Code of Criminal Procedure, 1973 – s.319 – Power to proceed against other persons appearing to be guilty of offence – Summoning of additional accused – FIR by the appellantbrother that his sister was shot by her husband based on the information received by him from his niece, aged nine years that her father shot her mother – Two statements of the victim recorded u/s.161 CrPC, where in the first statement she named her husband as the person who shot her, and in the subsequent one she named her in laws alleging that they had instigated her husband to shoot her – Thereafter, she succumbed to death – However, chargesheet filed only against the husband, exonerating the in-laws – During the trial, the prosecution moved application u/s.319 to summon the in-laws as additional accused on basis of the evidence recorded during the trial which clearly disclosed their role in the commission of the offence – Both trial court and High Court dismissed the application holding that no strong and cogent evidence to justify summoning u/s.319 – Justification: Held: High Court’s approach is erroneous – High Court concluded that victim’s daughter was not an eyewitness to the actual firing and relied on her cross-examination – Drawing such an inference amounts to conducting a mini-trial at the stage of summoning, which is impermissible – At the stage of deciding the application u/s.319, the Court is not required to test the credibility or weigh the probative value of the evidence as would be done at the end of the trial for determining the conviction or otherwise of the accused – It has to consider whether the material on record reasonably indicates involvement of the proposed accused so as to exercise the extraordinary power – Thus, the reliance placed by the courts below on daughter’s cross-examination to discredit her testimony misplaced – Further, the minor daughter in her statement recorded u/s.161, categorically named the respondents as those who instigated the commission of the said crime – While a statement recorded u/s.161 CrPC is not substantive evidence in itself, it may be used to corroborate the evidence recorded by the Court to invoke the power u/s.319 – Thus, conjointly reading minor’s deposition along with her s.161 statement, a specific and overt act has been assigned to the respondents – Furthermore, the two statements of the deceased, clearly fall within the ambit of s.32(1) of the Evidence Act – Perusal of both the statements reveals that while the former primarily narrates the incident, the latter elaborates on the circumstances that culminated in the fatal act and brings forth the complicity of the respondents – High Court erred in holding that these statements cannot be treated as dying declaration merely because the death of the deceased occurred after a substantial lapse of time from their recordings – What is pertinent is that the statement relates either to the cause of death or the circumstances leading to it – Depositions of the brother and his niece, along with the statements of the deceased recorded during the investigation, prima facie suggests the complicity of the respondents in the commission of the said offence – Thus, sufficient ground to exercise the power u/s.319 and summon them to face trial – Objections raised by the respondents, including the alleged tutoring of the minor witness, omission of their names in the FIR, inconsistencies in the statements of the deceased and lack of contemporaneous medical certification, are all premature and cannot be conclusively decided at the stage of exercising power u/s.319 – Judgment and order of the High Court set aside – Evidence Act, 1872 – s.32. [Paras 11-18]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.