The revision has been filed against the impugned order dated 21.5.2015 passed by Additional Sessions Judge Court No.5, Azamgarh in Sessions Trial No.400 of 2013 (State vs. Pradeep Burnwal and others) under Sections 498A, 304B I.P.C. and 3/4 D.P. Act, P.S. Phoolpur, District Azamgarh allowing the application 28-B of prosecution u/s 319 Cr.P.C. and summoning Smt. Mamta Burnwal and Sunita Burnwal for trial together with the co-accused Pradeep Burnwal and others. Feeling aggrieved, summoned accused Mamta Burnwal and Sunita Burnwal have filed this revision with a prayer for setting aside the impugned order.
At the stage of admission, learned counsel for opposite party no.2 filed Vakalatnama and put in appearance.
The learned counsel for revisionists contended that the impugned order is wrong on facts and law; that the F.I.R. was lodged with false and incorrect allegations falsely implicating as many as seven persons including the husband, father-in-law, mother-in-law, two brothers-in-law (Jeth), and two sisters-in-law (Jethani), all the family members of the husband of deceased excluding only one brother-in-law and sister-in-law (Jeth & Jethani) for the offence of dowry death of Smt. Varsha Burnawal; that the revisionists reside separately as has been admitted by P.W.-1 in his cross examination; that in the false F.I.R. revisionists were also named being Jethanis of the deceased without assigning any specific role to them; that upon investigation charge-sheet was filed against five out of the seven accused persons and no charge-sheet was filed against the revisionists as no cogent evidence was found against them; that the deceased was daughter-in-law of Subhash Chandra Burnawal and the revisionists are also daughters-in-law of accused Subhash Chandra Burnawal being wives of his sons Sandeep Burnawal and Vinay Burnawal respectively; that the position of revisionists is similar to that of deceased and there was no reason for making demand of dowry by them from the deceased, their sister-in-law or treating her with cruelty for non-fulfillment of alleged demand of dowry; that in the statements on oath of the PW-1, 2 and 3, copies filed at annexure-4, 5 and 6, it has been stated that Subhash Chandra, Pradeep, Vinay and Sandeep had made complaint of not giving Safari vehicle at the time of Bida of deceased, after marriage and the revisionists have not been named for making such complaint; that the I.O. had rightly not charge-sheeted the revisionists and there is no probability of revisionists being held guilty for dowry death of their younger sister-in-law; that the learned trial court has passed impugned order summoning the revisionists only on the basis of prima facie case which is wrong and illegal; that for the purposes of summoning any person for trial together with the co-accused under the provisions of Section 319 Cr.P.C. mere satisfaction of prima facie case is not enough and the degree of satisfaction that is required is much stricter; that the learned trial court ought to have dismissed application under Section 319 Cr.P.C; that by setting aside the impugned order, summoning the revisionists, the revision be allowed.
Per contra, learned AGA and learned counsel for first informant/opposite party no.2 supported the impugned order and contended that the daughter of opposite party no.2 was married to Pradeep Burnawal, son of Subhash Chandra Burnawal; that there was demand of Safari vehicle at the time of marriage which could not be given at the time of Bida after marriage and so complaint was made by father-in-law and brothers-in-law of deceased at the time of Bida; that thereafter the deceased was always treated with cruelty in connection with demand of dowry by all the accused including revisionists and on 27.10.2012, when wife of opposite party no.2 purchased a TATA Indigo vehicle, the husband and in-laws of deceased including the revisionists, became annoyed, hurled taunts for not providing the agreed Safari vehicle and treating the deceased with cruelty committed her dowry death; that it is wrong to say that the revisionists were falsely implicated and they are living separately; that the real fact is that the accused persons are living together in adjoining portions of the house, each one having access to the portion of other; that it is wrong to say that in F.I.R the revisionists were falsely implicated and had it been so, there would have been no reason to spare one brother-in-law & sister-in-law (Jeth & Jethani) of deceased who were neither named in F.I.R. nor sought to be summoned through application 28B under section 319 Cr.P.C; that in F.I.R specific role has been assigned to revisionists and if due to influence of accused persons or sympathy of I.O. towards revisionists or otherwise due to misappreciation of evidence by I.O. they were not charge-sheeted, it will not be correct to say that they may not be summoned or tried together with their husbands for the offence of dowry death; that prima facie there is very strong case against the revisionists with every possibility of their conviction for the offence of dowry death along with co-accused as well as their husbands who are already facing the trial; that the trial court has exercised the discretion rightly in favour of allowing the application and summoning the revisionists and neither there is any illegality, irregularity, impropriety or incorrectness in the impugned order nor there is any sufficient cause for interfering with the discretion so exercised by the trial court; that the revision has been filed with false and baseless allegations and is liable to be dismissed.
Upon hearing the learned counsel for the parties and perusal of record and the landmark case law laid down by the Constitution Bench of Apex Court in the case of Hardeep Singh vs. State of Punjab and others, (2014) 3 SCC 92, relied by both the sides, I find that the revisionists were named in the promptly lodged F.I.R, regarding the dowry death of Smt. Varsha Burnawal whose death took place in other than natural manner within seven years of marriage and there are allegations of demand of dowry and treating the deceased with cruelty of non-fulfillment of such demand. Undisputedly, the revisionists were not charge-sheeted and during trial upon application under Section 319 Cr.P.C. they have been summoned for trial together with co-accused persons, their husbands, brothers-in-law (Dewar) and parents-in-law (Sas & Sasur).
In the impugned order learned trial court has considered the statements of three prosecution witnesses wherein P.W.2, the brother of deceased, has made specific allegations against the revisionists. It is also pertinent to mention that in the statements of P.W.1, 2 and 3 it has been stated that all the family members (Susural wale) treated the deceased with cruelty for non-fulfillment of demand of Safari vehicle as dowry and the revisionists do not claim to be falling outside the category of Sasural wale.
The provisions of Section 319 (1) Cr.P.C. are being reproduced as under :-
"(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."
The above section provides that where it appears from evidence that any person not being accused has committed offence, the court may proceed against him.
In the case of Pyarelal Bhargav vs. State of Rajasthan, AIR 1963 SC 1094, the four Judges Bench of Apex Court held that the appropriate meaning of word "appears" is "seems". It imports a lesser degree of probability than proof. It has been held by the Apex Court at times that what is necessary for court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to conviction of the persons sought to be added as the accused in the case.
In the case of Rajendra Singh vs. State of U.P. (2007) 7 SCC 378 the Apex Court held that :
"Be it noted, the court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 the Code. Even then, it has a discretion not to proceed, since the expression used is "may" and not "shall". The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression "appears" indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not."
In paragraphs no.106 and 107 of the above judgement of Hardeep Singh (supra) relied by both the parties, the apex court has held as under :
"106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if it appears from the evidence that any person not being the accused has committed any offence is clear from the words "for which such person could be tried together with the accused." The words used are not for which such person could be convicted. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.
107. In Joginder Singh v. State of Punjab, a three-Judge Bench of this Court held that as regards the contention that the phrase "any person not being the accused" occurring in Section 319 Cr.P.C. excludes from its operation an accused who has been released by the police under Section 169 Cr.P.C. and has been shown in Column 2 of the charge-sheet, the contention has merely to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Section 319(1) Cr.P.C, clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court, are included in the said expression."
In view of law laid down by Apex Court, if at the time of exercising its jurisdiction in summoning or refusing to summon the additional accused, it appears to the trial court, i.e., it seems to the trial court from the evidence on record that any person not being the accused has committed any offence, whether he was named in F.I.R. or not and whether he was charge-sheeted or not, if the evidence remains unrebutted, he may be convicted for the offence it may pass order for summoning the additional accused. At the time of disposal of application under section 319 Cr.P.C. the trial court is not required to be satisfied that such additional accused has committed an offence, as this can only be decided at the time of final disposal of trial upon evidence of both parties.
Considering the evidence on record, I find that the learned lower court has exercised the discretion rightly in view of the evidence on record in summoning the additional accused/revisionists, the Jethanis of deceased who were named in F.I.R. but not charge- sheeted by I.O. for trial together with co-accused for the offence of dowry death. The learned counsel for revisionists has failed to show any illegality, irregularity, impropriety or incorrectness in the impugned order and there is nothing to show that the discretion so exercised by the trial court in summoning the revisionists has been exercised arbitrarily, rather it has been exercised judicially and there is no reason to interfere with it.
There is no sufficient ground for interfering with or setting it aside the impugned order, the revision has no merits and is liable to be dismissed.
The revision is dismissed accordingly.
However, if the revisionists move application for bail before the trial court, the same shall be disposed of expeditiously in accordance with law.
Any observation made in the body of the judgement on the merits of the evidence on record, shall not prejudice either party and shall have no binding effect at the time of final disposal of trial.
Dated : 02.09.2016 vs