Chiraunji Lal vs State Of U.P. And 4 Others
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Allahabad High Court

Chiraunji Lal vs State Of U.P. And 4 Others on 23 May, 2024

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:93748
 
Court No. - 77
 

 
Case :- CRIMINAL REVISION No. - 4608 of 2023
 

 
Revisionist :- Chiraunji Lal
 
Opposite Party :- State Of U.P. And 4 Others
 
Counsel for Revisionist :- Pradeep Kumar Yadav
 
Counsel for Opposite Party :- Aravind Kumar Tripathi,G.A.,Hemant Kumar,Satya Narayan Yadav
 

 
Hon'ble Rajeev Misra,J.
 

Heard Mr. Pradeep Kumar Yadav, the learned counsel for revisionist and the learned A.G.A. for State-opposite party 1.

Though the names of Mr. Aravind Kumar Tripathi, Mr. Hemant Kumar and Mr. Satya Narayan Yadav are duly published in the cause list as counsel for opposite parties but neither any counter affidavit on behalf of opposite parties 2, 3, 4 and 5 has been filed nor they or anyone on their behalf is present to oppose this criminal revision.

Perused the record.

This criminal revision has been filed challenging the order dated 30.06.2023, passed by Additional Sessions Judge/Special Judge (Pocso Act), Court No.3, Firozabad in Sessions Trial No.975 of 2022 (State Vs. Ajeet Kumar), whereby court below has rejected the application dated 08.06.2023, under Section 319 CrPC (Paper No.19-B) filed by the prosecution/first informant for summoning the prospective accused i.e. opposite parties 2 to 5 herein to face trial in aforementioned Sessions Trial.

Record shows that in respect of an incident, which is alleged to have occurred on 07.03.2022, a prompt first information report dated 07.03.2022 was lodged by first informant Chiraunji Lal (revisionist herein) and was registered as Case Crime No.0047 of 2022, under Sections 498-A, 304-B, 120-B IPC and Section 3/4 Dowry Prohibition Act, police station Matsaina, district Firozabad. In the aforesaid report, six persons, namely, Ajeet Kumar, Ravi Kumar, Dagsri, Sandhya, Ram Brajesh and Rishi Kumar have been nominated as named accused.

The gravamen of the allegations made in the first information report dated 07.03.2022 is to the effect that marriage of Shivani, the daughter of the first informant, was solemnized with Ajeet Kumar on 26.02.2022. At the time of marriage, sufficient amount of goods and dowry were given. However, the in-laws' of daughter of the first informant were dissatisfied with the same. Subsequently, demand of additional dowry by way of a Wagon-R Car was raised. As the additional demand of dowry was not fulfilled, physical and mental cruelty was committed upon the daughter of the first informant. The first information report concludes with the recital that ultimately, on 07.03.2022, first informant has received an information that his daughter Shivani has been put to death in a clandestine manner on account of non-fulfillment of demand of dowry.

After above mentioned first information report was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. On the basis of material collected by Investigating Officer during course of investigation, the statement of witnesses examined under Section 161 CrPC as well as the mitigating circumstances that emerged during course of investigation, he came to the conclusion that complicity of only two of the named accused i.e. Ajeet Kumar (husband) and Dagsri (mother-in-law) of the deceased is established in the crime in question. He, accordingly submitted the police report in terms of Section 173 (2) CrPC, whereby two of the aforementioned named accused were charge-sheeted under Sections 498-A, 304-B, 120-B IPC and Section 3/4 Dowry Prohibition Act.

Upon submission of aforementioned police report in terms of Section 173 (2) CrPC (charge-sheet), the concerned Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. took cognizance upon same. However, as offence complained of is exclusively triable by the court of Sessions, the concerned Magistrate accordingly in the light of the provisions contained in Section 209 CrPC committed the case to the court of Sessions. As a consequence of above, Sessions Trial No.975 of 2022 (State Vs. Ajeet Kumar) came to be registered and is now said to be pending in the court of Additional Sessions Judge/Special Judge (Pocso Act), Court No.3, Firozabad.

The concerned Sessions Judge proceeded with the trial. He, accordingly, framed charges against the charge-sheeted accused in exercise of jurisdiction under Section 211 CrPC. The charge-sheeted accused denied the same and pleaded innocence. Resultantly, the trial procedure commenced.

The prosecution in discharge of its burden to bring home the charges so framed against the charge-sheeted accused adduced PW-1 Chiraunji Lal (first informant/father of the deceased). After the statement-in-chief/examination-in-chief of aforementioned witness was recorded, prosecution first informant/revisionist filed an application dated 08.06.2023 under Section 319 CrPC praying therein that since as per the deposition of PW-1, complicity of Sandhya, Ravi Kumar, Ram Brajesh and Rishi Kumar is also established in the crime in question therefore, they be also summoned to face trial in aforementioned criminal case. This application came to be registered as Paper No. 19-B.

The court below upon evaluation and examination of the allegations made in the application under Section 319 CrPC filed by the first informant/revisionist in the light of the material on record, particularly, the deposition of PW-1 Chiraunji Lal (first informant/father of the deceased) came to the conclusion that no prima-facie case for summoning of prospective accused is made out. It, accordingly, rejected the aforementioned application vide order dated 30.06.2023.

Thus feeling aggrieved by the above order dated 30.06.2023, the revisionist, who is first informant/father of the deceased has now approached this Court by means of present criminal revision.

Mr. Pradeep Kumar Yadav, the learned counsel for revisionist contends that order impugned in present criminal revision is manifestly illegal and in excess of jurisdiction. Consequently, the same is liable to be set aside by this Court. The court below has failed to exercise its jurisdiction diligently and simply on the basis of finding that four prospective accused were not present at the time and place of occurrence has rejected the application under Section 319 CrPC. No attempt has been made by the court below to examine as to whether the complicity of prospective accused is apparent as per the statement of PW-1 and whether the commission of cruelty upon the deceased by the prospective accused could be inferred from the facts and circumstances of the case. In short, the submission is that court below has failed to exercise its jurisdiction provided in it diligently and has rejected the application under Section 319 CrPC filed by the revisionist without going into the facts and circumstances of the case and by not returning finding as necessarily required to decide an application under Section 319 CrPC. He, therefore, contends that in view of above the order impugned cannot be sustained in law and fact and, therefore, liable to be set aside by this Court. As such the revision be allowed and the matter be remanded before court below for decision afresh.

Per contra, the learned A.G.A. for State-opposite party 1 has vehemently opposed the present criminal revision. He submits that court below has delved into deposition of PW-1 and also the material on record. It is only on the basis of same that court below has come to the conclusion that since the prospective accused were not present at the time and place of occurrence therefore, no illegality has been committed by the Investigating Officer in exculpating the prospective accused, nor a sufficient ground is made out to summon the prospective accused to face trial in aforementioned Sessions Trial. Learned A.G.A. therefore submits that no case for interference is made out by this Court. Consequently, the present criminal revision is liable to be dismissed.

The primarily issue which needs to be addressed is whether the court below is right in deciding the application under Section 319 CrPC filed by the prosecution/first informant/revisionist on the basis of the deposition of one prosecution witness.

Admittedly, the entire prosecution evidence has not yet been recorded. Though examination-in-chief of PW-1 has been recorded therefore, his evidence shall now fall in the realm of legal evidence. However, merely on the ground that since entire prosecution evidence has not yet been recorded therefore, it cannot be construed that the order impugned is bad in law. The five Judges' Bench of the Supreme Court in Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92, has held that an application under Section 319 CrPC can be considered by the court on the basis of the statement-in-chief of one prosecution witness only. In view of above, the order impugned cannot be said to be bad in law on the above ground.

The second issue that will arise for consideration is whether the court while summoning the prospective accused is required to record a finding that a prima facie case for summoning the prospective accused is made out or not. If yes, then what will be the degree of satisfaction which is required to be observed by the court before summoning the prospective accused. This issue is no longer res integra and stands concluded with the observation made by the five Judges' Bench in Hardeep Singh (supra). Following has been observed by the Court in paragraph 106 :

"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."

Thus, when the statement of PW-1 is examined in the light of the allegations made in the first information report, this Court finds that admittedly the death of the deceased is a dowry death, inasmuch as, the deceased i.e. daughter of first informant who has died in her matrimonial home and within seven years of her marriage. The prospective accused are said to be the residents of the same house i.e. inmates of the house in which the occurrence is alleged to have occurred. Therefore, by reason of above, the primary burden is upon the prosecution itself to plead and establish that prospective accused were present at the time and place of occurrence. Upon perusal of the deposition of PW-1 as recorded before court below, copy of which is on record as Annexure-2 to the affidavit filed in support of present criminal revision, this Court finds that PW-1 has miserably failed to dislodge the said burden. In view of above, once the primary burden has not been discharged by the prosecution itself therefore, as per the deposition of PW-1 it cannot be said that the prospective accused can be held guilty of committing the offence punishable under Section 304-B IPC.

The Court further finds that subsequently in his examination-in-chief PW-1, who is the first informant/father of the deceased, has himself admitted with regard to the absence of prospective accused, namely, Ram Brajesh, Rishi Kumar and Ravi Kumar at the time and place of occurrence. It is well settled that admission is the best proof. Once the first informant has himself admitted that three of the prospective accused were not present at the time and place of occurrence therefore, no illegality can be said to have been committed by court below in rejecting the application under Section 319 CrPC. So far as the presence of opposite party 3, namely, Sandhya at the time and place of occurrence is concerned, PW-1 in his deposition has clearly admitted that the daughter and son-in-law of the first informant i.e. husband of the deceased were living separately on the first floor of the house. It has also come in his deposition that the door of first floor of the house was broken in the presence of elder daughter and son-in-law of the first informant. Since Sandhya, the prospective accused is the un-married Nand of the deceased, it cannot be inferred that she could have committed cruelty upon the deceased on account of non-fulfillment of the alleged demand of dowry. Since Sandhya is an un-married lady therefore, by virtue of above she will stay with her parents alone. However, the court below while deciding the complicity of aforementioned prospective accused examined the material on record and has returned a finding that she was not present at the time and place of occurrence. The aforesaid finding could not be dislodged by the learned counsel for revisionist with reference to the material on record.

Prima facie, perusal of the order impugned goes to show that court below has not delved into the other aspects of the matter which are required to be dealt with while deciding the application under Section 319 CrPC but has decided the same simply on the point regarding the presence/absence of the prospective accused at the time and place of occurrence. Normally, the plea of alibi is subject to trial evidence and can be concluded only after the entire prosecution evidence has been concluded and the accused furnishes adequate evidence in support of the aforesaid plea. The order impugned could have been dislodged on this short point but in view of the clear admission made by PW-1 in his deposition before the court below as is evident from the recital occurring at page 43 of the paper book, even if it was a failure on the part of court below in not considering the other aspects of the matter cannot be taken as a ground to set aside the order impugned.

Admittedly the death of the deceased is a dowry death. In the first information report, it has been alleged that additional demand of dowry by way of a Wagon-R Car was raised by the named accused. However, this allegation made in the first information report could not be established by the first informant in his statement before the court below, inasmuch as, no material particulars with regard to the commission of cruelty upon the deceased on account of non-fulfillment of demand of dowry have been given. As such, no strong and cogent evidence has emerged against the prospective accused to summon them for an offence punishable under Section 498-A IPC.

At this juncture, it would be apt to refer paragraph 18 of the judgement of the Supreme Court in Kahkashan Kausar @ Sonam & others Vs. State of Bihar (2022) 6 SCC 599, wherein while dealing with identical situation the Court has made following observations :

"The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498-A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them".

When the facts and circumstances of present case as noted herein-above are examined in the light of the caution given by the Supreme Court in Kahkashan Kausar @ Sonam & others (supra), the inescapable conclusion is that though allegation regarding demand of additional dowry and commission of cruelty on account of non-fulfillment of additional demand of dowry was made but the same could not be established by the first informant himself in his deposition before the court below.

Though, parameters regarding exercise of jurisdiction under Section 319 CrPC were crystalized by the five Judges' Bench of the Supreme Court in Hardeep Singh (supra) but, subsequently, Two Judge Division Bench of the Supreme Court in Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 and S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226, has re-laid down the conditions which are required to be fulfilled and observed by the Court before summoning a prospective accused. The Court has now formulated the principles which are to be borne in mind for interference under Section 319 CrPC by making observations in favour of the prospective accused. Subsequently, a Constitution Bench of the Supreme Court in Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289, has re-defined the parameters regarding exercise of jurisdiction under Section 319 CrPC. The same can be summarized as under :

"(a) a prospective accused can be summoned under Section 319 Cr.P.C. upon consideration of the statement-in-chief of one prosecution witness. As such, Court concerned need not wait for the entire prosecution evidence to be recorded.

(b) the plethora of evidence collected by the Investigating Officer during course of investigation is required to be looked into by a Court dealing with an application under Section 319 Cr.P.C. as it is relevant material.

(c) Court while dealing with an application under Section 319 Cr.P.C. must examine the statement of the witness recorded under Section 161 Cr.P.C. and thereafter, draw a parallel to find out whether something new has emerged in the deposition of such a witness.

(d) a prospective accused cannot be summoned simply on the basis of his mere complicity in the crime in question

(e) Court can summon a prospective accused in exercise of jurisdiction under Section 319 Cr.P.C. only if, an inference of guilt of the prospective accused can be gathered from the material on record.

(f) jurisdiction under Section 319 Cr.P.C. is an extra-ordinary discretionary jurisdiction and should be exercised sparingly.

(g) Court should exercise it's jurisdiction under Section 319 Cr.P.C. diligently and not in a casual and cavalier fashion.

(h) a prospective accused can be summoned only when some strong and cogent evidence has emerged against him and not merely on the basis of his complicity in the crime in question."

When the order impugned is examined in the light of above, this Court finds that though court below has not delved into the other aspects of the matter as per the deposition of PW-1 i.e. some strong and cogent evidence has emerged against the prospective accused rather than their mere complicity in the crime in question and, secondly, whether any such new material has emerged in the deposition of PW-1, which may implicate the prospective accused in the crime in question, and, lastly, whether on the basis of material on record an inference of guilt of the prospective accused can be inferred. Irrespective of the aforesaid shortcomings in the order impugned, this Court has itself undertaken the examination of the deposition of PW-1 threadbare. As already noted herein-above, PW-1 in his deposition before court below has either admitted about the absence of the prospective accused at the time and place of occurrence or he could not establish the presence of the prospective accused at the time and place of occurrence by cogent evidence.

In view of above and also the fact that even as per the deposition of PW-1 nothing more than bald allegations regarding the complicity of the prospective accused in the crime in question has emerged. In short, no such strong and cogent evidence has emerged on the record so as to infer the guilt of the prospective accused in the crime in question. In view of above, the court below is thus right in concluding that no prima facie case is made out to summon the prospective accused.

For the reasons given above, this Court does not find any good ground to entertain the present criminal revision.

In view of above, the present criminal revision fails and is liable to be dismissed.

It is, accordingly, dismissed.

Order Date :- 23.5.2024.

Rks.