Babu Singh vs State of Punjab and Others

Ranjit Singh, J.—Through this order, three Criminal Revision Nos.1734 of 2007 (Babu Singh v. State of Punjab & Ors.), 1957 of 2007

(Ram Dayal@Ram Dial Singh v. State of Punjab), and 793 of 2008 (Babu Singh v. State of Punjab) are being disposed of. The facts are taken

from Criminal Revision No. 1734 of 2007.

This petition is filed by Babu Singh against the order passed by Addl.Sessions Judge, Sangrur, who rejected the prayer of the petitioner to summon

Hakam Singh, Labh Singh, Gurcharan Singh @ Charna, Malkiat Singh, Tarlochan Singh, Bhola and Binder as an additional accused to face trial

with the other accused for offences under Sections 302, 307, 148, 149 and 120-B IPC. On the other hand, Criminal Revision No. 1957 of 2007

is filed by Ram Dayal, who was so summoned to face trial as an additional accused. He has, thus, impugned this order on the ground that he has

been wrongly summoned u/s 319 Cr.P.C. Babu Singh petitioner had filed an earlier petition for summoning those very accused as noted above and

had to file a second petition when the prayer to summon was declined even after concluding the cross-examination of the witness, though earlier

prayer was declined at the stage when the witness was yet to be cross-examined.

This fight has taken place for control of Truck Union, Lehra Gaga. Mithu Singh is the grand son of the petitioner, who has died in this fight. At

the time of election, Hakam Singh along with his supporters, armed with deadly weapons, had come to the office of Truck Union and had

indiscriminately fired leading to death of Mithu Singh and one Jarnail Singh. On the basis of a statement given by Babu Singh, the present FIR was

registered. Even in the FIR, Hakam Singh, his brother Labh Singh, Malkiat Singh, Manjit Singh, Gurcharan Singh, Bhola, Binder, another Bhola

Singh resident of Khandebodh were alleged to have used their respective weapons. Mithu Singh had died of bullet injury on his chest and had died

at the spot. Jarnail Singh had attempted to run outside the Truck Union Office to save his life, but was hit on his head and died. Though the

petitioner has given an eye-witness account of the incident, but it is alleged that on account of influence of Hakam Singh, he and Gurcharan Singh,

Labh Singh, Tarlochan Singh, Malkiat Singh, Bhola and Binder were declared innocent and placed in column No.2. The petitioner then appeared

as PW1 before the court and thereafter moved an application for summoning these persons who had not been challaned but were actually

responsible for the crime. This prayer of the petitioner was declined through the impugned order dated 05.09.2007 and accordingly this petition

was filed. At that stage, petitioner was yet to be cross-examined. The court had declined to summon Hakam Singh etc.

Notice of motion was issued and during the pendency of this petition, another application was filed in the case of Darshan Singh, which led to

summoning of Ram Dayal (petitioner in Criminal Revision No. 1957 of 2007). Subsequently, not only the statement of petitioner was completed

but another witness Gurtej Singh was also recorded when another application was moved by the prosecution for summoning Hakam Singh etc.

which was dismissed on 05.04.2008. The petitioner accordingly filed the second Revision Petition No.793 of 2008.

Mr.Rakesh Gupta, counsel for the petitioner, would refer to the statement of the petitioner, copy of which is placed as Annexure P2. Having

given the background of the efforts on the part of Hakam Singh to control the Truck Union, PW1 deposed that he accompanied by Labh Singh,

Charan Singh, Bhola Singh, Binder Singh, Manjit Singh, Tarlochan Singh etc. came to the office of Truck Union along with 10-12 other persons.

The witness has then testified that after making consultation with each other, the party of Hakam Singh started firing. Hakam Singh allegedly fired a

gun shot which hit on the chest of Mithu Singh. Remaining accused also had started firing as per the evidence of this witness. Labh Singh is also

alleged to have fired a gun shot which hit Jarnail Singh. Mithu Singh accordingly died at the spot. Jarnail Singh was taken to the hospital where he

died. On the basis of this evidence, the application was moved to summon the above-noted persons as additional accused.

It would be strange to notice that the trial Judge, after having noticed this version of the petitioner, has declined the prayer by saying that this

statement is made in the court. The court had then made a reference to decision in Michael Machado & Anr. v. Central Bureau of Investigation &

Anr. 2000(1) A C J 404 (S.C.) : 2000(2) RCR(Criminal) 75 to observe that basic requirement for invoking Section 319 Cr.P.C. is that it should

appear to the court from evidence collected during trial or in the enquiry that some other person, who is arraigned as an accused in that case, has

committed the offence for which that person could be tried together with the accused already arraigned. Instead of relying on the statement made

before the court, the trial Judge placed reliance on the evidence collected by the police during investigation to observe that role of the person, now

prayed to be summoned, is negated. Strangely, it is observed that naming of Hakam Singh only in the evidence in the court and not in the statement

before police by the complainant, would not make out a case against the said person and the prayer to summon the respondents was declined.

This line of reasoning as advanced by the trial Judge is totally unsound in law.

Having noticed Michael Machado''s case (supra), the trial Judge still failed to apply the ratio of the same to the facts of the present case. There

are specific allegations made against Hakam Singh and Labh Singh for having used fire arms leading to death of Mithu Singh and Jarnail Singh.

PW1 has also given evidence that these persons along with others had reached the spot armed with respective weapons. Hakam Singh was having

revolver with him. Labh Singh was having gun. Though Gurcharan Singh @ Charna was also having gun and so was the case of Bhola Singh, but

there was no allegation other than this made against these persons. Binder Singh was also having gun as well as Hardial Singh. Manjit Singh and

Tarlochan Singh were empty handed. Except for Hakam Singh and Labh Singh, there is no specific attribution to other persons sought to be

summoned. Accordingly, the standard required to summon a person as additional accused as laid down by the Hon''ble Supreme Court is satisfied

so far as case of Hakam Singh and Labh Singh is concerned. On the basis of evidence now produced, it is possible to say that there would be a

hope or prospect of conviction of these two persons, who were found innocent by the police. Same, however, cannot be said in respect of the

remaining persons sought to be summoned on the basis of the application moved by the prosecution.

Though the trial Judge has not found sufficient material against Hakam Singh and Labh Singh etc. to summon them, but had summoned Ram

Dayal on the basis of a statement made by Darshan Singh. The perusal of the statement of Darshan Singh would show that Ram Dayal had raised a

lalkara and gave filthy abuses in the name of sister. In the first information report, Ram Dayal had not been named and even was not attributed any

role. In this background, it is to be seen if this evidence of raising lalkara, which has come for the first time before the court, can lead to satisfy the

standard laid down by the Apex Court for summoning a person as an additional accused. The main allegations ofcourse are against the person,

who had fired at Jarnail Singh. This evidence cannot be considered sufficient to urge that there is hope or prospect of conviction of Ram Dayal on

that basis. The trial Judge in this case observed that from the statement, a prima facie case is made out against Ram Dayal to face trial along with

other accused. He, thus, has completely ignored the standard, which was required to be satisfied for summoning Ram Dayal as an additional

accused. The same trial Judge did not find the evidence of the witness where they were directly attributed a role in killing a person sufficient to

summon him as an additional accused, but found attribution of a lalkara to be enough to summon Ram Dayal as an additional accused. Obviously,

the order is on the face of it unsound and appears to have been passed ignoring the well laid down standard to summon a person as an additional

accused. The contradictions seen in the orders passed by the same trial Court are too apparent and does not speak well of him. In any event, the

order summoning Ram Dayal as an additional accused cannot be sustained and the same is needed to be set aside. As a result, Revision Petition

No. 1957 of 2007 is allowed and the impugned order is set aside.

Criminal Revision No. 1734 of 2007 is partly allowed. The order passed by the trial Judge in declining to summon Gurcharan Singh @ Charna,

Malkiat Singh, Tarlochan Singh, Bhola and Binder is upheld, However, the order declining to summon Hakam Singh and Labh Singh is set aside.

Both these persons shall stand summoned as an additional accused to face trial along with the other accused.

Criminal Revision No.793 of 2008 shall stand disposed of in terms of order in Criminal Revision No. 1734 of 2007.