Crl. Misc. No. M-19000 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-19000 of 2010 Date of Decision: February 03, 2012 Darshan Singh …..Petitioner Versus The State of Punjab and another .....Respondents CORAM:- HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. G.S.Sidhu, Advocate for the petitioner Mr. Shilesh Gupta, DAG, Punjab Mr. A.S. Cheema, Advocate for respondent No.2 RAJAN GUPTA, J. In this petition challenge is to order dated 20.4.2010 (Annexure P-2) passed by court of Sessions Judge, Mansa whereby an application filed by the Public Prosecutor for summoning additional accused has been allowed. Brief factual background of the case is that Amarjit Kaur, wife of Pritam Singh, was allegedly killed by Lakhwinder Singh and his wife Balwinder Kaur on 6.6.2009. A complaint was lodged by Pritam Singh stating that he was earlier married to Som Kaur who died in the year 1997. In the year 1999 he married Amarjit Kaur (now deceased). He gave two killas of land to his son and kept one for himself. He and his wife were living in their house at village Alampur Bodra where his son Lakhwinder Singh alongwith his wife and children was also living. Due to domestic Crl. Misc. No. M-19000 of 2010 2 problems complainant and his wife decided to shift to Suman. On 6.6.2009 at about 9.00 A.M. they reached Village Alampur Bodra for taking away their domestic articles. When they opened their room, Lakhwinder Singh was talking on his mobile phone with his maternal uncle Darshan Singh who provoked him saying that both of them should not be spared today. This conversation was heard by deceased Amarjit Kaur. Thereafter, Lakhwinder Singh caught hold of Amarjit Kaur from hair and threw her on the floor. He thereafter gave two blows on the right side of her head with thapa while his wife sat on legs of Amarjit Kaur. Thereafter Lakhwinder Singh strangulated Amarjit Kaur with her chunni. After the incident they fled from spot. Amarjit Kaur, however, died. Motive of the crime is stated to be that Lakhwinder Singh and his wife as well as brother-in-law Darshan Singh were not happy with second marriage of Pritam Singh. According to allegations in the FIR, they murdered the wife of complainant on the instigation of Darshan Singh. After FIR was lodged investigation ensued. However, investigating agency found Darshan Singh and Balwinder Kaur innocent and exonerated them in its final report under section 173 Cr.P.C. It only presented a charge-sheet against Lakhwinder Singh. During the course of trial, Pritam Singh, however, stepped into witness box and reiterated his version. The Public Prosecutor thus moved an application under section 319 Cr.P.C. for summoning additional accused, namely, Darshan Singh and Balwinder Kaur vide impugned order-Annexure P/2. The trial court allowed the prayer and summoned both the accused in exercise of power under section 319 Cr.P.C. The present petition has, however, been preferred only by Darshan Singh. Crl. Misc. No. M-19000 of 2010 3 Learned counsel for the petitioner has argued that Pritam Singh has stated nothing new after stepping into witness box. He has merely reiterated his version as given in the FIR. According to him, on the basis of said version a thorough investigation was conducted and Darshan Singh was found innocent. Thus no new evidence has come before the court which would warrant summoning of Darshan Singh. This apart, he submits that according to allegations in the FIR, Amarjit Kaur (deceased) heard Lakhwinder Singh talking to Darshan Singh on mobile phone when he was at Rajpura. According to him, there was no method by which Amarjit Kaur could have heard what Darshan Singh had said over phone. This version is merely a hearsay evidence. He has also emphasised that an inquiry was conducted into the matter wherein mobile call record was examined and it was found that there was no call at the relevant time between Darshan Singh and Lakhwinder Singh. The said inquiry report has been placed on record as Annexure P-4. Learned State counsel, however, submits that Darshan Singh is brother of first wife of Pritam Singh. He had a motive to instigate his nephews to kill Amarjit Kaur as she was second wife of the complainant. This apart he submits that offence is under section 302/34 read with section 120B IPC. In view of same, Darshan Singh is infact guilty of hatching a conspiracy to kill deceased Amarjit Kaur. According to him, the evidence which has come on record is sufficient to exercise power under section 319 Cr.P.C. Learned counsel for the complainant has adopted the arguments advanced by learned State counsel. Crl. Misc. No. M-19000 of 2010 4 I have heard learned counsel for the parties and given careful thought to the facts of the case. Pritam Singh who stepped into the witness box as PW-3 deposed regarding involvement of petitioner in the crime. Relevant part of his statement is reproduced below for ready reference:- “On 6.6.2009, I along with my wife Amarjit Kaur deceased went to out house in village Alampur Bodra at 8.00 AM for taking our household articles. When we opened the lock of our portion accused Lakhwinder Singh present in the court made a phone call to his maternal uncle Darshan Singh of Rajpura. My wife heard the conversation between accused Lakhwinder Singh and Darshan Singh. My wife told me that she had heard that accused would not be spared us as I am hard of hearing. We decided to leave that place and we locked out room and when we were just leaving, accused Lakhwinder Singh and his wife Balwinder Kaur restrained us. The accused Lakhwinder Singh caught hold my wife Amarjit Kaur from her long hair. Accused then inflicted two blows with a wooden thapa on the right side of her head. My daughter in law Balwinder Kaur sat on the legs of Amarjit Kaur. Lakhwinder Singh then strangulated the neck of my wife with her Duppata and thereafter Lakhwinder Singh and Balwinder Kaur fled away with wooden Thapa. The occurrence took place at about 9.00 A.M.. My wife died due to injuries. I made a phone call from my mobile to police station Bhikhi and I kept sitting near the dead body. The police came at the spot. I then got recorded my statement Ex. PE which was read over and explained to me and I signed the same in token of its correctness.” A perusal of the aforesaid statement shows that Pritam Singh merely stated that when he entered the premises, he found that accused Lakhwinder Singh had made a phone call to maternal uncle Darshan Singh Crl. Misc. No. M-19000 of 2010 5 (petitioner herein). His wife had heard the conversation between Lakhwinder Singh and Darshan Singh which was to the effect that he and her wife would not be spared. On the basis of this deposition, petitioner has been summoned to face trial. According to allegation, Lakhwinder Singh was having a telephonic conversation with Darshan Singh. It is thus inexplicable how wife of Pritam Singh could have heard the conversation which Lakhwinder Singh is stated to be having with Darshan Singh. It appears that during inquiry/investigation mobile phone records were also examined by the investigating agency. No call record for the relevant period between Darshan Singh and Lakhwinder Singh was found. On this basis, he was exonerated during investigation. Under the circumstances, I am of the considered view that there is hardly any evidence on record which would warrant summoning of Darshan Singh under section 319 Cr.P.C. In judgment of the Apex Court reported as Krishnappa vs. State of Karnataka 2004(4) RCR(Crl.) 678 it was observed that power to summon an accused is an extraordinary power conferred on the court and should be used very sparingly. The court should exercise this power for compelling reasons which exist for taking cognizance against other person. While referring to judgment in Michael Machado & anr. vs. Central Bureau of Investigation & anr., 2000(2) RCR (Crl.) 75 (SC), the court observed that judicial exercise is called for while considering an application under section 319 Cr.P.C. An order cannot be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused. In my considered view, this is a case of similar nature. The statement of Pritam Singh does not give any indication of involvement of Darshan Singh in the Crl. Misc. No. M-19000 of 2010 6 commission of crime. Merely because his wife overheard Lakhwinder Singh talking to somebody, it cannot be construed that Darshan Singh had a role to play in the commission of crime or instigating the accused. The petition is thus accepted and the impugned order is set- aside. Darshan Singh would thus no longer be treated as an accused. The trial court is directed to proceed with the trial against rest of the accused. February 03, 2012 (RAJAN GUPTA) PC/Ajay JUDGE