SHIV LAL @ SHOLLY Vs. STATE OF PUNJAB

JUDGEMENT

(1.) By the present revision petition, the petitioner-original accused-Shiv Lal @ Sholly has put to challenge the revisional order dated 02.08.2017, in Sessions Trial No.SC/32/2016 passed by the Ist Additional Sessions Judge, Fazilka, in FIR No.120 dated 12.12.2015, under Sections 302, 307, 326, 148, 149, 120-B/115/201 of Indian Penal Code, 1860 (for short 'IPC'), Section 3(2) V of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, registered at Police Station Bahav Wala, by which the learned trial Court exercising the power under Section 311 of Code of Criminal Procedure, 1973 (for short 'Cr. P.C.') allowed the prayer made by Kaushalaya Devi for examination of Akash son of Rajinder Kumar.

(2.) The incident in FIR No.120 dated 12.12.2015 relates to the murder of Bhim Tank and injuries to Gurjant Singh as reported by Ranjit Singh, the complainant, brother of Gurjant Singh, to the police. In the FIR that was registered, the name of the petitioner-Shiv Lal @ Sholly was not at all indicated. But in the supplementary statement that was recorded on the same day, namely 12.12.2015 of complainantRanjit Singh, Shiv Lal @ Sholly was named as a conspirator. On 17.12.2015, police recorded the statement of Gurjant Singh. Thereafter, on 21.12.2015, statement of Akash son of Madan Lal was recorded, who also stated of alleged conspiracy by the petitioner. On the same day, the statement of Kaushalaya Devi, mother of the deceased was recorded who also stated about conspiracy. On 29.02.2016, polygraph test was conducted and thereafter, the petitioner was declared innocent. The police completed the investigation and filed a final report in the form of challan, on 12.03.2016, in which the petitioner-Shiv Lal @ Sholly was not named as an accused. After the commencement of the trial, the evidence of Sunil Kumar, the brother of the deceased was recorded, on 15.03.2016, in which he stated that he had heard about the conspiracy made by the petitioner. On 17.04.2016, police filed supplementary challan against the petitionerShiv Lal @ Sholly. Thereafter, on 03.08.2016, the trial Court framed the charge against the accused persons and the evidence began, on 01.09.2016.

(3.) The controversy qua the impugned order is regarding summoning of the person Akash son of Rajinder Kumar as a witness under Section 311 Cr. P.C., in the trial filed by Kaushalaya Devi appended by public prosecutor. In the status report that was filed on 07.04.2017, again, there was no disclosure about the name of the witness Akash son of Rajinder Kumar. Thereafter, on 12.01.2017, evidence of Kaushalaya Devi was recorded who also did not say a word about Akash son of Rajinder Kumar as a witness. However, on 04.03.2017, Kaushalaya Devi came alongwith an application under Section 311 Cr. P.C. enclosing a photocopy of statement under Section 161 Cr. P.C. of Akash son of Rajinder Kumar, praying for order under Section 311 Cr. P.C. The application was endorsed by the public prosecutor. The evidence of PW9-Harjeet Singh, SSP, who was the Investigating Officer who had recorded the statements of witnesses was also recorded, but in his cross-examination, he admitted that there was no statement of Akash son of Rajinder Kumar ever recorded in the police record. It is in the above factual scenario, after hearing the parties, the learned trial Court allowed the application. Hence, this revision petition.