Shiv Pratap Singh and Others vs State of U.P. and Another

Ravindra Singh, J.—This application has been filed by the applicants Shiv Pratap Singh, Smt. Kalpana, Smt. Kamini and Indra Kumar with a prayer to quash the proceedings of S.T. No. 259 of 2006,State of U.P. v. Sarjoo and Ors S.T. No. 259 of 2006., u/s 302, I.P.C. pending in the court of learned Addl. Sessions Judge/F.T.C.-II, Mainpuri including the order dated 6.9.2008, passed by learned Addl. Sessions Judge/F.T.C.-II, Mainpuri whereby the applicants have been summoned in exercise of powers conferred u/s 319, Cr. P.C. to face the trial for the offence punishable under Sections 498A, 304B, 120B, I.P.C. and Section 3/4 of D. P. Act.

The facts in brief of this case are that the F.I.R. of this case has been lodged by the applicant-Shiv Pratap Singh at P. S. Bewar, district Mainpuri on 9.6.2006 at 3.10 a.m. against unknown persons in respect of the incident which had occurred on 9.6.2006 at about 2 a.m. in Case Crime No. 276 of 2006, u/s 302, I.P.C. After investigation of this case the charge-sheet dated 30.6.2006 has been submitted against Sarjoo and Akhlesh u/s 302, I.P.C. in which the applicants are witnesses. After submission of the charge-sheet the learned Magistrate concerned has taken the cognizance, thereafter the case has been committed to the Court of Sessions which is pending in the court of learned Addl. Sessions Judge/F.T.C.-II vide S.T. No. 259 of 2006 in which the statement of the applicants Shiv Pratap Singh and Km. Kamini have been recorded as P.W. 1 and P.W. 2 respectively. During pendency of the trial the application under Sections 232 and 311, Cr. P.C. was filed by O. P. No. 2 Om Narayan Singh with a prayer to summon him and his father Udit Narayan Singh as witnesses on which the trial court passed the order dated 24.5.2007 ''that at this stage no order is required on the application and it shall be open for the Court to summon any witness which the Court thinks proper and just in the interest of justice at the appropriate stage. The application is disposed of accordingly at this stage.'' Thereafter the O.P. No. 2 Om Narayan Singh again moved an application after closing the evidence of prosecution with a prayer that for the just decision of the case he alongwith his father may be summoned as witnesses of the alleged incident, the same was allowed by the trial court vide order dated 10.1.2008 and O. P. No. 2 Om Narayan Singh and his father Udit Narayan Singh were summoned as Court witnesses. The order dated 10.1.2008 passed by the trial court was challenged by way of filing the criminal revision before this Court, the same was dismissed. The statements of O. P. No. 2 Om Narayan Singh and his father Udit Narayan Singh have been recorded by the trial court as C.W. 1 and C.W. 2 respectively, thereafter, the application dated 21.4.2008 u/s 319, Cr. P.C. has been filed by O.P. No. 2 Om Narayan Singh, the same has been allowed by the trial court on 6.9.2008 and the applicants have been summoned to face the trial for the offence punishable under Sections 498A, 304B and 120B, I.P.C. and Section 3/4 of D.P. Act.

Being aggrieved from the order dated 6.9.2008 the applicants have filed this application with a prayer to quash the order dated 6.9.2008 by invoking the inherent powers conferred u/s 482, Cr. P.C.

Heard Sri Kamal Krishna and Sri Ghanshyam Das, counsel for the applicants and learned A.G.A. for the State of U.P. and perused the record.

It is contended by learned Counsel for the applicants that in the present case deceased Shiwani, the w/o applicant-Indra Kumar has been killed in the night of 8/9.6.2006, inside the house of the applicants its F.I.R. has been lodged by her father-in-law the applicant-Shiv Pratap Singh, during the investigation the Investigating Officer collected the evidence to show that Sarjoo and Akhlesh have committed the alleged offence. During investigation the statements of the applicants have been recorded as witness, thereafter the charge-sheet has been submitted against Sarjoo and Akhlesh in which the applicants have been made witnesses even during the trial also the statements of applicant No. 1 Shiv Pratap Singh and applicant No. 3 Km. Kamini have been recorded as P.W. 1 and P.W. 2 respectively, they have supported the prosecution story, the names of the accused-Sarjoo and Akhlesh have been disclosed by the applicant-Kamini in her statement recorded u/s 161, Cr. P.C. and the weapon by which the neck of the deceased was cut has been recovered at the pointing out of the accused-Sarjoo. The deceased has been killed by the accused-Sarjoo alongwith his friend Akhlesh only because she was hurdle in the love affairs of accused-Sarjoo and Vandana, the cousin sister of the deceased. The statements of the applicant-Shiv Pratap Singh and applicant-Kamini have been recorded before the trial court, they have supported the prosecution story. Applicant-Shiv Pratap Singh is not eye-witness, whereas applicant-Kamini is eye-witness of the alleged incident. After lodging the F.I.R. of this case the application u/s 156(3), Cr. P.C. was filed by the O.P. No. 2 against the applicants in the court of learned Magistrate concerned, the same was rejected on 26.7.2006, the order dated 26.7.2006 was challenged by O. P. No. 2 by way of filing the criminal revision, the same was also dismissed by learned Addl. Sessions Judge, Mainpuri on 23.2.2007. The O.P. No. 2 Om Narayan Singh and his father Udit Narayan Singh are not eye-witnesses of the alleged incident, they did not come forward to record their statements before the Investigating Officer, during investigation their statement have not been recorded, if the O.P. No. 2 was having any grievance the complaint would have been lodged after dismissal of the application u/s 156(3), Cr. P.C. but no such complaint has been lodged. It is further contended that after closing the evidence of the prosecution without any proper reason, the O.P. No. 2 Om Narayan Singh and his father Udit Narayan Singh have been summoned as Court witnesses and their statements have been recorded as C.W. 1 and C.W. 2 respectively who have given a different version accusing the witnesses of this case, no reliance can be placed on the testimony of such witnesses. The trial court has illegally entertained the application u/s 319, Cr. P.C. filed by O.P. No. 2 because it has not been filed by Public Prosecutor of this case, thereafter it has been illegally allowed by summoning the applicants in exercise of powers conferred u/s 319, Cr. P.C.

It is further contended that accused-Sarjoo was having love affairs with Km. Vandana, she was student of B.A. Part-I and she was residing at the house of the applicant-Shiv Pratap Singh. It was only known to the deceased and Km. Kamini, thereafter Km. Vandana was shifted to her parents'' house by the deceased, in the night of the alleged incident when applicant No. 1 Shiv Pratap Singh, applicant No. 4 Indra Kumar and Ors. had gone to perform the tilak ceremony of her daughter Km. Kamini, the accused-Sarjoo and Akhlesh came at the house of the deceased where some quarrel has taken place between the deceased and Sarjoo in the presence of Km. Kamini, thereafter they committed the murder of the deceased but the learned trial court has committed the manifest error by not relying upon the testimony of the applicant Km. Kamini at this stage and relying upon the testimony of C.W. 1 and C.W. 2 for the purpose of exercising powers conferred u/s 319, Cr. P.C. because the C.W. 1 and C.W. 2 have come with different version at a belated stage which is illegal because the powers u/s 319, Cr. P.C. cannot be exercised in a routine manner, it is a well-settled law that powers u/s 319, Cr. P.C. should be exercised sparingly only for compelling reasons because such powers are extraordinary and discretionary. The learned trial court without applying the judicial mind and without appreciating the facts and circumstances of the case has exercised the powers u/s 319, Cr. P.C. in a routine manner. The impugned order dated 6.9.2008 is illegal and is liable to be set aside and proceedings pending against the applicants may be quashed.

In reply of the above contentions, it is submitted by learned A.G.A. that in the present case the deceased Shiwani was wife of applicant Indra Kumar and she was daughter-in-law of the applicant Shiv Pratap Singh and Smt. Kalpana and she was sister-in-law of the applicant Km. Kamini. She has been killed in the night of 8/9.6.2006 inside the house of the applicants. It is alleged that at the time of alleged incident the applicant Shiv Pratap Singh and Indra Kumar were not present inside the house, they had gone to perform the tilak ceremony of the applicant Km. Kamini, when they came back to the house in the same night and saw the deceased in a dead condition, the applicant No. 1 lodged the F.I.R. against unknown person. Subsequently the applicant Km. Kamini disclosed the names of accused-Sarjoo and Akhlesh, she claimed herself to be eye-witness and made specific allegation of committing the murder against the accused-Sarjoo and Akhlesh. It shows that after great thought and consultation the prosecution story was set up shifting the liability on Sarjoo and Akhlesh so that the skin of the applicants may be saved from the criminal liability. The deceased was murdered in the presence of Km. Kamini and Smt. Kalpana as alleged by the prosecution even then the names of Sarjoo and Akhlesh who were well known have not been disclosed by them. It was also one of the circumstance showing that the applicants have tried to conceal the real facts of this case. The applicant No. 1 Shiv Pratap Singh was serving in the police, on account of this reason the F.I.R. was lodged against unknown persons and F.I.R. of O. P. No. 2 had not been lodged, thereafter he moved an application to S.S.P., Mainpuri making allegation against the applicants even then his F.I.R. was not registered, during investigation also the statements of the O.P. No. 2 and his family members have not been recorded by the Investigating Officer whereas it was a known fact that death of the deceased was unnatural which have taken place within seven years of her marriage because the marriage of the deceased was solemnized with the applicant Indra Kumar on 22.6.2004 and she has been killed in the night on 8/9.6.2006, she had been killed within two years of her marriage. During pendency of the trial also the O.P. No. 2 moved an application under Sections 332 and 311, Cr. P.C. with a prayer that he alongwith father may be summoned for recording their statements, the same was kept pending by learned trial court. Again the O.P. No. 2 moved an application of the same nature after close of the prosecution evidence, the same was allowed by learned trial court vide order dated 10.1.2008, it was challenged before the High Court by way of filing criminal revision, the same was dismissed and the order dated 10.1.2008 was affirmed. The statements of O.P. No. 2 Om Narayan Singh and Udit Narayan Singh have been recorded as C.W.1 and C.W. 2 who have made the allegation against the applicants. According to their statements the deceased has been killed on account of non-fulfilment of demand of dowry in a pre-planned manner. The allegations constituting the offence have been made by the C.W. 1 Om Narayan Singh and C.W. 2 Udit Narayan Singh. The learned trial court has not committed any error in summoning the applicants for the offence punishable under Sections 498A, 304B and 120B, I.P.C. and Section 3/4 of D. P. Act. It is further submitted that it is not material that the applicant-Shiv Pratap Singh and applicant-Km. Kamini have deposed the evidence as prosecution witnesses before the trial court and the allegation has been made at belated stage because O.P. No. 2 was not heard by the authorities concerned in respect of his grievance, there is no illegality in the prosecution of the applicants. Therefore, the prayer for quashing the proceedings of S.T. No. 259 of 2006 including the impugned order dated 6.9.2008, passed by the trial court may not be quashed. The present application is devoid of merit, the same may be dismissed.

Considering the facts, circumstances of the case, submissions made by learned Counsel for the applicants, learned A.G.A. for the State of U.P. and from the perusal of the record it appears that in the present case the learned trial court has exercised the powers conferred u/s 319, Cr. P.C. and summoned the applicants to face the trial for the offence punishable under Sections 498A, 304B and 120B, I.P.C. and Section 3/4 of D. P. Act after considering the statements of C.W. 1 Om Narayan Singh and C.W. 2 Udit Narayan Singh, the statements of C.W.1 and C.W. 2 disclosed that marriage of the deceased was solemnized with the applicant-Indra Kumar on 22.6.2004, thereafter, the demand of dowry was made by the applicants for which she was subjected to cruelty. The demand of dowry was raised but the same could not be fulfilled by the parents of the deceased, thereafter, in the night of 8/9.6.2006 the deceased was killed in a pre-planned manner inside the house of the applicants by way of cutting her neck. The death of the deceased was unnatural, she has been killed within two years of her marriage. The presumption of dowry death also will be applied in the present case. The C.W.1 and C.W. 2 have not been interrogated by the Investigating Officer, they are not the witnesses of the charge-sheet but the trial court has summoned them as Court witnesses vide order dated 10.1.2008 for the just decision of the case. The learned trial court has not committed any error in summoning the O.P. No. 2 and his father as Court witness, their statements have been recorded before the trial court as C.W.1 and C.W. 2, their testimony is admissible, the same may be considered for the purpose of exercising the powers u/s 319, Cr. P.C. It is not material that their statements were not recorded by the Investigating Officer during the investigation it may be negligence on the part of the Investigating Officer, the same may be corrected at the stage of the trial for just decision of the case. According to the statements of the C.W.1 and C.W. 2 prima facie offence under Sections 498A, 304B and 120B, I.P.C. and Section 3/4 of D. P. Act is made out. The extraordinary and discretionary powers have been conferred u/s 319, Cr. P.C., the same must be exercised sparingly with great care and caution. In the present case the learned trial court has exercised such powers with great care and caution, after considering the statements of C.W.1 and C.W. 2. The learned trial court has not committed any error in passing the impugned order dated 6.9.2008 by which the applicants have been summoned to face the trial for the offence punishable under Sections 498A, 304B and 120B, I.P.C. and Section 3/4 of D. P. Act. It is also necessary to deal with the issue whether ''the witnesses of the case can be summoned as accused'' in exercise of powers conferred u/s 319, Cr. P.C. to deal with this issue, it is necessary to consider the facts and circumstances of the case individually, if the evidence is of such nature showing that witnesses have concealed the real story to save their skin from criminal liability or are giving a different version, the witness/ witnesses of that case may be summoned as accused by the trial court in exercising of powers conferred u/s 319, Cr. P.C. as it happened in the present case.

From the perusal of the impugned order dated 6.9.2008 reflects that the trial court has expressed his opinion on same issue in respect of the participation of the accused-Sarjoo and Akhlesh who are facing the trial. It is not proper for the trial court to express any opinion regarding credibility of the witnesses or participation of the accused-Sarjoo and Akhlesh who are facing the trial, therefore, any opinion expressed in respect of the credibility of the witnesses with regard to the participation of the accused-Sarjoo and Akhlesh is not proper because no opinion about involvement of any accused facing trial must not be expressed at the stage of summoning other person as accused in exercise of the powers conferred u/s 319, Cr. P.C.

In view of the above discussions, the impugned order dated 6.9.2008, passed by learned Addl. Sessions Judge/F.T.C.-II, Mainpuri in S. T. No. 259 of 2006 summoning the applicants to face the trial for the offence under Sections 498A, 304B and 120B, I.P.C. and Section 3/4 of D. P. Act in exercise of powers conferred u/s 319, Cr. P.C. is not suffering from any illegality and there is no illegality in the prosecution of the applicants, therefore, the prayer for quashing the proceedings of S. T. No. 259 of 2006 and the order dated 6.9.2008 passed by learned Addl. Sessions Judge/ F.T.C.-II, Mainpuri is refused.

However, considering the facts, circumstances of the case, it is directed that applicants shall appear before the Court concerned within 30 days from today, till then the N.B.W. issued against the applicants shall be kept in abeyance. In case they apply for bail, the same shall be heard and disposed of expeditiously by the courts below.

In view of the above discussion and direction, this application is disposed of.