Major Singh vs State Of Punjab & Anr
2022 Latest Caselaw 11930 P&H

CRM-M-1943-2016                                                (1)


           THE HIGH COURT OF PUNJAB AND HARYANA AT
                       CHANDIGARH

                                              CRM-M-1943-2016 (O&M)
                                              Reserved On : 19.09.2022
                                            Date of Decision: 22.09.2022


   Major Singh                                           ....Petitioner

                   Versus

     State of Punjab and another                           ...Respondents


CORAM:     HON'BLE MR. JUSTICE HARNARESH SINGH GILL


Present:   Mr. Atul Goyal, Advocate, for the petitioner.

           Mr. IPS Sabharwal, DAG, Punjab.

           Mr. Rajinder Goyal, Advocate, for respondent No.2.



HARNARESH SINGH GILL, J.

Challenge in the present petition is to the order dated

21.11.2015 (P.6) passed by the Judicial Magistrate, Ist Class,

Ropar, whereby an application under Section 311 Cr.P.C. for re-

examination of witness Bahadur Singh, was dismissed.

During the trial of FIR No.85 dated 16.05.2013

registered under Sections 279, 338, 427 IPC and Section 304-A

IPC added later on, at Police Station, Chamkaur Sahib, District

Ropar, on account of death of deceased-Jaswant Singh, in a

motor vehicular accident, the prosecution examined PW-1

Bahadur Singh and was cross-examined on 20.7.2015.

Subsequently, the prosecution had moved the application under

Section 311 Cr.P.C., for re-examination of the said witness, on

the ground that on the aforesaid date, the said witness had

turned hostile and deposed in total contradiction of not only the

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version recorded in his examination-in-chief as also his

deposition before the Motor Accident Claims Tribunal, Ropar.

The said application was contested by the accused.

The learned trial Court, vide order impugned herein

dismissed the said application holding that the witness cannot

be called for re-examination, even if he had made contradiction

depositions. Reliance was placed upon the judgment of the

Hon'ble Apex Court in Hanuman Ram Vs. State of Rajasthan,

2008(4) RCR (Criminal) 823.

Learned counsel for the petitioner would vehemently

contend that the learned trial Court has misinterpreted the

judgment of the Hon'ble Apex Court in Hanuman Ram's case

(supra); that the said judgment would rather support the case of

the petitioner; that the petitioner being the real brother of the

deceased would fall under the definition of victim as contained

in Section 2(wa) Cr.P.C.; that it is settled law that a witness can

always be confronted with the earlier statement and not vice-

versa; that the instant case is covered by the Full Bench dictum

of this Court in M/s Tata Steel Ltd. Vs. M/s Atma Tube Product

Ltd. and others, 2013(2) RCR (Criminal) 1005, wherein while

defining the provisions relating to the victim, it has been held

that for the purpose of filing of an appeal or engaging an

Advocate, any class of legal heirs, would fall under the definition

of victim; that the petitioner being the real brother of the victim,

cannot be said to not have suffered any injury, as such

connotation must encompass not only the victim in the natural

and ordinary course, but also the kith and kin of the victim.

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 CRM-M-1943-2016                                            (3)

Reliance is also placed upon the judgment of the Full Bench

judgment of the Delhi High Court in Ram Phal Vs. Sate and

others, 2015(3)RCR (Criminal) 295 and the judgment of the

Hon'ble Apex Court in Satya Pal Singh Vs. State of M.P. and

others, Law Finder Id # 713352.

It is further argued that the deposition of witness

Bahadur Singh, before the MACT, Ropar, is part of the Court

proceedings and had been recorded at prior point of time and,

therefore, no prejudice of any kind would be caused to the

accused, if said witness is confronted with his said deposition.

On the other hand, learned counsel for respondent

No.2 would submit that the petitioner being brother of the

deceased would fall within the definition of Class-II heir and

hence not covered by the definition of Section 2(wa) Cr.P.C.; that

when Bahadur Singh, had been examined on 20.7.2015, the

prosecution ought to have confronted the statement made by

said witness before the MACT, Ropar, as admittedly, the said

statement was made on 14.03.2014 i.e. a prior point of time.

Reliance is placed upon the judgment of the Division Bench of

Andhra Pradesh High Court in D.Sudhakar Vs. Panapu

Sreenivasulu @ Evone Water Sreenivasulu and others, 2012(20)

RCR (Criminal) 884, to contend that when the Class-I, legal

heirs of deceased, are available, the petitioner cannot be

permitted to pursue the proceedings on behalf of the deceased.

Still further, reliance is also placed upon M/s Tata Steel Ltd.'s

case (supra) and Hanuman Ram's case (supra).

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 CRM-M-1943-2016                                            (4)

He further submits that even if the relief sought for

by the petitioner is granted, the same would not lead to the

conviction of the accused. Still further, it is argued that the

proceedings before the Civil Court, are adjudicated upon on the

basis of preponderance of evidence, whereas in the criminal

proceedings, the prosecution has to prove the guilt on the part of

the accused beyond the shadow of a doubt.

I have heard the learned counsel for the parties and

have also gone through the case file.

The issue is whether the petitioner being the brother

of deceased-Jaswant Singh, can plead the cause before the

criminal Court.

Section 2(wa) Cr.P.C., which defines the victim,

would read as under:-

"2 [(wa) "victim" means a person who has suffered

any loss or injury caused by reason of the act or

omission for which the accused person has been

charged and the expression "victim" includes his or

her guardian or legal heir."

Admittedly, petitioner, being brother of the deceased

is Class-II legal heir. A perusal of the aforesaid provisions would

show that victim includes his or her legal heir as well. The

classification of the legal heir has not been done so as to say

that only Class-I heirs would be entitled to pursue and plead the

cause.

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 CRM-M-1943-2016                                                           (5)

Learned counsel for the petitioner and respondent

No.2 have heavily relied upon the judgments in M/s Tata Steel

Ltd.'s case (supra) and Hanumaan Ram's case (supra).

Learned counsel for the petitioner places heavy

reliance upon para No. 64 of the judgment in M/s Tata Steel

Ltd.'s case (supra), which reads as under:-

"(64). The right to 'engage an advocate' given to a 'victim' draws parity from the right to fair trial guaranteed to an accused and is essentially meant to enable the Court to have the viewpoint of a 'victim' who remained discounted for years and to whom the Legislature unambiguously intends to provide a presence and appearance before the Court. Since the very object of this right is to give restricted participation in trial to the 'victim' and assist the Court to arrive at a just conclusion, it is not necessary nor the Code perceives so that only that 'legal heir' who has preferential entitlement to succeed to the property of an intestate, alone shall be competent to engage such advocate. The 'right to appeal' under proviso to Section 372 at the best enables the Appellate Court to call for the records, re- appraise the evidence and determine - (i) whether acquittal of the accused is justified? Or (ii) whether the accused has been rightly convicted for a lesser offence? Or (iii) whether the compensation determined under Section 357 is inadequate? Such an exercise, in our humble opinion, can be undertaken by the appellate court on presentation of appeal by any 'legal heir' irrespective of his proximity with the deceased under the personal law. Any narrow construction would defeat the very legislative object behind insertion of Section 2(wa) and proviso to Section 372 of the Code and re- introduce the mischief which the Legislature has intended to remove."

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CRM-M-1943-2016 (6)

Emphasis is also placed on the answer of Question A

as contained in para No.139 of M/s Tata Steel Ltd.'s case

(supra). The said part would read as under:-

"Question - (A) (i) The expression "victim" as defined in Section 2(wa) includes all categories of his/her legal heirs for the purpose of engaging an advocate under Section 24(8) or to prefer an appeal under proviso to Section 372 of the Code.

(ii) However, legal heirs comprising only the wife, husband, parent and child of a deceased victim are entitled to payment of compensation under Section 357(1)(c) of the Code. Similarly, only those dependents of a deceased victim who have suffered loss or injury as a result of the crime and require rehabilitation, are eligible to seek compensation as per the Scheme formulated under Section 357-A of the Code."

It is, accordingly, submitted that it is not a case,

wherein the petitioner is deriving any momentary benefit or

compensation on account of death of his brother-Jaswant Singh.

Thus, the petitioner's case would be covered by the law laid

down by the Full Bench of this Court in Clause (i) above.

Learned counsel for respondent No.2 also heavily

relies upon the judgment in M/s Tata Steel Ltd.'s case (supra),

especially para Nos. 61 and 62, which would read as under:-

"(61). Having held that the Legislature has not linked or preconditioned the admissibility of compensation to the next kin of a victim under Section 357 or Section 357-A with the personal law of such victim, we revert back to the second part of the definition of "victim"

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under Section 2(wa) of the Code which includes his/her guardian or legal heir within the expression "victim", with special reference to the right to 'engage an advocate' under Section 24(8) or the 'right to appeal' under proviso to Section 372 of the Code.

(62). The Legislature while specifying four categories of the next of kin of the deceased victim, has purposefully couched the language of Section 357(1)(c) in a manner which leaves no grey area for the Court firstly to determine the status of the claimant as a 'legal heir' and then the order of succession amongst different categories of heirs. Similarly, the Legislature did not deem it necessary to use the expression "victim" in Section 357, while in Section 357A, it has shrunk the otherwise widened circumference of the word "victim" by imposing the riders like 'dependent' or his/her requirement for 'rehabilitation'.

The heavy reliance of the counsel for respondent No.2

is also upon the Division Bench judgment of the D. Sudhakar's

case (supra), he pointed refers to para Nos. 19 to 21, which

would read as under:-

"19. Whereas in the present case, parties are

Hindus and the law of heritance applicable to them

is the Hindu Succession Act. Section 8 of the Hindu

Succession Act sets out the general rules of

succession in case of a male Hindu dying intestate,

the property would devolve first up on the heirs

specified in Class - I of the schedule and secondly,

if there is no heir of Class - I, then up on the heirs

specified in Class - II of the schedule; thirdly if

there is no heir of any of the classes, then up on

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the agnates of the deceased and lastly if there are

no agnates, then up on the cognates of the

deceased. Section 9 of the Hindu Succession Act

provides the order of succession amongst heirs in

the schedule. Those in Class - I take

simultaneously and to the exclusion of all other

heirs, there in the first entry in Class - II are

preferred to those in the second entry. Section

12 prescribes the order of succession amongst

agnates and cognates.

20. In view of the provisions of Sections

8 and 9 of the Hindu Succession Act, the appellant

being a Class - II heir would not inherit anything

from his deceased brother, as he is survived by his

wife. Thus, the appellant is not entitled to the

property of the victim under the applicable law of

inheritance. Though the appellant falls in one of the

category of heirs as per the Hindu Succession Act,

but the Legislature deliberately used the word "legal

heir", which strictly means a person who is entitled

to the property of the victim under the applicable

law of inheritance i.e. Hindu Succession Act.

Hence, we are of the considered opinion that when

it is the intention of the Legislature to give right of

appeal to the legal heir, the appellant will not fall

within the definition of "legal heir" and he is not

entitled to prefer an appeal to this Court

under Section 372 Cr.P.C. against acquittal of the

accused.

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 CRM-M-1943-2016                                            (9)


                  21.   The    second     issue   that     falls   for   our

consideration is that the incident has taken place

on 07.12.2007 and the amendment to Section

372 Cr.P.C. has come into force w.e.f. 31.12.2009,

where the victim can prefer an appeal against

acquittal. This issue will not hold us for long, in

view of the fact that the Apex Court in National

Commission for Women v. State of Delhi, has

already held that the amendment is not applicable

to cases where the incident has taken place prior to

amendment. Therefore, even on this count, the

appellant fails, and as such, the appeal is liable to

be dismissed as not maintainable."

After going through the judgment of the Full Bench of

this Court in M/s Tata Steel Ltd.'s case (supra), it is clear that

the term victim as contained in Section 2(wa) has been defined

in para No. 139 of the said judgment (while answering the

questions framed). I find force in the argument raised by the

counsel for the petitioner that the petitioner is only pursuing the

cause of death of his brother in the criminal Court so as to prove

the guilt on the part of the accused. Except that the petitioner

has no role. Of course, so far as the inheritance of the property

and entitlement of the compensation is concerned, the petitioner

cannot claim the same as in the presence of the Ist Class legal

heirs, he would have no right. The heavy reliance of the counsel

for respondent No.2 in M/s Tata Steel Ltd.'case (supra), befits

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the said connotation of inheritance and entitlement to the

compensation.

Though counsel for both the parties have relied upon

Hanuman Ram's case (supra), yet a perusal of the said judgment

would clearly show that a witness can be confronted with his

previous examination. In the said case, the Hon'ble Apex Court,

while referring to its previous judgment in Mishrilal and others

Vs. State of M.P. & Others, (2005)10 SCC 701, has held as

under:-

"10. Mishrilal and others Vs. State of M.P. &

Others, this Court observed, inter-alia, as

follows:-

"5. The learned Counsel for the appellants

seriously attacked the evidence of PW 2

Mokam Singh. This witness was examined by

the Sessions Judge on 6.2.1991 and cross-

examined on the same day by the defence

counsel. Thereafter, it seems, that on behalf

of the accused persons an application was

filed and PW 2 Mokam Singh was recalled.

PW-2 was again examined and cross-

examined on 31.7.1991. It may be noted that

some of the persons who were allegedly

involved in this incident were minors and

their case was tried by the Juvenile Court.

PW 2 Mokam Singh was also examined as a

witness in the case before the Juvenile court.

In the Juvenile Court, he gave evidence to the

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effect that he was not aware of the persons

who had attacked him and on hearing the

voice of the assailants, he assumed that they

were some Banjaras. Upon recalling, PW-2

Mokam Singh was confronted with the

evidence he had given later before the

Juvenile Court on the basis of which the

accused persons were acquitted of the charge

under Section 307 IPC for having made an

attempt on the life of this witness.

6. In our opinion, the procedure adopted

by the Sessions Judge was not strictly in

accordance with law. Once the witness was

examined in-chief and cross-examined fully,

such witness should not have been recalled

and re-examined to deny the evidence he had

already given before the court, even though

that witness had given an inconsistent

statement before any other court or forum

subsequently. A witness could be confronted

only with a previous statement made by him.

At the time of examination of PW 2 Mokam

Singh on 6.2.1991, there was no such

previous statement and the defence counsel

did not confront him with any statement

alleged to have been made previously. This

witness must have given some other version

before the Juvenile Court for extraneous

reasons and he should not have been given a

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further opportunity at a later stage to

completely efface the evidence already given

by him under oath. The courts have to follow

the procedures strictly and cannot allow a

witness to escape the legal action for giving

false evidence before the court on mere

explanation that he had given it under the

pressure of the police or some other reason.

Whenever the witness speaks falsehood in the

court, and it is proved satisfactorily, the court

should take a serious action against such

witnesses."

11. The factual scenario in Mishri Lal's case has

great similarity with the facts of the present case.

The High Court's view for accepting the prayer in

terms of Section 311 of the Code does not have any

legal foundation......."

A perusal of para No.5 of the judgment in Mishrilal's

case (supra) would make it clear that PW2-Mokam Singh, had

been examined before the Juvenile Court, at a later point of time

than his examination in the Sessions Court. It was under these

circumstances, the Hon'ble Apex Court, held that he could not

have been recalled to confront him with his later deposition

before some other Court.

In the present case, the witness had been examined

before MACT, Ropar on 14.03.2014. He was cross-examined

before the trial Court on 20.7.2015, when he was declared

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hostile. The petitioner through APP moved the application under

Section 311 Cr.P.C. in 2015 itself, to confront such witness with

his testimony made before the MACT. From the said factual

position, it is apparent that the witness is sought to be

confronted with the previous statement and not with the

subsequent statement. Hence the judgment in Hanuman Ram's

case (supra), rather supports the case of the petitioner.

The matter can be looked from another angle. It is

settled law that the criminal prosecution can be put into motion

by anyone, as the offence is considered not in persona but in

rem i.e. against the whole society. Bahadur Singh is the

complainant in this case and on his statement, the FIR had been

registered. Thus, at a stage, when the complainant has resiled

from his statement, application moved by the brother of the

victim cannot be said to have no locus.

In view of the above, the present petition is allowed.

The impugned order dated 21.11.2015 (P.6) passed by the

Judicial Magistrate, Ist Class, Ropar, is set aside.

22.09.2022                                 (HARNARESH SINGH GILL)
 ds                                             JUDGE


             Whether speaking/reasoned          :     Yes/No
             Whether reportable                 :     Yes/No




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