Madhya Pradesh High Court
Sant Kumar Dube vs The State Of Madhya Pradesh on 10 January, 2018
                                    1
            THE HIGH COURT OF MADHYA PRADESH
                       Cr.R. No.802/2017
          (Sant Kumar Dubey & Others Vs. The State of M.P.
                        & Another)

Gwalior, dated :10.01.2018
      Shri R.K. Sharma, Sr. Advocate with Shri V.K. Agarwal,
Advocate for the petitioners.
      Shri   Kuldeep       Singh,       Govt.   Advocate   for   the
respondent/State.

Shri Atul Gupta, Advocate for the complainant.

1. Revisional powers of this Court u/S 397 read with Sec 401 Cr.P.C. are invoked assailing the order dated 10.08.2017 passed by 2nd Additional Sessions Judge, Jaura Distt. Morena in S.T. No. 15/2017 of the trial Court allowing an application u/S 319 Cr.P.C. preferred by the prosecution directing arraying of four petitioners herein as accused on the basis of the testimony of PW1 – Rahul Tiwari (brother of the deceased) and the statement of witnesses recorded during inquest Exhibit P-1.

2. Learned counsel for the petitioner no.1,2,3 and 4 father- in-law, mother-in-law, brother-in-law(Jeth) and sister-in- law(Jethani) respectively who on account of the impugned order are arrayed as accused in a trial which was initially pending against sole accused Sonu alias Sonendra (husband of the deceased) u/S 498A, 304-B IPC and Sec ¾ of Dowry Prohibition Act.

3. It is not disputed that on the basis of report lodged by Rahul Tiwari, respondent no. 3 (brother of the deceased), prosecution was launched for dowry death against the husband Sonu alias Sonendra and the petitioners herein. After conduction of investigation, chargsheet was filed only THE HIGH COURT OF MADHYA PRADESH Cr.R. No.802/2017 (Sant Kumar Dubey & Others Vs. The State of M.P.

& Another) against the husband and the petitioners were not arrayed as accused. The testimony of PW-1 Rahul Tiwari, brother of the deceased was recorded on 13.07.2017 who after being subjected to examination-in-chief by the Public Prosecutor was declared hostile to the prosecution case whereafter in para 8 of his testimony, he stated thus:

8- ;g lgh gS fd eSaus iz-ih- 1 ds vkosnu esa iqfyl dks fy[kdj crk;k Fkk fd esjh cgu tc llqjky ls ?kj ij vius ek;ds vkrh Fkh rks og ngst dk dkj.k crrh FkhA ;g lgh gS fd eSus iz-ih-1 ds vkosnu esa iqfyl dks crk;k Fkk fd esjh cgu ds lkl] llqj] ftBkuh] tsB esjs cgu ds ifr lksuw ;s lHkh yksx esjh cgu dks ngst ds fy;s izrkfM-r djrs FksA ;g lgh gS fd eSsus vkosnu esa ;g Hkh crk;k Fkk fd esjh cgu dks dbZ ckj ekjk&ihVk vkSj Nr ls fxjk fn;k FkkA ;g lgh gS fd eSus iz-ih 1 ds vkosnu esa iqfyl dks ;g Hkh fy[kdj crk;k Fkk fd esjh cgu us esjs ikik dks Qksu ij crk;k fd ;g yksx eq>s ijs’kku dj jgs gSA ;g lgh gS fd eSaus iz-ih- 1 ds vkosnu esa iqfyl dks crk;k Fkk fd ?kVuk dh tkudkjh feyus ij eSa ifjokj lfgr ;gkWa ij vk;k rc mUgksus dejs esa ekjdj Vkax fn;k gS vkSj lHkh yksx lkl] llqj] tsB] tsBkuh vkSj cgu dk ifr lskuw ?kj ls Qjkj gks x;s gSaA 3.1 Impelled by the aforesaid allegations made by the PW-1 in his testimony in para 8, the prosecution filed an application u/S 319 Cr.P.C. vide Exhibit P-3 praying for arraying of the petitioners as accused. The petitioners preferred a response to the said application denying the contentions raised in the said application. The impugned order has been passed not only on the revelations made by PW1 in para 8 of his testimony(supra) but also based on Exhibit P-1, the inquest THE HIGH COURT OF MADHYA PRADESH Cr.R. No.802/2017 (Sant Kumar Dubey & Others Vs. The State of M.P.

& Another) report including the statement of witnesses recorded during inquest.

3.2 The law in regard to provision of Sec 319 Cr.P.C. is settled by the five Judges Bench of Apex Court rendered in the case of Hardeep Singh Vs. State of Punjab reported in 2014 (3) SCC 92 explaining the scope, sweep and ambit of the said provision which is evident from the answer given by the Apex Court to the question that what kind of evidence can be taken into account for the purpose of invoking Sec 319 Cr.P.C. The question and the answer are as follows: QUESTION PARA 6.3 Whether the word “evidence” used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word “evidence” is limited to the evidence recorded during trial? ANSWER PARA 85. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The ‘evidence’ is thus, limited to the evidence recorded during trial.”

3.3 From the above, it is crystal clear that the Court has to first come to the conclusion that the evidence available in the trial(oral or documentary) is of such nature which reflects complicity of the person sought to be arrayed as accused of such probative value which ought to be more than what is required for framing of charge. Meaning thereby that the quality of testimony necessary for invocation of Sec 319 Cr.P.C. should disclose more than strong suspicion of involvement of the proposed accused. Once this satisfaction THE HIGH COURT OF MADHYA PRADESH Cr.R. No.802/2017 (Sant Kumar Dubey & Others Vs. The State of M.P.

& Another) is arrived at by the trial Court, thereafter assistance for the purpose of corroboration, if necessary can be sought from the material/evidence which has come on record during the period between taking of cognizance and commencement of trial. In other words, if the evidence or material collected during the trial does not show a case of more than strong suspicion against the proposed accused of being involved in the crime alleged then the trial Court cannot travel any further and has to decline interference u/S 319 Cr.P.C. without seeking any assistance for corroboration from any other material/evidence which was brought on record during the period between investigation and commencement of trial.

4. This Court in one of its recent verdicts rendered in the case of Amar Singh Kamaria & Ors. Vs. State of M.P. & Anr. passed on 06.12.2017 in M.Cr.C. No. 24766/2017, had the occasion to decide a similar controversy as follows:

5. From the above, it is evident that for the purpose of deciding application u/s 319 Cr.P.C. the expression “evidence” used in the said provision means the evidence which has come during the trial in shape of oral and documentary evidence and any other piece of evidence which has come on record of the trial court between the stage of taking cognizance and commencement of trial can be utilized for corroborative purpose. The necessary inference which can be drawn from the above said answer of the said question rendered by the Constitution bench is that any material which formed part of investigating process but was not part of the charge sheet or was not brought on record between the stage of taking cognizance and commencement of trial, cannot be utilized for the purpose of invoking Sec. 319 Cr.PC. However, the Apex Court in the subsequent decision rendered by the Division Bench in THE HIGH COURT OF MADHYA PRADESH Cr.R. No.802/2017 (Sant Kumar Dubey & Others Vs. The State of M.P.

& Another) the case of Brijendra Singh ( supra) appears to have slightly enlarged the scope and ambit of Sec. 319 Cr.P.C. laid down by the decision in the case of Hardeep Singh.

6. A bare perusal of the decision of Division Bench of the Apex Court in the case of Brijendra Singh reveals that though earlier decision of Hardeep Singh was considered, however, the scope, ambit and sweep of the expression “evidence” contained in Section 319 laid down in para 85 of the judgment of Hardeep Singh was not considered by the Apex Court in the case of Brijendra Singh.

9. In view of the above, this Court has no hesitation to hold that the expression “evidence” found in Sec. 319 Cr.P.C is to be understood to mean the evidence collected during the trial in shape of oral and documentary evidence. However, the other evidence which has come on record between the stage of taking cognizance by the Court till the commencement of the trial can merely be used for corroborative purposes as laid down by the Apex Court in five Judge Bench decision in the case of Hardeep Singh. In other words,an application u/s 319 Cr.P.C. is maintainable only when implicative evidence of probative value more than strong suspicion comes on record in shape of documentary or oral evidence in trial. While considering such application u/s 319 Cr.P.C. the trial court can take assistance, for corroboration only, of any evidence which is already on record introduced between the stage of taking cognizance and the stage of commencement of trial. However, the trial court is not empowered to invoke Sec. 319 Cr.P.C. merely based on evidence which is part of investigation stage unless the same is already brought on record between the period of taking cognizance and before the trial begins.

5. Testing the attending factual matrix in the present case on the anvil of the law laid down by the Apex Court, a bare perusal of para 8 of the testimony of PW-1 Rahul Tiwari(brother of deceased) reveals that he has admitted to the suggestion that he himself in Exhibit P-1 had made a complaint to the police that his sister (deceased) was THE HIGH COURT OF MADHYA PRADESH Cr.R. No.802/2017 (Sant Kumar Dubey & Others Vs. The State of M.P.

& Another) subjected to dowry demand related cruelty by her father-in- law, mother-in-law, brother-in-law(Jeth) and sister-in- law(Jethani) and the husband. He has also revealed that when he came to the matrimonial home of deceased (sister) on being informed about the death,he found the husband of deceased and the petitioners missing. 5.1 Pertinently, the cross-examination of this witness could not be completed by the defence on account of application u/S 319 Cr.P.C. filed by the prosecution.

6. Thus, this Court has to assess the legality and validity of the impugned order based on the incomplete testimony of PW-1 vide Exhibit P-2.

7. The allegations made by PW-1 are only of general and omnibus nature against all the petitioners and the husband who is already an accused in the trial. The allegations against the petitioners are vague and unspecific with no mention of any particular incident, place, date and time or nature of the cruelty extended. Mere fact of the petitioners being missing from the matrimonial home when PW-1 came at the spot per se cannot be an evidence strong enough to fall within the category of “more than strong suspicion”. The absence/absconsion of accused could be due to various reasons including the fear of being apprehended and therefore the same by itself is not good enough and sufficient to implicate a person in a grave crime as that of dowry death. This Court is bolstered in its view by the decision of Apex Court in the case of Rajinder Singh alias Kada Vs. State of THE HIGH COURT OF MADHYA PRADESH Cr.R. No.802/2017 (Sant Kumar Dubey & Others Vs. The State of M.P.

& Another) Punjab reported in AIR 1992 SC 1433. Relevant extract of which is reproduced below for ready reference and convenience:

13. The abscondence of the accused relied upon by the High Court remains of no consequence. In the first place it is not a determining factor and not one which could outweigh the other material appearing on the record. It by itself does not establish the guilt of the appellant beyond reasonable doubt.

8. Learned counsel for the rival parties have not brought to the attention of this Court any other additional piece of evidence which has come during the trial except the contents of para 8 of testimony of PW-1 Rahul which in the considered opinion of this Court is deficient of the minimum requirement for qualifying to be “more than strong suspicion” necessary for invoking Sec 319 Cr.P.C. The said allegations in para 8 of the testimony of PW-1 Rahul to say the least is desperately wanting in nature and intensity to sustain a conviction against the petitioners.

9. In view of the above, this Court has no hesitation to hold that the learned trial Judge has committed a jurisdictional error in allowing the application u/S 319 Cr.P.C. preferred by the prosecution.

10. Consequently, the impugned order dated 10.08.2017 passed by 2nd Additional Sessions Judge, Jaura Distt. Morena in S.T. No. 15/2017, so far as it allows the application u/S 319 Cr.P.C. dated 13.07.2017 preferred by Ram Kumar THE HIGH COURT OF MADHYA PRADESH Cr.R. No.802/2017 (Sant Kumar Dubey & Others Vs. The State of M.P.

& Another) Tiwari and Rahul (the father and brother of the deceased respectively), is set aside.

10.1 This Court hastens to add that this order shall not come in way of the prosecution or the victim to file fresh application u/S 319 Cr.P.C., in case any further incriminating evidence of the nature of “more than strong suspicion” against the petitioners comes on record in future during the trial.

11. With the aforesaid directions, the present criminal revision stands allowed to the extent indicated above with the aforesaid liberty.

12. No cost.

(Sheel Nagu) Judge sh/-

SEHAR HASEEN 2018.01.18 17:54:25 +05’30’

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s