BALJIT Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS petition has been moved by Baljit Singh and others against the State of Haryana as well as Rajbir under Section 482 of Cr. P.C for quashing and setting aside the order dated 6.5.2008 passed by the Court of learned Additional Sessions Judge, Sonepat (Annexure P.4) dismissing their application under Section 311 of Cr. P.C for recalling the witnesses for further cross-examination.

(2.) THE facts giving rise to this petition are that the petitioners along with two others, namely, Inder son of Meer Singh and Atma Ram son of Hukam Singh who have since died, were falsely arrayed as accused in a case FIR No. 63 dated 21.4.2002 under Sections 302, 307, 452, 449, 148 read with Section 149 of IPC and 25 of the Arms Act at Police Station Kharkhoda, District Sonepat. The petitioners Ashok Kumar and Amit alias Kala are confined in District Jail, Sonepat, while rest of the petitioners are on bail. They are facing the trial in the said case. Over the years, there is a long history of enmity between the families of the petitioners and the complainant Rajbir and others. Since the year 2002, at least seven persons from both the sides, have been murdered on account of animosity and large number of persons are languishing in jail. FIR No. 63 dated 21.4.2002 under Sections 302, 307, 452, 449, 148 read with Section 149 of IPC and 25 of Arms Act, Police Station KharKhoda has been registered on the basis of the statement of aforesaid Rajbir against 13 accused for one murder. FIR No. 98 dated 5.6.2005 under Sections 302, 34, 148 read with Section 149 of IPC and 25 of Arms Act, Police Station Sonepat has been registered on the basis of the statement of Chandervir son of Dalel Singh against 12 accused for one murder. FIR No. 146 dated 15.10.2005 under Sections 302, 34 of IPC and 25 of Arms Act, Police Station Murthal has been registered on the basis of the statement of Smt. Mohindro Devi wife of Prem Singh against 10 accused for one murder. FIR No. 46 dated 8.3.2007 under Sections 302, 307, 120-B, 148 read with Section 149 of IPC and 25 of Arms Act, Police Station Kharkhoda has been registered on the basis of the statement of Bal Kishan son of Har Kishan against 10 accused for double murder. FIR No. 55 dated 10.3.2008 under Sections 302, 365, 201 of IPC and 25 of Arms Act, Police Station Kharkhoda has been registered on the basis of the statement of Raj Singh son of Mange Ram against 2 accused for double murder. The cases are pending between the parties in various Courts. On account of the deep rooted animosity and dangerous rivalry amongst both the rival factions, who constitute major chunk of the village population, the atmosphere in the village remained tense and highly surcharged. Both the parties have apprehension everyday that one or the other member of their family may be killed by the rival party. Both the parties have applied for providing security on account of apprehension of danger from the other party. The parties were provided security. However, in spite of all that, the commission of murders continued, thus surcharging the atmosphere even further. In view of this situation prevalent in the village, the Panchayats of Village Jharot along with the Panchayats of 40 adjoining villages got together and brought about a compromise in the presence of hundreds of villagers between the warring factions of both the parties. Affidavits were given by both the sides to the Panchayat to the effect that they will maintain peace and harmony in the village and will not commit any crime in future against each other. They also undertook to withdraw the criminal cases pending against each other in various Courts to show their goodwill and bonafide. Annexure P.1 is the copy of the panchayatnama dated 10.2.2008. In view of this situation, an application dated 15.3.2008 under Section 311 of Cr. P.C was moved in FIR No. 63 ibid before the Court of learned Additional Sessions Judge, Sonepat for placing on record the affidavits of Rajbir complainant PW1 and other PWs expressing that they have registered the case against the petitioners on account of some misunderstanding and in fact, they were not the persons, who had committed the occurrence. It was also prayed that the witnesses who have appeared as PW1, 6, 7, 8 and 10 may be recalled for further cross-examination. In reply filed to this application by the State, the DSP has recommended for acceptance of the application on the ground that peace and harmony will prevail in the area and it may bring an end to the long-standing enmity between the parties. The DSP has also observed that in view of the fact that the compromise was effected with great difficulty on the intervention of the Panchayats of about 40 adjoining villages, which held meetings on four occasions, it will be in the interest of the public peace and tranquillity, if the said application was accepted by the Court. He has also admitted that in spite of security being provided to both the rival factions, the murders on both the sides did not cease and everyday after sunset there is surcharged atmosphere in the village and imminent danger of some untoward incident happening in the area. In view of this reply, the learned Public Prosecutor made a statement before the learned trial Court that in terms of the settlement arrived at between the parties, with the intervention of the Panchayat, relations between the parties have become cordial. Thus, in order to weed out any further disharmony, application moved under Section 311 of Cr. P.C by the petitioners may be allowed. The perusal of the impugned order dated 6.5.2008 Annexure P.4 would show that the learned trial Court has failed to appreciate the spirit in which the application was filed by the petitioners and the fact that its acceptance was strongly recommended by the State agency and dismissed the application merely on the technical grounds that since the witnesses can only be cross- examined with regard to their earlier testimony in the Court for which they have already been cross-examined, therefore, the affidavits of the complainant party cannot be taken into account since they cannot be cross-examined with regards thereto. The learned trial Court committed grave error in relying upon various judgments, facts of which are distinguishable as those relate to the cases in which the witnesses were pressurised to withdraw from their testimony to save the accused which is not the situation in the present case. If the affidavits of the prosecution witnesses are not taken on record and they are not allowed to testify in the Court, it may again trigger off more violence in the area resulting in further loss to life and liberty. This imminent apprehension can be avoided, if the parties are allowed to testify in the Court to show their bonafide and acceptance of the decision of the Panchayat by both the warring factions. The petitioners have no other alternative or efficacious remedy to approach this Court except by invoking its inherent powers under Section 482 of Cr. P.C to secure the ends of justice, in the peculiar circumstances of the case. In these circumstances, the order dated 6.5.2008 Annexure P.4 be quashed and set aside and the application under Section 311 of Cr. P.C filed by the petitioners be allowed and the affidavits of the prosecution witnesses be taken on record and the witnesses be recalled for further crossexamination.

(3.) I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.