CRIMINAL REVISION NO.1934 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: DECEMBER 09, 2008 Krishan Lal and others .....Petitioner VERSUS State of Haryana ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Ms. Sharmila Sharma, Advocate, for the petitioners. Mr. Yashwinder Singh, AAG, Haryana, for the State. **** RANJIT SINGH, J. (ORAL) The petitioners have challenged the order passed by the Additional Sessions Judge, Jind, whereby they stand summoned as additional accused to face prosecution under Section 373, 366, 376 IPC. Accused Naveen was facing this prosecution on the basis of a complaint lodged by Kavita Devi, prosecutrix. The FIR, which was lodged by Raj Rani, mother of prosecutrix Kavita Devi, was against Naveen. However, on the basis of statement made by Kavita CRIMINAL REVISION NO.1934 OF 2008 :{ 2 }: Devi, names of Roshan Lal, Krishan, Suraksha Devi, Rajesh and Rajpal Head Constable also surfaced. After investigation, however, they were found innocent and shown in Column No.2. Now Kavita Devi has appeared as PW10 and has stated that she was raped by Rajesh, a neighbourer of accused Naveen and also named Roshan Lal, Krishan, Suraksha Devi, Rajpal Head Constable and Bua of accused Naveen, who allegedly assisted Naveen in kidnapping and raping her. The Trial Court, after taking into consideration the evidence given by the witness, has declined to summon Head Constable Rajpal and Bua of accused Naveen as no specific role was attributed to them. The Court, however, has summoned Krishan, Suraksha and Roshan as accused, who had allegedly helped Naveen in kidnapping and raping Kavita, prosecutrix. Learned counsel for the petitioners would contend that though the statement of Kavita now made before the Court has been taken into consideration and given credence over her earlier version but the Court did not take into account the different versions given by the prosecutrix at different stages of investigation and trial. This, as per the counsel, was needed to see if her evidence would satisfy the standard of test as laid down by the Hon'ble Supreme Court i.e. the hope of prospect of conviction. Counsel points out that prosecutrix has now given evidence naming all these persons, specifically saying that Rajesh also raped her but would refer to her cross-examination to find hole in her version. He also refers to her previous statement recorded by the Magistrate under Section 164 Cr.P.C. Initially, only examination-in-chief of the witness was placed on record. CRIMINAL REVISION NO.1934 OF 2008 :{ 3 }: Subsequently, the complete statement, including the cross- examination, has been filed. Learned counsel for the petitioners would refer to that part of cross-examination where the witness has stated as under:- “Thereafter was taken to Kurukshetra and brought back on the same day but I cannot tell the exact date when I was taken to Kurukshetra. We all went there for picnic purpose. After that we came back to Karnal and thereafter went to Ludhiana and stayed there for one night and then we came back to Karnal. In Ludhiana I and Naveen stayed in the house of my Mausi i.e. sister of my mother. We went to Ludhiana in the Jeep belonging to Krishan which was driven by his driver. In the way and at the house of my Mausi I did not disclose any thing to anybody. I was not allowed to go out of house at Karnal during my stay there. I requested Naveen to drop me at house at Safidon. I was given food once in a day. I made my statement under Section 164 Cr.P.C. before the Magistrate second time at the instance of my family members after 42 days of the prior statement made to the Magistrate u/s 164 Cr.P.C. I harried the incident to the police which I am deposing today. After statement u/s 164 Cr.P.C. recorded in the month of March 2008, an enquiry was held by DSP in which I made statement but I do not know about the result on that enquiry.” The counsel would highlight, in particular, the portion CRIMINAL REVISION NO.1934 OF 2008 :{ 4 }: where the witness admitted to have made statement under Section 164 Cr.P.C. after 42 days of the incident at the instance of family members. Thereafter the counsel would refer to the statement made by the witness under Section 164 Cr.P.C. before S.D.J.M., Safidon. Here, the witness has clearly admitted that she was in love with Naveen Kumar and they both wanted to get married. She has also stated that they left the house and returned when they were allowed to marry. The statement made by the witness on 2.2.2008 is reproduced here as under:- “Statement of Smt.Kavita Rani d/o Late ShPadam Singh aged 20 years occupation r/o Safidon. Stated that I was in love with Naveen Kumar and both of us were friends. Both of us wanted to get married but both families opposed it. Naveen was beaten badly by his family members and he had left the house and when he returned back he again requested them to allow him to marry Kavita. But both families declined our request and did not turn up. Finding no other way, both of us at our free will left the house on 6th June, 2008 and went to Ludhiana. My mother Raj Rani has got registered a false case against Naveen. I wish to marry Naveen and want to live with him. RO&AC Sd/- Rajan Walia, Kavita Rani S.D.J.M.,2.2.2008” The witness has again made another statement under Section 164 Cr.P.C., which has also been annexed with the petition CRIMINAL REVISION NO.1934 OF 2008 :{ 5 }: as Annexure P-5, where she has given a different version, blaming Naveen and others with the allegations. The grievance of counsel for the petitioners is that the Court, while summoning the petitioners as additional accused, has not taken into consideration the fact that the prosecutrix had made different statements at different times, which are available on record. It would be one thing to say whether the witness has given evidence making allegations against the petitioners or not and another to say if that will be sufficient for hope of prospect of conviction against the persons sought to be added as additional accused. While considering this aspect and deciding whether the petitioners are to be summoned as additional accused or not, the Court could be expected to take into consideration the different versions of this witness and then assess whether her evidence would be sufficient for hope of prospect of conviction of these persons or not. It may have been still open for the Trial Court to rely upon the substantive evidence given by the prosecutrix before the Court but the fact that this version now given should be assessed in the light of different versions made by the witness at different stages of enquiry and trial obviously could not have been completely ignored. This may be required only for the purpose of seeing likelihood of conviction. The material which has been referred to by the learned counsel for the petitioners is available on record. The power to add an additional accused under Section 319 Cr.P.C. is not to be exercised in routine and leads to serious consequences in respect of a person who is sought to be so added as an additional accused. At CRIMINAL REVISION NO.1934 OF 2008 :{ 6 }: the same time, it has been held in Rajendra Singh Vs. State of U.P and Anr., 2007 (3) RCR (Criminal) 1021 that the Court need not be satisfied that the accused has committed an offence and even if it appears that he has committed an offence, that would be sufficient to summon a person as an additional accused. It is also observed by the Supreme Court the legislature apparently has left discretion to the trial Court to summon or not to summon additional accused while exercising power under Section 319 Cr.P.C. This power, as observed by the Supreme Court, cannot be termed as extraordinary power which is to be exercised only under the compelling reasons or the circumstances. The Court is given a judicial discretion which is to be exercised by the judicially trained mind and accordingly it would basically be for a Court deciding such an application which has to take a decision on the basis of law and the evidence. The Trial Court was well advised and could have better expressed itself in stating so but since there is an evidence available, which satisfies the test of law as laid down by the Hon'ble Supreme Court, the impugned order would not call for any interference in exercise of revisional jurisdiction. The consideration which is relevant for this purpose must be seen and apparent from the impugned order passed by a Court. The Court though had taken into consideration the evidence given by the prosecutrix before the Court but has not seen this statement in the light of the fact that she had earlier made divergent version at various stages of investigation and trial. It would, thus, be appropriate to require the Court to consider if it would view the evidence of prosecutrix to be sufficient CRIMINAL REVISION NO.1934 OF 2008 :{ 7 }: for summoning the petitioners as additional accused in the light of law referred to above. It is so ordered. The present petition is accordingly disposed of. Needless to mention that this Court has not expressed any opinion on merits of the case. It will still be open for the Court to summon or to decline the application by considering the evidence in the light of law laid down in various judgments by the Hon'ble Supreme Court. The court may also keep in view that the evidence alone of prosecutrix has been held sufficient to base conviction, if the Court finds it trustworthy. December 09,2008 ( RANJIT SINGH ) khurmi JUDGE