Pooja and another vs State of Haryana

M.M.S. Bedi, J.—Petitioners are aggrieved by the order dated August 9, 2011 passed by Additional Sessions Judge, Rohtak, summoning the petitioners as additional accused to face trial exercising powers u/s 319 Cr.P.C. alongwith their co-accused Rajiv and Vandana. Petitioner No. 1-Pooja is sister of Rajiv whereas petitioner No. 2 is the brother-in-law i.e. husband of petitioner No. 1. Both the petitioners were declared innocent. It will be relevant to refer to the main allegations in the FIR which has been lodged at the instance of complainant Bimla alleging that she is mother of deceased Meena who was married to Rajiv. After marriage, Meena was maltreated by her husband, mother-in-law Vandana, sister-in-law Pooja and brother-in-law Rohit for not brining adequate dowry. A male child had been born to the couple. After the birth of child, mother-in-law of Meena demanded gold articles whereas as Rajiv allegedly demanded car. Deceased Meena was given beatings for not meeting the demand of dowry. As per the allegations in the FIR, the complainant was told by Meena on telephone a night before the incident that Pooja and Rohit, petitioners had abused her and taunted her. On April 19,2010, a telephonic information was received by the complainant that Meena had consumed poison resulting in her death in P.G.I. M.S. Rohtak. PW1 Bimla in her examination-in-chief had reiterated the allegations in the FIR. She specifically stated that the deceased had told her on telephone that Pooja and her husband on April 18, 2010 were present in their house and they had participated in the act of beating on the ground that her parents had not giving dowry at the time of birth of Raghav.

The trial Court had relied upon the statement of PW1 Bimla besides taking into consideration the statements of Somnath and Rajinder, eye-witnesses recorded u/s 161 Cr.P.C. wherein there are specific allegations against Pooja and Rohit, the present petitioners, regarding demand of dowry and harassment, opted to exercise the jurisdiction u/s 319 Cr.P.C. to summon the petitioners as additional accused.

The reliance on statements u/s 161 Cr.P.C. is not proper while summoning the petitioners but at the same time the statement u/s 319 Cr.P.C. coupled with the allegations in the FIR are indicative of the fact that petitioners were probably involved in the act of maltreating the deceased. It will be absolutely premature at this stage to form an opinion whether the statement of PW1 Bimla is false, improbable or an act of roping in the entire family of Rajiv with an objective to harass them with a vindictive mind unless and until her statement is tested on the anvil of cross-examination. In case the order dated August 9, 2011 is set aside, another occasion will arise to move another application u/s 319 Cr.P.C. on the basis of the statement of Somnath and Rajinder who might appear as witnesses.

Counsel for the petitioners has relied upon the judgment in Micheal Machado v. C.B.I. and anther, 2000 (2) RCR (Crl.) 75 to contend that summoning of the persons as additional accused should not be based merely on suspicion but there should be reasonable prospect of convicting them. Reliance has been placed on few judgments of this Court where the orders u/s 319 Cr.P.C. have been set aside against the married sister-in-law who was staying separately much prior to the marriage of the deceased. Reliance in this context was made on Azad and another v. State of Haryana, 2007 (3) RCR (Crl.) 421, Rajinder Mohan Kashyap v. Om Parkash Sharma, 2005 (1) RCR (Crl.) 274, Harjinder Kaur and others v. State of Punjab, 2004 (4) RCR (Crl.) 332 and MRs. Poonam v. State of Punjab, 2007 (2) RCR (Crl.) 712.

I have gone through the judgments on the facts and circumstances of each individual case. Married sister-in-law and brother-inlaw had been given advantage in the above said judgments but at the same time, it cannot be ignored that quality of evidence has to be appreciated in each case. The statement of PW 1 Bimla, no doubt cannot be believed at this stage but since she has levelled allegations from the very beginning against the petitioners, expression of any opinion regarding her testimony at this stage may prejudice the right of the prosecution or the accused. It may be a case where an attempt has been made to rope in all the family members on the basis of legal advise or ill motive to harass them but in the exercise of revisional powers, it will not be appropriate for this Court to give a finding of fact that the petitioners have been living separately or that they have been falsely roped in. It is not a case of complainant improving the case during the course of trial but from the very beginning allegations are being levelled against the petitioneRs. Striking a balance between the right of the complainant and the other witnesses to depose truth and the right of personal liberty of added accused individuals, I deem it appropriate to dismiss this petition, however, the only relief which can be granted to the petitioners is that in case they move an application for exemption from personal appearance, the same would be allowed by the trial Court subject to any condition imposed by the trial Court. Since the identity of the petitioners is not disputed, it will be open to the trial Court to exercise powers u/s 273 Cr.P.C. to record the evidence in presence of counsel for the petitioners by exempting their personal appearance.

With the above observation, this revision petition is dismissed.