Punjab-Haryana High Court
Manender vs State Of Haryana And Anr on 6 May, 2022
CRR No. 4034 of 2017 (O&M) -1-
In the High Court of Punjab and Haryana at Chandigarh
CRR No. 4034 of 2017 (O&M)
Date of Decision: 06.5.2022
Manender ......Petitioner
Versus
State of Haryana and others ......Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
Present: Mr. Rakesh Nehra, Senior Advocate with
Mr. Atul, Advocate and
Mr. Reetesh Kumar, Advocate
for the petitioner.
Mr. Tanuj Sharma, AAG, Haryana.
Mr. Ashwani Gaur, Advocate
for respondent No. 9.
Mr. Akashdeep Singh, Advocate
for respondent No. 10.
****
SURESHWAR THAKUR, J. (ORAL)
1. FIR No. 726 of 13.12.2016 became registered at Police Station
Kalanaur, District Rohtak. The offences constituted thereins are embodied
in Sections 302, 323, 148, 149 IPC.
2. After the conclusion of investigations into the FIR (supra), by
the investigating officer concerned, the latter proceeded to institute an
affirmative report under Section 173 Cr.P.C., before the learned Committal
Court concerned. However, thereins he arrayed Balwan, Vijay, Rahul, Ram
Kumar, and, Ram Niwas, as accused, in the commission of offences (supra).
However, he excluded thereins, the names of Ram Kishan, Manju, Rajni,
Kamlesh, Bharti, Krishna, Kela, Gurjit, and, Ravi. Consequently, only the
For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR
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included, in the affirmative report filed under Section 173 Cr.P.C., rather
became committed for trial by the Committal Court, to the learned Sessions
Court concerned, for theirs facing charge(s) for the offences (supra), as
become embodied in the FIR (supra).
3. After charge being put to the afore accused, whose names
became included in the affirmative report filed under Section 173 Cr.P.C.,
hence the trial against them opened. After opening of trial against the above
named accused, one of the prosecution witness, namely one Maninder,
stepped into the witness box as PW-1, and, in his deposition, comprised
both in his examination in chief, and, in his cross-examination, rather he in
the completest tandem, with his previous statement, recorded in writing, by
the investigating officer concerned, attributed to the exonerated persons
(supra), an inculpatory role. The above made inculpation by PW-1, led the
public prosecutor concerned, to institute an application, cast under Section
319 Cr.P.C., before the learned trial Judge concerned. However, thereons, a
disaffirmative order became pronounced, and, has hence caused pain to the
aggrieved complainant, and, has led him to cast a challenge thereto, through
his instituting the instant petition before this Court.
4. Before proceeding to determine the validity of the afore made
disaffirmative order, as made by the learned trial Judge concerned, upon, the
prosecutors application, cast under Section 319 Cr.P.C., it is imperative, to
bear in mind the factum, that the learned counsel for the aggrieved
complainant, has made a statement, at the bar, that he would be challenging
only that part of the impugned order, insofar as it appertains to one Gurjit
Singh, and, one Ravi @ Mohit. Therefore, only to the extent of the above
being amenable or not, for theirs being summoned for theirs facing trial
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along with the already appearing accused, this Court would proceed to
determine, the validity of the order, challenged before this Court.
5. The reasons which prevailed upon the learned trial Judge
concerned, to make the disaffirmative order, on the prosecutors application,
cast under Section 319 Cr.P.C., are carried in paragraph 4 of the impugned
order, relevant para whereof is reproduced hereinafter.
"4. The complainant-Mahender had appeared as PW1 in the
instant case and he has reiterated the averments made by him
in the original complaintEx. P1. No fresh material has been
brought on record by him. The statement made by him was
duly considered by the Investigating Agency during the course
of investigations and as has been highlighted above, the
persons now proposed to be arrayed as accused were found
innocent. There is absolutely no dispute with the case law
relied upon by the prosecution/complainant to accentuate the
fact that merely because some persons were found innocent by
the Investigating Agency, the Court cannot refrain from
summoning them as accused if cogent evidence is found
against them. It may be pointed out here that the relevant word
here is "cogent material". It is only if any cogent material is
available against the proposed accused that they can be
summoned. In the instant case, aside from a bald repetition of
the facts, there is no other material on record against any of
the proposed accused. The allegations against them had been
duly investigated and verified but their complicity in the
incident was not found. In fact, in his examination-in-chief,
Mahender Singh (PW1) did not make any specific or fresh
reference to any of the proposed accused. When a specific
query was put to him in the cross-examination, he claimed that
Gurjit Singh had assaulted his father with a jaili while all the
other persons proposed as co-accused had pelted brickbats
upon him and others. The MLR of Mahender shows that he was
referred to dental opinion, but he did not get himself treated or
examined. While deposing as PW1, he has stated that he was
admitted to the hospital and that he had handed over a broken
tooth to the concerned dental doctor. No such medical
evidence is available on record. His testimony thus belies the
medical record. Similarly, the witness Devender has stated in
his statement under Section 161 Cr.P.C. that he suffered a
broken tooth, but the medical opinion shows that there is no
corresponding injury on his lips. No doubt, it was specifically
stated by the complainant in the statement-Ex. P1 that Gurjit
Singh had inflicted a jaili blow on the head of deceased Attar
Singh. However, during investigations, Gurjit Singh was not
found to be involved in the incident at all. No material
particulars
For Subsequent orders see to prove
CRM-9275-2022 the by
Decided presence
HON'BLEand
MR.involvement of Gurjit
JUSTICE SURESHWAR
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has been produced before the Court which would justify
summoning him. The medical opinion also indicates that the
fatal injury on Attar Singh could only have been caused by "a
heavy object which was blunt in nature and force." The
deceased did not suffer from any sharp edged weapon injury.
Vague and general allegations have been made against the
remaining persons that they had pelted brickbats. These
allegations remained uncorroborated during investigations
and even now no cogent material has been found against them.
In these circumstances, this Court is of the considered opinion
that merely because the complainant has reiterated the
contents of his complaint, is no reason to summon the
proposed accused. There has to be some evidence beyond such
oral reiteration which would justify the summoning of the
accused and that too only if it indicated the complicity of the
persons who are now sought to be summoned which is not the
case at hand. Cognizance of an offence can be taken against a
person not named as an accused or not arrayed as an accused
if material is available on record against such a person. Mere
suspicion is insufficient to summon a person as an accused
howsoever tempting it may be. In the instant case, the
allegations of pelting of brickbats qua most of the proposed
accused is not fortified from the MLRs. Therefore, this Court is
of the considered opinion that there is no justification in
summoning any of the persons named in the application as co-
accused in the instant case. Resultantly, the application, under
disposal, is dismissed."
6. Though, in view of the expostulations of law, as carried in the
case of Hardeep Singh versus State of Punjab and others, reported in
2014(1) R.C.R. (Criminal) 623, rather even the untested through cross-
examination, any statement embodied in the examination-in-chief of the
prosecution witness concerned, whereins, a penal inculpation is attributed to
the persons, who are earlier exonerated by the investigating officer, in his
report filed under Section 173 Cr.P.C., before the Court concerned, is
declared thereins, to be sufficient to enjoin, the learned Court concerned, to
make an order for summoning the persons concerned, to face trial along
with the already appearing accused qua the charges concerned. However, in
the instant case, the above PW-1, even became cross-examined, and,
thereins no compatible exculpatory suggestion(s), for shredding the efficacy
of his
For Subsequent inculpatory
orders deposition(s)
see CRM-9275-2022 qua bythe
Decided persons
HON'BLE MR.concerned, who were
JUSTICE SURESHWAR
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excluded by the investigating officer concerned, in his report under Section
173 Cr.P.C., rather become meted to him nor became either accepted or
denied by him. Though, the above unshaterred deposition of PW-1 may be,
a sequel of the above persons concerned, becoming not then defended by a
defence counsel, and, hence obviously no suggestions to rip apart the
inculpation made by PW-1, qua them, was ever available then, to be
recoursed, at their instance, rather when the afore opportunity may become
availed only after PW-1, becoming recalled at the instance of the above
persons hence for enabling the defence counsel concerned, to mete the
relevant exculpatory suggestions to him. However, since it is stated, at the
bar, by the learned counsels appearing for the contesting litigants, that PW-1
is no longer surviving, therefore the afore opportunity may not be available
to be recoursed by the above named persons, but yet the investigating
officer concerned, can be yet become meted certain relevant exculpatory
suggestions, by the learned defence counsel, with respect to the tenability or
otherwise of his excluding, the above named persons rather from the array
of accused.
7. Be that as it may, and, if so, the exoneration as made by the
investigating officer concerned, with respect to the above named persons, is
yet available to be tested, through the counsel concerned, meteing certain
relevant exculpatory suggestions to the investigating officer concerned,
upon his stepping into the witness box, thereupon, the summoning order
cannot be faulted, at this stage, as at the above stage, no prejudice in trial
would accrue to the persons concerned.
8. The above extracted reasons, which prevailed upon the learned
trial Judge concerned, to make the disaffirmative order, upon the
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prosecutors application, cast under Section 319 Cr.P.C., do at this stage,
enjoin this Court to test the validity of the above order. The test for
determining the validity of the afore order, is to be made, on anvil of the
pronouncement, as made by the Hon'ble Apex Court in the verdict (supra),
more specifically in the light of the expostulations occurring in paragraphs
98, and, 99 thereof, paras whereof become extracted hereinafter.
"98. Power under Section 319 Cr.P.C. is a discretionary and
an extra- ordinary power. It is to be exercised sparingly and
only in those cases where the circumstances of the case so
warrant. It is not to be exercised because the Magistrate or the
Sessions Judge is of the opinion that some other person may
also be guilty of committing that offence. Only where strong
and cogent evidence occurs against a person from the evidence
led before the court that such power should be exercised and
not in a casual and cavalier manner.
99. Thus, we hold that though only a prima facie case is to be
established from the evidence led before the court not
necessarily tested on the anvil of Cross-Examination, it
requires much stronger evidence than mere probability of his
complicity. The test that has to be applied is one which is more
than prima facie case as exercised at the time of framing of
charge, but short of satisfaction to an extent that the evidence,
if goes unrebutted, would lead to conviction. In the absence of
such satisfaction, the court should refrain from exercising
power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the
purpose of providing if 'it appears from the evidence that any
person not being the accused has committed any offence' is
clear from the words "for which such person could be tried
together with the accused." The words used are not 'for which
such person could be convicted'. There is, therefore, no scope
for the Court acting under Section 319 Cr.P.C. to form any
opinion as to the guilt of the accused."
9. orders see
For Subsequent TheCRM-9275-2022
rule as propounded
Decidedthereins, is that,
by HON'BLE the satisfaction
MR. JUSTICE SURESHWARto be
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drawn by the learned trial Judge concerned, upon, the prosecutors
application cast under Section 319 Cr.P.C., becomes rested in the salient
rubric, that the learned trial Judge concerned, becoming enjoined to draw an
objective satisfaction, with respect to the inculpation, as is made against the
persons concerned, not only on anvil of the statement, as made by the
prosecution witness concerned, and, as comprised in his examination in
chief, but obviously also upon the learned trial Judge concerned, rather
along therewith, also keenly analysing the evidentiary worth of the other
incriminatory evidence, both oral as well as documentary, as becomes
appended by the investigating officer concerned, with his report filed under
Section 173 Cr.P.C. However, the objectivity of the afore satisfaction, is,
again embedded in the fine principle, that the evidence (supra), if goes
unrebutted, may would lead to conviction, hence the persons concerned
being amenable to be tried together with the appearing accused, and/or there
being a triable case against the persons concerned, qua the charges framed.
Moreover, the above power of summoning, as engrafted under Section 319
Cr.P.C., is to be exercised sparingly, and, not in a casual, and, cavalier
manner.
10. Therefore, bearing in mind the afore principle of law, it has to
be determined whether the satisfaction, as drawn by the learned trial Judge
concerned, is objectively made, and/or, is made on principles which rather
govern the triability of the persons concerned along with the already
appearing accused persons, qua the apposite charges concerned. Obviously
after adhereing to the above alluded fine principles, the learned Court
concerned was required to be assessing the qualitative worth of the entire
evidence, collected by the investigating officer concerned, and, in respect
For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR
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whereof he made a report under Section 173 Cr.P.C., before the learned
Court concerned.
11. In consequence, the analyses, as made by the learned trial Judge
concerned, qua the testification of PW-1, is completely infirm, and, requires
its being annuled.
12. The reasons for well forming the afore inference, becomes
embedded in the factum, that the learned trial Judge concerned, has
completely ignored the PMR, as became appended with the report filed,
under Section, 173 Cr.P.C., and, as appertained to deceased one Attar Singh.
The relevant portion of the PMR is extracted hereinafter. Conspicuously,
the PMR concerned, comprised the most important incriminatory material
against the persons concerned, as it, for the reasons hereinafter corroborated
the testifiation of PW-1.
x x x x x
Examination of External Injuries
Sr. Injuries Marked Injury
No. Number
1. 1. A stitched wound of 2 cm length with 1 No 1
stitch of situ was present obliquely over the
scalp at right frontal area, being situated 2
cm above the lateral end of right eyebrow, 6
cm from midline and 8 cm from right ear.
On removal of the stitch, wound margins
were irregular. On dissection, underlying
soft tissues were ecchymosed. On retraction
of scalp, temporopareital region of scalp and
left temporalls muscle were found to be
contused. On further dissection, a depressed
fracture, rectangular in shape measuring 3 x
2.5 cm was present over the left parietal
bone just above the end of temporal bone.
From the lower end of this depressed
fracture, a linear fracture of 10 cm length
was found to be radiating towards temporal
frontal area. Another linear fracture was
present for 16 cm in curvilinear manner
towards right side and ending over the
occipital bone at right side. The fractured
ends of bones show infiltration of blood in
their bony trabeculae. On removing the skull
and cutting through the dura, diffuse
subdural and subarachnoid haemorrhage was
For Subsequent orders see CRM-9275-2022 Decided
present all over by HON'BLE
the brain. MR. JUSTICE SURESHWAR
Hemorrhagic
THAKUR
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contusions of size 4 x 2 and 3 x 1.5 cm were
present over the left tempropocciptal and
right temporal areas of brain. On removing
the brain, bilateral orbital plates were found
to be fractured. The fractured ends of bones
show infiltration of blood in their bony
trabeculae.
2. 2. A reddish abraded contusion of size 2.5 x No 2
0.5 cm was found to be present over the
scalp at right side, 4 cm above the middle of
right eyebrow and 5 cm from the midline in
oblique manner. On dissection, underlying
soft tissues were ecchymosed.
3. 3. A reddish abraded contusion of size 6 x 2 No 3
cm was present over the top of right shoulder
in oblique manner. On dissection,
underlying soft tissues were ecchymosed.
was present obliquely over the left cubital
fossa. On dissection, underlying soft tissues
were ecchymosed.
present obliquely over front of upper one
third of left forearm, 6 cm below the cubital
fossa. On dissection, underlying soft tissues
were ecchymosed.
present over the prominence of left knee.
Internal Examination
Sr. Component Remarks
No.
1. Cranium and spinal Cord (Brain must be exposed in every case, Spinal
Cord need not to be examined except in cases of injury to vertebral
column/Spinal Cord)
Scalp Described
Skull Described
Meninges and Vessels Described
Brain Described
Vertebrae and Spinal Cord (Not legible) spinal cord not
opened
2. Mouth, Pharynx and Oesophagus Mouth described, Pharynx
and oesophagus were
healthy
3. Neck
Condition of next tissues Thyroid Healthy
Hyoid bone Intact
Larynx and Trachea Healthy
4. Thorax
Chest wall, Ribs/Sternum and Cartilage Healthy
Pleura/pleural Cavity Intact
Lung (Rt) Congested on cut section.
Lung (Lt) Congested on cut section.
Pericardium Intact
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Heart Right side filled with blood
and left side empty.
Coronary Arteries and Large Blood Healthy
Vessel
5. Abdomen
Peritoneum, Retroperitoneum Intact
Stomach and its contents Contained about 50 cc of
yellowish liquid material.
Mucosa was hyperemic
Small intestine and its content Contained liquid material
Large intestine and its content Contained fecal mattor and
gases.
Liver and Gall Bladder Congested on cut section.
Spleen Congested on cut section
Pancreas Congested
Kidney (Rt.) Congested on cut section
Kidney (Lt.) Congested on cut section
Urinary Bladder Empty
(Male)
Testes (Rt.) Healthy
Testes (Lt.) Healthy
x x x x x
13. A reading of the hereinabove extracted relevant portion, of the
PMR concerned, as prepared by the doctor, after his making examination on
the body of deceased Attar Singh, rather reveals that his head had been
encumbered with injuries. The afore injuries are revealed in the deposition
of PW-1, to be sequel of one Gurjit Singh, striking the head of deceased
Attar Singh, through his using a "jaili". Though, the learned counsel for the
above Gurjit Singh submits, with much vigour before this Court, that "jaili"
is a sharp edged weapon, and, that deep incised wounds were to be hence
occurring on the relevant parts of the body of deceased Attar Singh,
whereas, with lateral injuries being reflected in the PMR to occur thereons,
thereupon, the striking by one Gurjit Singh, with "jaili", hence the head of
deceased Attar Singh, becomes completely belied, and, he further contends
that the impugned order does not merit any interference.
14. However, the afore made submission is completely misfounded,
For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR
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and, is amenable for its rejection. The reason for making the afore
conclusion, arises from the factum, that one Gurjit Singh, is not echoed
either in the FIR or in PWs deposition, to be striking the head of deceased
Attar Singh, significantly with the sharp edged portion of "jaili".
Consequently, prima facie, at this stage, even if only lacerated wounds were
encumbered upon the head of deceased Attar Singh, thereupon, prima facie,
it appears rather not the sharp edged portion of the "jaili", but the blunt
portion of the "jaili"may have been used by one Gurjit Singh, to strike the
head of deceased Attar Singh. Conspicuously also, when PW-1, as afore
stated, has neither in his previous statement, recorded in writing nor in his
deposition, has echoed with the completest candour, that only the sharp
edged portion of the jaili, became wielded, and, also became used by one
Gurjit Singh to strike the relevant portion of the head of deceased Attar
Singh.
15. As afore stated, the learned trial Judge concerned, has
completely discarded, the above trite factum, whereas, the principle as
propounded in Hardeep Singh's case (supra) is comprised, in the factum
that all the incriminatory documentary material, besides the statements' of
the prosecution witnesses concerned, are all required to be objectively
evaluated, for forming a conclusion with respect to the prosecutors
application, cast under Section 319 Cr.P.C., being amenable for acceptance
or dismissal. The lack of the above objective appraisal of the statement of
PW-1 along with an appraisal in conjunction therewith of the PMR of
deceased Attar Singh, has resulted in a completely infirm conclusion,
becoming drawn by the learned trial Judge concerned.
16. However, at this stage, the learned counsel for Gurjit Singh, has
For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR
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yet proceeded to make a very vehement submission before this Court, that
prima facie even, at this stage, the inculpation drawn against Gurjit Singh,
and, as may be founded upon the above referred material rather is
completely fallible. He has raised the above conclusion, on anvil of the
investigating officer concerned, rearing a valid exculpatory plea of alibi qua
the relevant occurrence. Therefore, he submits that the testimony of PW-1,
as also a conjoint reading therewith rather of the PMR of deceased Attar
Singh, cannot yet make any conclusion, that both the above are to be at this
stage, imputed any credence, and, consequently, he argues that the verdict
drawn by the learned trial Judge concerned, is merit-worthy, and, does not
warrant any interference.
17. He raised the above submission on anvil of a judgment, made
by the Hon'ble Apex Court, in case titled Brijendra Singh and others
versus State of Rajasthan, to which Criminal Appeal No. 763 of 2017 is
assigned. He refered to paragraph 14 thereof, para whereof stands extracted
hereinafter.
"When we translate the aforesaid principles with their
application to the facts of this case, we gather an impression
that the trial court acted in a casual and cavalier manner in
passing the summoning order against the appellants. The
appellants were named in the FIR. Investigation was carried
out by the police. On the basis of material collected during
investigation, which has been referred to by us above, the IO
found that these appellants were in Jaipur city when the
incident took place in Kanaur, at a distance of 175 kms. The
complainant and others who supported the version in the FIR
regarding alleged presence of the appellants at the place of
incident had also made statements under Section 161 Cr.P.C.
to the same effect. Notwithstanding the same, the police
For Subsequent orders see CRM-9275-2022
investigation Decided
revealed by HON'BLE
that MR. JUSTICE
the statements SURESHWAR
of these persons
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regarding the presence of the appellants at the place of
occurrence was doubtful and did not inspire confidence, in
view of the documentary and other evidence collected during
the investigation, which depicted another story and clinchingly
showed that appellants plea of alibi was correct."
18. Therefore, he argues that when alike the instant case also, in the
verdict (supra), the inculpatory statement made by the prosecution witness
concerned, against the unarrayed along with the appearing accused, was not
imputed any credence, rather on anvil of a plea of alibi becoming accepted.
Therefore, he argues that the plea of alibi, in the instant case, and, as
became accepted by the investigating officer concerned, to make an
exoneration qua Gurjit Singh, is merit worthy, and, also makes it fall within
the ambit of the afore expostulation of law, as carried in the above extracted
paragraph of the verdict (supra), as made by the Hon'ble Apex Court.
Therefore, he contends that an alike therewith benefit be accorded to one
Gurjit Singh. He further fortifies, the above submission on the basis of a
duty certificate, authored by District Radio Oficer, Police Control Room,
Bhiwani, which became appended, with the report under Section 173
Cr.P.C. He refers to echoings thereins that qua on the relevant date, as per
duty roster, one Gurjit Singh performing his duties on SWAN/Simplex
channels from 121245/12/16 to 121945/12/16 in Police Control Room,
Bhiwani. He further submits, that when the relevant penal occurrence,
occurred at the crime site at about 9.30 P.M. as such, when the duty
certificate concerned, reflects his presence on duty at the Police Control
Room, Bhiwani. Therefore, the above Gurjit Singh was not available at the
crime site, and, rather he contends that the investigating officer concerned,
has tenably exonerated his presence at the crime site.
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19. However, the learned counsel for the above Gurjit Singh has
remained unmindful to the echoings made thereins, that Gurjit Singh
remained off duty from 121945/12/16 to 130745/12/16, and, the relevant
occurrence taking place at the crime site, on 12.12.2016, at 9.30 P.M. As
such, assuming even if the above Gurjit Singh, had been performing his
duties, on 9.45 P.M., yet since the occurrence happened 15 minutes earlier,
nonetheless, at this stage, completest credence cannot be meted to the above
duty certificate appertaining to Gurjit Singh, as apart from it, becoming
merely collected by the investigating officer concerned, during the course of
his holding investigations, he has not recorded the statement of all other co-
employees of Gurjit Singh, who, at the relevant time, were also performing
duties along with Gurjit Singh rather at SWAN/Simplex channels, Bhiwani,
besides has not placed on record the signatured by the accused, the apposite
entries concerned, as carried in the duty register, and, theirs being counter
signatured by the controlling officer concerned, nor the best electronic
evidence has been placed on record, whereas, the latter, and, the recording
of the testimonies of the co-employees concerned, were all imperative, for
removing or erasing any possible inference, that since Gurjit Singh, is a
police official, he may have enabled the preparation of the duty certificate
hence by the author thereof, rather only for his building a plea of alibi.
Furthermore, another reason for prima facie, at this stage, dispelling the
evidentiary sanctity, of the duty certificate, whereons, the plea of alibi
becomes erected by Gurjit Singh, is also comprised in the factum, of the
submission made with the completest confidence, at the bar, by the learned
senior counsel, for the petitioner, that the distance inter se the
Police Control Room, Bhiwani, and, the site of occurrence, is coverable
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within 20/25 minutes. Though, the afore submission, made at the bar, is
believable but yet veracity of all the above are to be tested through
compatible therewith exculpatory suggestions, being purveyed to the
investigating officer concerned, by the defence counsel, rather during the
stage of the holding to cross-examination, the investigating officer
concerned. Therefore, at this stage, for the reasons (supra), prima facie, plea
of alibi cannot become meted the completest credence, nor begets any
sequel qua the exculpation, drawn by the investigating officer concerned,
against Gurjit Singh, is completely infallible, moreso, when for the reasons
(supra), the vital fatal head injury, suffered by deceased Attar Singh, is
prima facie, at this stage, not only supported by the testification of PW-1,
but is also supported by the PMR drawn, with respect to deceased Attar
Singh.
20. In addition, the afore distance inter se the crime site, and, the
office concerned, where Gurjit Singh was purportedly, performing his
duties, is rather minimal, thereupon, rather when the distance inter se the
crime site, and, the office of performance of duties by the aggrieved accused
thereins, one Brijendra Singh, in Brijendra Singh's case (supra), rather was
175 kilometers. Therefore, the acceptance by the Hon'ble Apex Court, in
judgment (supra), of the plea of alibi, as reared by the aggrieved litigant
therein, is obviously completely sanctified, and, is reverable, but the above
facts, carried thereins, are to be also applied to the facts at hand. However,
on perusal, and, applications of facts thereins, to the facts at hand, rather
reveal that the facts thereins are completely dissimilar to the facts at hand,
especially in respect of the extant distance inter se the crime site, and, the
place where one Gurjit Singh was, at the relevant time, purportedly
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performing his duties, rather being prima facie minimal, whereas thereins
the relevant distance being immense. Therefore, the expostulation of law, as
made in the verdict (supra), is prima facie not applicable to the factual
scenario here.
21. The learned counsel appearing for one Ravi @ Mohit, has also
argued that the exculpation drawn by the investigating officer concerned,
qua Ravi is well founded, and, while making the afore argument, he has
drawn the attention of this Court towards the contents of the FIR
appertaining to Ravi @ Mohit, whereins, there occur echoings that Vijay
son of Ram Chander, and, Ravi son of Ram Chander, inflicting grievous
injuries with lathis, upon one Devender, on his head, and, other parts of the
body. Consequently, he submits that the afore attribution, as made in the
FIR, which is also supported by the testification made in the Court by PW-1,
becomes completely denuded qua its evidentiary vigour, inasmuch as, the
MLR of one Devender, relevant portion whereof extracted hereinafter,
reflecting that only a singular head injury becoming encumbered upon his
head.
x x x x x
Sr. Injuries Marked Injury
No. Number
region of the skull
Nature of injuries (Simple, Grievous, Dangerous or pending for observation
KUO
Probable Duration of Injury
24 hr
Kind of weapon used (Sharp, Blunt, Firearm, Fire, Position etc.)
blunt
For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR
x x x x x
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22. Therefore, he contends that if both Vijay, and, Ravi, with user
of lathis, allegedly inflicted injuries on the head of one Devender,
thereupon, in the MLR concerned, multiple injuries on the person of
Devender, were to be occurring, rather than a singular injury becoming
observed thereins to become inflicted upon him. However, even the afore
submission becomes completely unhinged of its tenacity, and, the reason for
making the afore conclusion, is that, the learned counsel, has not incisively,
and, thoroughly read, the above attribution of an incriminatory role to both
the above named accused, as rather made consistently in the FIR, and, in the
deposition recorded on oath, by PW-1, whereas if he had completely, and,
incisively read both, whereins not only both are alleged to have inflicted
blows, with user of lathis, not only on the head of Devender, but rather also
are alleged to strike with user of lathis, the other portion of the body of one
Devender. Therefore, the consequence thereof, is that apart from the head
of Devender, other injuries on the other regions of the body of Devender,
rather becoming entailed thereons. Therefore, if one singular injury was
meted on the head of Devender, and, it was meted by one Vijay, and, not by
one Ravi @ Mohit, latter whereof rather is also alleged to use lathis, and,
with user thereof strike the other regions of the body of one Devender,
thereupon, he too can prima facie, at this stage, be concluded to strike the
regions of the body of Devender other than the latter's head.
23. Consequently, the instant petition is allowed, and, the
impugned order is quashed, and, set aside.
24. The above observations are only for the disposal of the instant
petition, and, shall not prejudice in any manner the verdict to be made by
For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR
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the trial Judge concerned, upon the FIR concerned.
(SURESHWAR THAKUR)
JUDGE
May 06, 2022
Gurpreet
Whether speaking/reasoned : Yes
Whether reportable : Yes
For Subsequent orders see CRM-9275-2022 Decided by HON'BLE MR. JUSTICE SURESHWAR
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