Crl. Revision No.138 of 2009. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Revision No.138 of 2009. DECIDED ON : 17.3.2009. Puran Singh Petitioner VERSUS Gurmej Singh and others Respondent. CORAM :HON'BLE MR. JASBIR SINGH. HON'BLE MR. JUSTICE JORA SINGH Present: Mr. D.R.Bansal, Advocate, for the petitioner. JORA SINGH,J. This petition was filed by Puran Singh to impugn the order dated 25.8.2008 passed by Sessions Judge, Ferozepur, whereby application under Section 319 Cr.P.C. moved by the prosecution to summon Gurmej Singh and Baldev Singh alias Bhutto, was rejected. Along with the revision petition, application under Section 5 of the Limitation Act, was filed for condonation of delay of 47 days in filing the revision. FIR No. 53 dated 16.3.2008 under Section 302 of the Indian Penal Code,Police Station Zira, under Section 302 of the Indian Penal Code was registered against Bagga Singh. Gurmej Singh and Baldev Singh. After investigation Gurmej Singh and Baldev Singh were found to be innocent and their names were shown in column No. 2 of the report under Section 173 Cr.P.C. First Information Report was registered Crl. Revision No.138 of 2009. 2 on the statement of Puran Singh, father of the deceased, and allegation of Puran Singh is that he along with his son Sonu (deceased) and his brother Balwinder Singh were standing in Chowk. Gurmej Singh came there and on seeing them while standing in the chowk, he went to the house of Bagga Singh at about 7.50 A.M. on 16.3.2008. After 5/7 minutes Bagga Singh armed with a spade, Baldev Singh alias Bhutto armed with a Takua and Gurmej Singh empty handed came to the spot. Gurmej Singh raiased a lalkara that Sonu be not spared. Bagga Singh gave two blows with spade on the neck of Sonu. On receipt of spade blows, Sonu had succumbed to his injuries on the spot. Learned counsel for the revisionist argued that Baldev Singh armed with takua and Gurmej Singh empty handed came along with the main accused namely Bagga Singh who was armed with spade. Lalkara was raised by Gurmej Singh not to spare Sonu, then spade blows were given by Bagga Singh. Crime was committed with the connivance of Baldev Singh and Gurmej Singh but they were not challaned. Learned counsel further submitted that application under Section 319 Cr.P.C. was wrongly rejected. We have gone through the impugned order and are of the opinion that there is no justification to interfere with the impugned order because as per story Gurmej Singh was not armed. Puran Singh complainant and Balwinder Singh second eye witness stated before the Court that Gurmej Singh came near the chowk where Sonu, Puran Singh and Crl. Revision No.138 of 2009. 3 Balwinder Singh were present and on seeing them, he had gone to the house of Bagga Singh, then along with Bagga Singh armed with spade, and Baldev Singh armed with takua came to the spot, but this fact is missing from the First Information Report. Statements of the complainant and eye witness were recorded under Section 161 Cr.P.C. but in the statements recorded by the police, there is not a word that Gurmej Singh came near the chowk and on seeing the complainant party, he had gone to the house of Bagga Singh. After that he along with Bagga Singh armed with a spade and Baldev Singh armed with a takua came to the spot. Learned Sessions Judge, while disposing of the application under Section 319 Cr.P.C., observed in paras No. 2 and 6 which reads as under:- “2. Consequently of Ld. Public Prosecutor Sh. S.K.Sharma is that at the time of presentation of challans against accused Bagga Singh both the above named persons were shown to be innocent and their names are figured in column No.2 of the report. A specific role has been attributed to Gurmej Singh son of Dial Singh as well as to Baldev Singh alias Bhutto son of Ghoga Singh in the commission of the murder of Sonu. Complainant Puran Singh is father of deceased son who appeared as PW2. he has categorically deposed that that he along with his son Sonu (since deceased) and his brother Balwinder Singh were Crl. Revision No.138 of 2009. 4 standing in chowk in village Shah Bhukkar. Gurmej Singh came there and on seeing them while standing in the aforesaid chowk he went to the house of Bagga Singh accused on 16.3.2008 at 7.50 A.M. after about 5/7 minutes Bagga Singh armed with spade, Baldev Singh alias Bhutto armed with takua and Gurmej Singh unarmed come there. Gurmej Singh raised lalkara to the effect that Sonu be not allowed to go from there. Then accused Bagga Singh dealt two spade (kahi) blows hitting on the right side of the neck of Sonu, who succumbed to the injuries at the spot. Baldev Singh alias Bhutto was standing near Sonu while armed with takua so that he (Sonu) may not escpe from there. Since the names as well as the role of both the person namely Gurmej Singh and Baldev Singh alias Bhutto have appeared in the statement of Puran Singh complainant/eye witness and Balwinder Singh another eye witness they are liable to be summoned as additional azccused to stand tril under Section 302 I.P.C. with the aid of Section 34/120 B of the Indian Penal Code. 6. Reverting back to the facts of the case in hand, the allegations against accused Gurmej Singh son of Dial Singh is that he firstly passed nearby the deceased and the eye witness and on seeing them went to the house of Bagga Singh. He Crl. Revision No.138 of 2009. 5 was unarmed. Though Puran Singh complainant and Balwinder Singh another eye witness have stated while appearing in the witness box in this Court the aforesaid fact but infact even that allegations is missing in the FIR. Neither any lalkara has been attributed to Gurmej Singh aforesaid by Puran Singh while making statement Ex.P-4 to the police, which is the basis of the instant FIR nor that he was present at the spot at the time of alleged occurrence . Both the aforesaid witness have materially improved their version while appearing in the Court.” As discussed earlier, Baldev Singh was armed with a takua but he did not cause injuries either to the deceased or the eye witnesses. Gurmej Singh was empty handed. If Bagga Singh along with Baldev Singh and Gurmej Singh came to the spot with an intention to eliminate Sonu then Gurmej Singh should have brought some weapon. Baldev Singh was armed with a takua but he did not cause injury either to the deceased or the eye witnesses. Baldev Singh did not raise a lalkara. Appearance of Baldev Singh with takua as per statement Ex.P-4 is also doubtful. Under Section 319 Cr.P.C. Court has discretion to summon a person as an additional accused to face trial along with co-accused but discretion is to be exercised judiciously as per evidence available on the file. On the basis of suspicion innocent person is not to be summoned as an additional accused unless Crl. Revision No.138 of 2009. 6 there are chances of conviction of the summoned accused. If story of the prosecution is taken to be correct one even their after evidence there is no chance of conviction of Gurmej Singh and Baldev Singh because they did not raise lalkara exhorting the co-accused to cause injuries. Secondly; they did not cause injury to the deceased or the eye witnesses. Only two spade blows were given by Bagga Singh, When no specific role has been attributed to Gurmej Singh and Baldev Singh, then we are of the opinion that impugned order is well reasoned. Impugned order is dated 25.8.2008. There is a delay of 47 days in filing the revision. There is no explanation regarding condonation of delay. Application for condonation of delay is rejected. Revision is also dismissed. ( JORA SINGH ) JUDGE ( JASBIR SINGH ) 3.3.2009. JUDGE Anoop