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2006 DIGILAW 3466 (PNJ)

Ram Chander v. State of Haryana

2006-09-07

T.P.S.MANN

body2006
JUDGMENT T.P.S. MANN, J. 1. The present petition has been filed by complainant Ram Chander under Section 482 Cr.P.C. vide which he seeks the quashing of order passed by Judicial Magistrate Ist Class, Jhajjar on 3.6.2004, whereby the evidence of the prosecution was closed. 2. As per the prosecution, petitioner Ram Chander along with his companions, was given injuries by accused/respondent Nos. 2 to 6 on 20.11.1996. FIR No. 371 dated 26.11.1996 was registered at Police Station, Jhajjar under Sections 323/325/427/34 IPC on the basis of a statement made by the present petitioner. 3. One of the injured, namely, Raghubir Singh was found to be having five injuries on his person. All the injuries were kept under observation for X-ray examination. Later on, Dr. Pankaj Singal Radiologist at PGIMS, Rohtak, vide x-ray report No. 966078 gave an opinion on 26.11.1996 that there were fractures of the right shoulders, left wrist as well as of both the legs of Raghubir Singh. 4. After the investigation of the case, the challan was presented against the accused, who were later on charged for offences under Sections 323/325/427/34 IPC. The prosecution examined all the witnesses, which were cited in the report under Section 173 Cr.P.C. except Dr. Pankaj Singal, who had radiologically examined injured Raghubir Singh. Said Doctor Pankaj Singal could not be served with the summons for his appearance as a witness. Accordingly, bailable warrants were issued on 8.1.2004 in the sum of Rs. 1,000/-, but the same could not be served. Later on, it was learnt that he was residing at House No. 18, Pocket-B, Phase-II, Mayur Vihar, New Delhi. Accordingly, bailable warrants were issued afresh for securing the presence of Dr. Pankaj Singal. Even the same were received back with the report that he was not residing at that place. This report was given by father of Doctor Pankaj Singal. At that stage counsel for the complainant placed on record visiting card of Doctor Pankaj Singal to show that he was residing at the same address, but avoiding service of summons. It may also be mentioned here that on 15.12.2003 when C. Ram Bhagat went for effecting service of summons upon Doctor Pankaj Singal, he met a woman there, who he presumed to be the wife of Doctor Pankaj Singal. It may also be mentioned here that on 15.12.2003 when C. Ram Bhagat went for effecting service of summons upon Doctor Pankaj Singal, he met a woman there, who he presumed to be the wife of Doctor Pankaj Singal. Net result was that Doctor Pankah Singal could not be served and accordingly, he failed to appear as a witness in the trial Court. 5. Noticing the fact that Doctor Pankaj Singal was not being examined as PW by the prosecution, although the Court made repeated efforts for his service for six different dates, the trial Magistrate did not deem it desirable to show any further indulgence for the said PW as the case was lingering since the year 1997. The prosecution evidence was accordingly, closed on 3.6.2004 and the case was adjourned for recording statement of the accused under Section 313 Cr.P.C. 6. The present petition came up for preliminary hearing before this Court on 9.8.2004 when notice of motion was issued and further proceedings before the trial Court were stayed. 7. Accused/respondent Nos. 2 to 6 have already put in their appearance and also filed their reply. They have pleaded that there was no illegality of the prosecution as the accused were facing the agony of the trial for the last nine year. 8. The testimony of Doctor Pankaj Singal would be a determining factor in the decision of the case. In the event of the prosecution bringing evidence regarding the presence of fractures on the person of Raghubir Singh injured, it may be able to secure conviction of the accused under Section 325 IPC. On the other hand, if Doctor Pankaj Singal does not appear as PW, the case of the prosecution under Section 325 IPC would fail and the accused, if found guilty, would be convicted only under Section 325 IPC for causing injuries, apart from Sections 427 and 34 IPC. 9. After leaving PGIMS, Rohtak, Doctor Pankaj Singal has been shown to have moved to Delhi. This fact also appeared during the time when efforts were made to serve him with the summons, as one of the summons was received back with the report that he was residing at House No. 18, Pocket-B, Phase-II, Mayur Vihar, New Delhi. His father avoided the service of summons upon his son, Doctor Pankaj Singal, by claiming that he was not residing at the said address. His father avoided the service of summons upon his son, Doctor Pankaj Singal, by claiming that he was not residing at the said address. The visiting card of Doctor Pankaj Singal described him to be a resident of the said place. It may be that Doctor Pankaj Singal resided at the same address but may be engaged in medical practice by setting up a clinic/office at some other place and for that reason he might not have been available during day hours when the bailable warrants wee taken for serving the same upon him to his residential address. 10. In criminal cases, the Court is always under a duty to dispense justice to one and all. It cannot act in partisan manner by settling the evidence of one party. In case the bailable warrants could not be served upon Doctor Pankaj Singal at his clinic/office address. The serving official could at least gather this much information from father of Doctor Pankaj Singal when he went to House No., 18, Pocket-B, Phase-II, Mayur Vihar, New Delhi, where he had come across the father of the said doctor. 11. In view of the above, I find that the evidence of the prosecution could not have been closed on 3.6.2004 and one more opportunity ought to be given to the prosecution to secure the presence of Doctor Pankaj Singal in the Court for him to depose as PW. The order passed on 3.6.2004 by the trial Magistrate is, accordingly, set aside. The prosecution is give one more opportunity to secure the presence of Doctor Pankaj Singal so that he may be examined as PW. The trial Magistrate will issue fresh bailable warrants for securing the presence of Doctor Pankaj Singal. Complainant Ram Chander has assured the Court that in that regard he will inform the trial Court about the latest and correct address where Doctor Pankaj Singal can be approached and served for being examined as PW. 12. The present petition is disposed of in terms of the order above.