Arti and 2 Others vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:47890 Judgment Reserved on 26.11.2024 Judgment Delivered on 02.04.2025

Court No. - 79

Case :- CRIMINAL REVISION No. - 1696 of 2024

Revisionist :- Arti And 2 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Akash Mishra Counsel for Opposite Party :- G.A.,Jitendra Kumar,Keshav Hari Dixit,Purushottam Dixit

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Hon'ble Ram Manohar Narayan Mishra,J.

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Instant Criminal Revision has been preferred by the revisionists Arti wife of Ravi Kumar, Ravi Kumar son of Prem Charan and Raj Kumar son of late Ram Charan against the order dated 16.03.2024 passed by learned Additional District Judge FTC-I Etawah in S.T. No.279 of 2021 (State Vs. Rishiraj Singh and others) arising out of Case Crime No. 547 of 2020. Whereby revisionists who are Nanad, Nandoi and uncle-in-law of deceased have been summoned by trial court in exercise of powers under Section 319 Cr.P.C. to face trial together with accused Rishiraj Singh and others who is husband of the deceased, already facing trial for charge under Sections 304-B, 498A, 302 IPC and Section 3/4 of Dowry Prohibition Act, P.S. Kotwali, District Etawah.

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Heard Sri V.P. Srivastava, Senior Counsel, assisted by Sri Akash Mishra, learned counsel for the revisionists, Sri Purushottam Dixit, learned counsel for the opposite party No.2, learned AGA for the State and perused the material placed on record.

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The factual matrix of the case is brief are that the marriage of Ruchi Kumari who was daughter of first informant was performed with accused Rishiraj on 17.11.2017 according to hindu rites and rituals. According to

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the first informant who is father of the deceased, he had given Rs.7 lakh cash, valuable and two wheeler in the marriage to accused persons who are husband and in-laws of her daughter, but soon after marriage, they started practicing cruelty against his daughter due to non-fulfillment of their additional demand of dowry. Ruchi Kumari, the deceased gave birth to a male child in the course of time, but even then her harassment and torture in the hands of accused persons did not stop. The first informant convened a Panchayat, but no heed was paid by the accused persons who are revisionists and accused Rishiraj Singh to the request of the first informant to behave properly with daughter. On 07.10.2020 at around 12:00 hours in the night, the accused persons came to the house of the first informant and forcefully entered into the house after knocking the door, and as soon as the informant had opened the door they forcefully entered into the house and bolted the door from inside, they locked the informant and his son Vipin in a room and they awoke his daughter Ruchi who was sleeping in another room and gave her blows by a thick iron rod, due to which she fell on ground. When his wife Meena Kumari tried to save her daughter they also assaulted her brutally by iron rod and left the two injured in dying condition. The informant any how came out of the room through ventilator installed above the door and informed the police. The Police took the injured Ruchi and Meena Kumari to Civil Hospital Etawah, where doctors declared his daughter Ruchi as brought dead and his wife Meena Kumari was referred to Saifai Hospital for management, where her condition remained serious, the pool of blood was scattered in the house, due to brutal assault given to deceased the injured by accused persons.

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The FIR was lodged under Sections 304B, 498A, 307 IPC and Section 3/4 of Dowry Prohibition Act on 08.10.2020 at 17:16 hours, on the basis of written report filed by the informant before SHO

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Kotwali Etawah. The incident occurred on 7/8.10.2020 in the midnight around 12:00 hours. Injured Meena Kumari also succumbed to the injuries received in the incident during the course of treatment in the hospital on 11.10.2020 at 11:00PM who was hospitalized on 08.10.2020 at 02:26 AM at PGI Saifai. The inquest on dead body of both the deceased were carried out and thereafter their postmortem examination was also done at Dr. Bheem Rao Ambedkar Joint Hospital Etawah.

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In postmortem examination report of deceased Ruchi who was brought dead at Civil Hospital Etawah was conducted on 08.10.2020 at 01:33 AM between 04:50 to 05:25 PM, wherein three incised wounds were found on her head and multiple linear abrasion and contusion was found on other parts of body. In the opinion of doctor cause of death was coma due to ante-mortem injuries.

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In postmortem examination report of deceased Meena Kumari eight ante-mortem injuries were found on her person, out of which four injuries were found on head, in the nature of lacerated wound and one stitched wound of 6.0 cm was found on right of occipital region, 9.0 cm behind right, ear, and on dissection underline bone was found fractured. Other injuries were in the nature of lacerated wound, multiple abrasion on head, leg and ankle joint, and eyes. In the opinion of doctor cause of death was coma due to ante-mortem head injury. The Investigating Officer recorded statements of first informant Gurucharan Lal, the father of deceased Ruchi and husband of Meena Kumari. Eye witness Vipin Kumar, the brother of deceased Ruchi, on whose pointing out the site plan of place of occurrence was prepared. The witness Diwakant son of Gurucharan Lal, who is another brother of Ruchi, Smt. Kamlesh Kumari sister-in-law (Bhabi) of deceased Ruchi. The charge section 307 IPC was modified to

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Section 302 IPC vide GD Entry dated 13.11.2020, on account of death of injured Meena Kumari during investigation. The Investigating Officer on conclusion of investigation filed chargesheet against accused Rishiraj Singh, Rakesh Kumar and Suraj Mukhi, wife of Rakesh Kumar under Sections 304B, 498A, 302 IPC on finding their complicity in the offence on the basis of evidence collected during investigation. However, in the opinion of investigating officer, complicity of accused Raj Kumar the uncle-in-law of decreased Ruchi, Arti (nanad) and Ravi Kumar (nandoi) of the deceased Ruchi was not found in the offence and their name was dropped and separated from investigation.

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The learned CJM committed the case to the court of session of trial, where charges were framed against chargesheeted accused Rishiraj Singh and two others under Sections 304B, 498A, 302 IPC and Section 3/4 of Dowry Prohibition Act. At the stage of prosecution evidence PW-1 Gurucharan Lal was recorded in which he has testified against the revisionist also together with chargesheeted accused as author of crime of double murder of wife and daughter, due to matrimonial discord between them and his deceased daughter. The informant Gurucharan Lal filed an application 13 Kha with prayer to summon the other named accused persons in the FIR namely Arti, Ravi Kumar, and Raj Kumar on the ground that and their complicity in the offence has emerged in statement of PW-1. However, the learned court below dismissed the said application on the ground that it appears that the informant has implicated proposed accused persons in FIR as well as in his evidence before the court as PW-2 due to malafide intention. No specific role has been assigned to the accused persons in the alleged offence. No evidence has been given regarding presence of these accused persons on the spot. This fact has surfaced in the evidence that accused Arti lives with her husband

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Ravi Kumar at the place of her in-laws. The accused Raj Kumar is posted in RPF and is native of village Turkpura, P.S. Lavedi, District Etawah.

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After dismissal of fist application under Section 319 Cr.P.C. the evidence of PW-2 Vipin Kumar, the brother of deceased was recorded during trial and PW-3 Saurabh Ravikul was also recorded during trial and the second application 38 Kha was filed by the informant on 12.03.2024 with averment that the first application under Section 319 Cr.P.C. was filed after recording evidence of PW-1 the informant and eye-witness which was dismissed by the court below on 06.12.2021, but during the course of trial, the evidence of PW-2 and PW-3 has also been recorded since then, and by their evidence the complicity of proposed accused Arti, Ravi Kumar and Raj Kumar is established. Therefore, these three named accused persons may kindly be summoned for said charges under section 319 Cr.P.C. An objection was filed on behalf of accused Rishi and others on second application under Section 319 Cr.P.C. bearing dated 12.03.2024 in which the question of maintainability was also raised.

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Learned Court below has allowed second application under Section 319 Cr.P.C.. by the impugned order dated 16.03.2024, which has been assailed before this Court by newly summoned accused persons. Learned counsel for the revisionists submitted that the impugned dated 16.03.2024 is bad in the eyes of law, because once the trial court has applied its judicial mind on first application under Section 319 Cr.P.C. filed by the informant and dismissed the same vide order dated 06.12.2021, then second application for summoning the same persons in exercise of powers under Section 319 Cr.P.C. was not maintainable as such. If the first informant was aggrieved by earlier order dated 06.12.202, it was open to him to assail the same

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before this Court instead of filing second application under Section 319 Cr.P.C., because first application was dismissed on merits, as evidence of PW-2 is the repetition of evidence of PW-1 Gurucharan Lal, there were no change circumstances, from which a new cause of action would have surfaced to file second application under Section 319 Cr.P.C.

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Learned court below has failed to consider the law laid down by Hon’ble Supreme Court in Brijendra Singh vs State of Rajasthan (2017) 7 SCC 706 while allowing the second application under Section 319 Cr.P.C. The Investigating Officer who collected call detail records of the revisionists which reveal that revisionists were present in District Etawah, but it is not specified therein that on that date and time the revisionists were present at the place of incident.

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He next submitted that the entire prosecution story is doubtful as PW1 and PW-2 had full opportunity to make a escape or raise an alarm when the offence had been committed, but they stood as a mute spectator while their two family members were being brutally assaulted. Further more, the other son of PW1 namely Diwakant was stated to be present at the first floor of the house, but he was withheld by the witnesses. He stated in his statement under Section 161 Cr.P.C. that he was informed by PW-2 after incident, even the statements of PW-1 and PW-2 are contradictory to each others and lack consistency. He further submitted that PW-1 has stated in his statement before the court that almiras of the house were open and broken and household goods were disarrayed, which clearly shows that it was an armed dacoity, the revisionists and other co-accused persons have been falsely implicated in the present case due to matrimonial discord between accused Rishiraj Singh and his wife deceased Ruhi.

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Learned court below has not recorded its satisfaction with regard to prima facie case appearing against the revisionists, which must be more than a prima facie case envisaged for framing of charge. Inasmuch as no cogent reasons have been assigned in the impugned order while summoning the revisionists as an accused in a serious offence like murder. In fact there is no credible evidence against the revisionists for connect them with the offence. Revisionist Arti is sister-in-law (nanad) of the deceased who lives alongwith her husband at her matrimonial place. She had no reason to be involved in the the alleged offence alongwith her husband. She is not supposed to derive any benefit from alleged demand of dowry, and unfortunate homicidal death of the deceased persons who are her sister-in-law (bhabi) and mother of her sister-in law.

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He lastly submitted that the learned trial court has failed to follow dicta of Hon’ble Supreme Court Judgment in constitution Bench Judgment Hardeep Singh Vs. State of Punjab and others AIR 2014 SC 1400 while allowing and summoning of the revisionists has been done in a casual and cavalier manner.

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Learned counsel for the revisionists further submitted that in postmortem report of the deceased Ruchi three incised wound are found on her head, but none of them have stated in their evidence before the court or even during the investigation that accused persons were armed with some sharp edged weapon, whereas in FIR and evidence of witnesses it is stated that accused persons were armed with thick iron rod by which lacerated wound, contusion, abrasion can be caused. In evidence of witnesses it is recorded during trial that use of Hathauda (hammer) in the offence has also been introduced, which found non mention in the FIR and statements recorded during investigation. There is also inconsistency in the statement of witnesses

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how they emerged from the room locked by the accused persons from outside through ventilator or window. With above submissions, learned court below has prayed for setting-aside the impugned order.

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Per contra, learned counsel for the respondent that there is no illegality, irregularity or perversity in the impugned order passed by the learned court below.

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Learned counsel for the respondent No.2 submitted that deceased has suffered number of fatal injuries in the offence on different parts of the body which resulted in instantaneous death of deceased Ruchi and the other the injured Meena Kumari her mother also died during hospitalization due to fatal injuries suffered in the incident. The impugned order is well reasoned and in consonance with the legal and factual aspect of the case which need not be interfered in present revision.

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In the present case, learned court below has summoned the revisionists on placing reliance on statement of witnesses recorded namely PW-1 Gurucharan Lal, PW-2 Vipin Kumar and PW-3 Saurabh Ravikul recorded during trial of co-accused persons Rishiraj Singh, Smt. Suraj Mukhi and Rakesh Kumar, who have testified against the revisionists also in their evidence recorded during trial.

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Learned trial court has also observed in the impugned order that in FIR and prosecution evidence the place of occurrence is shown as residence of the informant lying in Laltapuri, as House No.748 District Etawah.

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In injury report of deceased Meena Kumari, which was prepared on 08.10.2020 when she was produced in injured condition at Dr. Bheem Rao Ambedkar Joint Hospital, Etawah, a lacerated

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wound size 4 x 1 cm in occipital area of head reddish colour and one contusion size 0.3 x 1 cm on left fronto parietal area of head were detected. In postmortem examination report of Meena Kumari eight injuries are shown on her person which include four head injuries.

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Learned counsel for the revisionists had drawn attention of this Court towards difference in number of injuries mentioned in injury report and postmortem report of the deceased Meena Kumari during his submissions.

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Learned court below has elaborately discussed the factual aspect of the case as appearing from FIR and statements of the witnesses recorded during investigation. Learned court below has cited various judgments of Hon’ble Supreme Court in Y. Saraba Reddy Vs. Puthur Rami Reddy, 2007(3) ACR 2438 (SC), Michael Machado Vs. CBI, AIR 2000 SC1127, the Constitution Bench Judgment of Hon’ble Supreme Court in Hardeep Singh Vs. State of Punjab and others AIR 2014 SC 1400, N. Manogar and another Vs. The Inspector of Police and others dated 16.02.2024 and Sagar Vs. State of U.P . 2022 (6) SCC 389.

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Learned court below has concluded that a perusal of evidence of witnesses recorded during trial, no such fact emerged which makes complicity of proposed accused persons in the offence doubtful. On perusal of case diary it appears that the Investigating Officer had collected CDR of Mobile Phones of accused persons and on the basis also it reflects that location of accused persons was in Etawah on the date of incident. No such fact has established that at the time of incident proposed accused Raj Kumar was present on his official address or at his native place village Turkpura, P.S. Lavedi, District Etah or proposed accused Arti and her husband Ravi Kumar were present at their native place in District Auraiya. They have stated to

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the Investigating Officer that they reside at Etawah in a rented house, but Investigating Officer has not tried to verify their said address. On the basis of said FIR it appears that all accused persons were present in city of Etawah, nevertheless the investigating officer has separated their name from investigation. No such fact emerged in cross examination of PW-1 and PW-2 also that which creates doubt regarding presence of the proposed accused persons at the place of incident. The situation was different when both the applications under Section 319 Cr.P.C. were presented before the court. On the basis of evidence adduced during trial, the complicity of proposed accused persons namely Arti, Ravi Kumar and Raj Kumar is disclosed. Therefore, in exercise of powers under Section 319 Cr.P.C. a sufficient and reasonable case is made out to summon them to face trial for charge under Section 304-B, 498A, 302 IPC and Section 3/4 of Dowry Prohibition Act.

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I have gone through the impugned order and other material on record in the light of submissions made by learned counsels for the parties. After dismissal of first application 13 Kha filed by the informant vide order dated 06.12.2021 evidence of two other witnesses PW-2 Vipin Kumar and PW-3 Saurabh Ravikul have been recorded, all the three witnesses have deposed regarding complicity of the revisionists in the offence of double murder. The complicity of the revisionists was not found by Investigating Officer during investigation, and their name was separated from chargesheet on conclusion of investigation. The Investigating Officer filed chargesheet against accused Rishiraj Singh, his mother Suraj Mukhi and father Rakesh Kumar. The revisionists are nanad, nandoi and uncle-in-law of the deceased, although they are not immediate family members of the husband of the deceased, but they have been implicated typical role in the offence alongwith chargesheeted

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accused persons by the informant as well as other witnesses in FIR and in statements recorded under Section 161 Cr.P.C. and evidence of PW-1 to 3 recorded during trial of co-accused persons.

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The witnesses PW-1, PW-2 and PW-3 have given eye-witness account of the incident in their evidence recorded during trial. The presence on the spot is natural as they are father and brothers of the deceased Ruchi and husband and sons of deceased Meena Kumari. The alleged offence is said to have been committed in the intervening night of 07.08.2010 at around 12:00 hours and FIR was lodged on 08.10.2020 at 17:16 hours at the instance of Gurucharan Lal who is father of deceased Ruchi and husband of deceased Meena Kumari. Revisionists are named in the FIR and equal role has been assigned to all the named accused persons including revisionists in the FIR regarding commission of murder of both the deceased.

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In death information memo of Ruchi dated 08.10.2020 which was sent by EMO Dr. Bheem Rao Ambedkar Joint Hospital (Male) Etawah to Station House Office, Police Station Kotwali. The place of occurrence is shown as House No. 748, Alkapuri, Etawah. The incident took place due to quarrel, the place of incident in death information memo is house of the informant as appearing in record and this is a case of prosecution that the incident took place in this house. The place of incident is not denied by revisionists also, but they have taken a case that the murder was committed by some unknown robbers in the intervening night of 7/8.10.2020 and the informant was not present on the spot at the time of incident and for that reason he has given some contradictory statements in the evidence before the court.

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So far as the maintainability of second application under Section 319 Cr.P.C. is concerned, this is admitted fact that revisionists

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are summoned on application 38 Kha filed under Section 319 Cr.P.C. which is second application; the first application 13 Kha filed under Section 319 Cr.P.C. was dismissed by the learned court below, vide order dated 06.12.2021 on the ground that in evidence of PW-1 the proposed accused Arti, Ravi Kumar and Raj Kumar are not assigned any specific role in the offence.

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Learned court below cited a constitution Bench Judgment of Hon’ble Supreme Court in Hardeep Singh Vs. State of Punjab and others (supra) wherein it is held that test that has to be applied for exercise of powers under Section 319 Cr.P.C. is of a degree of satisfaction which is more than that of a 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, who may lead to conviction of the proposed accused. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. Only examination in Chief of PW-1 Gurucharal Lal was recorded, after dismissal of first application in cross examination of PW-1 Gurucharan Lal, evidence of PW-2 Vipin Kumar and PW-3 Saurabh Ravikul have been recorded.

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A fresh application under Section 319 Cr.P.C. is not barred, even if previous application has been made, if new evidence emerges that justifies summoning additional accused persons to face trial. Section 319 Cr.P.C. empowers the court to proceed against the person, even if not initially named as an accused, if evidence during the trial suggests their involvement in the same offence, the fact that the previous application under Section 319 Cr.P.C. was filed and rejected does not prevent the court from considering a new application, if fresh evidence surfaces that warrants, summoning of instant accused persons. The court must be satisfied that the new evidence is of

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material nature and justifies proceeding against the person not initially named as an accused.

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The power under Section 319 Cr.P.C. is discretionary and should be exercised judicially, considering the totality of the evidence and circumstances of the case, this Court in Mool Chandra and two others Vs. State of U.P. and another vide order dated 25.08.2023 passed in Criminal Revision No. 2576 of 2023 observed in paragraph Nos. 11,12, 13 and 14 as under:-

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“…...11. So far as question of maintainability of second application under Section 319 Cr.P.C. after dismissal of first application and dismissal of revision preferred against said dismissal order on ground that said revision was not pressed by the revisionist, is concerned, this fact is significant that first application under Section 319 Cr.P.C. was filed by the respondent no. 2 after examination-in-chief of PW-1 and the same was maintainable in the light of observations of Hon’ble Apex Court in Hardeep Singh (supra) case, wherein it is held that court can exercise its jurisdiction under Section 319 Cr.P.C. after examination-in-chief of the witnesses and court does not need to wait till the said evidence is tested in cross examination. Second application was filed after dismissal of first application under Section 319 Cr.P.C. by the informant after recording evidence of three witnesses of fact, thus the successive application under Section 319 Cr.P.C. on subsequent facts and evidence are not barred under law and even after dismissal of first application under Section 319 Cr.P.C., second application is maintainable, of course, on appearance of sufficient cause.

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Punjab and Haryana High Court in Ashok Kumar Vs. State of Haryana, vide order dated 17.2.2008 observed that even after quashing of an order passed under Section 319 Cr.P.C. by this Court, same shall not debar the prosecution from filing of application under Section 319 of the Code at any subsequent stage of the proceedings in case any further material comes on record justifying the summoning of the additional accused.

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Hon’ble Apex Court in a recent judgment in the case of Juhru v.

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Karim, (2023) SCC OnLine SC 171 delivered on 21.2.2023, considered the judgment of its previous Constitution Bench judgment on Section 319 Cr.P.C. and placed reliance on Hardeep Singh (supra) case as well as Sukhpal Singh Khaira vs. State of Punjab, (2023) 1 SCC 289, wherein Apex Court reversed the guidelines to be followed by competent court while exercising powers under Section 319 Cr.P.C. laying for summoning additional accused if the evidence points at any person other than the accused being tried, excluded in charge sheet or trial. Court concluded that power of summoning under Section 319 Cr.P.C. should not be exercised routinely and the existence of more than a prima facie case is sine qua non for summoning additional accused.

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In Juhru case (supra) Hon’ble Apex Court set aside the order passed by learned trial court and affirmed by High Court with regard to summoning of sister-in-law and brother-in-law of the deceased under Section 319 Cr.P.C. due to lack of credible evidence for connecting them with the unnatural death of the deceased on a ground that there was no cogent evidence of these persons, residing in the same house or meddling in the marital life of the deceased. Court found it unjust to involve the two of them in facing trial as the additional accused, however, process issued against parents-in-law of the deceased under Section 319 Cr.P.C. was affirmed by Apex Court as it was found that these two accused were living under the same roof together with the deceased and her husband who was facing trial for unnatural death of the deceased.”

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So far as ambit and scope of Section 319 Cr.P.C. is concerned the matter was dealt at longer by a constitution Bench Judgment in Hardeep Singh Vs. State of Punjab and another (supra), Hon’le Court observed as under:-

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“…….17. In present case Section 319 Cr.P.C. is involved which provides as under-319. Power to proceed against other persons appearing to be guilty of offence.

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(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

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with the accused, the Court may proceed against such person for the offence which he appears to have committed.

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(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.

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(3)Any person 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.

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(4)Where the Court proceeds against any person under sub- section (1), then-

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(a)the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;

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(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.

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Hon’ble Apex Court in the case of Hardeep Singh’s (supra) has observed in paragraph nos. 70, 71, 72, 80 of the judgment as under:-

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“70. With respect to documentary evidence, it is sufficient, as can be seen from a bare perusal of Section 3 of the Evidence Act as well as the decision of the Constitution Bench, that a document is required to be produced and proved according to law to be called evidence. Whether such evidence is relevant, irrelevant, admissible or inadmissible, is a matter of trial.

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It is, therefore, clear that the word “evidence” in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during investigation.

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The inquiry by the court is neither attributable to the investigation nor the prosecution, but by the court itself for collecting information to draw back a curtain that hides something material. It is the duty of

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the court to do so and therefore the power to perform this duty is provided under the Cr.P.C.

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In view of the discussion made and the conclusion drawn herein above, 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 319Cr.P.C. The ‘evidence’ is thus, limited to the evidence recorded during trial.”

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In Hardeep Singh’s (supra) case, Hon’ble Apex Court determined the test that has to be applied by the trial court for exercising powers under Section 319 Cr.P.C. Paragraph nos. 98 and 99 of the said judgment, which are relevant for the purposes of present revision, are reproduced as underL-

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“98. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

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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.”

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In Manjeet Singh vs. State of Haryana, 2021 SCC Online SC 632. Hon’ble Apex Court in paragraph no. 13 summarized legal position with regard to Section 319 Cr.P.C. as folllows:-

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“13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC?”

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So far as the medical inconsistency pointed out by revisionists in the present case is concerned. It is argued that the three injuries of deceased Ruchi in her postmortem report which are in the nature of incised wound on her did not correspond with weapons attributed to the the accused persons as in the evidence of the witnesses this fact has surfaced that the women accused were armed with lathi and male assailants were armed with iron rods. None of the accused persons have been assigned any sharp edged weapons. Injuries Nos. 1, 2 and 3 of deceased Ruchi are shown as incised wounds, but it is not stated therein that margins were clear or regular. All the three injuries were noticed on the head of the deceased on skull bones. The lacerations are produced by tearing of the tissues due to the appliance of force beyond the limits of elasticity; incised wound, on the other hand are in the nature of a cream cut cause by sharp edged weapon, which is longer than deep, margins are clear cut and well defined. Some time lacerated wounds over the scalp region look alike incised wounds, but characteristics of such wounds are such that margins are irregular and ragged and uneven. Be that it may, the question is required to be addressed at the stage of final hearing of the case on merits.

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The first application under section 319 Cr.P.C. filed by the informant was dismissed vide order dated 6.12.2021 and by that time examination-in-chief of P.W. 1 Gurucharan Lal has been recorded.

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Learned trial court has pointed out in that order that no specific role has been assigned to the co-accused persons in evidence. Accused Arti is sister-in-law of the deceased Ruchi and Raj Kumar, uncle-in-law of the deceased and Ravi Kumar husband of Arti. Matrimonial home of Arti situates at village Kajipur, P.S. Fund, District Auraiya and she was married prior to marriage of deceased Ruchi. She is residing at the place of her in-laws alongwith her husband. Raj Kumar works in R.P.F. and is native of village Turkpura P.S. Kavedi, District Etawah and on that address his Adhar card has been issued. Proposed accused are not charge sheeted by the police after investigation.

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Second application under section 319 Cr.P.C. was filed after evidence of P.W. 1 Gurucharan Lal, P.W. 2 Vipin Kumar and P.W. 3 Saurabh Ravikul, which has been allowed by the impugned order. P.W. 2 and P.W. 3 are sons of P.W. 1 informant.

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P.W. 3 has stated that he was on first flour of the house when the accused persons entered into the house. P.W. 3 stated in cross examination that at the time of incident he was at the place of her inlaws and on being apprised of the incident, he rushed to the hospital where mother was got for treatment and dead body of her sister Ruchi is kept in morgue . P.W. 1 has stated in his evidence that iron rod wielded by accused persons was having sharp edges on front side. He has also stated that he firstly came out from the closed room through ventilator with the help of his son Vipin( P.W.2) and after coming outside, he opened the door through which Vipin Kumar came out. P.W. 2 has stated that he has seen the accused persons from the window of the room in the electric light.

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In the present case, some specific role has been assigned in the offence to the accused Arti in the evidence of P.W. 1 and P.W. 2. Learned court below has discussed the evidence of witnesses and after

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considering material on record has concluded that the circumstances of the case were different when first application was under section 319 Cr.P.C. was moved, on the basis of totality of the fact and circumstances of the case and evidence appearing on record, the complicity of proposed accused persons Arti and Raj Kumar is sufficient and reasonable to summon these persons for charge under sections 304B, 498A, 302 I.P.C. and Section ¾ of Dowry Prohibition Act in exercise of power under section 319 Cr.P.C.

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At the stage of summoning under section 319 Cr.P.C., the learned trial court is required to record a satisfaction that a prima facie case more than that is required at the time of framing of charge is made out against accused persons regarding their complicity in the offence. This is not a case of dowry ‘death’ punishable under section 304-B I.P.C. simpliciter but also case of murder of two persons of which eye witnesses account has been given by family members and that cannot be brushed aside at this stage. The two eye witnesses have deposed regarding complicity of the revisionists also together with charge sheeted accused in their evidence before the Court. Revisionists are also named in the F.I.R.

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Some improvements and contradictions are pointed out in the deposition of witnesses which are liable to be looked into at appropriate stage.

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With foregoing discussions, I find no illegality, irregularity or perversity in the impugned order passed by the learned trial court.

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The instant revision is dismissed.

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Order Date :- 02.04.2025 Ashish/-

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Digitally signed by :- ASHISH KUMAR SINGH High Court of Judicature at Allahabad

Arti and 2 Others v. State of U.P. and Another

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Arti and 2 Others v. State of U.P. and Another

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