High Court of Punjab and HaryanaCRR/1569/2022disposed of

Rajbir Alias Raja v. State Of Haryana And Others

2022-12-13Mr. Justice Harsh Bunger15 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH CRR-1569-2022 Date of Decision: 13.12.2022 RAJBIR @ RAJA

...Petitioner

Versus

STATE OF HARYANA AND OTHERS

...Respondents

CORAM: HON'BLE MR. JUSTICE HARSH BUNGER Present :

Mr. Deepak Vashishth, Advocate for the petitioner.

HARSH BUNGER, J.

The petitioner has filed the present revision petition against order dated 25.05.2022 passed by learned Sessions Judge, Jind, whereby, the application moved by him under Section 319 of the Code of Criminal Procedure, for summoning (i) Rishi son of Ram Singh : (ii) Ashok son of Mahipal, both residents of Village Barsola; (iii) Parmesh son of Jai Singh, resident of Village Jhanjh Kalan; (iv) Manoj son of Dalbir, resident of Village Shamlo; (v) Ravinder son of Om Parkash, resident of Village Ponkari Kheri and (vi) Vinod @ Bulli son of Satyawan, resident of Village Ponkari Kheri (respondent Nos.2 to 7 in the present petition), as additional accused to face trial along with other co-accused was dismissed. Succinctly, the present petitioner/complainant got registered an FIR No.95 dated 02.03.2021 under Section 302 read with Section 34 of the Indian Penal Code, 1860 and Sections 25, 30 of the Arms Act, 1959, at Police Station Sadar Jind, against the accused persons namely, Rishi (respondent No.2), Ashok (respondent No.3), Parmesh (respondent No.4),

Manoj (respondent No.5), Ravinder (respondent No.6), Vinod @ Bulli (respondent No.7). Relevant extract of the FIR reads as under :- " Yesterday on 01.03.2021 around 9/9:15 pm, my brother Sukbir along with Rishi S/o Ram Singh, Ashok S/o Mahipal caste Jat, R/o Barsola, District Jind, Parmesh S/o Jai Singh R/o Jhanjh Kalan (Jind), Manoj S/o Dalbir R/o Samdo, Raka @ Rakesh S/o Inder, Ravinder S.o Parkash, Pardeep S/o Leela, Vinod @ Bulli S/o Satyawan, caste Jat R/o Pokhri Kheri, Jind were sitted in the house of Raka to settle the account of liquor shop, while doing the accounts suddenly Pardeep S/o Leela became curious and took the license pistol of Rakesh @ Raka and fired on Sukhbir with intent to kill him. Then bullet hit Sukhbir on his eyes and he fell down and in his blood bath.

His abovementioned fellowmen took him to Civil Hospital, Jind and then in ambulance took him Sapra Hospital, Hisar, where treatment of my brother is going on. It is requested that strict legal action should be taken against Pardeep S/o Leela, who fired on Sukhbir with intent to kill him and against any other person who is involved in it. I wrote my statement to you, listen and read it which is true. Sd/- Rajbir @ Raja. Attested Satish Kumar ASI, I/C P.P. TPoint Hansi Road, Jind. Dated 02.03.2021." Subsequent to the registration of FIR, investigation was carried out and report under Section 173 of the Code of Criminal Procedure was filed, wherein, the present respondents No.2 to 7 were kept in column No.2.

Thereafter, during trial, the petitioner-complainant (Rajbir @ Raja son of Kaliram) was examined as PW1 and his examination-in-chief reads as under:- " We are having five brothers. Eldest one is Jagdish, after that Krishan, then myself, then Sukhbir (since deceased) and youngest one is Dalbir.

and was living separately and he was having a share in liquor vend in our village. On dated 01.03.2021 at about 09/09.15 P.M., Sukhbir was present in his house. Two persons namely Ravinder and other person whose name I do not remember had come to the house of Sukhbir and took him with them in the baithak of Rakesh alias Raka. I also followed them to the house of Rakesh alias Raka. I saw Parmesh son of Jai Singh, Ravinder, Rakesh alias Raka, Pardeep, Vinod alias Buli, Ashok, Rishi and Manoj were present in the house of Rakesh. I was also sitting outside the room. I heard some conversation in loud voice of all of them. Then suddenly Pardeep took a pistol from Rakesh and fired a gun shot upon Sukhbir with intention to kill him which hit near the eye of Sukhbir.

Then all the persons disbursed from there and we took Sukhbir to Civil Hospital, Jind from where he was referred to Hisar and we took him at Sapra Hospital, Hisar. Police came at Sapra Hospital, Hisar and got recorded my statement Ex. P1 which bears my signature at point-A. As a common intention among all the above named persons, Pardeep fired a gun shot due to altercation among them regarding the share and settlement of accounts of the liquor vend. All the above mentioned persons were partner in the liquor vend."

Thereafter, the public prosecutor filed an application under Section 319 of the Code of Criminal Procedure for summoning (i) Rishi S/o Ram Singh R/o Barsola (ii) Ashok S/o Mahipal R/o Barsola (iii) Parmesh S/o Jai Singh R/o Village Jhanj Kalan (iv) Manoj S/o Dalbir R/o Shamlo (v) Ravinder S/o Om Parkash R/o Ponkhari Kheri (vi) Vinod @ Bulli S/o Satyawan R/o PonkhariKheri, as additional accused. The learned Sessions Judge, Jind, vide impugned order dated 25.05.2022, dismissed the application of the petitioner moved under Section

319 of the Code of Criminal Procedure, by holding as under :- "It is evident from his initial statement given before the police, which is duly signed by him that there are some contradictions. In his initial version given to the police, he had stated that all the said persons were present in the sitting room of Rakesh allias Rakka, when the incident had taken place, where as in his statement before Court, he has stated that two persons of whom, one was Rakesh alias Rakka and another person, whom the complainant does not know took Sukhbir to the house of Rakesh alias Rakka, where all the persons were present. As regards the incident that accused Pardeep in a state of anger, suddenly took the pistol of Rakesh alias Rakka and fired gun shot at Sukhbir. Even when the complainant has been examined as PW1, it cannot be said that any specific role has been attributed to any of other person other than accused Rakesh alias Rakka and Pardeep, accused facing trial in this case.

The counsel for the complainant has placed reliance upon the view taken in case law titled as Sunita Versus State of Haryana and another CRR 663-2021 (P&H), decided on 01.09.2021. In this case, it was discussed that the statement made at the time of lodging of FIR under Section 154 Cr.P.C. as well as statement recorded under Section 161 Cr.P.C. are both not substantive pieces of evidence. Yet, an FIR would stand at a higher pedestal in comparison to the statement made under Section 161 Cr.P.C. for the reason that the statement on the basis of which the FIR comes into existence is signed by its maker and can be used both for contradicting as well as corroborating its maker, whereas the statement under Section 161 Cr.P.C. can be used only for the limited purpose of contradicting the witness, who has made it. Certainly the view taken in the cited case that where there is no material improvement in the first

statement recorded under Section 154 Cr.P.C. and the statement made by complainant while stepping in the witness box that in the said case, it was found that there was sufficient material and evidence before the trial Court to allow application under Section 319 Cr.P.C. In the case in hand, however, admittedly with regard to the role attributed to the persons who were six in number sought to be summoned have not been given any specific role either at the time of recording statement under Section 154 Cr.P.C. or even when the complainant has stepped in the witness box as PW1. There is only a slight difference in the first statement recorded under Section 154 Cr.P.C.

, that all the persons including the accused persons were present in the sitting room of the accused Rakesh @ Rakka whereas in the statement given before the Court, he stated that two persons of whom one was accused Rakesh @ Rakka had taken Sukhbir (deceased) to his `baithak' where other persons were sitting. It is not the contention of the complainant in both his statements that there was any instigation on the part of other six persons who were present there rather the version of the complainant is that accused Pardeep suddenly in a state of anger took out a pistol of accused Rakesh @ Raka and fired at Sukhbir. In case law Sagar vs. Stae of U.P. and another Criminal Appeal No.(S) 397 of 2022 (Arising out of SLP (Crl.) Nos.7373 of 2021, the case of Hardeep Singh vs. State of Punjab, 2014(1) R.C.R.

(Criminal) 623, has also been relied upon, the view taken is that there is a caution attached to the power under Section 319 Cr.P.C., which is discretionary and extraordinary power and should be used sparingly only in those cases where the circumstances of the case so warrant.

conviction. Similarly in Smt. Sushil Soni vs. State of Haryana and others 2016(3) RCR (Criminal) 793 (P&H), the view taken was that a small suspicion or doubt is not sufficient to summon such person as an additional accused and the Court has to exercise its powers sparingly as summoning of a person as an additional accused is a serious matter. Merely on the statement of complainant, ipso facto, cannot form the basis of summoning of a person under Section 319 Cr.P.C.

In view of above discussed proposition of law, considering the facts and circumstances of the case in hand, when most specific role or act on the part of such six persons who are sought to be summoned as accused has not been explicitly attributed, this Court while exercising the necessary caution and the discretionary and extraordinary power under Section 319 Cr.P.C. which should be used sparingly, does not find it a fit case to summon aforementioned six persons as additional accused to be tried with Rakesh @ Rakka and Pardeep, accused already facing trial. Accordingly, the present application stands dismissed."

Accordingly, the present revision petition has been filed. Learned counsel for the petitioner has submitted that the learned Sessions Judge, Jind has erred in law and facts in dismissing the application under Section 319 of the Code of Criminal Procedure, despite the fact that the petitioner while appearing as witness before the trial Court had specifically named respondents No.2 to 7 and had also attributed specific role to them, however, still the application under Section 319 of the Code of Criminal Procedure, has been dismissed. It is submitted that there are specific allegations against respondents No.2 to 7 herein as they all are involved in the murder of Sukhbir (brother of the petitioner) and hence, the

said persons are liable to be summoned as additional accused and tried along with other accused Rakesh @ Raka and Pardeep. I have heard learned counsel for the petitioner and have perused the paper book as well as impugned order dated 25

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this Court does not find any illegality or perversity in the conclusion recorded by learned Sessions Judge, Jind, in its order dated 25.05.2022, whereby application under Section 319 of the Code of Criminal Procedure, was dismissed. Accordingly, the present revision petition is bereft of any merit

and the same is accordingly dismissed.

All p

December 13, 2022 (HARSH BUNGER) gurpreet JUDGE Whether speaking/reasoned:

Yes/No Whether reportable:

Yes/No