Gurdev Singh And Others vs State Of Punjab

Raj Mohan Singh, J

[1]. Vide this common order, CRR No.972 of 2021 titled Gurdev Singh and others Vs. State of Punjab and CRM-M No.37521 of 2021 titled Gurdev Singh and others Vs. State of Punjab are being disposed of.

[2]. In CRR No.972 of 2021, the petitioners have assailed the order dated 19.08.2021 passed by Additional Sessions Judge, Sangrur, whereby petitioners have been summoned under Section 319 Cr.P.C to face trial along with main accused Gagandep Singh.

[3]. CRM-M No.37521 of 2021 has been filed by the petitioners for grant of anticipatory bail in view of their summoning under Section 319 Cr.P.C by the trial Court.

[4]. Brief facts of the case are necessary to be mentioned.

FIR was registered on the statement of Jaswant Singh with the allegations that on 08.06.2020, accused Gagandeep Singh along with others started demolishing the 'Wat' of the field, where the complainant was already working along with Jarnail Singh and Jeet Singh @ Jeeta. When the complainant saw the accused persons demolishing the 'Wat', then the complainant went near them in order to restrain them. The brother of the complainant also came there from the house as their house is situated nearby the fields. Complainant party stopped the accused party from demolishing the 'Wat'. Thereafter, the accused went to their respective homes. The brother of the complainant namely Beant Singh went to Longowal for taking domestic goods and the complainant remained in the fields for doing work with the labourers. At about 2:45 PM, Gagandeep Singh, Harjit Singh and Gurdev Singh came there on a tractor, which was fitted with ploughs. The tractor was being driven by Gagandeep Singh. Harjit Singh and Gurdev Singh were sitting on the sides. Gagandeep Singh brought the tractor near to the complainant and rotated the same on the side of the complainant. Complainant tried to save himself, but a plough pierced into his right thigh. Gagandeep Singh kept on driving the tractor and took two rounds of the field. The complainant fell down in the field and the plough came out of his thigh with flesh. When the complainant was lying in the field, Gagandeep Singh lifted the ploughs up and again put the same on the complainant and plough hit on the left foot of the complainant. Gagandeep Singh again lifted up the ploughs, which hit on the head of the complainant. On hearing the alarm, the assailants fled away from the spot, leaving the tractor in the field. The brother of the complainant got him admitted in the hospital for treatment. With these allegations, the FIR came to be registered.

[5]. Initially, the FIR was registered under Sections 323, 324, 120-B and 149 IPC against Gagandeep Singh and other four accused persons namely Harjit Singh, Jagsir Singh, Gurdev Singh and Surjit Singh. Later on, Jaswant Singh died on 10.07.2020. Statement of his brother Beant Singh was recorded on 10.07.2020 and offence under Section 302 IPC was added vide DDR No.43 dated 10.07.2020.

[6]. According to the statement of Beant Singh, Jaswant Singh was referred from Civil Hospital Sangrur after four days of his admission i.e. on 12.06.2020 and he was admitted in Amar Hospital, Patiala, where he was discharged on 17.06.2020. Complainant party took Jaswant Singh at home and they used to get his dressing done daily by calling Dr. Harjinder Singh Bhura and also used to get the dressing done every week from Amar Hospital, Patiala. After discharge, they got the dressing of Jaswant Singh done from Amar Hospital, Patiala on 22.06.2020, 29.06.2020 and 06.07.2020. Jaswant Singh had severe pain in the chest, due to which. Dr. Harjinder Singh Bhura was called, who advised the complainant party to take him to Longowal. Beant Singh was on his way to Chandigarh when he received the information that Dr. Sellu had referred his brother to Sangrur due to his serious condition. Jaswant Singh died on the way from Longowal to Sangrur.

[7]. Wife of Gagandeep Singh made a complaint to SSP, Barnala in respect of false implication of Gagandeep Singh. Inquiry was marked to Superintendent of Police, Detective, Barnala. Vide inquiry dated 30.09.2020, Superintendent of Police, Detective, Barnala found the following facts:-

"Conclusion:-

So, from my complete enquiry it has been found that on 08.06.2020 when deceased Jaswant Singh was setting right the 'wats' with spade in his field, Gagandeep Singh was cultivating the land with tractor in his field, when Jaswant Singh due to previous enmity tried to attack accused Gagandeep Singh after boarding over the cultivators of tractor, Gagandeep Singh all of a sudden rotated the tractor and due to which cultivators also rotated, due to which deceased Jaswant Singh fell down from the cultivators, above said Gagandeep Singh was not aware as to whether while doing so that Jaswant Singh could get grievous injury or he could die. Even then it have been found to have caused injuries by rotating his tractor with cultivators to Jaswant Singh. Later on after about one month of the occurrence due to not proper treatment, deceased Jaswant Singh became serious in the house and it has been found while taking for treatment he died on the way. In this case except Gagandeep Singh, his brother Harjit Singh @ Budhu, father Gurdev Singh, Jagsir Singh and Surjit Singh resident of Attla Kalan have not been found to be guilty in the present case, who are found innocent and offence under Section 302, 149, 120-B IPC has not been found to be made out due to which offence is reduced to 304 IPC against above said Gagandeep Singh. In case it is approved, SHO Police Station be directed that he should present the challan in the case after completion of investigation under Section 304 IPC."

In the aforesaid inquiry, all other accused, except Gagandeep Singh were found to be innocent. Offence under Section 302 IPC was recommended to be reduced to offence under Section 304 IPC qua Gagandeep Singh.

[8]. In the medico legal report of deceased Jaswant Singh, following five injuries were found on his person:-

"1. M/L lacerated wound, 3 in no., about 1.5 x 0.3cm on dorsal aspect of left foot. Adv ortho opinion.

'F' shaped lacerated wound, superficial on anterio-medial aspect of right upper part of thigh, wound is abt 10 cm x 4cm (vertically) and about 20 cm x 3cm (horizontally lower limb of f) and about 15cm x 2cm (on other limb of f). Wound involve scrotal region of right side: adv ortho and surgery opinion. Movement of toes of right foot normal.

Incised wound 10cm X 0.2cm, oblique on right hypocoastal region of abdomen, superficial adv surgery opinion.

Incised wound 6cm x 0.2 cm on anterior aspect of right shoulder joint, vertical, superficial. Adv ortho opinion.

M/L reddish bruise, 2 in no., abt 4cm x 1.5cm on right of forehead above eye. Adv surgery opinion."

[9]. Jaswant Singh was admitted in the hospital on 08.06.2020 itself at 3:30 PM. The opinion of the doctor was sought qua nature of injuries on his person. Doctor after going through the medical treatment, ortho and surgical opinion vide CR No.8401/433 dated 08.06.2020 of Civil Hospital, Sangrur and medical record of Amar Hospital vide MLR No.20200/4703 dated 11.06.2020, declared injuries No.1 to 5 as simple in nature on 05.10.2020.

[10]. During course of treatment of Jaswant Singh in Amar Hospital, CECT Scan was conducted on 08.06.2020. CECT of Abdomen and Scrotum was done and following characteristics were noticed:-

"CECT of abdomen and scrotum was done using single slice spiral CT taking 10 mm contiguous sections with 5 mm. pitch starting from the domes of diaphragm till the perineum & evaluated. Oral and non lonic I/V contrast was given. No adverse reaction was observed. CT Findings are:

LIVER: Enlarged in size. Both the lobes show decreased attenuation s/o fatty infiltration. IHBR are not dilated. No obvious focal lesion is seen. The hepatic and portal venous radicles are normal. Porta hepatis is normal. Portal vein is normal.

GALL BLADDER: Normal in distension. No intraluminal calculus or mass is seen. Wall thickness is normal. No pericholecystic fluid collection is present. CBD is also normally seen. PANCREAS: Normal in size and shape. Shows homogenous density in the region of head, body & tail. No focal lesion is seen MPD is unremarkable.

SPLEEN: Normal in size, shape and density value.

No focal area of abnormal attenuation is seen.

KIDNEYS: Both the kidneys are normal in size, site, shape and attenuation. Both show prompt excretion of the contrast. The cortico-medullary differentiation is normal. The pelvicalyceal system does not show any hydronephrosis or calculus. No parenchymal mass is seen. Both the ureters are normally outlined in their entire course.

URINARY BLADDER: Empty. A filling defect due to indwelling bulb of catheter is seen.

PROSTATE: Normal in size. It shows homogenous contrast attenuation values. Capsule appears to be intact. No obvious focal lesion is seen.

The aorta and its branches and IVC show normal enhancement after contrast administration. The visualized contrast/air filled gut coils are normal in calibre.

No ascites is seen. No free fluid is seen in the pleural cavities.

The visualised part of the left lower lobe shows ground glass opacities.

The scrotum appears to be normal. No definite focal lesion is seen in the testes.

The right thigh shows multiple tiny air pockets in the subcutaneous tissue and around the muscles of the medial side. No localized fluid collection is seen.

CT FINDINGS ARE:-

.No solid organ injury seen in abdomen.

.No definite focal lesion seen in the scrotum.

. Subcutaneous air seen in right thigh.

. Ground glass opacities visualised part of left lung."

[11]. Evidently, the occurrence took place on 08.06.2020. FIR was lodged on 08.06.2020 itself. The then injured Jaswant Singh was hospitalized on 08.06.2020 and was discharged on 11.06.2020. On 11.06.2020 itself, he was hospitalized in Amar Hospital Patiala and was discharged on 17.06.2020. Jaswant Singh ultimately died on 10.07.2020 due to chest pain. The cause of death was Asphyxia due to Aspiration, which was found to be sufficient to cause death in ordinary course of nature. Meaning of Aspiration as per medical dictionary is as under:-

"Drawing in or out by suction. Foreign bodies may be aspirated into the nose, throat or lungs or inspiration.

In common parlance, aspiration means one is breathing foreign objects into his airways usually it is saliva or stomach contents when he swallows, vomits or experience heart burn."

[12]. Challan was submitted. Investigating Officer made the inquiry report of Superintendent of Police, Detective, Barnala dated 30.09.2020 part of challan after being satisfied. The trial Court at the time of framing of charge, framed the charge under Section 302 IPC.

[13]. Learned Senior Counsel for the petitioner submitted that even in the absence of inquiry report submitted by Superintendent of Police, Detective, Barnala, the material on record do not suggest anything incriminatory against the petitioners so as to attract any offence, much less offence under Sections 302/304 IPC. For invoking the provisions of Section 319 Cr.P.C, the trial Court has to be satisfied on the basis of more than prima facie material to summon the accused under Section 319 Cr.P.C. Mere suspicion is not sufficient to summon the petitioners as additional accused. The ratio laid down in Hardeep Singh Vs. State of Punjab, 2014(3) SCC 92 in terms of para Nos.105, 106 and 112 read as under:-

"105. Power under Section 319 Cr.P.C. is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.

112.The Court should keep in mind that the witness when giving evidence against the person so discharged, is not doing so merely to seek revenge or is naming him at the behest of someone or for such other extraneous considerations. The court has to be circumspect in treating such evidence and try to separate the chaff from the grain. If after such careful examination of the evidence, the court is of the opinion that there does exist evidence to proceed against the person so discharged, it may take steps but only in accordance with Section 398 Cr.P.C. without resorting to the provision of Section 319 Cr.P.C. directly."

[14]. It is a settled principle of law that an order under Section 319 Cr.P.C cannot be passed in routine manner. The evidence must be convincing and must satisfy the standards as pointed out in Hardeep Singh's case (supra). Mere ipse dixit would not serve any purpose. The inquiry conducted by Superintendent of Police, Detective, Barnala has also been made part of the challan, therefore, the same merges in the investigation conducted by the police and is also part of challan under Section 173 Cr.P.C.

[15]. Gagandeep Singh was granted regular bail by this Court vide order dated 23.02.2021 passed in CRM-M No.879 of 2021. The concession of bail was also extended to him under Section 302 IPC vide order dated 16.03.2021 passed by this Court in CRM No.7419 of 2021 in CRM-M No.879 of 2021. Challan was submitted against Gagandeep Singh only under Section 304 IPC and the Court framed charges under Sections 302, 149, 120-B IPC only against Gagandeep Singh. Petitioners were found to be declared innocent. Beant Singh was examined as PW-1.

[16]. Learned counsel for the complainant vehemently opposed the order on the ground that in view of statement of injured eye-witness and testimony of the complainant, the petitioners have been named in the case from the very beginning. In view of Criminal Appeal Nos.298-299 of 2021 titled Sartaj Singh Vs. State of Haryana and another decided on 15.03.2021, powers under Section 319 Cr.P.C can be exercised to summon the petitioners as additional accused. Petitioners were not charge-sheeted only on the basis of inquiry conducted by Superintendent of Police, Detective, Barnala and inquiry has no evidentiary value in view of ratio laid down in CRM-M No.16013 of 2020 titled Pankaj Kumar @ Panki Vs. State of Punjab and another decided by the High Court on 18.03.2021 (now stayed by Hon'ble the Apex Court).

[17]. Perusal of the record would show that inquiry conducted by the Superintendent of Police, Detective, Barnala whether would be consistent with the inquiry conducted by the Investigating Officer or not is the domain on which the impugned order is silent. The judgment of Pankaj Kumar @ Panki's case (supra) (now stayed by Hon'ble the Apex Court) is in the context of holding parallel inquiries by the higher officers, which according to the instructions issued by the DGP was deprecated in the cited judgment.

[18]. Now the question arises whether material available on record de hors inquiry report dated 30.09.2020 conducted by Superintendent of Police, Detective, Barnala would bring the case within the four corners of the ratio laid down in Hardeep Singh's case (supra) or not.

[19]. Since the Additional Sessions Judge, Sangrur has decided the application under Section 319 Cr.P.C primarily on the consideration of Pankaj Kumar @ Panki's case (supra) (now stayed by Hon'ble the Apex Court), therefore, I deem it appropriate to direct the trial Court to re-visit the issue in order to determine the following:-

(1). Whether there is more than a prima facie material available on record minus the report of Superintendent of Police, Detective, Barnala dated 30.09.2020.

(2). Whether on the basis of MLR of the then injured, CECT scan report and medical opinion on record, any more than prima facie case exists in favour of the prosecution to summon the petitioners as additional accused.

[20]. Perusal of the impugned order would show that requirement of law on the basis of aforesaid factual criteria has to be first answered by the trial Court on the basis of record.

[21]. In view of aforesaid, I deem it appropriate to set aside the impugned order dated 19.08.2021 passed by Additional Sessions Judge, Sangrur with a direction to the trial Court to re-visit the issue and pass fresh order in accordance with law, particularly in the light of observations made hereinabove. CRR No.972 of 2021 is accordingly allowed.

[22]. Nothing observed hereinabove, would be taken to be an expression on the merits of the case. The trial Court would be at liberty to pass fresh order in accordance with law.

[23]. Since order dated 19.08.2021 passed by the Additional Sessions Judge, Sangrur is set aside with a liberty to the trial Court to pass fresh order, therefore, CRM-M No.37521 of 2021 is rendered infructuous. Parties would be at liberty to avail their legal remedies afresh in accordance with law after fresh decision on the application under Section 319 Cr.P.C by the trial Court.