Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). OF 2022
(Arising out of Special Leave Petition (Crl.) No.3746 of 2022)
NAVEEN ….APPELLANT(S)
VERSUS
STATE OF HARYANA & OTHERS ….RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. The instant appeal has been filed assailing correctness of
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order dated 6 January, 2022 passed by the High Court of
Signature Not Verified
Punjab and Haryana at Chandigarh, setting aside order dated
Digitally signed by
DEEPAK SINGH
Date: 2022.11.02
10:27:46 IST
Reason:
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10 February, 2020 passed by the Additional Sessions Judge,
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Bhiwani, Haryana, whereby the learned trial Judge rejected
the application filed by the complainant under Section 319
CrPC to summon the appellant (accused) to face trial in
Sessions Case No.59 of 2018 with reference to FIR No.156
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dated 12 March, 2018 registered under Sections 307, 364,
366, 376 read with Section 34 IPC at Police Station City
Bhiwani, Haryana.
3. Brief facts of the case culled out from the record are that
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FIR No.156 dated 12 March, 2018 was registered for offence
under Sections 307, 364, 366, 376 read with Section 34 IPC at
Police Station City Bhiwani on the basis of the written
complaint filed by Kamlesh w/o Balwan, caste Jat, resident of
New Bharat Nagar, Bhiwani, Haryana alleging therein that her
daughter aged 20 years was taking coaching of SSC from
Evermount Coaching Centre, Old Bus Stand, Bhiwani and she
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disclosed that on 10 March, 2018 at about 9.00 a.m., she
went to the coaching centre, but did not return home up to
1.00 p.m. Thereafter, she made enquiries from her friends
and acquaintances but could not find her whereabouts.
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Later, she came to know that the victim girl was admitted in
Sunflag Hospital, Rohtak. When they reached the hospital at
9.00 p.m., they were told that the victim girl was in ICU Ward
and two boys, Arjun and Naveen, sons of Balwan Jat, resident
of Beri, District Jhajjar, had brought the victim girl to the
hospital in unconscious state.
4. She further disclosed that her daughter has been enticed
to Rohtak by Arjun, in a preplanned manner, in collusion
with his other friends where she was raped and an attempt
was made to eliminate her by hanging. When Arjun and his
accomplices felt that the victim girl had died, they shifted her
to the hospital in order to save their skin. Accordingly, she
prayed that legal action may be taken against the culprits.
5. After registration of the FIR, the investigation swung into
motion and on receipt of the Ruqa regarding the death of the
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victim girl on 13 March, 2018, Section 302 IPC was added
and consequent upon verification, allegations against Arjun
were found to be true, whereas remaining culprits, i.e. Naveen
(brother of the appellant) and Mehar Singh(son of Shardha
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Nand) were found innocent and, therefore, the abovenamed
persons were kept in column no.2 and subsequently, accused
Arjun was arrested and after completion of investigation, the
report under Section 173 Cr.PC was submitted before the Ld.
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Ilaqa Magistrate on 5 June, 2018 against the accused Arjun.
After chargesheet came to be filed, charges were framed
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against accused Arjun on 6 August, 2018.
6. An application was filed by the complainant through
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learned Public Prosecutor under Section 319 CrPC on 29
October, 2018 for summoning of Naveen s/o Balwan and
Mehar Singh s/o Shardha Nand, as additional accused along
with accused Arjun, on the premise that she had named both
these persons(Naveen and Mehar Singh) as accused in her
initial version but the police did not challan them in collusion
with them and as she now has deposed in the Court naming
these persons as accused, hence, these two persons shall also
be summoned to face trial along with the main accused Arjun.
In support thereof, it was urged that the complainant Kamlesh
as PW.10 specifically deposed against the proposed accused
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Naveen and Mehar Singh as accomplices of accused Arjun
because these two persons were also present in the hospital
with the deceased and their presence is established from the
CCTV footage of Sunflag Hospital, Rohtak and they should
also be summoned to face trial with accused Arjun.
7. In counter, learned counsel for the appellant submitted
that the complainant PW.10 has made deliberate
improvements in her statement and is trying to involve the
innocent persons. It was also submitted that from the
statement of PW.6 Mahipal, the Hotel Manager and PW.8
Deepchand, Waiter, it is clear that the deceased used to
accompany the accused Arjun voluntarily to their hotel. Even
from the deposition of PW.5 Deepak Kumar, Nodal Officer,
Idea Cellular Company Limited, Panchkula, it could easily be
established that on the date of occurrence, the CCTV footage
of the hotel where the alleged fateful incident occurred, proves
that the accused Arjun and deceased/ prosecutrix were not
accompanied by any other person at the time of their visiting
the hotel and as per case of the prosecution, the alleged
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occurrence had taken place in the hotel and not in the
hospital where the accused had taken the
deceased/prosecutrix and if the proposed accused persons
had visited the hospital, in no manner, they become
accomplices with the respondent/accused who was facing
trial.
8. Taking into consideration the overall material available
during the course of trial, the learned trial Judge was satisfied
that it was not a case to invoke Section 319 CrPC and
returned a finding that the evidence of summoning an
additional accused should be of such nature from which it can
be seen that if the evidence recorded during the course of trial
remain unrebutted, there are chances of conviction of the
proposed accused persons and mere prime facie evidence is
not sufficient to summon the additional accused and
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accordingly dismissed application by order dated 10
February, 2020.
9. We have heard learned counsel for the parties and with
their assistance perused the material on record.
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10. It is worthy to note that trial of accused Arjun, case
bearing No.SC/59/2018, titled as “State Versus Arjun” was
concluded and he was held guilty and convicted for offence
under Section 302 IPC with imprisonment for life by judgment
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dated 28 July, 2022.
11. The scope and ambit of Section 319 CrPC has been well
settled by the Constitution Bench of this Court in Hardeep
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and paras 105 and
Singh v. State of Punjab and others
106 which are relevant for the purpose are reproduced
hereunder:
“ 105. Power under Section 319 CrPC 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.
Thus, we hold that though only a prima facie case is to
106.
be established from the evidence led before the court, not
necessarily tested on the anvil of crossexamination, 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
1 (2014) 3 SCC 92
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the absence of such satisfaction, the court should refrain
from exercising power under Section 319 CrPC. In Section
319 CrPC 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 CrPC to form any opinion as to the guilt
of the accused.”
12. The Constitution Bench has given a caution that power
under Section 319 CrPC is a discretionary and extraordinary
power which should be exercised sparingly and only in those
cases where the circumstances of the case so warrant and the
crucial test as noticed above 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.
13. While applying the aforestated principle, we may
examine the facts of the instant case. It will manifest that the
present incident is based on circumstantial evidence. As per
the prosecution case, the alleged occurrence has taken place
in the hotel and not in the hospital. In hospital, the appellant
had taken the deceased/prosecutrix and if the appellant as
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proposed, visited the hospital, that in no manner could make
him an accomplice with the accused Arjun and apart from the
evidence of the complainant PW.10, the statement of other
prosecution witnesses, PW.6 Mahipal, the Hotel Manager and
PW.8 Deepchand, Waiter, no one has accompanied the
deceased other than accused Arjun. The CCTV footage of the
hotel where the alleged occurrence has taken place which
came on record during the course of trial indicates that no
other person had visited the hotel except Arjun who was made
accused and faced trial.
14. So far as Mehar Singh is concerned, it may be noticed
that it was conceded before the High Court that the name of
Mehar Singh does not figure anywhere during the investigation
and there is no evidence against him to deny him from facing
prosecution. That apart, it was recorded by the High Court
that the hotel staff and of the hospital staff showed presence of
two boys and that corroborates the initial stand of the
complainant that two boys were there at the time of
occurrence but that appears to be factually incorrect. The
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presence of two boys was in the hospital and not in the hotel
as per the case of the prosecution and this what was deposed
by the prosecution witnesses whose statements were recorded
during the course of trial as PW.6 and PW.8 and also the
record of the CCTV footage of the hotel as a part of evidence
relied upon by the prosecution.
15. After we have examined the material on record, in our
considered view, the evidence recorded during the course of
prosecution, if remains unrebutted, will not be sufficient to
lead the conviction so far as the present appellant is
concerned and accordingly the order passed by the High Court
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dated 6 January, 2022 is not sustainable in law and deserves
to be set aside.
16. Before parting with, we make it clear that what has been
observed by this Court is only for the purpose of disposal of
the present appeal in reference to the power invoked under
Section 319 CrPC by the High Court to summon the present
appellant for facing trial with reference to FIR No.156 dated
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12 March, 2018 registered under Sections 302, 307, 364,
366, 376 read with Section 34 IPC at Police Station City
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Bhiwani where by judgment dated 28 July, 2022 accused
Arjun has been held guilty and convicted for offence under
Section 302 IPC and sentenced to life imprisonment against
which the appeal has been filed in the High Court at the
instance of accused Arjun that may be decided uninfluenced
by the observations made on its own merits in accordance
with law.
17. Consequently, the appeal stands allowed and the order
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impugned dated 6 January, 2022 passed by the High Court
is set aside.
18. Pending application(s), if any, stand disposed of.
….………………………J.
(AJAY RASTOGI)
…………………………….J.
(C.T. RAVIKUMAR)
NEW DELHI
NOVEMBER 01, 2022.
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