Dharam Pal vs Hardial Singh

K.K. Srivastava, J.

This petition seeks setting aside of order dated 11.9.1997, passed by the Additional Sessions Judge, Kurukshetra, vide which he dismissed the application of the petitioner moved under Section 319 Cr.P.C., seeking summoning of respondents No. 1 to 3, (namely Hardial Singh, Pritam Singh and Ishwar Singh sons of Chhittar Singh, residents of Village Kirmach, Police Station Sadar Thanesar, District Kurukshetra) to stand trial under Section 307 IPC, arising out of FIR No. 274 dated 1.9.1996, pertaining to police station Sadar Thanesar.

I have heard learned counsel for the petitioner and learned counsel for respondents No. 1 to 3 as also learned counsel for respondent No. 4 State of Haryana. I have also perused the impugned order.

The names of respondents No. 1 to 3 were shown in column No. 2 and the police had not submitted challan against them. The Challan was submitted only against Balbir Singh. At the trial the statement of PW/2 Dharampal son of Surta Ram was recorded in part and further crossexamination was deferred on the request of the defence counsel on 22.8.1997. It appears that the learned State Counsel moved application on 22.8.1997, copy Annexure P4, under Section 319 Cr.P.C. praying that respondents No. 1, 2 and 3 be summoned and tried along with Balbir Singh in the interest of justice. It was urged on behalf of the State counsel before the learned Additional Sessions Judge that the FIR had been lodged against respondents No. 1 to 3 as well, but after completion of investigation the police had submitted challan only against coaccused Balbir Singh. It was mentioned in the application, copy annexure P4, that the statement of Dharampal PW showed the complicity of respondents No. 1 to 3 and hence prayer was made for their being summoned as accused. This application was disposed of by the impugned order, copy annexure P5. The learned Additional Sessions Judge in paras 5 and 6 of the impugned order held as under :

"It is a fact that complainant Dharam Pal in his statement dated 31.8.1996 (Ex. PE) stated the name of said three persons having participated in the occurrence on the basis of which FIR of this case was registered. But his supplementary statement was also recorded by the investigating officer on 4.9.1996 wherein he stated that Raj Mal injured when regained consciousness told him that only Balbir Singh has inflicted injuries on his person and the names of Hardyal Singh, Pritam Singh and Ishwar Singh be mentioned before the police as there was civil litigation between them. He further stated that the names of these three persons were falsely mentioned and Balbir Singh was the only accused in this case.

ComplainantPW Dharampal when appeared as PW2, his supplementary statement was confronted which he denied and now he has named all the four persons having participated in the occurrence in which Raj Mal sustained injuries. It has been stated that Balbir Singh and Pritam Singh accused were armed with gandasi and that Balbir Singh gave gandasi blow on the head of Raj Mal while the latter was being caught hold by accused Hardayal and that Pritam also gave a gandasi blow on the head of Raj Mal striking his forehead and that he raised rola, upon which his brother Dhan Singh and his wife Roshni Devi came there. The said PW earlier stated that there was exchange of abuses between said four persons and Raj Mal at 2.00 a.m. In the initial statement Raj Mal injured P.W. also did not mention the name of these persons having caused any injury on his person. So now the deposition made by the complainant as PW2 is nothing but an improvement and it does not appear that all the said three persons who have been now sought to be summoned under Section 319 Cr.P.C. had participated in the occurrence. So, no case is made out to summon them under Section 319 Cr.P.C. and the application thus, being devoid of force, stands dismissed."

Feeling aggrieved against the impugned orders, this petition has been filed under Section 482 Cr.P.C.

Notice was issued to the respondents, who put in appearance, as mentioned earlier.

Mr. Baldev Singh, learned Senior Advocate appearing for the petitioner contended that the learned Additional Sessions Judge fell in error in law in making comments on merit of the evidence of the witness/Dharampal and recording a finding that the deposition made by the complainant Dharampal PW2 was nothing but an improvement and it did not appear that three persons (respondents No. 1 to 3) had participated in the occurrence. Mr. Baldev Singh submitted that at the stage of consideration of application under Section 319 Cr.P.C. the Court was not required to make a comment regarding merit/demerit of the evidence of the witness of prosecution. The Court was required only to consider whether the evidence of such a prosecution witness disclosed the complicity of respondents No. 1 to 3 in this occurrence so as to put them on trial along with Balbir Singh accused, who was already facing trial. Mr. Baldev Singh further contended that the petitioner should be remitted to his remedy of approaching the trial Court afresh, seeking the summoning of these witnesses under Section 319 Cr.P.C. at the stage when the impugned order was passed and the statement of PW2 Dharampal was not a complete statement and, therefore, it could not be said to be admissible legally in evidence. He has contended that apart from the statement of PW2, statement of injured witness has already been recorded and the evidence of these two witnesses is before the trial Court on the basis of which the trial Court can consider the question of summoning respondents No. 1 to 3.

Shri R.S. Ghai, learned Senior Advocate appearing for respondents No. 1 to 3 contended that there was no bar in law in making a fresh application seeking the summoning of respondents No. 1 to 3 but before the same can be done, the impugned order has to be considered and if the same is found to be not in accordance with law, it has to be set aside. It is now well settled that the evidence of a prosecution witness, whose crossexamination has not been completed and has been deferred at the behest of defence counsel is not a complete statement and the same cannot be treated to be legally admissible in evidence for the purpose of considering an application under Section 319 Cr.P.C.

Apart from this, the learned Additional Sessions Judge appears to have fallen in error in law in assessing the merit and credibility of evidence of PW2 Dharampal at the stage of summoning respondents No. 1 to 3 under Section 319 Cr.P.C. The impugned order is, thus, not in accordance with law and the same deserves to be set aside.

The petition is accordingly allowed to the extent that the impugned order dated 11.9.1997 (copy Annexure P5) is set aside and the petitioner is relegated to his remedy of approaching the trial Court afresh. If so advised, for seeking the summoning of respondents No. 1 to 3 under Section 319 Cr.P.C. and in case such an application is moved, the same shall be heard and disposed of in accordance with law, after affording reasonable opportunity of hearing to the parties.