Allahabad High Court
Ramswroop And Another vs State Of U.P. And Another on 4 November, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on: 01.09.2022 Delivered on:04.11.2022 Court No. - 69 Case :- APPLICATION U/S 482 No. - 15367 of 2022 Applicant :- Ramswroop And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ranjeet Asthana Counsel for Opposite Party :- G.A.,Sharad Kumar Srivastava Hon'ble Rajeev Misra,J.
1. Heard Mr. Ranjeet Asthana, the learned counsel for applicants, the learned A.G.A. for State and Mr. Sharad Kumar Srivastava, the learned counsel representing first informant/opposite party-2.
2. Challenge in this application under Section 482 Cr.P.C. is to the order dated 29.4.2022, passed by Additional Sessions Judge/Special Judge (POCSO) Act, court No.2, Fatehpur in Sessions Trial No. 344 of 2017 (State Vs. Radhey Lal) under sections 302 and 34 IPC, Police Station- Jafarganj, District Fatehpur, whereby application under section 319 Cr.P.C. (Paper No. 42 B) filed by first informant/opposite party-2 has been allowed, and simultaneously applicants have been summoned by Court below to face trial in aforementioned Sessions Trial.
3. Perused the record.
4. Record shows that in respect of an incident, which is alleged to have occurred on 25.6.2017, a belated F.I.R. dated 26.6.2017 was lodged by first informant/opposite party-2 Amit Kumar and was registered as Case Crime No. 105 of 2017, under sections 302, 34 IPC, Police Station- Jafarganj, District Fatehpur. In the aforesaid F.I.R., three persons namely, Radheylal and the applicants Ramswaroop and Ramsnehi have been nominated as named accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that upon hearing the sound of gun shot and shouts of Babulal, first informant along with 3 others namely, Nishu Verma, Vinod Kumar and Moti Lal, reached the place of occurrence. As per the disclosure made by the injured Babulal to first informant, named accused with a common intention firstly cornered the injured, thereafter, they exhorted and then named accused Radhey Lal, fired a gun shot, which hit on the leg of Babulal, father of the first informant, on account of which, he sustained fire arm injury. Subsequently, the injured Babulal succumbed to the fire arm injury sustained by him, at the hospital. The F.I.R. also records that Radhey Lal got a sale deed executed in favour of his wife from the grand mother of first informant in respect of the land recorded in her name. It is on account of above, that uncle of first informant namely Radhey Lal maintained enmity with first informant and others. Meetings for conciliation (panchayat) were repeatedly held, but Radhey Lal refused to accept the Panch decision.
6. It is, thus, apparent from the F.I.R., that first informant alongwith three others namely, Nishu Verma, Vinod Kumar and Moti Lal reached near the place of incident after the occurrence was over. They are, thus, not the eye witnesses of the occurrence.
7. After lodging of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. The dead body of deceased was recovered on 26.6.2017. Accordingly, a recovery memo of the same dated 26.6.2017 was prepared. Thereafter, Investigating Officer recorded the statements of following witnesses under sections 161 Cr.P.C.
(i) Amit Kumar-First Informant- son of deceased- F.I.R. witness
(ii) Motilal- Brother of deceased- FIR witness
(iii) Anil Kumar (panch witness)
(iv) Vansh Lal (panch witness)- FIR witness
(v) Vinod Kumar (brother-in-law of deceased)- FIR witness
(vi) Nishu Verma, (F.I.R. witness)
(vii) Kushma Devi (wife of deceased)
(viii) Sarika Devi
(ix) Shiv Shanker
(x) Ram Krishan
(xi) Bhagwati Prasad,
(xii) Chedilal
(xiii) Ram Kumar.
8. From perusal of the statements of aforementioned witnesses, who were examined by the Investigating Officer under section 161 Cr.P.C., they can be divided in two broad categories i.e. those, who have implicated the applicants in the crime in question and others, who have not implicated the applicants in the crime in question. For ready reference, the aforesaid categories are tabulated herein-under:
"(i) Witnesses who have implicated the applicants in the crime in question:- Amit Kumar, Moti Lal.
(ii) Witnesses who have not implicated the applicants in the crime in question:- Nishu Verma, Kushuma Devi, Anil Kumar, Vansh Lal, Vinod Kumar, Kumari Sarika Devi, Shiv Shanker, Ram Krishna, Bhagwati Prasad, Hori Lal and Ram Kumar."
9. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of only one of the named accused namely, Radhelal is established in the crime in question. He, accordingly, submitted the charge sheet dated 14.10.2017, whereby named accused Radheylal alone has been charge-sheeted under sections 302 and 34 IPC, whereas the remaining two named accused i.e. the applicants herein were exculpated.
10. After submission of aforementioned charge sheet, cognizance was taken upon same by Court concerned. As offence complained of is triable by Court of Sessions, concerned Magistrate, committed the case to the Court of sessions. Resultantly, Sessions Trial No. 344 of 2017 (State Vs. Radhey Lal) under Sections 302 and 34 IPC, Police Station- Jafarganj, District-Fatehpur came to be registered.
11. During the course of trial, concerned Sessions Judge, framed charges against charge-sheeted accused, who pleaded innocence and demanded trial. Resultantly, the trial procedure commenced.
12. Prosecution in discharge of its burden to bring home the charges so framed adduced P.W.1 Amit Kumar, P.W.2 Motilal and P.W.3 Nishu Verma. It is apposite to mention here that P.W.3 Nishu Verma, who is a witness mentioned in the F.I.R., was subsequently declared hostile.
13. After the statement-in-chief/examination-in-chief of aforementioned witnesses were recorded, first informant/opposite party-2 filed an application dated 21.2.2022 (paper No. 42 B) under section 319 Cr.P.C. praying therein that since complicity of the remaining two named accused i.e. Ramswaroop and Ramsnehi (applicants herein) is also established in the crime in question, as per the statements of two of the aforementioned prosecution witnesses i.e. P.W.1 Amit Kumar, P.W.2 Motilal, therefore they be also summoned to face trial.
14. No written objection was filed on behalf of charge sheeted accused to the aforesaid application.
15. Court below upon evaluation of the averments made in the application, dated 21.10.2022 (Paper No. 42 B) in the light of the statements of P.W.1 and P.W.2 alone allowed the same, vide order dated 29.4.2022 and simultaneously the applicants were summoned to face trial in aforementioned Sessions Trial.
16. Thus, feeling aggrieved by the order dated 29.4.2022, passed by Court below, whereby applicants have been summoned by Court below to face trial in Sessions Trial No. 344 of 2017 (State Vs. Radhey Lal) they have now approached this Court by means of present application under section 482 Cr.P.C.
17. Mr. Ranjeet Asthana, the learned counsel for applicants submits that order impugned in present applicaiton is manifestly illegal and without jurisdiction. Same is also unsustainable in law and fact. In the submission of Mr. Ranjeet Asthana, the applicants were nominated as named accused in the F.I.R. dated 26.6.2017. However, during investigation, no such material was gathered by Investigating Officer on the basis of which, complicity of present applicants could be said to be established in the crime in question. Resultantly, applicants were exculpated in the charge sheet dated 14.10.2017. No protest petition was filed by first informant/opposite party-2 against the charge-sheet dated 14.10.2017 by virtue of the law laid down by Apex Court in Gangadhar Janardan Mahatre Vs. State of Maharastra, (2004) 7 SCC 768 As such, first informant/opposite party-2 was estopped from filing the application under section 319 Cr.P.C. He, further, submits that Investigating Officer of concerned case crime number has not yet been examined by Court below. In such circumstance, court below ought to have deferred the disposal of application under section 319 Cr.P.C. filed by first informant/opposite party-2, till statement-in-chief of Investigating Officer was recorded as he will be the best person to demonstrate as to under what circumstances, complicity of present applicants was not found to be established in the crime in question. As such, court below has pre-empted the disposal of application under Section 319 Cr.P.C., causing serious prejudice to the applicants. It is lastly submitted that no cast iron case is made out for summoning present applicants as per testimonies of P.W.1 Amit Kumar and P.W.2 Motilal. Nothing new, which is credible and reliable, has been stated by P.W.1 and P.W.2 in their depositions before Court below than what was stated by them in their statements under section 161 Cr.P.C. before Investigating Officer. Impugned order passed by Court below is, thus, in teeth of the Constitution Bench judgement in Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92, as well as law laid down in S. Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226. No attempt was made by Court below to weigh the material collected by Investigating Officer during course of investigation to find out as to whether something more than mere complicity of applicants is established in the crime in question, as per law laid down in Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706. The depositions of P.W.1 Amit Kumar and P.W.2 Moti Lal are contradictory to each other. They together do not prove the very prosecution story, which the prosecution set out to prove. P.W. 2 Motil Lal has resiled from his earlier statement under section 161 Cr.P.C. and has set up a new case in his deposition. He has deposed that disclosure regardig the complicity of named accused was made by injured Babu Lal and named accused were also seen by him running away on bicycles from the place of occurrence. This part of his deposition is over and above the basic prosecution case as unfolded in F.I.R. as well as the very story which the prosecution set out to prove and also contrary to his own previous statement. Widow of the deceased namely, Kushuma Devi, does not completely support the statements of P.W.1 and P.W.2. nor she has implicated the applicants in the crime in question on the basis of the disclosure made to her by her husband injured Babu Lal soon before his death. There is no reason to doubt the statement of this witness. P.W.3 Nishu Verma in his statement under section 161 Cr.P.C. before the Investigating Officer has stated that as per disclosure made to him by the injured Babu Lal (deceased) named accused Rahey Lal caused the fatal gun shot injury. No other named accused was implicated by this witness in the crime in question in his statement under Section 161 Cr. P. C. However, subsequently, this witness has resiled from his own previous statement before the Court. Moreover, the alleged disclosures made by the deceased to his son (first informant), his brother Amrit Lal, P.W.-3 Nishu Verma and his wife Kusuma Devi fall in the realm of multiple oral dying declarations. The same being contrary to each other and not supported by attending circumstances are not worthy of reliance. No attempt was made by Court below to examine the credibility, reliability and admissibility of the same in the light of law laid down by Supreme Court in Kushal Rao Vs. State of Bombay AIR 1958 SC 22. The occurrence in question has taken place in the dead of night at around 12.00 midnight. at a desolated place. Neither in the F.I.R. nor in the statements of the witnesses examined under Section 161 Cr.P.C. or the witnesses, who have deposed before court below there is mention regarding the source of light and how the named accused were identified by injured Babulal (deceased) or seen by P.W.2 Moti Lal. The motive behind the occurrence as can be gathered from the F.I.R. and the statement of P.W.-2, Moti Lal is not strong enough for committing the crime in question inasmuch as the name of the wife of Radhey Lal was already recorded over the land in dispute and she was in possession over the same. As such, no benefit could be derived by committing the murder of Babu Lal as litigation regarding same was already pending. Referring to Sections 6, 32 and 60 of Evidence Act, he submits that evidence relied upon by the prosecution for alleging the complicity of applicants in the crime in question does not fall in the realm of "strong and cogent" evidence but to the contrary same is not worthy of reliance. The direct evidence regarding the presence of accused including present applicants near the place of occurrence as per the deposition of P.W.2 Motilal is an after thought and over and above the basic prosecution case or the prosecution story which it set out to prove. As such the deposition of P.W.2 to the aforesaid extent is not worthy of reliance as it suffers from exaggeration and embellishment. There is no circumstantial evidence against the applicants, on the basis of which it could be conclusively held that "something more than mere complicity of applicants" is established in the crime in question. Court below has thus failed to exercise its jurisdiction "diligently" and has summoned the applicants in a "casual and cavalier manner", inasmuch as, there is neither "strong nor cogent evidence" against applicants, which establishes something more than mere complicity of applicants in the crime in question, which is a pre-condition for summoning a prospective accused under Section 319 Cr.P.C.
18. On the cumulative strength of above, learned counsel for applicants vehemently contends that order impugned in present application cannot be sustained in law and fact. Therefore, same is liable to be quashed by this Court.
19. Per contra, the learned A.G.A. has opposed this application. Learned A.G.A. contends that statement-in-chief of P.W.1- Amit Kumar first informant and a prosecution witness of fact is alone relevant for deciding the application under Section 319 Cr.P.C. as per law laid down by Constitution Bench in Hardeep Singh (Supra). However, in the present case, P.W.1 has also been cross-examined. Apart from above, P.W.2 has also deposed before court below. His examination-in-chief has also been recorded. As such, no illegality has been committed by court below in placing reliance upon testimonies of P.W.1 and P.W.2 as same fall in the realm of legal evidence. Therefore, court below has rightly proceeded to pass order dated 21.01.2021 by placing reliance upon same. No irregularity or illegality has been committed by court below in passing impugned order dated 21.01.2021. From perusal of the testimonies of P.W.1 and P.W.2 complicity of present applicants in the crime in question is fully established. Court below has exercised its jurisdiction "diligently" and not in a "casual and caviliar manner", as suggested by learned counsel for applicants. Applicants have been summoned on the basis of "strong and cogent" evidence that has emerged against them during course of trial. It cannot be said at this stage that "applicants cannot be tried along with other accused" and further that "if the evidence which has been recorded up to this stage goes unrebutted would not lead to conviction of applicants". Police report submitted by Investigating Officer is not conclusive proof of innocence of applicants. Even though, applicants were exculpated by Investigating Officer, same cannot be taken as a ground to urge that applicants cannot be subsequently summoned to face trial. Applicants will have adequate opportunity to prove their innocence before court below during course of trial by adducing Investigating Officer also as a defence witness. As such the submission urged by learned counsel for applicants that as no protest petition was filed by first informant/opposite party-2 against charge-sheet, therefore, no application under section 319 Cr.P.C. could have been filed subsequently, is wholly misconceived. Same cannot be treated as an estoppal which may bar the filing of application under section 319 Cr.P.C subsequently. No attempt has been made by learned counsel for applicants to draw a parallel between the statements of P.W.1 and P.W.2 as recorded under Section 161 Cr.P.C. and their depositions made before court below. No ground has been raised in the affidavit filed in support of present application that P.W.1 and P.W.2 have not stated anything new in their depositions before Court below than what was stated by them in their statements under Section 161 Cr.P.C. No pleadings have been raised to show that the material collected by Investigating Officer during course of investigation is relevant material and same does not establish the guilt of the accused, if any. On the aforesaid premise, it is, thus, urged by learned A.G.A. that applicants do not deserve any indulgence by this Court. Consequently, present application is liable to be dismissed.
20. Mr. Sharad Kumar Srivastava, the learned counsel representing first informant/opposite party-2 has also opposed the present application. He has, however, adopted the arguments raised by learned A.G.A.
21. Having heard the learned counsel for applicants, the learned A.G.A. for State and upon perusal of record, this Court finds that the issue, which arises for determination in present application is: What are the parameters for exercise of jurisdiction under section 319 Cr.P.C As a corollary to above, this court will also have to consider whether the order impugned in present application is within the established parameters or not.
22. Parameters regarding exercise of jurisdiction by Courts under section 319 Cr.P.C. have been considered time and again by Supreme Court. The chronology of same is as under:
(i) Bholu Ram Vs. State of Punjab, (2008) 9 SCC 140
(ii) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Constitution Bench)
(iii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Constitution Bench)
(iv) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568
(v) Jogendra yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244
(vi) Brijendra Singh and Others Vs. State of Rajasthan, (2017) 7 SCC 706
(vii) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226
(viii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393
(ix) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329
(x) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342
(xi) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556
(xii) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368
(xiii) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638
(xiv) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805
(xv) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 (xvi) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 (xvii) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 (xviii) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 (xix) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632
23. To begin with a two Judges Bench in Bholu Ram (Supra) held that an application under section 319 Cr.P.C. can be filed by the prosecution as well as the accused.
24. A constitution Bench of Supreme Court in Dharam Pal (Supra) considered the provisions of Sections 193, 190, 319, 209, 173(2) and 200 to 204 Cr.P.C. and held that Sessions Judge has power to summon non charge sheeted accused after the case has been committed to Court of Sessions under section 193 Cr.P.C and for this purpose need not wait for evidence to be recorded so that non charge sheeted accused could be summoned under section 319 Cr.P.C.
25. Subsequently, in Hardeep Singh (Supra), another constitution Bench of Supreme Court considered the parameters for exercise of jurisdiction under section 319 Cr.P.C. The Constitution Bench upon consideration of various provisions of the Evidence Act, Code of Criminal Procedure as well as underlying principles of Section 319 Cr.P.C. framed five questions for defining the parameters for exercising jurisdiction under Section 319 Cr.P.C. Thereafter, Court held as under in paragraphs 4, 5, 6, 6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6:
"4. Reference made in Dharam Pal (Supra) came to be answered in relation to the power of a Court of Sessions to invoke Section 319 Cr.P.C. at the stage of committal of the case to a Court of Sessions. The said reference was answered by the Constitution Bench in the case of Dharam Pal & Ors. v. State of Haryana & Anr., AIR 2013 SC 3018 [hereinafter called 'Dharam Pal (CB)'], wherein it was held that a Court of Sessions can with the aid of Section 193 Cr.P.C. proceed to array any other person and summon him for being tried even if the provisions of Section 319 Cr.P.C. could not be pressed in service at the stage of committal.
5. Thus, after the reference was made by a three-Judge Bench in the present case, the powers so far as the Court of Sessions is concerned, to invoke Section 319 Cr.P.C. at the stage of committal, stood answered finally in the aforesaid background.
6. On the consideration of the submissions raised and in view of what has been noted above, the following questions are to be answered by this Bench:
6.1 (i) What is the stage at which power under Section 319 Cr.P.C. can be exercised?
6.2 (ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?\ 6.3 (iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
6.4 (iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood convicted?
6.5 (v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged?
7. In this reference what we are primarily concerned with, is the stage at which such powers can be invoked and, secondly, the material on the basis whereof the invoking of such powers can be justified. To add as a corollary to the same, thirdly, the manner in which such power has to be exercised, also has to be considered.
11. Section 319 Cr.P.C. as it exists today, is quoted hereunder:
"319 Cr.P.C. -Power to proceed against other persons appearing to be guilty of offence:-
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub- section (1), then-
(5) (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
55. Accordingly, we hold that the court can exercise the power under Section 319 Cr.P.C. only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained herein above.
56. There is yet another set of provisions which form part of inquiry relevant for the purposes of Section 319 Cr.P.C. i.e. provisions of Sections 200, 201, 202, etc. Cr.P.C. applicable in the case of Complaint Cases. As has been discussed herein, evidence means evidence adduced before the court. Complaint Cases is a distinct category of criminal trial where some sort of evidence in the strict legal sense of Section 3 of the Evidence Act 1872, (hereinafter referred to as the 'Evidence Act') comes before the court. There does not seem to be any restriction in the provisions of Section 319 Cr.P.C. so as to preclude such evidence as coming before the court in Complaint Cases even before charges have been framed or the process has been issued. But at that stage as there is no accused before the Court, such evidence can be used only to corroborate the evidence recorded during the trial for the purpose of Section 319 Cr.P.C., if so required. What is essential for the purpose of the section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant. Where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, Section 319 Cr.P.C. acts as an empowering provision enabling the court/Magistrate to initiate proceedings against such other persons. The purpose of Section 319 Cr.P.C. is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. Therefore, there does not appear to be any difficulty in invoking powers of Section 319 Cr.P.C. at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses is being recorded.
57. Thus, the application of the provisions of Section 319 Cr.P.C., at the stage of inquiry is to be understood in its correct perspective. The power under Section 319 Cr.P.C. can be exercised only on the basis of the evidence adduced before the court during a trial. So far as its application during the course of inquiry is concerned, it remains limited as referred to hereinabove, adding a person as an accused, whose name has been mentioned in Column 2 of the charge sheet or any other person who might be an accomplice
85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The 'evidence' is thus, limited to the evidence recorded during trial.
92. Thus, in view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the stage of completion of examination in chief and court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence.
105. Power under Section 319 CrPC is a discretionary and an extraordinary 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.
106. 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.
116. Thus, it is evident that power under Section 319 Cr.P.C. can be exercised against a person not subjected to investigation, or a person placed in the Column 2 of the Charge-Sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 Cr.P.C. without taking recourse to provisions of Section 300(5) read with Section 398 Cr.P.C.
117. We accordingly sum up our conclusions as follows:
Questions (i) and (iii)
- What is the stage at which power under Section 319 Cr.P.C. can be exercised?
AND
- Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
Answer 117.1. In Dharam Pal case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.
117.2. Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge-sheet.
117.3. In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.
Question (ii)- Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
Answer 117.4. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.
Question (iv)- What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
Answer.
117.5. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for ?framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Question (v)- Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?
Answer 117.6. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of ?Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh."
26. After aforesaid Constitution Bench judgement, the issue as involved in present application again came up for consideration before Supreme Court in Babubhai Bhimabhai Bokhiria (Supra), wherein Court dealt with the issue of summoning of a non charge sheeted accused under section 319 Cr.P.C. who was alleged to be involved in the crime in question on the basis of dying declaration. The issue that arose for consideration was whether on the basis of dying declaration an inference of guilt could be drawn against non-charge sheeted accused sought to be summoned in a case, which arose out of an F.I.R. registered at Kalambaug Police Station Porbandar under Sections- 302, 201, 34, 120B, 465, 468, 471 I.P.C. and Section- 25 of Arms Act. Court took notice of paragraphs 105 and 106 of the Constitution Bench judgement in Hardeep Singh's case (Supra) and deduced as follows in paragraphs 7, 8, 9, 15, 20, 21 and 22:
"7. Before we proceed to deal with the evidence against the appellant and address whether in light of the evidence available, power under Section 319 of the Code was validly exercised, it would be expedient to understand the position of law in this regard. The issue regarding the scope and extent of powers of the court to arraign any person as an accused during the course of inquiry or trial in exercise of power under Section 319 of the Code has been set at rest by a Constitution Bench of this Court in Hardeep Singh v. State of Punjab[(2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86 : (2014) 1 Scale 241] . On a review of the authorities, this Court summarised the legal position in the following words: (SCC p. 138, paras 105-06) "105. Power under Section 319 CrPC is a discretionary and an extraordinary 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.
106. 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 CrPC."
8. Section 319 of the Code confers power on the trial court to find out whether a person who ought to have been added as an accused has erroneously been omitted or has deliberately been excluded by the investigating agency and that satisfaction has to be arrived at on the basis of the evidence so led during the trial. On the degree of satisfaction for invoking power under Section 319 of the Code, this Court observed that though the test of prima facie case being made out is same as that when the cognizance of the offence is taken and process issued, the degree of satisfaction under Section 319 of the Code is much higher.
9. Having summarised the law on the degree of satisfaction required by the courts to summon an accused to face trial in exercise of power under Section 319 of the Code, we now proceed to consider the submissions advanced by the learned counsel.
15. In the present case, except the apprehension expressed by the deceased, the statement made by him does not relate to the cause of his death or to any circumstance of the transaction which resulted in his death. Once we hold so, the note does not satisfy the requirement of Section 32 of the Act. The note, therefore, in our opinion, is not admissible in evidence and, thus, cannot be considered as such to enable exercise of power under Section 319 of the Code.
20. Now we revert to the authority of this Court in Rattan Singh [Rattan Singhv. State of H.P., (1997) 4 SCC 161 : 1997 SCC (Cri) 525] relied on by Dr Singhvi. In the said case, the deceased immediately before she was fired at, spoke out that the accused was standing nearby with a gun. In a split second the sound of firearm shot was heard and in a trice her life snuffed off. In the said background, this Court held that the words spoken by the deceased have connection with the circumstance of transaction which resulted into death. In the case in hand, excepting apprehension, there is nothing in the note. No circumstance of any transaction resulting in the death of the deceased is found in the note. Hence, this decision in no way supports the contention of Dr Singhvi.
21. The other evidence sought to be relied for summoning the appellant is the alleged conversation between the appellant and the accused on and immediately after the day of the occurrence. But, nothing has come during the course of trial regarding the content of the conversation and from the call records alone, the appellant's complicity in the crime does not surface at all.
22. From what we have observed above, it is evident that no evidence has at all come during the trial which shows even a prima facie complicity of the appellant in the crime. In that view of the matter, the order passed by the trial court summoning the appellant, as affirmed by the High Court, cannot be allowed to stand."
27. Subsequently in Jogendra yadav (Supra), Court considered the issue as to whether a non-charge sheeted accused summoned under section 319 Cr.P.C. can claim discharge under section 227 Cr.P.C. Court referred to observations contained in paragraphs 105 and 106 of the Constitution Bench judgement in Hardeep Singh's case in paragraph 10 of the judgement and delineated the rights of an accused summoned under section 319 Cr.P.C. to claim discharge in paragraph-13 of the judgement, which reads as under:
"13. We are not unmindful of the fact that the interpretation placed by us on the scheme of Sections 319 and 227 makes Section 227 unavailable to an accused who has been added under Section 319 CrPC. We are of the view, for the reasons given above, that this must necessarily be so since a view to the contrary would render the exercise undertaken by a court under Section 319 CrPC, for summoning an accused, on the basis of a higher standard of proof totally infructuous and futile if the same court were to subsequently discharge the same accused by exercise of the power under Section 227 CrPC, on the basis of a mere prima facie view. The exercise of the power under Section 319 CrPC, must be placed on a higher pedestal. Needless to say the accused summoned under Section 319 CrPC, are entitled to invoke remedy under law against an illegal or improper exercise of the power under Section 319, but cannot have the effect of the order undone by seeking a discharge under Section 227 CrPC. If allowed to, such an action of discharge would not be in accordance with the purpose of Criminal Procedure Code in enacting Section 319 which empowers the Court to summon a person for being tried along with the other accused where it appears from the evidence that he has committed an offence."
28. Inspite of above noted judgements, issue did not come to rest, but again cropped up for consideration in Brijendra Singh (supra), wherein Court considered the observations made in paragraphs 8, 12, 13, 19, 105 and 106 of Constitution Bench judgement in Hardeep Singh (Supra) and applying the ratio as mentioned in aforesaid paragraphs widened the scope of parameters regarding exercise of jurisdiction under section 319 Cr.P.C. In this case, Court was examining the summoning of a non-charge-sheeted accused in a Sessions Trial under Sections- 147, 148, 149, 323, 448, 302/149 I.P.C. and Section- 3 and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Court went a step further. A parallel was drawn with the deposition of prosecution witnesses before court and their statements recorded under section 161 Cr.P.C. to find out whether something new has come out in their depositions or not and something more than mere complicity of prospective accused is established in the crime in question. Having done so, Court summed up its views as follows in paragraphs 13, 14, 15:-
"13. In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated: power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some 'evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The 'evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the I.O. at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom chargesheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.
14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct.
15. This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so- called verbal/ocular version. Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny."
26. Inspite of law having been settled by Apex Court in Constitution Bench judgement in Hardeep Singh (Supra) and two Judges Bench judgement in Brijendra Singh (Supra) which made substantial advancement in favour of prospective accused, the issue as noted above, again arose for consideration in S Mohammed Ispahani (Supra). In this case, Court was considering the summoning of non charge-sheeted accused in a case under Sections- 379, 427, 341, 379/34 read with Section 3(1) of Tamil Nadu Property Prevention of Damage and Loss Act, 1992. Court again took notice of observations made in paragraphs 19 as well as paragraphs 10 to 13 of Brijendra Singh's Case and by making departure from the settled meaning of evidence for the purpose of exercise of jurisdiction under section 319 Cr.P.C. opined that prospective accused can be summoned only when "strong and cogent evidence" occurs against him during course of trial and not in a "casual and cavalier manner". Ultimately, Court opined as follows in paragraphs 31, 32, 33, 34, 35, 36 and 37:
"31. The order of the learned Chief Metropolitan Magistrate reveals that while dismissing the application of the complainant under Section 319 CrPC, the Chief Metropolitan Magistrate was swayed by two considerations:
(a) The complainant (PW 1) in his examination-in-chief had not spoken anything with regard to the alleged conspiracy entered into between the appellants i.e. the landlords and the bailiff. Also other witnesses i.e. PWs 2, 3 and 4, who were working in the company of the de facto complainant had not spoken anything with regard to the appellants. There was no documentary evidence produced by the complainant. Therefore, the available "evidence" was not sufficient to implead the appellants/proposed accused as accused in the case.
(b) The police, after thorough investigation, had filed the charge-sheet in which the appellants were not implicated. However, the complainant never filed any protest petition at that stage.
32. Taking the aforesaid grounds as their arguments, the learned counsel for the appellants have argued that there is no "evidence" within the meaning of Section 319 CrPC. The argument advanced is that the application filed by the complainant under Section 319 CrPC was an afterthought and belated effort on the part of the complainant, which was filed much after the recording of evidence of PW 1, that too when the prosecution evidence had already been concluded.
33. As against the above, the High Court, in the impugned judgment, has been influenced by the fact that names of the appellants were mentioned in the FIR and even in the statement of witnesses recorded under Section 161 CrPC these appellants were named and such statements under Section 161 CrPC would constitute "documents". In this context, the High Court has observed that "evidence" within the meaning of Section 319 CrPC would include the aforesaid statements and, therefore, the appellants could be summoned.
34. The aforesaid reasons given by the High Court do not stand the judicial scrutiny. The High Court has not dealt with the subject-matter properly and even in the absence of strong and cogent evidence against the appellant, it has set aside the order of the Chief Metropolitan Magistrate and exercised its discretion in summoning the appellants as accused persons. No doubt, at one place the Constitution Bench observed in Hardeep Singh case [Hardeep Singh v.State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] that the word "evidence" has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. In para 105 of the judgment, however, it is observed that "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". This sentence gives an impression that only that evidence which has been led before the Court is to be seen and not the evidence which was collected at the stage of inquiry. However there is no contradiction between the two observations as the Court also clarified that the "evidence", on the basis of which an accused is to be summoned to face the trial in an ongoing case, has to be the material that is brought before the Court during trial. The material/evidence collected by the investigating officer at the stage of inquiry can only be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 CrPC.
35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused.
36. In view of the above, it was not open to the High Court to rely upon the statements recorded under Section 161 CrPC as independent evidence. It could only be corroborative material. In the first instance, "evidence" led before the Court had to be taken into consideration. As far as deposition of PW 1 which was given in the Court is concerned, on going through the said statement, it becomes clear that he has not alleged any conspiracy on the part of the appellant landlords. In fact, none of the witness has said so. In the absence thereof, along with the important fact that these appellant landlords were admittedly not present at the site when the alleged incident took place, we do not find any "evidence" within the meaning of Section 319 CrPC on the basis of which they could be summoned as accused persons. PW 1 and PW 4 have deposed about the incident that took place at the site and the manner in which the persons who are present allegedly behaved. In the statement of PW 4, he has alleged that "Subsequently I came to know the said people is not police officials the people was sent by landlords of the building...". That statement may not be enough for roping in the appellants/landlords to face the charge under those provisions of IPC with which others are charged. The standard of evidence mentioned in Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , namely, "strong and cogent evidence", is lacking."
30. In Deepu @ Deepak (Supra), Court considered the issue regarding summoning of a charge sheeted accused, who had been discharged by trial court, in ignorance of supplementary charge sheet. Division Bench considered the observations made in paragraph 112 of Constitution Bench judgement in Hardeep Singh (Supra) and ultimately expressed its views in paragraph 7 of the judgment as under:
"7. In the matter on hand, the Sessions Court, as aforementioned, has found that the earlier order of discharge was without reference to the supplementary charge-sheet, though the supplementary charge-sheet was in existence then. Only after applying its mind judiciously to the facts of the case and on verifying the details of the supplementary charge-sheet as well as other material on record, mentioned supra, the trial court concluded that it is a fit case to proceed against the appellant-accused under Section 319 of the Code of Criminal Procedure. The said order is confirmed by the High Court. The procedure as contemplated under Section 319 CrPC as well as the procedure as laid down by this Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] is fully satisfied by the trial court."
31. In Dev Wati (Supra), Court considered the correctness of an order passed by the High Court, whereby it upheld the order passed by Sessions Court allowing an application under section 319 Cr.P.C. in a case under Sections- 302/34 I.P.C. Court took notice of the Constitution Bench judgement in Hardeep Singh's case. Court referred to the words "appear" and 'proved' as interpreted by the Constitution Bench, with reference to Section 319 Cr.P.C. and on basis thereof examined the veracity of order impugned. Following was determined in paragraphs- 8 and 9 of the judgement:
"8. Section 319(1) CrPC empowers the court to proceed against other persons who "appear" to be guilty of an offence, though not accused before the court. A Constitution Bench of this Court in Hardeep Singh v. State of Punjab [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] has ruled that the word "appear" means "clear to the comprehension", or a phrase near to, if not synonymous with "proved", and imparts a lesser degree of probability than proof. Though only a prima facie case is to be established from the evidence led before the Court, it requires much stronger evidence than a mere probability of the complicity of the persons against whom the deponent has deposed. The test that has to be applied is of a degree of satisfaction which is more than that of a 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, may lead to conviction of the proposed accused. In the absence of such satisfaction, the Court should refrain from exercising the power under Section 319 CrPC. In our considered opinion, the impugned judgment has been passed by the High Court keeping the aforementioned principle in mind, though the said judgment has not been cited before the High Court.
9. On considering the deposition of PW 9, we do not find any valid ground to take a different view from that of the High Court and the Sessions Court. Additionally, though the advocate for the appellants raised certain issues on facts, the same cannot be considered at this stage, inasmuch as such factors will have to be considered by the Sessions Court while deciding the matter before it on merits."
32. In spite of law relating to summoning of a non-charge sheeted accused having been fairly settled, the issue regarding summoning of a non charge sheeted accused under section 319 Cr.P.C. to face trial for offences under Sections- 147, 448, 294B and 506 I.P.C., on the basis of statements of witnesses examined under section 161 Cr.P.C. came to be considered in Periyasamai (Supra). Here again Court took notice of paragraphs 105 and 106 of Constitution Bench judgement in Hardeep Singh's case as well as paragraph 12 of the judgement in Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644, which provides the nature of evidence, required to summon a non charge sheeted accused. Upon evaluation of statements of prosecution witnesses who had deposed before Court in the light of above Court expressed itself as follows in paragraphs 13, 14, 15 and 16:
"13. In the statements recorded under Section 161 of the Code during the course of investigation, the complainant and his witnesses have not disclosed any other name except the 11 persons named in the FIR. Thus, the complainant has sought to cast net wide so as to include numerous other persons while moving an application under Section 319 of the Code without there being primary evidence about their role in house trespass or of threatening the complainant. Large number of people will not come to the house of the complainant and would return without causing any injury as they were said to be armed with weapons like crowbar, knife and ripper, etc.
14. In the first information report or in the statements recorded under Section 161 of the Code, the names of the appellants or any other description has not been given so as to identify them. The allegations in the FIR are vague and can be used any time to include any person in the absence of description in the first information report to identify such person. There is no assertion in respect of the villages to which the additional accused belong. Therefore, there is no strong or cogent evidence to make the appellants stand the trial for the offences under Sections 147, 448, 294(b) and 506 IPC in view of the judgment inHardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] . The additional accused cannot be summoned under Section 319 of the Code in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused.
15. The High Court has set aside the order passed by the learned Magistrate only on the basis of the statements of some of the witnesses examined by the complainant. Mere disclosing the names of the appellants cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 of the Code, especially when the complainant is a husband and has initiated criminal proceedings against the family of his in-laws and when their names or other identity were not disclosed at the first opportunity.
16. Consequently, the order passed by the learned High Court is set aside and that of the trial court is restored and the application under Section 319 of the Code is dismissed. The appeal is allowed."
33. In Sunil Kumar Gupta (Supra), Court considered the issue regarding summoning of a prospective accused under section 319 Cr.P.C. to face trial under Sections- 498A, 304B/302 I.P.C. and Sections- ¾ Dowry Prohibition Act, on the strength of an oral dying declaration even when his name was not mentioned in F.I.R, dying declaration or the statements of P.W.1 and P.W.3. In this case also, Court noticed the observations made in paragraphs 21 to 23 and 105 to 106 by Constitution Bench in Hardeep Singh's case. Having noticed the ratio laid down in above judgment, Court proceeded to apply the principles laid down therein and ultimately decided as follows in paragraphs 13 and 14:
"13. Applying the above principles to the case in hand, in our considered view, no prima facie case is made out for summoning the appellants and to proceed against the appellants for the offence punishable under Section 302 IPC. As pointed out earlier, in the dying declaration, deceased Shilpa has only mentioned the name of Chanchal alias Babita; but she has not mentioned the names of others. In his complaint lodged before the police on the next day i.e. 20-8-2012, Sudhir Kumar Gupta PW 1 has stated that his daughter Shilpa told him that Chanchal alias Babita and all other people set her on fire after pouring kerosene. PW 1 has neither stated the names of the appellants nor attributed any overt act. Likewise, in their evidence before the court, PWs 1 and 3 have only stated that Shilpa told them that Chanchal alias Babita and all others have set fire on deceased Shilpa. Neither the complaint nor the evidence of witnesses indicates as to the role played by the appellants in the commission of the offence and which accused has committed what offence. Under such circumstances, it cannot be said that the prosecution has shown prima facie material for summoning the accused for the offence punishable under Section 302 IPC.
14. Under Section 319 CrPC, a person can be added as an accused invoking the provisions not only for the same offence for which the accused is tried but for "any offence"; but that offence shall be such that in respect of which all the accused could be tried together. It is to be seen whether the appellants could be summoned for the offence under Section 498-A IPC and under Sections 3 and 4 of the Dowry Prohibition Act. The statement of PW 1 both in the complaint and in his evidence before the court is very general stating that he had given sufficient dowry to Shilpa according to his status and that the groom side were not satisfied with the dowry and that they used to demand dowry each and every time. Insofar as the demand of dowry and the dowry harassment, there are no particulars given as to the time of demand and what was the nature of demand. The averments in the complaint and the evidence is vague and no specific demand is attributed to any of the appellants. In such circumstances, there is no justification for summoning the appellants even under Section 498-A IPC and under Sections 3 and 4 of the Dowry Prohibition Act. It is also pertinent to point out that upon completion of investigation, the investigating officer felt that no offence under Sections 498-A, 304-B IPC and under Sections 3 and 4 of the Dowry Prohibition Act is made out. Charge-sheet was filed for the offence punishable only under Section 302 IPC against Chanchal alias Babita. As held in the Constitution Bench judgment in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , for summoning an accused under Section 319 CrPC it requires much stronger evidence than mere probability of his complicity which is lacking in the present case. The trial court and the High Court, in our considered view, has not examined the matter in the light of the well-settled principles and the impugned order is liable to be set aside."
34. In Rajesh and Others (Supra), Court again considered the principles governing the exercise of jurisdiction under section 319 Cr.P.C in a situation, where a person is named in F.I.R., and specific allegations are made against him yet not charge sheeted nor any protest petition having been filed in Court by first informant after submission of charge sheet. Here again Court took notice of the law laid down by Apex Court in Hardeep Singh (Supra) and Brijendra Singh (Supra) and then evaluated oral testimony of P.W.1 and P.W.2 whose testimonies did implicate the non charge sheeted accused in a case under Sections- 302, 307, 148, 149, 323, 324, 325 and 506 I.P.C. Ultimately, Court settled the issue as follows in paragraphs 6.8, 6.9, 6.10, 7 and 8:
"6.8. Considering the law laid down by this Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] and the observations and findings referred to and reproduced hereinabove, it emerges that (i) the Court can exercise the power under Section 319 CrPC even on the basis of the statement made in the examination-in-chief of the witness concerned and the Court need not wait till the cross-examination of such a witness and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination; and (ii) a person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 CrPC, provided from the evidence (may be on the basis of the evidence collected in the form of statement made in the examination-in-chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.
6.9. In S. Mohammed Ispahani v. Yogendra Chandak [S. Mohammed Ispahani v.Yogendra Chandak, (2017) 16 SCC 226 : (2018) 2 SCC (Cri) 138] , SCC para 35, this Court has observed and held as under : (SCC p. 243)
"35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 CrPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused."
6.10. Thus, even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in the FIR but not implicated in the charge-sheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused.
7. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that, in the facts and circumstances of the case, neither the learned trial court nor the High Court have committed any error in summoning the appellants herein to face the trial along with other co-accused. As observed hereinabove, the appellants herein were also named in the FIR. However, they were not shown as accused in the challan/charge-sheet. As observed hereinabove, nothing is on record whether at any point of time the complainant was given an opportunity to submit the protest application against non-filing of the charge-sheet against the appellants. In the deposition before the Court, PW 1 and PW 2 have specifically stated against the appellants herein and the specific role is attributed to the appellant-accused herein. Thus, the statement of PW 1 and PW 2 before the Court can be said to be "evidence" during the trial and, therefore, on the basis of the same and as held by this Court in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , the persons against whom no charge-sheet is filed can be summoned to face the trial. Therefore, we are of the opinion that no error has been committed by the courts below to summon the appellants herein to face the trial in exercise of power under Section 319 CrPC.
8. Now, so far as the submissions made on behalf of the appellants herein relying upon the orders passed by the learned Magistrate dated 1-9-2016 and 28-10-2016 that once the appellants herein were discharged by the learned Magistrate on an application submitted by the investigating officer/SHO and, therefore, thereafter it was not open to the learned Magistrate to summon the accused to face the trial in exercise of power under Section 319 CrPC is concerned, it appears that there is some misconception on the part of the appellants. At the outset, it is required to be noted that the orders dated 1-9-2016 and 28-10-2016 cannot be said to be the orders discharging the accused. If the applications submitted by the investigating officer/SHO and the orders passed thereon are considered, those were the applications to discharge/release the appellants herein from custody as at that stage the appellants were in judicial custody. Therefore, as such, those orders cannot be said to be the orders of discharge in stricto sensu. Those are the orders discharging the appellants from custody. Under the circumstances, the submission on behalf of the accused that as they were discharged by the learned Magistrate and therefore it was not open to the learned Magistrate to exercise the power under Section 319 CrPC and to summon the appellants to face the trial, cannot be accepted."
35. Irrespective of above noted judgements of Apex Court, wherein parameters regarding exercise of jurisdiction under section 319 Cr.P.C. and the nature of evidence required to summon a prospective accused has been fairly crystallized, yet the necessity to refer the matter again to a Constitution Bench for re-consideration arose in Sukhpal Singh Khaira (Supra). In aforesaid case, court was considering the summoning of a non charge-sheeted accused to face trial in a Sessions Trial under Sections- 302 read with Sections- 149 and 323 I.P.C. and Section 27 of Arms Act. Court noticed the observations made in paragraph 47 of the Constitution Bench in Hardeep Singh's case but still opined that the matter requires re-consideration by a Constitution Bench as certain questions still remain unanswered in Hardeep Singh's case and further the parameters regarding the exercise of jurisdiction under section 319 Cr.P.C. need to be re laid down. Following was observed by the Court in paragraphs 22, 23, 24, 25, 26 and 27:
"22. It was contended that the question of law herein is unique to the present case, and the earlier judgment of Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] did not have an opportunity to cast any light about the validity of summoning orders pronounced after the passing of the judgment. They further argued that, Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , treats Section 319 in an isolated manner without taking into consideration the spirit and the mandate of the Code.
23. To strengthen the aforesaid submission, the State further contended that Section 465 CrPC was introduced to provide for a balanced mechanism under the Criminal Justice System and to stop the courts from getting into hypertechnicalities and committing serious violations. This Court in Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] has not considered the above principles or the issues which could possibly arise before the trial court while dealing with applications under Section 319 CrPC. The State therefore submitted that, Section 319 CrPC should not be treated as an isolated island and should instead be given a pragmatic interpretation by keeping in view the entire mandate of the Code to render complete justice.
24. Furthermore, it needs to be determined whether the trial is said to be fully concluded even if the bifurcated trial in respect of the absconded accused is still pending consideration.
25. The appellant herein contended that, the observations made in Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , cannot be diluted by a Bench of this strength. We have considered the averments made by the counsel on behalf of both parties, we feel that it would be appropriate to place the same for consideration before a larger Bench. However, we are of the considered opinion that, power under Section 319 CrPC being extraordinary in nature, the trial courts should be cautious while summoning the accused to avoid complexities and to ensure fair trial. We must remind ourselves that, timely disposal of the matters furthers the interest of justice.
26. After pursuing the relevant facts and circumstances, the following substantial questions of law arise for further consideration--
26.1.(i) Whether the trial court has the power under Section 319 CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?
26.2.(ii) Whether the trial court has the power under Section 319 CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial?
26.3.(iii) What are the guidelines that the competent court must follow while exercising power under Section 319 CrPC?
27. In the light of the same, we direct the Registry to place these matters before the Hon'ble the Chief Justice of India for constitution of a Bench of appropriate strength for considering the aforesaid questions."
36. In Mani Pushpak Joshi (Supra), Court was considering correctness of an order passed by High Court refusing to set aside an order passed by trial Court allowing an application under section 319 Cr.P.C. in a case under Sections- 376(2) I.P.C. and Sections- 5/6 POCSO Act. In this case, Court noticed the observations made by Constitution Bench in Hardeep Singh's case in paragraphs 100, 105 and 106 of the judgement and paragraph 13 of the judgement in Labhuji Amratji Thakor Vs State of Gujarat, (2019) 12 SCC 644, which is regarding the nature of evidence required for summoning of a non charge sheeted accused and applying the principles laid down therein, Court ultimately resolved as follows in paragraphs 12, 13, 14, 15 and 16:
"12. In Labhuji Amratji Thakor v. State of Gujarat [Labhuji Amratji Thakor v. State of Gujarat, (2019) 12 SCC 644 : AIR 2019 SC 734] , this Court held that the Court has to consider substance of the evidence, which has come before it and has to apply the test i.e. "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. It was held as under: (SCC p. 649, paras 13-14) "13. The High Court [Meruji Jesuji Thakore v. State of Gujarat, 2018 SCC OnLine Guj 4765] does not even record any satisfaction that the evidence on record as revealed by the statement of victim and her mother even makes out a prima facie case of offence against the appellants. The mere fact that the Court has power under Section 319 CrPC to proceed against any person who is not named in the FIR or in the charge-sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 CrPC. The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh[Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] has to apply the test i.e. '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'.
14. Although, the High Court has not adverted to the test laid down by the Constitution Bench in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] nor has given any cogent reasons for exercise of power under Section 319 CrPC, but for our satisfaction, we have looked into the evidence, which has come on record before the trial court ... The observations of the trial court while rejecting the application having that the application appears to be filed with mala fide intention, has not even been adverted to by the High Court."
13. Having heard the learned counsel for the parties at some length, we find that the order summoning the appellant for the offences under Section 376(2) of the Penal Code, 1860 (for short "IPC") read with Sections 5/6 of the Protection of Children from Sexual Offences Act, 2012 (for short "the Pocso Act") is not sustainable in law.
14. The prosecutrix is a small child. It is parents of the child who have taken the photographs either from the website of the school or from Facebook to introduce a person with spectacles as an accused. The initial version of the father of the prosecutrix and of the prosecutrix herself, as disclosed by her father in the FIR, is assault by one person. But in view of statement of Gauri Vohra (PW 11), the anger was directed against the management of the school of which the appellant is a part. Even if the father of the child has basis to be angry with the management of the school but, we find that no prima facie case of any active part on the part of the appellant is made out in violating the small child. The involvement of other persons on the statement of the child of impressionable age does not inspire confidence that the appellant is liable to be proceeded under Section 319 CrPC. In fact, it is suggestive role of the family which influences the mind of the child to indirectly implicate the appellant.
15. Obviously, the father of the child must have anger against the management of the school as his child was violated when she was studying in the school managed by the appellant but, we find that the anger of the father against the management of the school including the appellant is not sufficient to make him to stand trial for the offences punishable under Section 376(2) IPC read with Sections 5/6 of the Pocso Act.
16. The statement of the child so as to involve a person wearing spectacles as an accused does not inspire confidence disclosing more than prima facie to make him to stand trial of the offences. Therefore, we hold that the order of summoning the appellant under Section 319 CrPC is not legal. The fact, that the prosecution after investigations has found no material to charge the present appellant also cannot be ignored. The heinous crime committed should not be led into prosecuting a person only because he was part of the management of the school. We have extracted the evidence led by the prosecution only to find out if there is any prima facie case against the appellant. We are satisfied that there is no prima facie case against the appellant, which warrants his trial for the offences pending before the Court."
37. In Sugreev Kumar (Supra), Court was examining correctness of an order passed by High Court, whereby order passed by trial Court allowing an application under section 319 Cr.P.C. in a case under Sections- 302, 307, 341, 34 I.P.C. and Sections- 25, 54 and 59 Arms Act, was upheld by the High Court. In this case also, Court considered the ratio laid down by Constitution Bench in Hardeep Singh's Case in paragraphs 95, 105 and 106 and thereafter Court formulated its view as follows in paragraphs 18, 19, 20, 21, 22 and 23:
"18. Thus, the provisions contained in Section 319 CrPC sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one, is to be exercised sparingly and only when cogent evidence is available. The prima facie opinion which is to be formed for exercise of this power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prima facie case as examined at the time of framing charge but not of satisfaction to the extent that the evidence, if goes uncontroverted, would lead to the conviction of the accused.
19. While applying the abovementioned principles to the facts of the present case, we are of the view that the consideration of the application under Section 319 CrPC in the orders impugned had been as if the existence of a case beyond reasonable doubt was being examined against the proposed accused persons. In other words, the trial court and the High Court have proceeded as if an infallible case was required to be shown by the prosecution in order to proceed against the proposed accused persons. That had clearly been an erroneous approach towards the prayer for proceeding against a person with reference to the evidence available on record.
20 The appellant (PW 1) has made the statement assigning specific roles to the proposed accused persons. At the stage of consideration of the application under Section 319 CrPC, of course, the trial court was to look at something more than a prima facie case but could not have gone to the extent of enquiring as to whether the matter would ultimately result in conviction of the proposed accused persons.
21. The other application moved by the prosecution after leading of further evidence in the matter has been rejected by the trial court essentially with reference to the impugned orders dated 24-7-2014 and 2-7-2018 [Sugreev Kumar v. State of Punjab, 2018 SCC OnLine P&H 1848] , which are the subject-matter of challenge in this appeal.
22. In the totality of the circumstances of this case, rather than dilating further on the evidence, suffice it would be to observe for the present purpose that the prayer of the prosecution for proceeding against other accused persons, having not been examined in the proper perspective and with due regard to the applicable principles, deserves to be restored for reconsideration of the trial court.
23. Accordingly, this appeal is allowed in part, to the extent and in the manner that the impugned orders are set aside and the applications made by the prosecution under Section 319 CrPC are restored for reconsideration of the trial court. In the interest of justice, it is made clear that we have not pronounced on the merits of the case either way and it would be expected of the trial court to reconsider the prayer of prosecution for proceeding against the proposed accused persons totally uninfluenced by any observation herein regarding facts of the case but with due regard to the evidence on record and to the law applicable."
38. In Labhuji Amratji Thakor (Supra), a three Judges Bench of Supreme Court considered the correctness of an order passed by High Court, whereby order passed by trial court rejecting an application under section 319 Cr.P.C in a case under Sections- 363, 366 I.P.C. and Sections- 3/4 POCSO Act, was set aside. Again Court took notice of paragraphs 105 and 106 of judgement in Hardeep Singh's case, and then applied the principles laid down therein to the facts of the case. Upon evaluation of facts in the light of above, Court concurred with the view of the trial court by observing as under in paragraphs 10, 11 and 12:
"10. In the present case, there are not even suggestions of any act done by the appellants amounting to an offence referred to in Sections 3 and 4 of thePocso Act. Thus, there was no occasion to proceed against the appellants under the Pocso Act.
11. Now, we come back to the reasons given by the High Court in allowing the criminal revision and setting aside the order of the Pocso Judge. The judgment of the High Court runs into four paragraphs and the only reason given by the High Court for allowing the revision is contained in para 3, which is to the following effect:
"3. On going through the depositions of the victim as well as her mother, some overtact and participation on the part of Respondents 3 to 5 are clearly revealing. But, this Court is not inclined to opine either way as the said fact was not stated before the police at the time of recording of their statements. But, taking into consideration the provision of Section 319 of the Criminal Procedure Code, this Court deems it appropriate to summon them and put them to trial...."
12. The High Court does not even record any satisfaction that the evidence on record as revealed by the statement of victim and her mother even makes out a prima facie case of offence against the appellants. The mere fact that the Court has power under Section 319 CrPC to proceed against any person who is not named in the FIR or in the charge-sheet does not mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 CrPC. The Court has to consider substance of the evidence, which has come before it and as laid down by the Constitution Bench in Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] has to apply the test i.e. "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." Although, the High Court has not adverted to the test laid down by the Constitution Bench in Hardeep Singh[Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] nor has given any cogent reasons for exercise of power under Section 319 CrPC, but for our satisfaction, we have looked into the evidence, which has come on record before the trial court as statements of PW 3 and PW 4. PW 3 is mother of the victim, who has clearly stated that her daughter has informed that she was abducted by the appellants and Natuji, who had taken her to the Morbi in the vehicle of Labhuji. The statement of the mother of the victim was a hearsay statement and could not have been relied for proceeding against the appellants. Now, coming to the statement of the victim, PW 4, she has only stated that Natuji, the accused had come along with his three friends, i.e. appellants and she was taken in the jeep to Morbi. She does not even allege complicity of the appellants in the offence. Her further statement was that she was taken to Morbi in the jeep driven by Labhuji and subsequently was taken to Modasa from Morbi in the jeep of Labhuji which also could not furnish any basis to proceed against the appellants. The mere fact that the jeep, in which she was taken to Modasa, the appellants were also present cannot be treated to be any allegation of complicity of the appellants in the offence. The observations of the trial court while rejecting the application holding that the application appears to be filed with mala fide intention, has not even been adverted to by the High Court."
39. In Shiv Prakash Mishra (Supra), Court again considered the veracity of an order passed on an application under section 482 Cr.P.C., whereby High Court refused to interfere with the order passed by trial Court declining to exercise jurisdiction under section 319 Cr.P.C. in a case arising out of Case Crime No. 328A/2013, under Sections- 148, 148, 149, 302, 307, 323 and 504 I.P.C. Again observations made by Constitution Bench in paragraphs 105 and 106 of judgement in Hardeep Singh's case as explained in paragraphs 13 of Brijendra Singh's case were noticed and on basis thereof court considered the nature of evidence required for summoning a non charge sheeted accused. It was in aforesaid background that Court examined the testimonies of P.W.1 and P.W.2 therein and summarized its views as follows in paragraphs 13, 14, 15, 16 and 17 of the judgement:
"13. In the light of the above principles, considering the present case, having regard to the contradictory statements of the witnesses and other circumstances, in our view, the trial court and the High Court rightly held that Respondent 2 cannot be summoned as an accused. The FIR in Case Crime No. 328-A/2013 was registered on 6-9-2013 at 1815 hours. The name of the second respondent is no doubt mentioned in the FIR and overt act is attributed to him. It is clear from the record that during the course of investigation, the investigating officer recorded the statements of witnesses, namely, Rajesh Kumar, Nizamuddin, Nand Kishore, Tribhuwan Singh, Bintu Rai and Nageshwar Kumar and other seven witnesses who have stated that Respondent 2 was not present at the place of occurrence at the time of the incident. The investigating officer has also recorded the statement of one Shiv Kumar Gupta and Sandeep Gupta who are working in the same office in which Respondent 2 was employed who had stated that Respondent 2 was in the office at the time of incident. Based on the statements recorded from the witnesses, the investigating officer found that the second respondent was posted on the post of Junior Engineer in the Bridge Construction Unit of Bridge Corporation, Lucknow and he usually resided there and on 6-9-2013, he was present at his workplace and discharging his official duties. Based on the materials collected during the investigation, the investigating officer recorded the finding that on the date and time of incident, Subhash Chandra Shukla was not present at the place of occurrence. Accordingly, the name of Subhash Chandra Shukla was dropped when the first charge-sheet was filed on 19-9-2014. The supplementary charge-sheet was filed against Rahul Shukla on 15-10-2014. Though the name of the second respondent was mentioned in the FIR, during investigation, it was thus found that the second respondent was not present in the place of incident and on the basis of the findings of the investigating officer, he was not charge-sheeted. Be it noted that the appellant complainant has not filed any protest petition then and there. During investigation, when it was found that the accused was not present at the place of incident, the courts below were right in refusing to summon Respondent 2 as an accused.
14. As pointed out by the trial court, PW 1 was examined on various dates from 22-10-2016 to 2-8-2017 and examined on nine hearing dates. Though, in his chief-examination on 22-10-2016, PW 1 has stated about the presence of Subhash Chandra Shukla and attributing overt act to him that he had beaten the deceased Sangam Lal Mishra with butt of home-made pistol, on 28-2-2017, PW 1 in his cross-examination stated that Subhash Chandra Shukla was on duty at that time. The relevant portion of the statement of PW 1 reads as under:
"... Subhash Chandra Shukla does not live in the house. He does service/job. At the same time in Jigna Police Station, District Mirjapur he was making bridge and due to this reason, he was on duty there...."
15. As pointed out by the trial court and the High Court, PW 1 has made contradictory statements in the course of his examination in connection with the presence of Subhash Chandra Shukla.
16. Anand Kumar Mishra (PW 2) has been examined who is stated to be the eyewitness. PW 2 has been working as Assistant Teacher (Shiksha Mitra). His duty time is from 7.00 a.m. till 12.00 noon. PW 2 though stated that he was on leave on the date of occurrence i.e. 6-9-2013, the trial court expressed doubts about his presence at the time of occurrence. Considering the fact that PW 2 is working as a teacher and that PW 2 is a co-accused in the cross-case, the trial court and the High Court expressed doubts about the evidence of PW 2 as to the presence of the second respondent. The evidence brought on record during trial does not prima facie show the complicity of Respondent 2 in the occurrence and the High Court was justified in refusing to summon Respondent 2 as an accused.
17. The High Court and the trial court concurrently held that the materials brought on record are not sufficient to summon the second respondent as an accused in the present case. No substantial ground is made out warranting interference and the appeal is liable to be dismissed."
40. In Sartaj Singh (Supra), Court was examining correctness of an order passed by the High Court, whereby High Court allowed the revision and set-aside the order passed by trial court on an application under Section 319 Cr.P.C., whereby non charge sheeted accused were summoned to face trial in a sessions case, arising out of an F.I.R. under Sections- 148, 149, 341, 323, 324, 307 and 506 I.P.C. Court noticed the Constitution Bench judgement in Hardeep Singh's case as well as the judgement in S. Mohammed Ispahani (Supra). After applying the law laid down therein, Court proceeded to deduce the nature of evidence that is required for summoning of a non charge-sheeted accused and upon evaluation, disagreed with the view expressed by High Court by drawing its disagreement as follows in paragraphs 14, 15, 16 and 17 of the judgement:
"14. Applying the law laid down by this Court in the aforesaid decisions to the case of the accused on hand, we are of the opinion that the learned trial court was justified in summoning the private respondents herein to face the trial as accused on the basis of the deposition of the appellant--injured eyewitness. As held by this Court in the aforesaid decisions, the accused can be summoned on the basis of even examination-in-chief of the witness and the court need not wait till his cross-examination. If on the basis of the examination-in-chief of the witness the court is satisfied that there is a prima facie case against the proposed accused, the court may in exercise of powers under Section 319 CrPC array such a person as accused and summon him to face the trial.
15. At this stage, it is required to be noted that right from the beginning the appellant herein-injured eyewitness, who was the first informant, disclosed the names of private respondents herein and specifically named them in the FIR. But on the basis of some enquiry by the DSP they were not charge-sheeted. What will be the evidentiary value of the enquiry report submitted by the DSP is another question. It is not that the investigating officer did not find the case against the private respondents herein and therefore they were not charge-sheeted. In any case, in the examination-in-chief of the appellant-injured eyewitness, the names of the private respondents herein are disclosed. It might be that whatever is stated in the examination-in-chief is the same which was stated in the FIR. The same is bound to be there and ultimately the appellant herein-injured eyewitness is the first informant and he is bound to again state what was stated in the FIR, otherwise he would be accused of contradictions in the FIR and the statement before the court. Therefore, as such, the learned trial court was justified in directing to issue summons against the private respondents herein to face the trial.
16. Now, so far as the impugned judgment and order [Manjeet Singh v. State of Haryana, 2020 SCC OnLine P&H 2782] passed by the High Court is concerned, it appears that while quashing and setting aside the order passed by the learned trial court, the High Court has considered/observed as under: (Manjeet Singh case [Manjeet Singh v. State of Haryana, 2020 SCC OnLine P&H 2782] , SCC OnLine P&H paras 29-30) "29. No evidence except the statement of Sartaj Singh, which has already been investigated into by the DSPs concerned was relied upon by the trial court to summon, which was not sufficient for exercising power under Section 319 CrPC.
30. As per statement of Sartaj Singh, Palwinder Singh and Satkar Singh gave him lathi-blows on the head. Manjeet Singh, Amarjeet Singh, Rajwant Singh, Narvair Singh and Sukhdev Singh were holding gandasi. Manjeet Singh, Amarjeet Singh and Rajwant Singh gave him gandasi-blows on the head and face. All the injuries are stated to fall in the offence under Sections 323, 324, 326, 341 read with Section 149 IPC. In case, so many people as mentioned above were giving gandasi and lathis blows on the head, Sartaj Singh was bound to have suffered more injuries, which would not have left him alive and probably he would have been killed on the spot. He seems to have escaped with only such injuries as have invited offence only under Sections 323, 324, 326, 341 read with Section 149 IPC. Therefore, the trial court erred in exercising his jurisdiction summoning the other accused where exaggeration and implication is evident on both sides."
17. The aforesaid reasons assigned by the High Court are unsustainable in law and on facts. At this stage, the High Court was not required to appreciate the deposition of the injured eyewitness and what was required to be considered at this stage was whether there is any prima facie case and not whether on the basis of such material the proposed accused is likely to be convicted or not and/or whatever is stated by the injured eyewitness in his examination-in-chief is exaggeration or not. The aforesaid aspects are required to be considered during the trial and while appreciating the entire evidence on record."
41. In Manjeet Singh (Supra), Court was considering the correctness of an order passed by High Court dismissing the revision preferred against an order passed by Sessions Judge allowing the application under Section 319 Cr.P.C. filed in a case under Sections 363, 366, 376 IPC and Sections 3/4 Protection of Children From Sexual Offences, (POCSO) Act, 2012 Court again examined the issue relating to parameters for exercise of jurisdiction under section 319 Cr.P.C. Court took notice of the constitution Bench judgement in Hardeep Singh (Supra) and S. Mohammed Ispahani (Supra) and on basis of ratio laid down therein evolved the ambit and scope of powers of Court under section 319 Cr.P.C. in paragraphs 34 of judgement. Having done so, Court examined the testimony of P.W.1 Manjeet who is an injured witness and on basis thereof tested the veracity of orders passed by High Court as well as trial court whereby summoning of non charge sheeted accused was declined. Court upon evaluation of evidence on record disagreed with the view taken by High Court as well as trial court. Following disagreement was expressed by court in paragraphs 34, 35, 36, 37 and 38 of the judgement:
"34. The ratio of the aforesaid decisions on the scope and ambit of the powers of the Court under Section 319 CrPC can be summarized as under:
(i) That while exercising the powers under Section 319 CrPC and to summon the persons not charge-sheeted, the entire effort is not to allow the real perpetrator of an offence to get away unpunished;
(ii) for the empowerment of the courts to ensure that the criminal administration of justice works properly;
(iii) the law has been properly codified and modified by the legislature under the CrPC indicating as to how the courts should proceed to ultimately find out the truth so that the innocent does not get punished but at the same time, the guilty are brought to book under the law;
(iv) to discharge duty of the court to find out the real truth and to ensure that the guilty does not go unpunished;
(v) where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial;
(vi) Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it;
(vii) the court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency;
(viii) Section 319 CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial;
(ix) the power under Section 319(1) CrPC can be exercised at any stage after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pre-trial stage intended to put the process into motion;
(x) the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence;
(xi) the word "evidence" in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents;
(xii) it is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation;
(xiii) if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s);
(xiv) that the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, powers under Section 319 CrPC can be exercised;
(xv) that power under Section 319 CrPC can be exercised even at the stage of completion of examination-in-chief and the court need not has to wait till the said evidence is tested on cross-examination;
(xvi) even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in FIR but not implicated in the charge-sheet can be summoned to face the trial, provided during the trial some evidence surfaces against the proposed accused (may be in the form of examination-in-chief of the prosecution witnesses);
(xvii) while exercising the powers under Section 319 CrPC the Court is not required and/or justified in appreciating the deposition/evidence of the prosecution witnesses on merits which is required to be done during the trial.
35. Applying the law laid down in the aforesaid decisions to the facts of the case on hand we are of the opinion that the Learned trial Court as well as the High Court have materially erred in dismissing the application under Section 319 CrPC and refusing to summon the private respondents herein to face the trial in exercising the powers under Section 319 CrPC. It is required to be noted that in the FIR No. 477 all the private respondents herein who are sought to be arraigned as additional accused were specifically named with specific role attributed to them. It is specifically mentioned that while they were returning back, Mahendra XUV bearing no. HR-40A-4352 was standing on the road which belongs to Sartaj Singh and Sukhpal. Tejpal, Parab Saran Singh, Preet Samrat and Sartaj were standing. Parab Sharan was having lathi in his hand, Tejpal was having a gandsi, Sukhpal was having a danda, Sartaj was having a revolver and Preet Singh was sitting in the jeep. It is specifically mentioned in the FIR that all the aforesaid persons with common intention parked the Mahendra XUV HR-40A-4352 in a manner which blocks the entire road and they were armed with the weapons. Despite the above specific allegations, when the charge-sheet/final report came to be filed only two persons came to be charge-sheeted and the private respondents herein though named in the FIR were put/kept in column no. 2. It is the case on behalf of the private respondents herein that four different DSPs inquired into the matter and thereafter when no evidence was found against them the private respondents herein were put in column no. 2 and therefore the same is to be given much weightage rather than considering/believing the examination-in-chief of the appellant herein. Heavy reliance is placed on the case of Brijendra Singh (Supra). However none of DSPs and/or their reports, if any, are part of the charge-sheet. None of the DSPs are shown as witnesses. None of the DSPs are Investigating Officer. Even on considering the final report/charge-sheet as a whole there does not appear to be any consideration on the specific allegations qua the accused the private respondents herein who are kept in column no. 2. Entire discussion in the charge-sheet/final report is against Sartaj Singh only.
36. So far as the private respondents are concerned only thing which is stated is "During the investigation of the present case, Shri Baljinder Singh, HPS, DSP Assandh and Shri Kushalpal, HPS, DSP Indri found accused Tejpal Singh, Sukhpal Singh, sons of Gurdev Singh, Parab Sharan Singh and Preet Samrat Singh sons of Mohan Sarup Singh caste Jat Sikh, residents of Bandrala innocent and accordingly Sections 148, 149 and 341 of the IPC were deleted in the case and they were kept in column no. 2, whereas challan against accused Sartaj has been presented in the Court."
37. Now thereafter when in the examination-in-chief the appellant herein - victim - injured eye witness has specifically named the private respondents herein with specific role attributed to them, the Learned trial Court as well as the High Court ought to have summoned the private respondents herein to face the trial. At this stage it is required to be noted that so far as the appellant herein is concerned he is an injured eye-witness. As observed by this Court in the cases of State of MP v. Mansingh(2003) 10 SCC 414 (para 9); Abdul Sayeed v. State of MP (2010) 10 SCC 259; State of Uttar Pradesh v. Naresh (2011) 4 SCC 324, the evidence of an injured eye witness has greater evidential value and unless compelling reasons exist, their statements are not to be discarded lightly. As observed hereinabove while exercising the powers under Section 319 CrPC the Court has not to wait till the cross-examination and on the basis of the examination-in-chief of a witness if a case is made out, a person can be summoned to face the trial under Section 319 CrPC.
38. Now so far as the reasoning given by the High Court while dismissing the revision application and confirming the order passed by the Learned trial Court dismissing the application under Section 319 CrPC is concerned, the High Court itself has observed that PW1 Manjeet Singh is the injured witness and therefore his presence cannot be doubted as he has received fire arm injuries along with the deceased. However, thereafter the High Court has observed that the statement of Manjeet Singh indicates over implication and that no injury has been attributed to either of the respondents except they were armed with weapons and the concerned injuries are attributed only to Sartaj Singh even for the sake of arguments someone was present with Sartaj Singh it cannot be said that they had any common intention or there was meeting of mind or knew that Sartaj would be firing. The aforesaid reasonings are not sustainable at all. At the stage of exercising the powers under Section 319 CrPC, the Court is not required to appreciate and/or enter on the merits of the allegations of the case. The High Court has lost sight of the fact that the allegations against all the accused persons right from the very beginning were for the offences under Sections 302, 307, 341, 148 & 149 IPC. The High Court has failed to appreciate the fact that for attracting the offence under Section 149 IPC only forming part of unlawful assembly is sufficient and the individual role and/or overt act is immaterial. Therefore, the reasoning given by the High Court that no injury has been attributed to either of the respondents except that they were armed with weapons and therefore, they cannot be added as accused is unsustainable. The Learned trial Court and the High Court have failed to exercise the jurisdiction and/or powers while exercising the powers under Section 319 CrPC."
42. With the aid of above, this Court now proceeds to examine the correctness of impugned order dated 15.02.2021, whereby applicants have been summoned under Section 319 Cr.P.C. to face trial in above-mentioned sessions trial.
13. Before proceeding to do so, it must be noticed that following issues stand settled as per the judgements mentioned herein above and, therefore, they are not required to be dealt with.
44. An application under section 319 Cr.P.C. can be filed by the prosecution as well as the accused vide Bholu Ram (Supra).
45. The ambit and scope of powers under Section 319 Cr.P.C. now stands crystalized by Supreme Court in paragraph- 34 of the judgement in Manjeet Singh (supra).
46. The summoning of a non charge-sheeted accused in exercise of power under Section 319 Cr.P.C. cannot be done in a "casual and cavalier manner". Power under Section 319 Cr.P.C. is "an extraordinary discretionary power which should be exercised sparingly". Vide paragraphs- 34 and 36 of the judgement in S. Mohammed Ispahani (supra) and paragraph- 105 of the Constitution Bench judgement in Hardeep Singh (supra).
47. The nature of evidence required for summoning a non charge-sheeted accused to face trial, has been summarized in paragraph- 106 of the Constitution Bench judgement in Hardeep Singh (supra), wherein Constitution Bench has held that a prospective accused can be summoned on the basis of Statement-in-Chief of prosecution witness of fact. The only requirement is that such statement discloses 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. The second test laid down therein is that such person could be tried with other accused. In paragraph- 36 of the judgement in S. Mohammed Ispahani (supra) Court held that a non charge sheeted accused can be summoned only on the basis of "strong and cogent evidence".
48. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Vide paragraph 37 of judgement in Manjeet Singh (Supra).
49. Having noted the settled position, this Court has to now consider whether on the basis of the testimonies of P.W.1 and P.W.2, and the material collected by the Investigating Officer during the course of investigation, "strong and cogent evidence" has emerged against applicants whereby something more than mere complicity of applicants is established in the crime in question and therefore applicants could have been summoned by court below. As an ancillary issue, Court will also have to consider as to whether court below has exercised it's jurisdiction "diligently" or as termed by Apex Court in a "casual and cavalier manner."
50. It is the basic prosecution case as per the F.I.R. that after hearing the noise of gun shot and the shouts of Babulal the injured, four persons namely, Amit Kumar (first informant)/son of deceased, Nishu Verma (P.W.3), Vinod Kumar and Motilal (P.W.2) together proceeded to the place of occurrence i.e. the tubewell. However, the injured Babulal was recovered from a place which is before the place of occurrence. It is, thereafter, that alleged disclosure was made by injured Babulal to first informant and two others. It is thus apparent that as per the F.I.R., that first informant and the persons who accompanied the first informant did not witness the occurrence. Named accused have been nominated in the crime in question as per the disclosure made by injured Babulal (deceased) soon before his death to his son Amit Kumar, the first informant.
51. P.W.1 Amit Kumar is the first informant. He is also the son of deceased Babulal. This witness was examined under section 161 Cr.P.C. by the Investigating Officer. His deposition before the Court below is similar and identical to his statement recorded under section 161 Cr.P.C. As per the statement of this witness, after hearing the gun shot and the shouts of Babulal, who is his father and was suffering from pain and agony, he along with three others namely, Nishu Verma, Vinod Kumar and Moti Lal together proceeded towards the tube well, where his father had gone for irrigating his agricultural field. However, he did not see any of the named accused near the place of occurrence. Named accused have been implicated in the crime in question only on the basis of the alleged disclosure alleged to have been made by deceased Babulal to this witness before his death. Prima facie, this witness cannot be contradicted with his previous statement.
52. P.W.2 Motilal is the brother of deceased Babulal and uncle of first informant Amit Kumar. This witness was examined by Investigating Officer under section 161 Cr.P.C. In his statement before the Investigating Officer this witness has not stated that named accused were seen by him running away from the place of occurrence on bicycles. To the contrary he has stated that his nephew Amit Kumar disclosed the names of accused involved in the crime in question. His statement under Section 161 Cr.P.C. does not support the prosecution version of the occurrence as unfolded in F.I.R. This witness was examined after the deposition of P.W.1 was over. He has made a departure from his previous statement under section 161 Cr.P.C. In his deposition before court below, he has clearly stated that the accused were seen by him running away on bicycles near the place of incidence. He has further stated that the injured Babulal disclosed the names of accused to him. No explanation regarding aforesaid has been offered by this witness in his deposition before Court below. Moreover, the other two persons who accompanied this witness to the place of occurrence i.e. P.W.1 and P.W.3 have not deposed that applicants were seen by them running away from the place of occurrence. Thus in the totality of things, aforesaid part of the deposition of this witness before Court below is beyond the basic prosecution case as unfolded in F.I.R. The testimony of this witness to the aforesaid extent is over and above his statement under section 161 Cr.P.C. as well as the basic prosecution case/the prosecution story, which the prosecution set out to prove. The Court has therefore, no hesitation to conclude that aforesaid part of the deposition of this witness falls in the category of exaggeration and embellishment and therefore, to that extent the same is not worthy of trust and reliance.
53. P.W.3 Nishu Verma is cousin of first informant Amit Kumar. He is also a witness nominated in the F.I.R. This witness along with three others i.e. Amit Kumar, Motilal and Vinod Kumar also reached the place of occurrence but after the incident was over. This witness was examined under section 161 Cr.P.C. This witness in his statement before Investigating Officer has categorically stated that on a query raised by him to the injured Babulal, he disclosed that the gun shot injury was sustained by him on account of the shot fired by accused Radhey Lal. However, the injured did not disclose the names of other two accused, Ramswaroop and Ramsnehi i.e. the applicants herein regarding their complicity in the crime in question. This witness in his deposition before Court below denied his statement under section 161 Cr.P.C. This witness has thus not implicated the present applicants in the crime in question.
54. Apart from above, on the record is the statement of Kushuma Devi widow of deceased who was also examined by the Investigating Officer under section 161 Cr.P.C. This witness has also stated that disclosure was made to her by her husband Babulal (deceased) soon before his death that on account of gun shot fired by Babulal, he sustained injuries. This witness is the widow of deceased yet she has not implicated the applicants in the crime in question.
55. Various other witnesses detailed in paragraph 8 (ii) of this judgement were also examined by the Investigating Officer under section 161 Cr.P.C. However, these witnesses have not implicated the applicants in the crime in question.
56. It is thus apparent that the injured before his death is alleged to have disclosed about the incident to his son Amit Kumar, his brother Moti Lal, his distant relative, Nishu Verma and his wife Kusuma Devi. What will be the nature of the disclosures made by deceased soon before his death i.e. whether they shall be treated as oral dying declarations or simply here-say evidence is the question, which falls for determination.
57. The evidence of P.W.1 Amit Kumar, P.W.2 Moti Lal, P.W.-3 Nishu Verma and Kusuma Devi are not consistent and categorical. It is well settled that though a witness cannot be contradicted with the statement of another witness but the prosecution evidence must be clear, categorical and cogent regarding the very prosecution story, which the prosecution set out to prove. It is equally true that F.I.R. is not the encyclopedia of prosecution case, but it must disclose the basic prosecution case. In the case in hand, it is the basic prosecution case that after hearing the sound of gun-shot and cries of injured Babulal, first informant alongwith three others together proceeded to the place of occurrence i.e. the tube-well, where the injured Babu Lal had gone for irrigating his field. However, the injured Babulal was recovered from a place before the place of occurrence. It is at this juncture that the disclosure, as alleged in the F.I.R., is said to have been made by the injured to first informant and thereafter, to other persons.
58. It is apposite to mention here that there is no direct or circumstantial evidence against the accused.
59. The Court is first required to examine the nature of the alleged disclosures alleged to have been made by injured-Babu Lal (deceased) soon before his death to various persons as well as its reliability and admissibility. The said exercise has to be first undertaken in the light of the provisions contained in Section 6 read with section 60 of the Indian Evidence Act.
60. For ready reference Sections 6 and 60 of Indian Evidence Act are extracted herein under:
"6. Relevancy of facts forming part of same transaction.--Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
(b) A is accused of waging war against the 1[Government of India] by taking part in an armed insurrection in which property is destroyed, troops are attacked, and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.
(d) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact."
"60. Oral evidence must be direct.--Oral evidence must, in all cases whatever, be direct; that is to say-- If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection."
61. When the depositions of P.W.1, P.W.-2 and P.W.3 as well as the statement of Kushma Devi, widow of deceased, recorded under section 161 Cr.P.C, are examined in the light of aforesaid provisions the position that emerges is that the statements of P.W.1 P.W.2 and P.W.-3 are relevant for the facts that the witnesses P.W.-1, P.W.-2, P.W.-3 along with another person namely Vinod Kumar, after hearing the sound of gun shot and the cries of injured Babu Lal was recovered by them. Thus, first informant and three others met the injured after the incident was over. The injured was, thereafter, administered some aid and then taken to hospital, where he succumbed to the injuries sustained by him. It may be noted here that P.W.-3, Nishu Verma was subsequently declared hostile. However, the statement of the hostile witness is not completely unreliable but is reliable to the extent it supports the prosecution case. However, the above by themselves do not prove the disclosures alleged to have been made by Babu Lal (deceased) soon before his death. They will only prove the facts that injured was recovered by first informant alongwith three others, a gun shot injury was found on his person, some first aid was administered to injured, some dialogue took place in between the injured and aforesaid persons, injured being taken to Hospital by first informant and others and ultimately, his death on account of the gun shot injury sustained by him at the Hospital.
62. It is thus apparent that soon before his death, Babu Lal, the injured, disclosed the factum of occurrence to his son Amit Kumar, Moti Lal (his brother), Nishu Verma (a distant relative) and Kushma Devi (his wife). The said disclosures shall fall in the category of multiple oral dying declarations. As the same are not similar and consistent, therefore, the prosecution of the named accused cannot be based solely on the basis of the same. This Court thus out of necessity has to look for corroboration of the same with the material on record and find out as to whether injured Babulal was in such a physical and mental position to make the statement. The Court has to further satisfy itself regarding the truth-fullness of the same in the light of the attending circumstances before placing reliance upon the same.
63. It is an undisputed fact that present applicants were exculpated by the Investigating Officer in the charge sheet dated 14.10.2017. During course of investigation, Amit Kumar (P.W.1) son of first informant, Moti Lal (P.W.2) brother of deceased, Nishu Verma (P.W.3), a distant relative and Kushuma Devi (widow of deceased) were examined by Investigating Officer, under Section 161 Cr.P.C. The statements of aforementioned witnesses are neither consistent nor categorical regarding the very story which the prosecution set out to prove.
64. This leads to the ancillary question as to whether the alleged disclosures made by injured Babu Lal before his death, can be relied upon or not? Section 32 of the Indian Evidence Act deals with dying declaration. Same is accordingly extracted herein-under for ready reference as well as for better appreciation of the issue involved herein:
"Section 32 in The Indian Evidence Act, 1872 32 Cases in which statement of relevant fact by person who is dead or cannot be found, etc ., is relevant. --Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:--
1 when it relates to cause of death. --When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
2 or is made in course of business. --When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.
3 or against interest of maker. --When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.
4 or gives opinion as to public right or custom, or matters of general interest. --When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.
5 or relates to existence of relationship. --When the statement relates to the existence of any relationship 25 [by blood, marriage or adoption] between persons as to whose relationship 25 [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
6. or is made in will or deed relating to family affairs. --When the statement relates to the existence of any relationship 25 [by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait, or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.
7. or in document relating to transaction mentioned in section 13, clause (a). --When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a).
8. or is made by several persons, and expresses feelings relevant to matter in question. --When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question. "
65. The scope of Section 32 of Indian Evidence Act and its exceptions have been exhaustively dealt with by the Full Bench of Bombay High Court in Ramesh Vs. State of Maharastra, (2011) SCC On Line Bom. 1137. Therefore there is no necessity for this Court to undertake a chronological survey of the same. Paragraphs 17.1 to 19.3 of the afaoresaid report are relevant for the controversy in hand. Accordingly, same are reproduced herein-under:
"17.1. Though we do not find the term "hearsay" or definition of the term "hearsay" in the Evidence Act, it means that the evidence which a witness does not give of his own knowledge, but says that another person has said or signified to him. The correct rule as to "hearsay" therefore, is the statements, oral or written, reported to have been made by persons, not called as witnesses, are not admissible in evidence, subject to certain exceptions. Section 32(1) is one such exception, under which the statement of a dying person is made admissible in evidence.
17.2. A dying declaration is indirect evidence, being a specie of "hearsay" yet, it is an exception to the rule against admissibility of hearsay evidence. It is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an Accused. How much weight can be attached to a dying declaration, however, is a question of fact and has to be determined on the facts and circumstances of each case. Ram Bihari Yadav v. State of Bihar, 1998 Crl.L.J. 2515.
18. Section 32(1) of the Evidence Act was not referred or considered in Jivan Tulshiram Dhavali's case. We would, therefore, like to consider the said provision in depth and its effect on the view taken in that case.
18.1. To understand the purport of Section 32(1) of the Evidence Act it would be relevant to have a glance at it. Section 32(1) reads thus:
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:
(1) When it relates to cause of death. When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question."
(Emphasis supplied) 18.2. Before we proceed further, it would be relevant to see what the Supreme Court has observed while dealing with Section 32 in P.V. Radhakrishna, which reads thus:
"10. At this juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short ''Evidence Act') which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz., if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are; firstly, necessity for the victim being generally the only principal eyewitness the crime, the exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice."
(Emphasis supplied) 18.3. In Sukanti Moharna v. State of Orissa, 2009 AIR SCW 6161, while dealing with Section 32 of the Evidence Act, the Supreme Court observed thus:
"22. Section 32 of the Indian Evidence Act, 1872 deals with the statement of persons who cannot be called as witnesses as because they are dead or they cannot be found or they have become incapable of giving evidence or their evidence cannot be procured without an amount of delay or expense. Such statements themselves are relevant facts in certain cases. The aforesaid Section 32 was enacted as an exception to the general rule as reflected in Section 60 of the said Act which mandates that oral evidence in all cases must be direct i.e. if it refers to a fact which could be seen, it should be the evidence of a witness who says he saw it, whereas if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it or if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner."
(Emphasis supplied) 18.4. Section 32(1) of the Evidence Act renders a statement relevant which was made by a person who is dead in cases in which cause of his death comes into question. Therefore, before the "statement" under Section 32(1), which is generally described as "dying declaration", is admitted, it must be proved that the person who made it is dead. Its admissibility depends upon one of the two conditions embodied in the Section. Firstly, either such statement should relate to the cause of his death or, secondly, it should relate to any of the circumstances of the transaction which resulted in his death. Thus, a statement of relevant facts by person who is dead is relevant under Section 32(1) of the Evidence Act.
18.5. A plain reading of Section 32(1), shows that statements, oral or verbal, of relevant fact made by a person who is dead, are themselves relevant fact when it is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant where the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
18.6. Section 32(1) uses the expression "written or verbal". If both these words are deleted and the Section is read, still it conveys the same meaning. It does not make any distinction between "written" and "verbal" statement of relevant facts made by a person who is dead. However, by using the words "written or verbal" the Legislature has made its intention clear so as to say that there could be either written or verbal statement of relevant fact made by a person who is dead. In other words though Section on the face of it does not make any distinction, the language employed would show that there could be either "verbal" or "written" statement by a person who is dead, as to the cause of his death or the circumstances resulting in his death in cases in which cause of his death comes into question.
18.7. When statement of a dying person is recorded by a person/Magistrate/Executive Magistrate in writing it would be a "written statement" or "statement in writing" within the meaning of Section 32(1) of the Evidence Act. A recorder of such statement is supposed to be an independent person, having no concern with the incident in which a maker of the statement sustained fatal injuries or is not acquainted with the facts and circumstances of the case. In other words, he is not a witness to the incident and/or supposed to have any knowledge about the name and act of the Accused which caused fatal injuries to the deceased.
18.8. On the other hand, oral statement as to the cause of death or to the circumstances resulting in death, made by the deceased to a witness, who may or may not have any connection with the Accused/deceased/alleged incident, would be a "verbal statement" within the meaning of Section 32(1) of the Evidence Act. A verbal statement of the deceased to the witnesses, is a weak kind of evidence, since the exact words uttered by the deceased are not available, particularly because of the failure of memory of the witnesses, who are said to have heard it. However, the verbal statements against interest are equally receivable as written, although the weight of the latter (written) may be much greater than the former (verbal). Oral dying declaration can also be a basis for conviction of the Accused. In short, where the statement, written or verbal, of relevant facts made by a person who is dead, is relevant when it relates to the cause of death, they both are equally receivable, though the reliability thereof always depends upon facts and circumstances of each case.
18.9. A verbal statement made by a person who is dead as to the cause of death, or as to any of the circumstances of the transaction which resulted in death, under any circumstances, cannot be admitted in evidence or held to be proved unless the person who heard it made, repeats the words spoken by the deceased or deposes as to what was stated by the deceased. In other words, a oral statement of the deceased could be treated as "verbal statement" of the relevant facts, within the meaning of Section 32(1), only if the words spoken by the deceased or the gist of what the deceased told to any "witness" as to the cause of his death or as to the circumstances which resulted in his death are repeated/stated in the deposition before Court by the witness who heard it made. Thus, deposing the gist or the "words spoken" by the deceased as to the cause of death, or to the circumstances of the transaction which resulted in death, by the "witness" who heard it made, is an essential requirement of law to bring it on record. If the witness examined in order to prove the oral dying declaration, does not depose/state what the deceased told him as to the cause of death or the circumstances resulted in his death, it cannot be treated as relevant facts as contemplated by Section 32(1) of the said Act.
18.10. The word "statement" in Section 32(1) of the Evidence Act is not defined in the Act, though it has been used in number of Sections. We have, therefore, to go to its primary meaning that "something that is stated". Bhogilal Chunilal Pandya v. State of Bombay, AIR 1959 SC 356 (V 46 C 47). In short, statement could be written or verbal as contemplated by Section 32(1). A "Verbal statement" as contemplated by Section 32(1) means repetition/reproduction of the words spoken by or of the statement of the deceased by the witness who heard him made. A "written statement", contemplated by Section 32(1) means a statement that is taken down in writing as made by the deceased, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death 18.11. Thus, the statements contemplated by Section 32(1), are the statements, written or verbal, made by a person who is dead, are themselves relevant facts, when it relates to the cause of his death. There is a requirement of law that the "statement" as contemplated by Section 32(1) should contain the cause of death, or any of the circumstances of the transaction which resulted in death of its maker, and in the absence thereof it cannot be treated as "relevant facts in issue" and admitted in evidence under this provision. Section 32(1) does not provide that a recorder of the dying declaration should repeat the contents of such "statement" of the deceased. Even in case of "verbal statement", the witness who heard it made, requires to repeat its contents/gist in order to bring it on record, being a relevant fact in issue, and though it is hearsay, repetition thereof is made an exception to the hearsay rule.
18.12. If it is held to be essential requirement of law that statement/dying declaration in writing needs to be repeated/reproduced in the words spoken by the deceased as to the cause of his death, then there would be no difference between "oral dying declaration" and "written dying declaration" and in that eventuality it would not be necessary to reduce the dying declaration in writing. Such anomaly would frustrate the purport of statute. A Magistrate who records the statement is not supposed to be acquainted with the facts and circumstances of the case. He records dying declaration at the request of Police. Sometimes, Doctor records the cause of death as stated by the victim in the medical papers, and in some cases, Police Officer records it. They are all independent witnesses, having no concern with the alleged incident, or with the Accused/victim. They are not supposed to be acquainted with the facts and circumstances of the case. That is the reason why statements of such witnesses are never recorded under Section 161 of the Cr.P.C. by any Police Officer in the course of investigation.
18.13. Under Section 161, any Police Officer making an investigation is empowered to examine orally any person supposed to be acquainted with the facts and circumstances of the case. No question, as submitted by learned P.P., can be put to such witness as to the cause of death; in the sense, the Magistrate cannot be questioned in respect of an identity of the Accused who, allegedly, caused fatal injuries, how the declarant was assaulted, what was the reason, etc. Therefore, even if the Magistrate does not repeat the words spoken by the deceased or the contents of his statement, as to the cause of his death, in our opinion, that would not cause any prejudice to the Accused. It was further submitted that one can put questions/case in the cross-examination to such witness challenging the procedure that was followed for recording a dying declaration, mental fitness/condition of a dying person, or his physical condition so as to prove that no statement could have been made and/or the statement so recorded suffers from infirmities, and so also that it was not voluntary and result of prompting/tutoring, vindictive and product of imagination. However, in our opinion, the Courts cannot place any embargo on the prerogative of the Accused to cross examine the witness unless the question/s is/are irrelevant in facts of the case.
18.14. In our opinion, the recorder of "a statement/dying declaration" does not offer himself for cross-examination as if he is the deceased. He is only supposed to bring the statement of the deceased on record and prove the contents thereof. As a matter of fact, the dying declaration can be proved even if its recorder is not available, being dead or who cannot be found or, for any reason whose attendance cannot be procured. Any other person such as a Doctor/Nurse, if states, that he/she was present when the deceased made such statement, in our opinion, may be sufficient to admit the dying declaration. In that eventuality, if such witness deposes before the Court that he was present when the statement was recorded by a Magistrate, he heard the deceased making such statement, saw the Magistrate recording it, taking the signature/thumb impression of its maker, and also putting his signature thereon, etc. may be sufficient to prove the contents of such statement. Whether to form conviction on the basis thereof, however, would be a matter of appreciation of evidence.
18.15. It is common knowledge that Magistrates/Executive Magistrates who are always willing and make themselves available to record dying declarations are often called by Police. In some cases, we find that a particular Magistrate records 10/15 dying declarations in a week or 20/25 in a month. In such a situation, it would be humanly impossible for any Magistrate to remember contents of the statements recorded by him and to reproduce while deposing before the Court. It is true that Magistrate while under examination can refresh his memory as provided for under Section 159 of the Evidence Act. That being so, in our opinion, expecting the Magistrate, after referring to the statement recorded by him, to repeat and/or reproduce contents thereof, would be too technical and would create violence to logic. In Criminal trials, while dealing with such evidence Courts have to be rational and realistic and need not take dogmatic and hyper-technical approach. The Courts cannot ignore or turn its mind/attention away from the truth of the cause, in disregard to its duty to prevent miscarriage of justice.
18.16. In Paniben (supra), the Supreme Court observed that the situation in which a person is on death bed is so solemn and serene when he is dying, the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded, it will result in miscarriage of justice because the victim being generally the only eye witness in a serious crime, and that it would leave the Court without a scrap of evidence (P.V. Radhakrishna v. State of Karnataka, (2003) 6 SCC 443 : AIR 2003 SC 2859).
19. Having considered the provisions contained in Section 32(1) of the Evidence Act, we would now like to consider as to when the "statement" of a deceased recorded in writing by a Magistrate could be said to be proved and Court can base its conviction with or without further corroboration. To prove a dying declaration, so as to form the sole basis of conviction, in our opinion, it has to pass through three stages in the course of trial, and if the dying declaration passes through all the stages successfully, the Accused could be convicted solely on the basis thereof without corroboration. The first stage is to admit and exhibit the statement/dying declaration, the second is to prove the contents thereof, and lastly, it should be proved that the statement was voluntary and trustworthy, apart from the fact it is equally necessary to prove that such statement was made by the deceased in a fit state of mind. Unless the dying declaration passes through all the stages and stands to all the tests successfully, it cannot form the sole basis of conviction without corroboration. Each case, therefore, must be determined on its own facts keeping in view the circumstances in which dying declaration is made.
19.1. To prove the dying declaration the prosecution needs to bring it on record through a competent witness or it should come on record from proper custody and, once it is placed on record, the Court can admit and exhibit the same. However, mere production and marking of the dying declaration as exhibit cannot be held to be a proof of its contents. Therefore, the next stage is to prove the contents of the statement. The best person/witness to prove the contents of the statement, within the meaning of Section 32(1), is its recorder. If the recorder of the statement appears before the Court as a witness and deposes that he recorded the said statement by following the proper procedure, that is to say, in the form of questions and answers and, as far as practicable, in the words of the maker of the statement/declaration, and that the maker was well oriented/in a fit state of mind to make the declaration and if the declaration is signed by or thumb impression is put by the declarant in approval thereof, and was also signed by the Magistrate, in our opinion, the contents thereof would stand proved provided nothing is elicited in the cross-examination so as to create doubt about its contents. In similar manner, as observed earlier, the contents can also be proved by any other witness, if the recorder is not available, who was present when the statement was recorded by the Magistrate.
19.2. The third stage is to prove that the dying declaration is trustworthy and voluntary. In Criminal cases mere proving the contents of the dying declaration would not be sufficient and the Courts require to further examine whether the statement was voluntary; whether it is truthfu1/trustworthy. In short, merely because the proper procedure was followed by the recorder of a dying declaration/statement, and he proves the contents thereof would not mean that the contents of the dying declaration are truthfu1/trustworthy, and voluntary to form the basis for conviction without corroboration. Whether to accept the dying declaration as a truthful evidence, and to convict the Accused on the basis thereof is a matter of appreciation of evidence and the Court, where prosecution is relying solely on the dying declaration, has to be on guard that the statement of the deceased was not as a result of tutoring, prompting, vindictive or a product of imagination, apart from the satisfaction of the Court that the deceased was in a fit state of mind and that he had clear opportunity to observe and identify the Accused.
19.3. In order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. Khushal Rao v. State of Bombay, AIR 1958 SC 22."
66. The issue with regard to admissibility of multiple dying declarations/procedure to be adopted by Court in a case of multiple dying declarations, came up for consideration before a three Judges' Bench of Supreme Court in Kushal Rao Vs. State of Bombay AIR 1958 SC 22. The Court observed as under in paragraphs 16, 17 and 18 of the report:
"16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
17.Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case.
18. Having made the general observations bearing on the question of the legality of basing a conviction on a dying declaration alone, and keeping in view the tests set out above, let us examine the dying declarations now in question before us. The most remarkable fact which emerges from an examination of the three successive dying declarations made in the course of about two hours, by the deceased, is that he consistently named the appellant and Tukaram as the persons who had assaulted him with sword and spear. The injuries found on his person, namely, the punctured wounds and the incised wounds on different parts of his body, are entirely consistent with his statement that he was attacked by a number of persons with cutting and piercing weapons. No part of his dying declarations has been shown to be false. Of the two assailants named by him, Tukaram was convicted by the learned trial Judge, but acquitted by the High Court which very reluctantly gave him the benefit of the doubt created by the similarity of names in that locality, as already stated. There was no such confusion in the case of the appellant. The deceased indicated that there were two more persons concerned in the crime, but he could not name them. The other two accused persons who were acquitted by the courts below had not been named in the dying declarations and, therefore, their acquittal did not, in any way militate against the truth of the dying declarations. The courts below also agreed in holding that Baboolal was in a position to see his assailants and to identify them in the light of the electric lamp nearby. They have also pointed out that there was no "coaching". There is no doubt, therefore, that Baboolal had been consistent throughout in naming the appellant as one of his assailants, and he named him within less than half an hour of the occurrence and as soon as he reached the Mayo Hospital. There was, thus, no opportunity or time to tutor the dying man to tell a lie. At all material times, he was in a proper state of mind in spite of multiple injuries on his person, to remember the names of his assailants. Hence, we have no reasons to doubt the truth of the dying declarations and their reliability. We have also no doubt that from the legal and from the practical points of view, the dying declarations of the deceased Baboolal are sufficient to sustain the appellant's conviction for murder. The only other question that remains to be considered is whether there are any extenuating circumstances in favour of the accused justifying the lesser of the two sentences prescribed by law. In our opinion, there are none. It was a case of a deliberate cold-blooded murder."
67. Subsequently, a three Judges' Bench of the Supreme Court in Koli Chunilal Savji and Another Vs. State of Gujarat, (1999) 9 SCC 562 dealing with a similar issue delineated its views in paragraphs 6, 7 and 8. For ready reference, same are extracted herein under;
"6. In view of the rival submissions made at the Bar, two questions really arise for our consideration:
(1) Whether the two dying declarations can be held to be true and voluntary and can be relied upon or can be excluded from consideration for the infirmities pointed out by Mr Keshwani, appearing for the appellants.
(2) Whether the High Court exceeded its jurisdiction in interfering with the order of acquittal, recorded by the learned Sessions Judge.
7. Coming to the first question, the answer to the same would depend upon the correctness of the submission of Mr Keshwani, that in the absence of the doctor while recording the dying declaration, the said declaration loses its value and cannot be accepted. Mr Keshwani in this connection relies upon the decision of this Court in the case of Maniram v. State of M.P. [1994 Supp (2) SCC 539 : 1994 SCC (Cri) 1487 : AIR 1994 SC 840] In the aforesaid case, no doubt this Court has held that when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor and after being duly certified by the doctor that the declarant was conscious and in his senses and was in a fit condition to make the declaration. In the said case the Court also thought it unsafe to rely upon the dying declaration on account of the aforesaid infirmity and interfered with the judgment of the High Court. But the aforesaid requirements are a mere rule of prudence and the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It is no doubt true that before recording the declaration, the officer concerned must find that the declarant was in a fit condition to make the statement in question. In Ravi Chander v. State of Punjab [(1998) 9 SCC 303 : 1998 SCC (Cri) 1004] this Court has held that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Court further observed that the Executive Magistrate is a disinterested witness and is a responsible officer and there is no circumstance or material on record to suspect that the Executive Magistrate had any animus against the accused or was in any way interested in fabricating the dying declaration and, therefore, the question of genuineness of the dying declaration recorded by the Executive Magistrate to be doubted does not arise. In the case of Harjit Kaur v. State of Punjab [(1999) 6 SCC 545 : 1999 SCC (Cri) 1130 : (1999) 4 Scale 447] this Court has examined the same question and held: (SCC p. 547, para 5) "As regards the condition of Parminder Kaur, the witness has stated that he had first ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect. Merely because that endorsement was made not on the dying declaration itself but on the application, that would not render the dying declaration suspicious in any manner."
8. In view of the aforesaid decisions of this Court, we are unable to accept the submission of Mr Keshwani that the two dying declarations cannot be relied upon as the doctor has not been examined and the doctor has not made any endorsement on the dying declaration. With regard to the condition of the deceased, the Magistrate who recorded the dying declaration has been examined as a witness. She has categorically stated in her evidence that as soon as she reached the hospital in the Surgical Ward of Dr Shukla, she told the doctor on duty that she was required to take the statement of Dhanuben and she showed the doctor the police yadi. The doctor then introduced her to Dhanuben and when she asked the doctor about the condition of Dhanuben, the said doctor categorically stated that Dhanuben was in a conscious condition. It further appears from her evidence that though there has been no endorsement on the dying declaration recorded by the Magistrate with regard to the condition of the patient but there has been an endorsement on the police yadi, indicating that Dhanuben was fully conscious. In view of the aforesaid evidence of the Magistrate and in view of the endorsement of the doctor on the police yadi and no reason having been ascribed as to why the Magistrate would try to help the prosecution, we see no justification in the comments of Mr Keshwani that the dying declaration should not be relied upon in the absence of the endorsement of the doctor thereon. In this particular case, the police also took the statement of the deceased which was treated as FIR, and the same can be treated as dying declaration. The two dying declarations made by the deceased at two different points of time to two different persons, corroborate each other and there is no inconsistency in those two declarations made. In this view of the matter, we have no hesitation to come to the conclusion that the two dying declarations made are truthful and voluntary ones and can be relied upon by the prosecution in bringing home the charge against the accused persons and the prosecution case must be held to have been established beyond reasonable doubt. Consequently, we have no hesitation in rejecting the first submission of Mr Keshwani. In this connection, it may be appropriate for us to notice an ancillary argument of Mr Keshwani that there has been an inordinate delay on the part of the Magistrate to record the dying declaration and, therefore, the same should not be accepted. As we find from the records, the incident took place at 4 a.m. and the Magistrate recorded the dying declaration at 9 a.m., in our opinion, it cannot be said that there has been an inordinate delay in recording the statement of the deceased. Mr Keshwani had also urged that when the Magistrate recorded the dying declaration, the deceased had been surrounded by her relations and, therefore, it can be assumed that the deceased had the opportunity of being tutored. But we fail to understand how this argument is advanced inasmuch as there is no iota of evidence that by the time the Executive Magistrate went, the deceased was surrounded by any of her relations. No doubt the Magistrate herself has said that three or four persons were there near the deceased whom she asked to go out but that they were the relations of the deceased, there is no material on record. We, therefore, have no hesitation to reject the said submission of Mr Keshwani."
68. Subsequently, the correctness of aforesaid judgement was doubted by the Bench in Laxman Vs. State of Maharastra. Accordingly matter was referred to Constitution Bench. The five Judges Bench in Laxman Vs. State of Maharastra, (2002) 6 SCC 710, upheld the view taken in Koli Chunilal Savji (Supra) by observing as under in paragraphs 4 and 5 of the judgement:
"4. Bearing in mind the aforesaid principle, let us now examine the two decisions of the Court which persuaded the Bench to make the reference to the Constitution Bench. In Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] the dying declaration in question had been recorded by a Judicial Magistrate and the Magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. The doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the Court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart from the aforesaid conclusion in law the Court had also found serious lacunae and ultimately did not accept the dying declaration recorded by the Magistrate. In the latter decision of this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC (Cri) 432] it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The Court relied upon the earlier decision in Ravi Chander v. State of Punjab [(1998) 9 SCC 303 : 1998 SCC (Cri) 1004] wherein it had been observed that for not examining by the doctor the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise.
5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab [(1999) 6 SCC 545 : 1999 SCC (Cri) 1130] wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] (at SCC p. 701, para 8) to the effect that "in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration"
has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC (Cri) 432] ."
69. In view of the observation made by the Full Bench in Ramesh Vs. State of Maharastra (supra) in paragraphs 19.1, 19.2 and 19.3 of the judgement, the observations made by the three Judges Bench in Kushal Rao (supra) in paragraphs 16 and 17 of the report, this Court now proceeds to examine the credibility and reliability of the multiple dying declarations on record.
70. P.W.3 Nishu Verma in his deposition has not disclosed the name of any accused regarding their complicity in the crime in question even though he is alleged to have a dialogue with the injured Babu Lal, soon before his death. Kushuma Devi, widow of deceased in her statement before Investigating Officer under Section 161 Cr.P.C. has categorically stated that the deceased disclosed only the name of Radhey Lal (the charge sheeted accused) to her and no one-else qua the crime in question. P.W.1, Amit Kumar and P.W.2, Moti Lal arrived at the spot together. However, P.W.-1, Amit Kumar, in his deposition has not stated that the accused were seen by him near the place of occurrence. According to this witness as per disclosure made by injured Babu Lal (deceased) named accused committed the crime in question. P.W.2, Moti Lal, has tried to improve upon the prosecution case by stating that named accused were seen by him running on bicycles near the place of occurrence and further that the deceased soon before his death has disclosed the names of the named accused to him. It is thus explicit that the alleged disclosure made by the injured Babu Lal (deceased) before his death are not similar and identical. In view of above, this Court out of necessity has to examine the veracity of the alleged dying declarations alleged to have been made by deceased in the facts and circumstances of the case. In short the Court has to look for corroboration of the alleged dying declaration.
71. Aforesaid exercise cannot be conducted in isolation but in the light of the mitigating and extenuating circumstances. The same are summarized herein-under to find out the complicity of the applicants in the crime in question.
(A) It is an undisputed fact that the occurrence giving rise to present criminal proceedings occurred on 25.6.2017 at around 12:00 midnight.
(B) The said occurrence occurred at a desolated place i.e. a tube-well which is situate in village Jaddupur, District-Fatehpur but far away from the village abadi.
(C) There is no eye witness of the occurrence mentioned in the F.I.R. nor there is any circumstantial evidence against applicants.
(D) The first informant, Amit Kumar along with three others namely, Moti Lal, Nishu Verma and Vinod Kumar after hearing the sound of gun shot and the shouts of injured Babulal, who was in pain and agony, together proceeded towards the place of occurrence i.e. the tube-well the injured was recovered from a place before the tube-well. Thus, first informant and three others met the injured after the occurrence was over.
(E) As per the statements of aforesaid persons, who were examined by the Investigating Officer under section 161 Cr.P.C., it is established that aforementioned persons together proceeded to the place of occurrence, the injured was jointly recovered lying at a place before the tube-well. i.e. the place of occurrence, the injured was administered first aid, brought home, the disclosure made by deceased at this point of time to P.W.-2 and P.W.-3 regarding the occurrence and thereafter to his wife, injured being taken to Hospital, and the injured having succumbed to the injury sustained by him at the hospital.
(F) The only evidence that has come on record regarding motive on the part of applicants and other named accused for committing the crime in question is to the effect that applicants are Saddhus (husbands of the sisters of the wife) of named accused Radhey Lal and secondly named accused Babu Lal had got a sale deed executed by his mother regarding the land recorded in her name in favour of his wife with the aid of applicants on account of which the brothers of Babul Lal were deprived of their shares in the land recorded in the name of their mother.
(G) It is an undisputed fact that subsequent to the sale deed, name of the vendee i.e. wife of named accused Radhey Lal came to be recorded and she is in possession over the same. The litigation regarding the same is also pending.
(H) No immediate benefit or otherwise could be derived by named accused by causing the murder of Babu Lal (deceased).
(I) The disclosures alleged to have been made by injured Babu Lal (deceased) soon before his death to his son P.W.1-Amit Kumar, brother P.W.2, Moti Lal, P.W. 3 Nishu Verma distant relative and his wife Kushuma Devi are not similar in content but contradictory.
(J) None of the witnesses who were examined under section 161 Cr.P.C. nor the prosecution witnesses, who have deposed before Court below have stated about the source of light on the basis of which the injured Babu Lal could have identified the accused or seen by PW.-2, Moti Lal, particularly when the occurrence has taken place in the dead of night i.e. around 12:00 midnight and at a desolated place i.e. a tube-well, which is situate far away from village Abadi.
(K) The improvement made in the deposition of P. W. 2 Moti Lal that named accused were seen running on bicycles near the place of occurrence is over and above the testimony of P.W.1 and the witnesses examined under section 161 Cr.P.C. P.W.2 has tried to introduce direct evidence without mentioning the source of light, on the basis of which, he saw the named accused running on bicycles from the place of occurrence. His statement to the effect that injured Babulal had disclosed the names of accused to him is contrary to his own previous statement. As such, the above part of his deposition suffers from the vice of embellishment contradiction and exaggeration, which remains unexplained and therefore, not worthy of reliance.
(L) It is true that the names of named accused Radhey Lal is common in the disclosure alleged to have been made by injured Babu Lal (deceased) to Amit Kumar P.W.1 (son of deceased), Kushuma Devi (widow of deceased) and Nishu Verma, P.W-3 (a distant relative) and Moti Lal, P.W.-2 (brother of deceased). It is further evident that as per the deposition of P.W.-2, Moti Lal, before Court below the knowledge regarding the names of accused was acquired on the information given by his nephew Amit Kumar. However, this witness in his deposition before Court below has brought in the factum of his being an eye witness to the extent that named accused were seen running away on bicycles from the place of occurrence. He has further stated that injured Babu Lal disclosed the names of named accused for committing the crime in question. As such, this witness having improved upon his statement under Section 161 Cr.P.C. Kushuma Devi the widow of deceased, in her statement under section 161 Cr.P.C., has stated that as per the disclosure made to her by her husband Babu Lal (decease) before his death named accused Radhey Lal caused the fatal gun shot injury. Though this witness is the widow of deceased, yet she has not implicated the applicants in the crime in question.
(M) When the alleged disclosures are examined in the light of above, it cannot be concluded conclusively that there is consistency in the oral dying declarations made by deceased soon before his death to different persons, the attending circumstances regarding the occurrence i.e. absence of any circumstantial evidence to support the prosecution of applicants, P.W. 3 Nishu Verma being declared hostile, the exaggeration and embellishment in the statement in chief of P.W.2 Motit Lal, wherein he has introduced direct evidence that named accused were seen by him running away on bicycles from the place of occurrence and also the fact that injured Babulal disclosed the names of named accused for committing the crime in question, the occurrence having taken place in the dead of night at a desolated place and there being no recital in the statements of P.W.1 and P.W.2 regarding the source of light near the place of occurrence, on the basis of which, the deceased could have been identified by the injured and seen by P.W.-2, the silence in the statement of P.W.2, Moti Lal regarding the source of light, on the basis of which, he could have seen the named accused running away on bicycles from the place of occurrence, there is no evidence to the effect that injured Babu Lal was in a fit state of mind and had clear opportunity to observe and identify the accused, the motive behind the alleged occurrence as can be gathered from the statements of Moti Lal, under Section 161 Cr. P. C. the animus for implicating the applicants, when taken as a whole, the alleged oral dying declarations do not inspire confidence in the mind of the Court so as to place reliance upon them. The alleged oral dying declarations are shrouded in obscurity and the attending circumstances do not lead to an undisputed inference regarding the guilt of applicants.
72. Apex Court in Rajesh and Others (Supra), Sugreev Kumar (Supra), Shiv Prakash Mishra (Supra) Sartaj Singh (Supra) and Sunil Kumar Gupta (Supra) considered the veracity of an order passed on an application under section 319 Cr.P.C., wherein prospective accused were summoned in cases under sections 302, 307 IPC or both. In all the cases referred to above, Court meticulously examined the testimonies of the prosecution witnesses in the light of tests laid down by Apex Court in Hardeep Singh (Supra) and S.Mohammed Ispahani (Supra) and after undertaking aforesaid exercise proceeded to decide whether on the basis of the testimonies of prosecution witnesses, prospective accused could be summoned or not.
73. The same procedure as adopted by Court in judgements referred to in preceding paragraph has been applied in present case. The alleged dying declarations alleged to have been made by the deceased soon before his death thus do not appear to be truthful in the light of the attending circumstances as well as the mitigating and extenuating circumstances referred to above. As such, an inference of the guilt of the accused cannot be inferred on the basis of same. As a result, this Court has no option but to conclude that Court below has not exercised its jurisdiction "diligently" and applicants have been summoned by Court below in a "casual and caviliar manner". The evidence relied upon by the prosecution to allege the complicity of applicants in the crime in question is neither strong nor cogent.
74. In view of the discussions made above, the order impugned in present application cannot be sustained and is liable to be quashed.
75. Resultantly, impugned order dated 29.4.2022, passed by Additional Sessions Judge/Special Judge (POCSO) Act, court No.2, Fatehpur in Sessions Trial No. 344 of 2017 (State Vs. Radhey Lal) under sections 302 and 34 IPC, Police Station- Jafarganj, District Fatehpur is quashed.
76. Accordingly, application is allowed.
77. Cost made easy.
Order Date :- 04.11.2022 Y.K