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2018 DIGILAW 1288 (HP)

State Of H. P. v. Randhir Singh

2018-07-12

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. - In this revision petition, order dated 17.9.2016 whereby, on failure of the petitionerprosecution to produce PW-13 Dr. Rahul Gupta, despite last opportunity granted, its evidence stands closed and order dated 15.3.2017, whereby accused-respondent No.2 herein has been acquitted of the charge under Section 109 IPC framed against her are under challenge. The allegations against respondent No.2 are that on 15.2.2014, she has instigated her brother Randhir Singh, the principal accused to quarrel and beat his wife deceased Seema Devi and as a result thereof her co-accused administered beatings to his wife, who ultimately died thereby. She allegedly abetted the commission of murder of deceased Seema Devi by her coaccused. 2. After hearing the parties on both sides at length on 22.11.2017, the following order came to be passed: " Heard for sometime. The challenge to the impugned order passed on 17.09.2016 is on the grounds inter-alia that PW-13 Dr. Rahul Gupta was served through e-mail. The ground so raised in the petition, however, seems to be not correct because the zemini order dated 31.08.2016 reveals that the said witness was reported to be served for that day allegedly through e-mail. Learned trial Judge has rightly observed that he was actually served or not was not clear from the report made on the summon. It is for this reason, last opportunity was granted to the prosecution to serve PW-13 Dr. Rahul Gupta through special messenger for the next date i.e., 17.09.2016, the day when the impugned order was passed. The report made by the Alhmad in the margin of the order sheet reveals that consequent upon order dated 31.8.2016, the summons to PW13 were issued on 2nd September, 2016. It was for the petitioner-prosecution to have clarified that the summons so issued to the said witness were actually collected and special messenger deputed to effect service thereof upon the witness concerned. On the other hand, as recorded by learned trial Judge in the impugned order, the summons ordered to be issued to the said witness were not returned to the Court. In case the summons were collected and the special messenger deputed, entries to this effect should have been made in the rapat rojnamcha. Learned Additional Advocate General seeks time for clarification in this regard. Allowed. List on 13th December, 2017." 3. In case the summons were collected and the special messenger deputed, entries to this effect should have been made in the rapat rojnamcha. Learned Additional Advocate General seeks time for clarification in this regard. Allowed. List on 13th December, 2017." 3. In compliance to the orders ibid, the petitioner-State has filed the affidavit of the then Superintendent of Police Kangra at Dharamshala. On perusal of the same, the following orders came to be passed on 13.12.2017: "Affidavit in compliance to the order passed on the previous date, reveals that PW-13 Dr. Rahul Gupta could not be served for the date fixed, i.e. 17.09.2016 and the concerned Police Station has handed over the Summons to the Naib Court for placing the same on the record of the case. This aspect finds corroboration from the record annexed to the supplementary affidavit. The witness, as such, was unserved for the date fixed. In these circumstances, the order dated 17.09.2016, under challenge in this petition, could have been passed or not, is a matter which needs further consideration. Learned counsel representing the respondent-accused, has raised a legal question that the petition so far as the impugned order dated 17.09.2016 is concerned, is time barred and in case it is the case of the petitioner-State that the revision petition is preferred against the subsequent order dated 15.03.2017, in that event, also the same could have not been assailed by impleading Kamlesh Kumari, coaccused, in the case who has been ordered to be discharged thereby. Learned Additional Advocate General, on being confronted with such a situation, prays for and is granted two weeks time to address this Court on this aspect of the matter. List for the purpose on 29th December, 2017." 4. The revision against the order whereby the evidence of the petitioner-prosecution has been closed, is admittedly time barred. There being no application filed for seeking condonation of delay, this petition to that extent is dismissed. 5. As regards the order of acquittal dated 15.3.2017, the same has been passed at a stage when the trial against the respondents-accused was fixed after the prosecution evidence was over for consideration, in terms of the provisions contained under Section 232 of the Code of Criminal Procedure. 5. As regards the order of acquittal dated 15.3.2017, the same has been passed at a stage when the trial against the respondents-accused was fixed after the prosecution evidence was over for consideration, in terms of the provisions contained under Section 232 of the Code of Criminal Procedure. Learned trial Court on appreciation of the evidence produced by the prosecution has concluded that nothing tangible, suggesting the involvement of the respondent-accused in the commission of the offence, has come on record. There being no incrementing circumstance appearing against her in the prosecution evidence, she has been acquitted of the charge. Against the order of acquittal revision is not maintainable and rather the petitioner-State, if so advised, may have challenged the same by filing the appeal. Therefore, this petition is wholly misconceived and is accordingly dismissed. The interim order passed on 23.5.2015 stands vacated.