Sat Pal vs Raj Bir

S.D. Bajaj, J.

On the basis of allegations made by Sat Pal brother of Imanti Devi deceased in FIR No. 206 dated May 16, 1987, of Police Station City, Sirsa the police prosecuted the husband and parentsinlaw of the deceased under Section 306/304B/498A/120B/34 of the Indian Penal Code. Names of Rajbir Singh and Sunesh Kumari respondents in Criminal Misc. No. 7107M of 1988 were entered in column No. 2 of the report submitted under Section 173 of the Code of Criminal Proceudre, 1973. Sunesh Kumari is sister of Sushil Kumar husband of the deceased while Rajbir Singh is her husband. Rajbir Singh is Inspector of Police, who has never been posted at Sirsa the place of occurrence while his wife Suneh Kumari is a lecturer, who always remained posted outside Sirsa. Neither of them ever resided in the matrimonial home of the deceased after their marriage.

In the extrajudicial confession allegedly made by Het Ram, fatherinlaw of the deceased instigation is attributed to Rajbir Singh and actual killing to the husband motherinlaw and Suneh Kumari wife of Rajbir Singh. The police, however, did not get any corroboration of it in the course of investigation and, therefore, did not prosecute them both.

Sat Pal author of the FIR initially moved the learned Additional Sessions Judge, Sirsa, on April 26, 1988, for impeading the persons mentioned in column No. 2 as accused in terms of Section 319 of the Code of Criminal Procedure. The request was, however, declined as premature on the ground that the witnesses of extrajudicial confession attributed to fatherinlaw of the deceased had not yet been examined till then. After their examination as witnesses before the learned trial Court, another application to the same effect was again moved on August 2, 1988, and declined by the learned trial Court on August 31, 1988. Sat Pal aforesaid has filed Criminal Misc. No. 7107M, 1988 in this Court for getting aside the impugned order of the learned trial Court, dated August 31, 1988, and for arraying respondents Rajbir Singh and Suneh Kumari as accused before the learned trial Court.

I have heard Shri Ajay Lamba, Advocate, for the petitioner, Shri B.S. Randhawa, Advocate, for the respondents and have carefully gone through the material on record.

In para 3 of its impugned order, dated August 31, 1988, learned trial Court observed, "On the other hand, Shri Shivdev Singh, Advocate, for the accused and Sunesh Kumari and Rajbir Singh has urged that on the basis of the postmortem report, it is apparent that Smt. Imanti Devi committed suicide. Moreover, statements of PW2 and PW3 are in contradiction to their statements under Section 161 of the Code of Criminal procedure and it is deposed that Smt. Imanti Devi was murdered, which is not the case of the prosecution as the accused are facing trial under Section 304/498A of the Indian Penal Code. It is also argued that if the statements of PW1 to PW3 are perused on the point of summoning Suneh Kumari and Rajbir, the same are in contradiction of each other as PW1 in his statement has admitted that Rajbir Singh never remained posted at Sirsa. Similarly, about Suneh Kumari it is admitted to be correct by this witness that she is posted as lecturer and she resides outside Sirsa with her husband PW2 has stated that Her Ram and Shankri confessed before him that they committed the murder of Smt. Imanti Devi and on the advice of Rajbir Singh have reported the matter to the police regarding committing of suicide by Smt. Imanti Devi . PW2 has also stated that Suneh Kumari and Sushil Kumar took Het Ram (PW) in a separate room and disclosed before him about committing the crime. It is further pointed out that PW3 in his examinationinchief has nowhere stated that Het Ram and Shankri took PW2 in a separate room and disclosed about the fact that they had committed the murder of Smt. Imanti Devi PW3 has also admitted that being neighbour he was aware that the accused along with Rajbir Singh and Sunesh Kumari used to harass Smt. Imanti Devi. Learned Counsel has urged that PW3 has deposed that the accused were facing trial under Sections 306/498A IPC along with Rajbir Singh and Suneh Kumari have committed murder of Smt. Imanti, which is a contradiction to the postmortem report and also counter to the case of the prosecution. It is contended that the application be dismissed and to support his arguments, learned Counsel has also cited State of Himachal Pradesh v. Assoo alias Aso Ram, 1987 CAR 333 (SC) : AIR 1980 SC 258. ExtraJudicial confession attributed to Het Ram, fatherinlaw of the deceased having not been adhered to or supported by the three prosecution witnesses, there was nothing on record to connect the respondents with the crime attributed to them by Sat Pal. Learned trial Court, thus, rightly declined the request made by Sat Pal and there is absolutely no scope for interfering with the judicial discretion exercised by the learned trial Court therein.

Relevant section 319 of the Code of Criminal Procedure, 1973, reads; "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 persons 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 subsection (1) then (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard; (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." Essence of the culpability envisaged in Section 319 is, `it appears from the evidence that any person not being the accused has committed any offence.'' This conclusion is to be reached judiciously from the evidence on record. In the present case the learned trial Court through exercise of judicial discretion, after looking into prima facie evidence reached a negative conclusion and, therefore, rightly declined the request.

Shri Mohan Wahi v. State, 1983(2) Chandigarh Law Reporter 682; Sri Mahant Amar Nath v. State of Haryana and another, AIR 1983 SC 288 and Dr. Shamim Ahmad Khan v. State of Bihar, 1987(1) Crimes 43 are all authorities for the view, "that under Section 319(1) the Court has power to add any person not an accused before it, as an accused and direct him to be tried alongwith the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial. The words "it appears from the evidence that any person not being the accused has committed any offence" appearing in the said section are very significant and provide a key to the proper construction of the same. On their plain meaning all that they connote is that there must be some legal evidence on the record showing involvement of any person other than the accused before the Court in the commission of an offence. Of course, the evidence must be sufficient to make out a prima facie case against such a person and satisfy all the essential ingredients constituting the offence for which he is sought to be prosecuted. However, the Court at that stage is not called upon to evaluate or appraise the evidence with a view to assess whether the evidence is sufficient for his ultimate conviction. The evidence on the record should be sufficient to show that any person other than the accused before the Court is also concerned in the commission of crime. Surely it cannot be stretched to further imply that the evidence must be sufficient even to warrant conviction of such a person if tried alongwith other accused already before the Court. Thus, the sufficiency of evidence has to be looked at for the purpose of framing a charge and not with an eye on the ultimate conviction of such a person. It is for the simple reason that while considering the evidence which has come on the record and which indicates involvement of such person other than the accused in the commission of an offence, the Court is not required to evaluate or appraise the evidence, as it will amount to prejudging the issue. That is the precise reason why subsection (4) of Section 319 requires that the proceedings in respect of such persons shall be commenced afresh and the witnesses reheard. It will naturally involve the process of framing of the charge and recording the evidence of the witnesses in the presence of the newly added accused. The law is well settled that even though an accomplice is a competent witness and a conviction may lawfully rest upon his uncorroborated testimony (Section 113 of the Evidence Act) yet in view of Section 144, illustration (b) Evidence Act, the Court will not accept such evidence unless it is corroborated in material particulars by some independent evidence. Power under Section 319 can be exercised by the Court suo moto or on the application of someone including the accused already before him provided, of course, it is satisfied that any person other than the accused has committed an offence for which he can be tried together with the accused. The exercise of the power is, however, discretionary with the Court and there can be no two opinions that the discretion must be exercised judicially having regard to the facts and circumstances of each case.

For the reasons aforesaid, Cr. Miscellaneous No. 7107M of 1988 is rendered wholly without merit and is consequently dismissed.