, Vikas alias Niku who was holding a knife in his hands gave a blow with the same in a thrusting manner, which hit Kewal on the left side of his chest on the heart. Vikas gave another blow, hitting him just below the neck. On receiving the knife injuries, Kewal fell 2 CRR 2051 of 2003 down on the ground. Thereafter, all of us made an effort to rescue them. Vikas alias Niku gave a knife blow to Davinder Kumar, hitting him just below his testicles. In the meantime, Umesh Gupta gave me a push and fell me to one side. Vishal alias Raju picked up the danda which he had thrown earlier and hit the same at Davinder. Afterwards, Umesh Gupta gave danda blows on the head of Gurdev Singh. Umesh Gupta also gave a number of danda blows on Som Nath, hitting him on his head, right arm and face. We raised an alarm that we should be saved and also made an effort to take care of Kewal, when all three of them, namely, Vishal, Vikas and Umesh Gupta ran away from the spot with knives and dandas. Thereafter, we lifted Kewal and put him on the scooter of Ashok. Davinder also sat behind him and they were sent to the General Hospital, Sector 16 for treatment. Then after making Gurdev and Som Nath sit on my motorcycle, I brought them to the General Hospital, Sector 16 for treatment, where the doctor told us that Kewal had since died. Vishal alias Raju and Vikas alias Niku, who are sons of the owner of Vijay Furniture, Sector 7, Chandigarh and their friend Umesh Gupta, resident of House No.482, Sector 7-A, Chandigarh, after conniving with one another, assaulted us with knifes and dandas and with an intent to kill us. Kewal has been done to death, whereas Davinder, Jaspal, Gurdev and Som Nath have received injuries. Legal action be taken against them. I have got recorded my statement, which is correct. Sd/- Varinder Singh Attested: Tirath Singh Inspector SHO Police Station-26 Chandigarh 13.10.02 at 2.45 a.m. at General Hospital Sector 16, Chandigarh” 3 CRR 2051 of 2003 A perusal of the FIR will show that it only states that at 11.00 p.m., complainant came across Dinesh and Dinesh was told by the complainant that his younger brother was saying wrong things against the complainant and he should be made to understand, to which Dinesh and Vishal alias Raju replied that they will do the needful. Thereafter, the parties went back to the place of Jagrata. Thereafter, after 1 ½ hours, when the occurrence took place, at that time Dinesh has not been named as a person who came to spot or participated in the occurrence. No role has been assigned, overt or otherwise, to Dinesh in the FIR. Thereafter, author of the FIR, Varinder Singh appeared as PW-3. The statement of Varinder Singh has been annexed as Annexure P-4. Similarly, in his statement, no role has been assigned to Dinesh. After the author of the FIR was examined, prosecution examined Jaspal Singh as PW-4. He, for the first time in his testimony, which has been annexed as Annexure P-5, stated that Dinesh gave a lalkara that complainant party be taught lesson for quarreling with them. Counsel for the petitioner has drawn my attention to para 13, sub-para 7 of the petition, where cross-examination of Jaspal Singh has been reproduced and for facility, the same is made part of this order and is reproduced below: “…..Dinesh was not known to me prior to this occurrence. I had not seen Dinesh at Chandigarh after the occurrence of this case. I do not know about this fact whether Dinesh has been challaned by the Police or not for this occurrence. I had not joined the investigation of the case. However, the Police came to me on 14.10.02 at PGI and recorded my statement thereat. SHO of Police Station Sector 26 came there but I do not know his name. I was all alone when SHO came to me at PGI. The name of Dinesh was revealed to me by Binda when a talk about it took place at the premises where Ramleela was being held. My statement that 4 CRR 2051 of 2003 Binda disclosed name of Dinesh at Ramleela premises to me is correct version.” Counsel for the petitioner contends that the petitioner, even though was not named in the FIR for the earlier part, has been not mentioned to be present at the time of occurrence and no role has been assigned. Similarly, when Varinder Singh was examined in the Court, no role has been assigned to the petitioner and he has not been named as a person present at the time of occurrence when the murder took place. Learned counsel further states that it is only Jaspal Singh, who for the first time in Court, has introduced the petitioner as a person who gave exhortation. From the cross-examination reproduced above, it is said that when Dinesh was not known to Jaspal Singh, he could not have been named in the Court. Mr. N.S.Shekhawat appearing for the State of U.T. Chandigarh, on instructions from SI Satguru, states that four witnesses have been examined. Dinesh was found innocent and was placed in column No.2. He has been summoned to stand trial vide impugned order dated August 16, 2003 (Annexure P-1). Counsel for the petitioner has relied upon Mohd. Shafi v. Mohd. Rafiq and another, 2007(2) RCR (Criminal) 762 to say that Court can only exercise a discretion under Section 39 Cr.P.C., when it arrives at the satisfaction that there is a possibility of accused summoned to be convicted. In the present case, since no role was assigned to the petitioner in the FIR, in the testimony of Varinder Singh and especially when Jaspal Singh, only after a great delay assigned a role of exhortation, the investigating agency has rightly found the petitioner innocent and there 5 CRR 2051 of 2003 is no ground made out to summon him under Section 319 Cr.P.C. Accordingly, order (Annexure P-1) is set aside. The trial may proceed against other accused. Present revision petition is accepted and allowed. (KANWALJIT SINGH AHLUWALIA) JUDGE August 13, 2008 rps 6