CRR No.2598 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.2598 of 2010 (O&M) Date of decision: 17.03.2011 Kapil ....Petitioner Versus State of Haryana ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. N.S. Shekhawat, Advocate, for the petitioner. Mr. Gaurav Dhir, DAG, Haryana. Mr. Gorakh Nath, Advocate, for the complainant. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) This order of mine shall dispose of two revision petitions bearing CRR No.2598 of 2010 titled “Kapil Vs. State of Haryana” and CRR No.3371 of 2010 titled “Manoj Kumar Vs. State of Haryana”, as they arise out of the same order dated 25.8.2010 passed by learned Additional Sessions Judge, Narnaul, vide which the application under Section 319 Cr.P.C. filed by the prosecution was allowed and revisionists Kapil and Manoj Kumar were ordered to be summoned to face trial under Sections 323, 307, 506 read with Section 34 of the Indian Penal Code. For brevity sake facts are being taken from CRR No.2598 of 2010. The facts for the disposal of this petition are that FIR No.3 CRR No.2598 of 2010 (O&M) -2- dated 6.1.2010 under Sections 323, 506, 307,34 of the Indian Penal Code, Police Station Sadar, Narnaul, was registered on the statement of Urmila wife of Sunil Kumar against Balwan, Muni, Manoj Kumar and Kapil. After completion of the investigation, challan was presented against Balwan Singh and Muni Devi. The accused were chargesheeted to which they pleaded not guilty and claimed trial. Thereafter, the prosecution was called upon to adduce its evidence. During the course of prosecution evidence, PW7 Anil Kumar, while appearing in the witness box has stated in examination-in-chief “Manoj, Kapil and Muni also came there. Manoj was armed with lathi and Kapil was armed with a kulhadi and a dantali. Balwan was empyy handed. Manoj gave a lathi blow on my right shoulder. Kapil gave a dantali on my right shoulder. I fell down on the ground after receiving the lathi blow. Balwan gave a kulhari blow to me on the back side of the skull. I became unconscious. After that my bhabi Urmila came there Muni caught hold of her and Balwan gave a kulhadi blow on the back portion of the skull of my bhabi. Police recorded my statement Ex.PW3/A which bears my signature.” and in cross-examination has stated “We have started the work of constructing the doll at about 8 a.m. We were constructing the doll in the field of Balwan accused. I had stated to the police that my bhabi Urmila case there and she was caught hold by Muni accused confronted with statement Ex.PW3/A where it is not so recorded rather it is recorded that his bhabi came there and also sustained injury. I have stated before the police on 22.10.2009 that Balwan gave a kulhadi blow on the skull of my bhabi CRR No.2598 of 2010 (O&M) -3- confronted with statement Ex.PW3/A where it is not so recorded. I have stated before the police on 22.10.2009 that Manoj gave a lathi blow on my right shoulder confronted with statement Ex.PW3/A where it is not recorded. My borther Sunil was also referred to PGIMS Rohtak. I do not know whether my brother Sunil had sustained the injuries or not.” Urmila PW6, while appearing in the witness box, in the examination-in-chief, has stated “On 22.10.2009 at about 9 a.m. on the day I along with my husband Sunil and brother-in-law Anil were working in our field known as bata wala. My husband and brother-in- law were repairing the doll of mustered crop riled. I was cutting the grass. The tiled of Balwan Singh is adjacent to our field. Balwant accused came there and asked my husband not to repair the doll as the doll is in his share. Then a quarrel took place between us. After that Kapil, Muni and Manoj came there. Balwan was armed with kulhadi, Kapil was armed with a dantali. Manoj gave a lathi blow on the left shoulder of my devar. Balwan gave a sword blow on the head of my devar. Kapil gave a dantali blow on the right shoulder of my devar. When I tried to rescue my devar Muni accused caught hold of me. Balwan gave a kulhadi blow on my head, I fell down on the ground. All the accused asked Balwan to finish me. I became unconscious.” While in cross-examination has stated “...........When I reached at the spot my husband and devar had already sustained the injuries. Muni accused caught hold of me by grapping with me from the front side of my body. I sustained the injury from the sharp edge of the kulhadi. Blood was oozing from my injuries and had fallen on the filed.” She further stated “...........I have not stated before the police that Balwan gave a sword CRR No.2598 of 2010 (O&M) -4- blow to my devar. Self stated that he hit was kulhadi. I have stated before the police that Kapil gave a dantali blow on the right shoulder of my devar confronted with statement Ex.PW6/A where it is not so recorded.” Urmila has further stated “..........It is further incorrect to suggest that when my husband was causing injury with a kulhadi to Manoj and accidently to blow of my husband struck to my head.” On the basis of these statements, the learned Additional Sessions Judge summoned Manoj Kumar and Kapil present revisionists to face trial for commission of offences under Sections 323, 307, 506 read with Section 34 of the Indian Penal Code. I have heard the learned counsel for the revisionists as well as learned Deputy Advocate General, Haryana, and have gone through the record. Hon’ble Apex Court in the matter of Ram Pal Singh & others versus State of U.P. and another, reported in 2009(2) RCR (Criminal) 131, in paragraph Nos. 15 and 16 has observed as under:- “15. The ingredients of Section 319 are unambiguous and indicate that where in the course of inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence, for which such person could be tried together with the accused, the Court may proceed against such person for the offence he has committed. 16. All that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. It is also clear that the discretion is left to the Court to take a decision on the matter.” Hon’ble Apex Court in the matter of Suman versus State of CRR No.2598 of 2010 (O&M) -5- Rajasthan and another, reported in 2010(1) Criminal Court Cases, 269 (S.C.), in paragraph no.11 has held as under:- “11. Section 319 Cr.P.C. applies to all the Courts including the Sessions Court. It empowers the Court to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with other accused. If such person is not attending the Court, he can be arrested or summoned. If he is attending the Court, although not under arrest or upon a summons, he can be detained by such Court for the purpose of inquiry into, or trial of the offence which he appears to have committed. Sub-section (4) lays down that where the Court proceeds against any person under sub-section (1), the proceedings in respect of such person shall be commenced afresh and witnesses are reheard. A reading of the plain language of sub- section (1) of Section 319 Cr.P.C. makes it clear that a person not already an accused in a case can be proceeded against if in the course of any inquiry into or trial of an offence it appears from the evidence that such person has also committed any offence and deserves to be tried with other accused. There is nothing in the language of this sub-section from which it can be inferred that a person who is named in the FIR or complaint but against whom charge-sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence the Court finds that such person has committed any offence for which he could be tried together with the other accused.” Hon’ble Apex Court in the matter of Sarabjit Singh and Anr. Vs. State of Punjab and another reported in 2009(16) SCC 46, in paragraph no.17 has observed as under:- 17……. An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise CRR No.2598 of 2010 (O&M) -6- of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.” Hon’ble Apex Court in the matter of Michael Machado & Anr. Vs. Central Bureau of Investigation & Anr. reported in 2000(3) SCC 262 in paragraph Nos. 11 and 12 has observed as under:- “11. The basic requirement for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well as tried along with the already arraigned accused. 12. But even then, what is conferred on the Court is only a discretion as could be discerned from the words “the Court may proceed against such person”. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other persons.” This Court in the matter of Shivraj Singh vs.State of Haryana and others, Crl. Revision No. 1551 of 2010, decided on 17.02.2011 having placed reliance on the various judgments of the Hon’ble Apex CRR No.2598 of 2010 (O&M) -7- Court including the judgments cited herein above has held as under:- “From the perusal of the judgments of the Apex Court (supra), it can safely be held that power under Section 319 of the Code can be exercised only when from the evidence available on the record involvement of the accused is found by the Court and evidence so led before the Court if stands unrebutted would result in the conviction of the accused sought to be summoned. However, mere suspicion about the involvement of the accused to be summoned from the evidence available on record would not justify the exercise of power under Section 319 of the Code. Power under Section 319 of the Code is the discretionary power and should be used very sparingly with great care and caution.” After having gone through the statement of PW6 Urmila Devi, I find that she has categorically deposed that Kapil had given a blow with dantali on the right shoulder of Anil Kumar. PW7 Anil Kumar, has also deposed in the similar manner. But their statements do not find support from the medical evidence. PW1 Dr. Vikash Shandilya, who had medico-legally examined the injured, found no corresponding injury on the right shoulder of injured Anil Kumar. Thus, the statements of PW6 and PW7 are in contradiction with the statement of PW1 Dr. Vikash Shandilya. During the cross-examination, PW1 Dr. Vikash Shandilya has clearly deposed that injuries on the person of Anil Kumar can be caused due to fall on a hard surface. No doubt, power under Section 319 of the Code can be exercised by the Court when Court is satisfied that entire evidence if stands unrebutted would lead to the conviction but the power under Section 319 of the Code should be exercised very sparingly and with great caution. The power under Section 319 of the Code should not be invoked lightly merely because prosecution witness, while appearing in CRR No.2598 of 2010 (O&M) -8- the witness box, has made statement about the complicity of the persons sought to be summoned as additional accused unless and until such statement transpires confidence and Court finds that such statement is cogent and if stand unrebutted shall result in the conviction and trial, of the person sought to be summoned, seems to be justified for compelling reasons. On the perusal of the statement of PW6 Urmila Devi, PW7 Anil Kumar and PW1 Dr. Vikash Shindilya, it is, thus, clear that statements of PW6 and PW7 do not find corroboration from the medico- legal report and satatement of PW1 Dr. Vikash Shindilya. Not only this, statements of PW6 and PW7, in my opinion, are not sufficient in the absence of any other corroborated evidence to invoke Section 319 Cr.P.C. against the revisionists. Tendency of the people to implicate all the family members cannot be ruled out, therefore, impugned order cannot be sustained. In view of the above discussion, the order passed by learned trial Court cannot be sustained in the eye of law and as such both the revision petitions are allowed and the impugned order is set aside. Photocopy of this order be placed on the file of connected case. (Alok Singh) Judge March 17, 2011 R.S.