Amarjit Kaur vs State of Punjab and anr.

Harmohinder Kaur Sandhu, J.

Amarjit Kaur has filed the present petition under Section 397 read with Section 482 of the Code of Criminal Procedure for quashing the order dated 10992 (Annexure P5) passed by Additional Sessions Judge, Ropar and to allow recalling and reexamination of Sub Inspector Gurnam Singh and the petitioner and to summon documents and witnesses as submitted in the application for leading additional evidence.

The brief facts of the case are that on 1141991 Doctor Mohan Lal husband of the petitioner was murdered and she lodged FIR No. 29 the same day at Police Station Mohali. According to the allegations in the First Information Report her husband was murdered by unknown assailants in front of his house. One of the assailants fired three shouts resulting in the death of Doctor Mohan Lal. It was further mentioned that the assailants took away scooter of the deceased. Respondents No. 2 to 5 were being tried in that case. The petitioner appeared as a witness for the prosecution and deposed that the assailants after committing murder of Mohan Lal took away his scooter bearing registration No. CH 01/B 6731.

On 1341991 Sub Inspector Gurnam Singh of Police Station sector 39, Chandigarh recovered scooter No. CH 01/B 6731 from the possession of Avtar Singh respondent in the area of village Dadu Majra in the presence of SubInspector Sukhdev Singh and Raj Mohan Sarpanch of village Khuda Alisher. A12 bore countrymade pistol and cartridges were also recovered from his possession and in this connection a case FIR No. 58 dated 1341991 under Section 25 of the Arms Act and Section 5 of the Terrorist and Disruptive Activities (Prevention) Act was registered in Police Station Section 39, Chandigarh. The scooter in question originally belonged to Jasinder Kaur wife of S. Kuldeep Singh and she had sold the same for Rs. 14,000/ to Mohan Lal deceased on 1611991. This recovery of the scooter of the deceased from the possession of Avtar Singh respondent was material evidence connecting the accused with the commission of the crime. That scooter was given on sapurdari to the petitioner by Designated Court, Chandigarh. The Additional Public Prosecutor made an application under Section 311 of the Code of Criminal Procedure for summoning and recalling the following witnesses alongwith the relevant record.

SubInspector Gurnam Singh alongwith the file of the case FIR No. 58 dated 1341991 registered at Police Station Sector 39, Chandigarh.

Sub Inspector Sukhdev Singh of Police Station Mohali.

Raj Mohan Sarpanch of village Khuda Alisher.

Ahlmad Designated Court, Chandigarh alongwith the judicial file of case FIR No. 58 dated 1341991 under Section 25 of the Arms Act and Section 5 of the TADA Act.

Clerk DTO office, Chandigarh alongwith the record pertaining to registration of the scooter No. CH 01/B 6731.

Smt. Jasinder Kaur

and

the petitioner.

This application was rejected by learned Additional Sessions Judge Ropar on the ground that the prosecution wanted to introduce a new story. The petitioner alleged that his order of the learned Additional Sessions Judge was unwarranted, unjust and had resulted in miscarriage of justice.

In the return filed by respondent it was alleged that the scooter shown to have been recovered from Avtar Singh in case FIR No. 58 was scooter No. CH01/B 6739 and statement made by Sub Inspector Gurnam Singh in that case was also to that effect. In fact no scooter was recovered from the possession of Avtar Singh respondent. As the scooter shown to have been recovered in case FIR No. 58 was different, no useful purpose was to be served by allowing the prosecution to lead additional evidence and the application was rightly rejected.

I have heard the counsel for the parties.

It was argued on behalf of the petitioner that from the very beginning the case of the prosecution was that after committing the murder of Doctor Mohan Lal the assailant took away his scooter. That scooter was not recovered during the investigation of the case registered for the murder of Mohan Lal at Police Station Mohali but it was recovered by Sub Inspector Gurnam Singh. Since Avtar Singh who also found in possession of 12 bore country made pistol, a separate case was registered against him at Police Station, Section 39 bearing FIR No. 58. That very scooter was taken on sapurdari by the petitioner. Recovery of the scooter belonging to the deceased was a relevant and important piece of evidence connecting the accused with the commission of the crime and additional evidence to these facts was essential for the just decision on the case.

The learned counsel for the respondent on the other hand submitted that the scooter alleged to have been recovered by Sub Inspector Gurnam Singh was not the same scooter as it had different registration number. Earlier in the First Information Report, the petitioner had given the number of the scooter belonging to her husband as CH0 8417 but subsequently she contended that the number of scooter CH01/B 6731. The Registration number of the scooter pertaining to case FIR No. 58 was CHO 01/B 6739. So additional evidence sought to be produced by the prosecution was not relevant for the just decision of the case.

It is conceded that earlier when the First Information Report was recorded at the instance of the petitioner regarding the murder of her husband the registration number of the scooter given was different and that was alleged to be so, as result of the shock sustained by the petitioner on account of murder of her husband. On the same day she made a supplementary statement wherein she gave number of the scooter taken away by the assailants as CH 01/B 6731. Avtar Singh respondent is facing trial for the murder of Doctor Mohan Lal. He was arrested on 1341991 and a scooter was recovered from his possession. According to the petitioner that was the same scooter which her husband had purchased from Jasinder Kaur on 1611991 i.e. three months before his murder. Copy of the affidavit sworn by Jasinder Kaur and copy of the receipt regarding sale of the scooter Annexure P1 and P2 have been placed on record. The scooter was registered in the name of Jasinder Kaur vide Certificate of Registration Annexure P3 though it had not been transferred as yet in the name of the deceased. The petitioner applied for taking the scooter on sapurdari and order was passed by Judicial Magistrate, Chandigarh handing over the scooter to her copy of which is Annexure P1. The scooter was delivered to her on sapurdari and in the receipt issued by her for taking the scooter on sapurdari Registration Number of the scooter was mentioned as CH 01/B 6731. The scooter that was delivered to her on sapurdari, was the same scooter which was deposited in the Malkhana in case FIR No. 58 dated 1341991 registered at Police Station Sector 39, Chandigarh. It will be decided after evidence is led to what was the actual registration number of the scooter alleged to have been deposited in case FIR No. 58 dated 1341991.

Under Section 311 of the Code of the Court has got wide powers to allow additional evidence keeping in view the paramount consideration of just decision of the case. According to the prosecution the additional evidence sought to be produced was essential to come to a just conclusion. The application was moved when the evidence of the prosecution was still being recorded and the entire case had not been closed. No prejudice was to be caused to the accused as they were yet to set up their defence. It is not a case where a prayer for producing additional evidence was made after the close of the case of the prosecution just to fill up a lacuna nor the evidence was likely to demolish the case set up by the accused in his defence because even the statements of the accused have not been recorded as yet. I, therefore, allow the petition and quash the impugned order Annexure P5. The trial court is directed to summon and recall the witnesses as well as the relevant record mentioned in the application filed by the prosecution under Section 311 of the Code of Criminal Procedure.