Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 2362 (RAJ)

Baljinder Singh v. State Of Rajasthan

2022-09-02

DINESH MEHTA

body2022
JUDGMENT Dinesh Mehta, J. - Instant petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") impugns order dated 18.07.2022 passed by the Special Judge, Scheduled Caste & Scheduled Tribe (Prevention of Atrocities Cases), Sri. Ganganagar (hereinafter referred to as "the trial court"), whereby the application dated 07.01.2022 filed by the respondent No. 2 under Section 311 of the Code, has been allowed. 2. Shorn of unwanted details, the facts in brief are that the petitioners are being prosecuted for offence under Sections 302, 336, 458, 147, 148 & 149 of the Indian Penal Code, Section 27 of the Arms Act and Section 3(2)(va) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, pursuant to F.I.R. No. 75/2019 registered at Police Station Kesarisinghpur, District Sri. Ganganagar which was registered in furtherance of a complaint lodged by complainant (Raja Singh). 3. At the stage of prosecution evidence, after eight witnesses had been examined, respondent No. 2-wife of the deceased, moved an application dated 07.01.2022, under Section 311 of the Code and requested the trial court to permit her to lead evidence as she was with the deceased in the hospital, when he breathed his last. 4. It was inter alia stated in the application that though applicant (Jaspreet Kaur) is an eye-witness of entire incident, the Investigating Officer had failed/omitted to record her statement and include her name in the list of witnesses. 5. After considering the application and hearing rival parties, trial court allowed the application vide its order dated 18.07.2022 and included name of the applicant (Jaspreet Kaur) in the list of witnesses in red ink. 6. Mr. Mathur, learned counsel for the petitioner argued that impugned order passed by the trial court is illegal and contrary to settled canons of law. He argued that application came to be filed by the respondent No. 2-wife of the deceased, simply being affected by the fact that eight witnesses that were examined so far, have turned hostile. It was argued that in case, applicant was so interested, she ought to have moved the application under Section 311 of the Code at the first stage itself. It was argued that in case, applicant was so interested, she ought to have moved the application under Section 311 of the Code at the first stage itself. It was also argued that the fact that the Investigating Officer has not included name of the respondent No. 2-wife of the deceased, itself is enough to prove that she was not an eye-witnesses of the incident and she has approached the Court by way of moving application to fill-up the lacunae. 7. Learned Public Prosecutor, on the other hand, submitted that true it is, that most of the witnesses have turned hostile but they have testified that respondent No. 2-Jaspreet Kaur was present on the spot. He also invited Court's attention towards application dated 04.04.2022 filed by the Investigating Officer, in which statement of the respondent No. 2 was filed with an application and accepted that respondent No. 2-wife of the deceased, was present with the deceased, and hence, in the interest of justice and to reach a correct conclusion, her evidence/statement is necessary. 8. In rejoinder, Mr. Mathur, learned counsel for the petitioner argued that application in question has been got filed by the prosecution through respondent No. 2, simply with a view to fill the lacunae left in the investigation. 9. In support of his contention that application ought not to have been allowed, learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Mohanlal Shamji Soni v. Union of India and another reported in AIR 1991 Supreme Court 1346 (Para 18), and judgment of Madras High Court rendered in the case of State by Inspector of Police v. S. Sankaran and another reported in 2005 Cri. L.J. 1474 particularly Para 11 thereof. 10. Heard learned counsel for the parties and perused the material available on record. 11. A perusal of the application dated 07.01.2022 filed by the applicant-respondent No. 2, clearly shows her stand that she was with the deceased, when he breathed his last while claiming herself to be an eye-witness. It is to be noted that other witnesses, who have appeared in the witness box, though having turned hostile, have disclosed presence of respondent No. 2, along with the deceased in their statements under Section 161 of the Code. 12. It is to be noted that other witnesses, who have appeared in the witness box, though having turned hostile, have disclosed presence of respondent No. 2, along with the deceased in their statements under Section 161 of the Code. 12. Such being the position, the trial court has committed no error of law in including name of the respondent No. 2 in the list of witnesses and accepting subject application. 13. So far as judgments cited by Mr. Mathur are concerned, they are on general principles governing Court's power under Section 311 of the Code. But, when the case in hands, is tested on the principles so enunciated, this Court is of the considered view that present one is a case, where application under Section 311 of the Code merited acceptance. 14. Having regard to the fact that all the witnesses in their statements under Section 161 of the Code have shown presence of the respondent No. 2-wife of the deceased, her testimony became very relevant, rather, necessary for reaching to a correct conclusion. This Court does not agree with the contention of the petitioner that application has been filed simply with a view to fill up the lacunae left by the Investigating Officer. 15. Finding no error or infirmity in the order impugned passed by the trial court, the petition is dismissed. 16. While dismissing the petition, this Court cannot but lose sight of the negligence shown by the Investigating Officer, who has not cared to record the statement of the respondent No. 2-wife of the deceased, whose presence has been shown by all other witnesses in their statements under Section 161 of the Code. Such negligence shown by the Investigating Officer cannot be countenanced, particularly when it is a case of heinous crime punishable under Section 302 of the Indian Penal Code. 17. Let a copy of this order be sent to the Superintendent of Police, Sri. Ganganagar, who shall look into the matter and take appropriate disciplinary proceedings (if required) against the erring officer. 18. Needless to observe that the Superintendent of Police shall be free to take his own independent view of the matter, after taking response from the concerned Investigation Officer for the lapse noted above. 19. Stay application also stands disposed of.