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2005 DIGILAW 40 (PNJ)

Bharat Bhushan Alias Sonu v. State Of Haryana

2005-01-11

S.N.AGGARWAL

body2005
Judgment S.N.Aggarwal, J. 1. On 26.11.1997, at about 6.40 P.M. Bharat Bhushan reached home after attending the tuition classes. He saw the door of his room open. He went inside the room and heard a crying voice from inside. Thereafter, Bharat Bhushan went towards that side and saw that his younger brother Abhishek was lying on the floor and crying. A live electric wire was lying nearby with electric current on. The other side of the wire was fixed in the power plug. Bharat Bhushan switched off the supply of the power and put the electric wire aside. Bharat Bhushan also found that the face of his brother was in critical condition and he had sustained burn injuries on his right hand, two fingers, upper and lower lips and on the tongue. There was a bluish colour mark on the neck possibly caused by wire/rope. On that Bharat Bhushan informed his parents, who were private medical practitioners and were running their clinic in Hallomajra, Industrial Area, Phase I, Chandigarh, on phone. The parents of Bharat Bhushan also reached immediately and they informed the police of Police Station, Sector 19, Panchkula on phone. Looking at the critical condition of Abhishek, the police also reached the spot. Bharat Bhushan and his parents took Abhishek to hospital in Sector 6, Panchkula in critical condition. After some time his brother Abhishek became unconscious. He was referred to the PGI, Chandigarh in the night, where he was brought. It appeared that in the evening of 26.11.1997 at about 6.00 or 6.45 p.m. some unknown persons with an intention to put rope/wire around the neck of Abhishek and with an intention of giving electric shock on his face, tongue and palm entered into their house. Household articles of bed and almirah were lying scattered. Bharat Bhushan and his parents did not examine the things but they were sure that some unknown persons had come to their tenant Pinky and therefore, they had a doubt on her. They had some suspicion on her. The father of Bharat Bhushan had informed the police that one person Kaka had come to Pinky for the last about 8 days and was staying with her inside the house, parking his scooter also inside which needed investigation. They had some suspicion on her. The father of Bharat Bhushan had informed the police that one person Kaka had come to Pinky for the last about 8 days and was staying with her inside the house, parking his scooter also inside which needed investigation. The police started investigation on 26.11.1997 itself but the man along with his companions had ran away after causing the incident along with Kaka and Pinky. The life of his brother was still in danger. On that statement of Bharat Bhushan, the present case was registered. 2. Abhishek regained his consciousness and his statement was recorded under Section 161 Cr.P.C. in which he stated that he was 15 years of age and was a 10th class student. The occurrence had taken place on 26.11.1997 at about 6.30 P.M. in the drawing room of their house. He was attacked and given electric shocks. His neck was pulled with a rope by Kaka and Rajesh. Tara Chand was in uniform. There was a fat man. They gave him electric shocks and gave fist blows and kicks in his abdomen and Tara Chand gave him a fist blow on his face. Pinky shouted to kill him (Abhishek) so that he (Abhishek) may not be able to tell anything about them. He had been told everything and he had come to know about it. Two old Sikh persons with long beard were also there. In total, they were 7-6 persons. Abhishek could identify them. Pinky again said that he was ruined her and she would ruin him. Kaka said that when he would return, he would not spare him. Abhishek was unable to make statement more than this due to his illness. 3. The matter was investigated and the challan was presented against some of the assailants. 4. An application was filed on behalf of the prosecution under Section 319 Cr.P.C. for the summoning of SI Tara Chand. The summoning order was passed but the said order was quashed by this Court vide order dated 16.2.1999 passed in Criminal Revision No. 182 of 1999 (Tara Chand Gupta v. State of Haryana), for the reason that the summoning order was passed without recording any evidence during trial. 5. The summoning order was passed but the said order was quashed by this Court vide order dated 16.2.1999 passed in Criminal Revision No. 182 of 1999 (Tara Chand Gupta v. State of Haryana), for the reason that the summoning order was passed without recording any evidence during trial. 5. Thereafter, prosecution examined some witnesses and again filed an application under Section 319 Cr.P.C. for summoning of SI Tara Chand under Section 319 Cr.P.C. The said application was dismissed by the learned trial Court vide order dated 14.10.2002 by observing that there was no evidence or material to prove as to how SI Tara Chand was associated with any of the accused. Hence the present revision. 6. Abhishek-complainant had appeared as PW-3 in the learned trial Court, where he stated that he had read identification slip of Tara Chand which was affixed near his pocket and that Tara Chand was in police uniform. During the investigation, said Tara Chand was found to be innocent. No evidence has been led by the complainant to connect SI Tara Chand with the remaining accused. The identity of Tara Chand has been explained by Abhishek PW-3 merely because some identification slip was affixed on the shirt of that person. It may be possible that in order to confuse the identity of the assailants, some person may have worn the fabricated police uniform with a forged identification slip. Such incidents are frequently noticed at many places. This becomes all the more important when the complainant has not been able to attach any motive for SI Tara Chand to attack Abhishek nor he has been able to lead any evidence about the proximity of Tara Chand with the co-accused. It was held by the Honble Supreme Court in the judgment reported as Michael Machado and another v. Central Bureau of Investigation and another, 2000(2) RCR(Criminal) 75 (SC) as under :- "11. The basic requirement for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well as tried along with the already arraigned accused. 12. But even then, what is conferred on the Court is only a discretion as could be discerned from the words "the Court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other persons." 7. In the facts of the present case, I am satisfied that neither the complainant has been able to fix the identity of SI Tara Chand nor he has been able to connect Tara Chand with the other co-accused. There is neither any evidence if SI Tara Chand was interested in the co-accused nor there is any evidence that he was hostile towards the complainant. Merely because the complainant succeeded in reading the name slip on the pocket of the shirt of the offender as Tara Chand, who was in uniform, identity of SI Tara Chand is not established. The uniform may be fabricated and the name slip may be forged by the offender to conceal his presence and to misguide the investigation. 8. Learned counsel for the petitioner has placed reliance on the judgments of the Honble Supreme Court, reported as Ranjit Singh v. State of Punjab, 1998(4) RCR(Criminal) 552 and Rajinder Prasad v. Bashir, 2001(4) RCR(Criminal) 312, but these judgments are not applicable to the facts of the present case. 9. 8. Learned counsel for the petitioner has placed reliance on the judgments of the Honble Supreme Court, reported as Ranjit Singh v. State of Punjab, 1998(4) RCR(Criminal) 552 and Rajinder Prasad v. Bashir, 2001(4) RCR(Criminal) 312, but these judgments are not applicable to the facts of the present case. 9. In view of the discussion held above, the facts of this case and the law on this subject, I find no infirmity in the impugned order dated 4.10.2002 passed by the Additional Sessions Judge, Panchkula. Accordingly, the present revision petition is dismissed.