C.R.R. No. 649 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R.R. No. 649 of 2010 Date of Decision: April 7, 2011 Kaptan Singh and another …..Petitioners Vs. State of Haryana …..Respondent CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.Rajesh Lamba, Advocate for the petitioner. Mr.Deepak Girhotra, AAG, Haryana. Mr.Sandeep Chhabbra, Advocate. -.- M.M.S. BEDI, J. Petitioners - Kaptan Singh and his son Rajinder have questioned the legality and propriety of the order dated February 17, 2010 allowing the application filed by State under Section 319 Cr.P.C. to summon the petitioners as additional accused to face trial alongwith other C.R.R. No. 649 of 2010 [2] accused in case FIR No. 564 dated August 11, 2009 under Sections 307, 323, 324, 506, 34 IPC Police Station Chandni Bagh, Panipat. Brief background of the facts relevant for the adjudication of this revision petition is necessary. A criminal case was registered on the statement of Jasvir made to the investigating officer on August 11, 2009 to the effect that on August 10, 2009 at about 12.30 a.m. when he was going back to his house and passing through the street, Ashish son of Kaptan joined him for going to the fields for watering. When both of them reached near Bus stand, Ashish complained that the complainant had not done a good thing by fighting on the occasion of Holi. Ashish on account of such reason took out a knife and stabbed the complainant Jasbir on the chest when Rajinder son of Kaptan and Kaptan alongwith one another boy whose name the complainant did not know, came from the back and caught-hold of him and provoked Ashish to stab with the knife again and kill him. Thereafter Ashish, non-petitioner, stabbed the complainant- Jasvir with knife in stomach, liver and on thigh of the left leg. Complainant was able to get himself freed and ran from the spot and reached towards Lalaji Tubewell. He raised an alarm on which son of Lalaji came out and got him admitted in the hospital. He was referred to PGI, Rohtak. Thereafter his family got him admitted in Prem Hospital, Panipat. In the original statement, he had allegedly made a statement that all the four persons had given him injuries. Thereafter the investigation was conducted. Ashish and Neeraj were challaned on the basis of the investigation. After the commitment of the case and framing charges, Jasvir appeared as PW1 and C.R.R. No. 649 of 2010 [3] stated that “Ashish took out the knife and gave a blow on my chest. I tried to escape away but at the same time, Neeraj accused present in the Court and Rajinder son of Kaptan Singh and Chandgi exhorted Ashish to give more blows and kill me. Thereafter Ashish gave knife blows in my stomach and my left thigh.” An application under Section 319 Cr.P.C. was moved on the ground that Jasvir had corroborated his earlier version and specifically deposed about the role played by Kaptan and Rajinder and their participation. Reply was filed by Ashish and Neeraj. While the application under Section 319 Cr.P.C. was fixed for arguments, another application under Section 311 Cr.P.C. was moved for recalling and re-examining PW1, on the ground that Jasvir had specifically named Rajinder son of Kaptan and Kaptan in his deposition before the Court but the said fact was not noted in the certified copy of the statement of Jasvir, PW1 which was left due to inadvertence and typographical error. The trial Court vide order dated February 3, 2010 allowed the application under Section 311 Cr.P.C. permitting PW1 Jasvir Singh to be recalled and state the words which were found missing in the statement. Neeraj and Ashish aggrieved by the order passed under Section 311 Cr.P.C. approached the High Court under Section 482 Cr.P.C. for setting aside the order dated February 3, 2010, on the ground that an attempt was being made to fill-in the lacuna. The petition was dismissed by the High Court with an observation that though Jasvir Singh will be permitted to be re-summoned and re-examined but it will be the duty of the trial Court to see that direct or indirect attempt is not made to fill-in lacuna to abuse the order under Section 311 Cr.P.C. Jasvir was called C.R.R. No. 649 of 2010 [4] for re-examination on February 16, 2010. The complainant attributed specific role of catching hold of the injured- complainant by the petitioners. I have gone through the statement made by Jasvir Singh on February 16, 2010 wherein he has stated that after accused Ashish gave first blow of knife on the chest of complainant he felt momentary darkness for 2/3 minutes. Petitioner Rajinder son of Kaptan and Kaptan whose father’s name he did not know and Neeraj came there and caught-hold of him and exhorted Ashish to kill him. The trial Court had, on the basis of the said statement of Jasvir Singh which had allegedly been left earlier due to inadvertence, allowed the application under Section 319 Cr.P.C. I have carefully considered the facts and circumstances of this case resulting in the summoning of petitioners as additional accused. The petitioners are admittedly the family members of the main accused Ashish who had allegedly inflicted knife blows on the person of Jasvir. The petitioners had been found innocent during investigation. In order to prima facie find the truthfulness of the allegations levelled against the petitioners, I have carefully gone through the second statement made in the Court. There is a vague allegation against the petitioners that they alongwith third person Neeraj had caught-hold of the injured and had simultaneously exhorted Ashish to kill the complainant. In the cross-examination dated February 16, 2010, the complainant stated that he ran towards Lalaji house after having received knife injures in presence of the petitioners, Neeraj and other accused Ashish. A weak and vague allegation of exhortion by three persons simultaneously and catching hold of the complainant by the C.R.R. No. 649 of 2010 [5] petitioners alongwith Neeraj are not sufficient enough for a Court to exercise jurisdiction under Section 319 Cr.P.C. The trial Court seems to have casually allowed the application under Section 319 Cr.P.C., ignoring the fact that the petitioners who are sought to be added as additional accused are close relations of main accused Ashish and all the attempts are being made to implicate them by over-zealous complainant to see that other family members of the main accused are also tried alongwith the main accused. The exercise of power under Section 319 Cr.P.C. in the present case is improbable. The orders dated February 17, 2010 is not sustainable and is hereby set aside. Allowed in the aforesaid terms. April 7, 2011 (M.M.S.BEDI) sanjay JUDGE