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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
A.B. CHAUDHARI, J.
Shiv Lal @ Sholly - Petitioner
Versus
State of Punjab - Respondent
CRR No.3063 of 2017 (O&M)
Decided On : 18-05-2018
(B) Criminal Procedure Code, 1973, S.311 – Examination of Witness – Murder – Attempt to Murder – Application filed by complainant along with the photo copy of statement of witness allegedly recorded u/s 161 Cr.P.C. – Held; the trial Court could not have acted on the basis of the application filed by defacto complainant who has not even filed the original of alleged statement under Section 161 Cr. P.C., but has filed a photocopy which did not even bear any date and the same had not been made part and parcel of any report under Section 173 Cr. P.C. as stated by the Investigating Officer – Impugned order allowing the application set aside – Trial to proceed – Indian Penal Code, 1860, S. 302 & S.307.
(C) Criminal Procedure Code, 1973, S.311 – Examination of Witness – Application filed by defacto complainant alongwith photocopy of statement allegedly recorded u/s 161 CrPC – Held; if at all the prosecution wanted to rely upon or cite him as a witness, the same ought to have been the part and parcel of the report under Section 173 Cr. P.C., which is the sine qua non for proceeding further in a police case – This is the first principle in a police case – Impugned order allowing the application set aside.
(D) Zimini Orders – Word 'Rule' – It means 'rule nisi' that the matter was admitted for final hearing and the interim order was made absolute – It does not mean that revision petition was disposed of by High Court. (Para 7)
A.B. CHAUDHARI, J.
1. By the present revision petition, the petitioner-original accused-Shiv Lal @ Sholly has put to challenge the revisional order dated 02.08.2017, in Sessions Trial No.SC/32/2016 passed by the Ist Additional Sessions Judge, Fazilka, in FIR No.120 dated 12.12.2015, under Sections 302, 307, 326, 148, 149, 120-B/115/201 of Indian Penal Code, 1860 (for short 'IPC'), Section 3(2) V of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, registered at Police Station Bahav Wala, by which the learned trial Court exercising the power under Section 311 of Code of Criminal Procedure, 1973 (for short ‘Cr. P.C.’) allowed the prayer made by Kaushalaya Devi for examination of Akash son of Rajinder Kumar.
FACTS
2. The incident in FIR No.120 dated 12.12.2015 relates to the murder of Bhim Tank and injuries to Gurjant Singh as reported by Ranjit Singh, the complainant, brother of Gurjant Singh, to the police. In the FIR that was registered, the name of the petitioner-Shiv Lal @ Sholly was not at all indicated. But in the supplementary statement that was recorded on the same day, namely 12.12.2015 of complainant- Ranjit Singh, Shiv Lal @ Sholly was named as a conspirator. On 17.12.2015, police recorded the statement of Gurjant Singh. Thereafter, on 21.12.2015, statement of Akash son of Madan Lal was recorded, who also stated of alleged conspiracy by the petitioner. On the same day, the statement of Kaushalaya Devi, mother of the deceased was recorded who also stated about conspiracy. On 29.02.2016, polygraph test was conducted and thereafter, the petitioner was declared innocent. The police completed the investigation and filed a final report in the form of challan, on 12.03.2016, in which the petitioner-Shiv Lal @ Sholly was not named as an accused. After the commencement of the trial, the evidence of Sunil Kumar, the brother of the deceased was recorded, on 15.03.2016, in which he stated that he had heard about the conspiracy made by the petitioner. On 17.04.2016, police filed supplementary challan against the petitioner- Shiv Lal @ Sholly. Thereafter, on 03.08.2016, the trial Court framed the charge against the accused persons and the evidence began, on 01.09.2016.
3. The controversy qua the impugned order is regarding summoning of the person Akash son of Rajinder Kumar as a witness under Section 311 Cr. P.C., in the trial filed by Kaushalaya Devi appended by public prosecutor. In the status report that was filed on 07.04.2017, again, there was no disclosure about the name of the witness Akash son of Rajinder Kumar. Thereafter, on 12.01.2017, evidence of Kaushalaya Devi was recorded who also did not say a word about Akash son of Rajinder Kumar as a witness. However, on 04.03.2017, Kaushalaya Devi came along with an application under Section 311 Cr. P.C. enclosing a photocopy of statement under Section 161 Cr. P.C. of Akash son of Rajinder Kumar, praying for order under Section 311 Cr. P.C. The application was endorsed by the public prosecutor. The evidence of PW9-Harjeet Singh, SSP, who was the Investigating Officer who had recorded the statements of witnesses was also recorded, but in his cross-examination, he admitted that there was no statement of Akash son of Rajinder Kumar ever recorded in the police record. It is in the above factual scenario, after hearing the parties, the learned trial Court allowed the application. Hence, this revision petition.
ARGUMENTS
4. In support of the revision petition, Mr. Vinod Ghai, learned Senior Counsel for the petitioner vehemently contended that power under Section 311 Cr. P.C. could not have been exercised by the trial Court in the fact situation as name of the said person Akash son of Rajinder Kumar, never figured during investigation and thereafter, i.e. at the time of filing challan and supplementary challans and on the contrary, PW9-Harjeet Singh, SSP, Investigating Officer clearly admitted that he never recorded such statement nor police file shows any s
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