Hetram @ Babli vs State Of Rajasthan

Court: Supreme Court
Case type: Criminal Appeal
Decided on: 20-11-2024

<pre> 2024 INSC 903
 NON-REPORTABLE 
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.4656 OF 2024
(Arising out of S.L.P.(Criminal) No.4253 of 2023)
HETRAM @ BABLI ... APPELLANT(S) 
 VS.
STATE OF RAJASTHAN & ANR. ... RESPONDENT(S)
 
 J U D G M E N T
ABHAY S.OKA, J.
Leave granted. 
2. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for the
respondent-State.
th 
3. By the order dated 6 February, 2015, the learned
Sessions Judge rejected the application made under
Section 319 of the Code of Criminal Procedure, 1973 (for
short, "the CRPC") for issuing summons against the
present appellant. The application under Section 319 of
the CRPC was made by the second respondent. The Trial
Court rejected the application. The High Court has
Signature Not Verified
interfered by the impugned judgment in a Revision
Digitally signed by
ANITA MALHOTRA
Date: 2024.11.26
18:57:47 IST
Reason:
Petition filed by the second respondent. 
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4. With the assistance of the learned counsel
appearing for the appellant and the learned counsel
appearing for the respondent-State, we have perused the
material on record. The application under Section 319 of
the CRPC was based on the depositions of two alleged eye
witnesses PW-2 Sona and PW-4 Seema. Both of them, in the
examination-in-chief, deposed that they had seen the
present appellant hitting on the left side of the head of
the deceased by a spade. 
5. The learned counsel appearing for the appellant
submitted that there was no prima facie material against
the appellant. The submission of the learned counsel
appearing for the respondent-State, relying upon a
decision of this Court in the case of Hardeep Singh v.
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State of Punjab , is that the Court while dealing with the
appliation under Section 319 of the CRPC has to only see
the examination-in-chief and decide whether if the same
goes uncontroverted, it will lead to the conviction of
the persons sought to be implicated. He would,
therefore, submit that the High Court is right in
allowing the application.
6. We have carefully perused the evidence of both PW-2
ad PW-4. We have already referred to what they stated in
examination-in-chief. Their cross-examination shows that
1. (2014) 3 SCC 92.
2

the allegation made by them against the appellant in the
examination-in-chief is an omission. PW-2 stated that
apart from her and PW-4, there was no other eye witness.
The omission is significant and relevant. Therefore, in
view of explanation to Section 162 of the CRPC, it will
amount to contradiction.
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7. This Court in the case of Hardeep Singh has
observed that the test to be applied for dealing with the
application under Section 319 of the CRPC is of more than
a prima facie which is required to be considered at the
time of framing of the charge. The test to be applied is
that if the evidence goes unrebutted, whether it would
lead to conviction. The Court has to record satisfaction
in such terms and if such satisfaction cannot be
recorded, the Court should refrain from exercising power
under Section 319 of the CRPC.
8. The learned counsel appearing for the respondent-
State relied upon the first sentence of paragraph 106 of
the aforesaid judgment. In a given case, if power under
Section 319 is sought to be exercised before cross-
examination of material witnesses, the Court cannot
postpone the consideration of the prayer under Section
319 of the CRPC on the ground that the cross-examination
of the witnesses is yet to be recorded.
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9. In the facts of the case, the occasion for
considering the application under Section 319 of the CRPC
arose after the cross-examination of the only eye
witnesses was recorded. Therefore, while deciding an
application under Section 319 of the CRPC, the Court must
consider the cross-examination as well. If an application
under Section 319 of the CRPC is made after the cross-
examination of witnesses, it will be unjust to ignore the
same. The power under Section 319 of the CRPC cannot be
exercised when there is no case made out against the
persons sought to be implicated. In view of the
omissions which are material and which amount to
contradiction, obviously no Court could have recorded a
satisfaction which is contemplated by Section 319 of the
CRPC. It is impossible to record a finding that even a
prima facie case of involvement of the appellant has been
made out.
10. Accordingly, we cannot sustain the impugned order
th 
dated 8 February, 2023 of the High Court and the same is
set aside. S.B.Criminal Revision Petition No.375 of 2015
stands dismissed.
11. We make it clear that consideration by this Court
of the evidence of the two prosecution witnesses is only
for the limited purposes of considering the prayer under
Section 319 of the CRPC as against the appellant.
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12. The appeal is accordingly allowed.
..........................J.
 (ABHAY S.OKA)
 
 ..........................J.
 (AUGUSTINE GEORGE MASIH) 
NEW DELHI;
 November 20, 2024
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