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2001 DIGILAW 1288 (PNJ)

Lajpat Rai v. State Of Haryana

2001-11-20

R.C.KATHURIA

body2001
Judgment R.C.Kathuria, J. 1. Lajpat Rai-petitioner seeks quashing of order dated 16.3.1994 passed by the Additional Sessions Judge, Kaithal during the trial of the case bearing FIR No. 149 dated 24.5.1991 registered under Section 304-B I.P.C. whereby he had been summoned as an accused under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code). 2. The essential facts to focus the controversy involved in this petition have to be noticed. Lajpat Rai-petitioner had married Usha Rani daughter of Kishan Chand on 15.4.1990. On 24.5.1991 she attempted to commit suicide by burning herself as a result of which she succumbed to the injuries on 8.6.1991 in the Medical College and Hospital, Rohtak. During the period she was admitted in the hospital, her dying declaration was recorded wherein she stated that her father-in-law and mother-in-law used to harass her for bringing less dowry. She also stated that she had been harassed by them for not bringing Vicky (moped) and show case in the dowry and that they had used intemperate language to her. Because of the harassment faced by her from her in-laws, she set herself on fire with the help of kerosene oil at 9.10 p.m. She also stated that she had been admitted in the Medical College and Hospital, Rohtak by her husband and father-in-law on 17.5.1991 and earlier to that she was taken to Civil Hospital, Kaithal. After her death inquest proceedings were held and during those proceedings Kishan Chand, father and Om Parkash, brother of the deceased attributed the harassment to only Punnu Ram, father-in-law and Bhagwani Devi, mother-in-law of Usha Rani deceased as stated by Usha Rani in her dying declaration referred to above. Parmeshwari Devi, mother of Usha Rani, in her police statement recorded on 26.5.1991 had stated that about one and half months earlier her daughter told her that her mother-in-law and father-in-law had made a demand of moped and show case which was not given to her in dowry and for that reason they had taunted her. This fact was narrated by her to Om Parkash and as thereafter she had fallen ill, she could not talk to the in-laws of her daughter Usha Rani. On completion of the investigation, the Police submitted a report under Section 173 of the Code against Bhagwani Devi and Punnu Ram under Sections 304-B and 498-A I.P.C. 3. This fact was narrated by her to Om Parkash and as thereafter she had fallen ill, she could not talk to the in-laws of her daughter Usha Rani. On completion of the investigation, the Police submitted a report under Section 173 of the Code against Bhagwani Devi and Punnu Ram under Sections 304-B and 498-A I.P.C. 3. During the course of trial statement of Kishan Chand, father of Usha Rani deceased was recorded on 20.8.1992, wherein, he named Lajpat Rai as well for commission of the crime along with Darshan, brother-in-law, and Usha, sister- in-law, of the deceased. During the course of his cross-examination an application for summoning Lajpat Rai under Section 319 of the Code was moved from the side of the prosecution which prayer was accepted by the Additional Sessions Judge, Kaithal as per order dated 9.10.1992 Lajpat Rai was summoned to face trial under Sections 304-B and 498-A IPC. This order was challenged by Lajpat Rai by filing Criminal Miscellaneous No. 11959-M of 1992 and the impugned order was set aside. Thereafter cross-examination of Kishan Chand was completed. On 7.1.1994, again an application was filed by Kishan Chand through Public Prosecutor seeking summoning of Lajpat Rai as an accused to face trial along with other co-accused under Section 319 of the Code which was accepted by the Additional Sessions Judge, Kaithal vide order dated 16.3.1994. It is this order which has been challenged in the present petition. 4. I have heard counsel for the parties. Learned counsel representing the petitioner-accused, while assailing the order dated 16.3.1994 of the Additional Sessions Judge, Kaithal, has strenuously urged before me that the trial Judge failed to take into account that there was no material on record including the statement of Kishan Chand which could form the basis for the conclusion that the petitioner-accused is guilty of the offence for which he had been summoned to face trial and for that reason the impugned order is against the parameters laid down in Section 319 of the Code. It was also pointed out by him that the trial Judge completely overlooked the fact that the petitioner was cited as a witness by the prosecution in view of the statements made before the Police by the deceased, her parents and her brother-Om Parkash and the unreliable and after-thought version rendered by Kishan Chand during the course of his deposition could not be made the basis to overturn petitioners position from a witness to an accused and call upon him to face the trial along with other accused in respect of the accusation made against them. 5. Opposing the submissions made, the State counsel has justified the impugned order of the trial Judge for the reasons stated therein. 6. This is a case where the trial of the case is at the initial stage because the trial Court had only recorded the statement of Kishan Chand (PW-1) so far and that too in parts. In the dying declaration of Usha Rani, she had stated that her mother-in-law and father-in-law had been harassing her for not bringing moped and show case in dowry and had been using intemperate language to her. On account of harassment so made by them she had set herself on fire. During the course of inquest proceedings Kishan Chand and Om Parkash in their statements have supported the above version of Usha Rani for setting herself on fire on 16.5.1991 attributing harassment to Bhagwani Devi and Punnu Ram for not bringing moped and show case in her dowry. Even Parmeshwari Devi in the police statement had rendered a similar version. 7. During the trial of the case when Kishan Chand was examined on 20.8.1992, he deposed as under :- "In the marriage, I had given dowry in commensurate with my means. After he marriage whenever my daughter Usha came to our house told us that she was being harassed by the two accused, her husband Lajpat, brother-in-law Darshan and sister-in-law Usha. They say my daughter did not bring adequate dowry. I did not give her in marriage Moped, watches and cash of Rs. 15,000/20,000/- which the accused have to pay in the Market. All of them demanded these articles. I being poor could not give these articles." 8. His further statement is that "On 24th. Again said on 26th I came to Kaithal to bring money as my daughter was under treatment at Rohtak. 15,000/20,000/- which the accused have to pay in the Market. All of them demanded these articles. I being poor could not give these articles." 8. His further statement is that "On 24th. Again said on 26th I came to Kaithal to bring money as my daughter was under treatment at Rohtak. At the house my wife Parmeshwari told me that the accused and others have been harassing our daughter Usha on account of dowry. I replied that I have to go to Rohtak as Usha was dying there and that my wife should make application to the police. My son and I came to Rohtak. Usha was lying in the hospital. she told us that he wanted to make another statement before the Magistrate. Then my son Kamaljit made application to the Magistrate but the statement was not recorded. Earlier, the request made to the police was also not yielded too. My daughter Usha died on 8.6.1991." 9. The subsequent statement which he made in the cross-examination on 7.1.1994, relating to the controversy in question is as under :- "I then went to Usha. I met her at about 10/10.30 p.m. Usha told me that she was set on fire by Darhsan, Lajpat, Punnu Ram, Bhagwani Devi and Usha daughter of Punnu Ram. Usha was not fit to make statement at the time of Magistrate came there to record her statement. Police was also there. My sons Kamaljit and Sunder Lal also reached there. When Usha my daughter told me that she had been set on fire by the accused and others, my sons were present. Police had no talk with me, nor they had any talk with my sons. My sons did not accompany me to Rohtak." He further stated as under :- "My daughter had told me about the demand of the accused regarding Moped and watch prior to her arrival in the hospital. She had told me so 3/4 months prior to the occurrence when I had gone to meet her in the house of her in- laws. When I took her to Rohtak, she was unable to speak. She only demanded water. She remained unconscious for 10/15 days. Thereafter she could speak. I did not meet the police at Rohtak. My statement was not recorded by the Police after the death of my daughter. When I took her to Rohtak, she was unable to speak. She only demanded water. She remained unconscious for 10/15 days. Thereafter she could speak. I did not meet the police at Rohtak. My statement was not recorded by the Police after the death of my daughter. However, my signatures were obtained in police post at Rohtak, in order to take the receipt of the dead body of my daughter." 10. It has also come in the statement of this very witness that he did not himself go to the higher officer to report against the petitioner-accused after the version so rendered to him by his daughter Usha and rather he had asked his wife to make an application in this regard. 11. The reasons which prevailed with the Additional Sessions Judge, Kaithal to summon the petitioner-accused to face the trial are contained in paras 8 to 11 of the order dated 16.3.1994 and the same are as under :- "8. The statement of Kishan Chand P.W.1 now forms the part of legal evidence because he has been fully cross-examined. Witness speaks of the fact that Usha deceased told him that she was being harassed by the two accused her husband Lajpat and the other relations. They had laid specific demand of moped, watches and cash. Kishan Chand expressed inability to meet those demands being a poor person. The rest of the story that Usha committed suicide by setting herself on fire and she died of those burns is not only affirmed by Kishan Chand P.W.1 but is also proved from the other documentary evidence on the file. 9. The learned Counsel for the accused contends that in the dying declaration made by Usha on 24.5.1991 at Rohtak she did not implicate Lajpat and that in his statement Kishan Chand had tried to make out a case of murder instead of suicide. 10. The pertinent thing to be taken note of is that the articles demanded from the bride and her parents were required for use by Lajpat and his parents. Looking to the strata of the society to which the parties belong, it cannot be believed that the moped demanded from the bride was to be used by the old parents of Lajpat. Obviously, it was meant for his benefit. Looking to the strata of the society to which the parties belong, it cannot be believed that the moped demanded from the bride was to be used by the old parents of Lajpat. Obviously, it was meant for his benefit. Lajpat having entered into marriage with the deceased, it was his duty to protect her from harassment and ill treatment. Significantly, Lajpat failed in his that important matrimonial duty. He cannot be absolved of the charges simply because of absence of his name in the dying declaration. 11. Kishan Chand is the father of the deceased bride. He is certainly agitated. It is quite possible that he had tried to exaggerate the things by saying that Usha was murdered. In any case, he was not present at the spot. The unnatural cause of death of Usha within seven years of her marriage with Lajpat is amply proved. Coupled with the evidence of harassment on account of dowry, there is sufficient material on record to summon Lajpat as accused in the case to stand trial alongwith the present accused for the offences punishable under Sections 498-A and 304-B of IPC." In order to appreciate the respective stands taken by the parties, it is a prefatory necessity to examine the provisions of Section 319 of the Code which read as under :- "319. Power to proceed against other persons appearing to be guilty of offence. - (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. (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. (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. (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. (4) Where the Court proceeds against any person under sub-section (1) then - (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (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." 12. The above provisions leave no manner of doubt that the pre-requisite for invoking the provisions of Section 319 of the Code is that evidence should disclose the commission of offence by the person who had not been arraigned as an accused for which he should be tried together with other accused. The key to the satisfaction of such a requirement is contained in the words "it appears from the evidence that any person not being an accused has committed an offence". The manifest significance of the word "appears" employed in this section by the Legislature is to cover both the stages envisaged under the provisions of Section 319 of the Code in relation to the person who had not been earlier facing trial as an accused but such person must appear to have committed the offence so that he be tried together with other accused. Though these provisions had vested a discretionary power in the Court but it being a judicial discretion has to be exercised in such a manner which would advance the cause of criminal justice. The court is duty bound to see that these provisions are not used as a handle by a witness to bring another person in the arena of trial without any acceptable basis brought forth in his statement. The Court will definitely come to the rescue of the complainant where on the basis of evidence brought on record, it is clearly made out that the other person named by him had not been sent up to face trial along with other accused unfairly by the prosecution though the other person named on record was also responsible for commission of crime. That being so it is the paramount duty of the court that the left over person should be made to face the trial along with other accused so that cause of justice could not be allowed to suffer at the hands of the investigating agency. Therefore, the Court has to be extra-cautious while exercising the discretion vested in it and apply the test that prima facie there is sufficient evidence to warrant conviction of the person to be summoned to face trial along with other co- accused. 13. When power under Section 319 of the Code should be exercised has been deliberated in case Michael Machado and another v. Central Bureau of Investigation and another, 2000(2) RCR(Criminal) 75, wherein in paras 11 to 14, it was observed as under :- "11. The basic requirements for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well as tried along with the already arraigned accused. 12. But even then, what is conferred on the court is only a discretion as could be discerned from the words "the Court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other persons. 13. It must be remembered that there is no compelling duty on the Court to proceed against other persons. 13. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, 1983(1) RCR(Crl.) 73 : 1983(1) SCC 1 this Court has struck a note of caution, while considering whether prosecution can produce evidence to satisfy the court that other accused against whom proceedings have been quashed or those who have not been arrayed as accused, have also committed an offence in order to enable the court to take cognizance against them and try them along with the other accused. This was how learned Judges then cautioned : "But we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken." 14. The Court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be re-commenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite large in number the Court must seriously consider whether the object sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the court should refrain from adopting such a course of action." In the above mentioned case despite the fact that statement created a suspicion against the appellant, it was concluded that the suspicion was not sufficient to hold that there is reasonable prospects of convicting the appellants of offence of criminal conspiracy. Notice was also taken of the fact that as many as 49 witnesses have been recorded who did not utter a single word against any of the appellants. 15. Notice was also taken of the fact that as many as 49 witnesses have been recorded who did not utter a single word against any of the appellants. 15. In view of the law laid down in the above mentioned cases, the following factors are required to be taken into account for invoking the provisions of Section 319 of the Code :- (i) The doubt about the involvement of the other accused has no place. (ii) Discretionary power so vested in Cr.P.C. under these provisions should be exercised to advance the cause of criminal justice. (iii) There is compelling duty on the Court to proceed against other accused. (iv) The power vested in this section is an extraordinary power which should be used very sparingly. 16. Coming to the facts of the present case, it is clear from the record that Lajpat Rai was not named as accused in the FIR. The involvement of the petitioner-accused in the commission of crime was not stated in their police statements by any of the witnesses including Kishan Chand. Even after the investigation of the case was completed, the police found no material against the petitioner-accused and for that reason his name was not even shown in column No. 2 of the report submitted under Section 173 of the Code. Rather, the Police cited him as a witness for the prosecution. No doubt, a person, who is a witness in a case, can also be summoned as an accused, but there should be some basis in this regard in the evidence. 17. In the dying declaration of Usha Rani recorded on 24.5.1991 at Rohtak, she had not implicated her husband-Lajpat Rai, for the commission of the crime. As far as Kishan Chand is concerned, he is not an eye witness of the occurrence. Coming to his statement recorded in the Court, which has been noticed earlier, he for the first time came out with the version that after the marriage whenever his daughter Usha Rani came to his house, she told that she was being harassed by accused, namely, Punnu Ram and Bhagwani Devi, her husband-Lajpat Rai, Darshan, brother-in-law, and Usha, sister-in-law, because he had not give in marriage Moped, watches and cash amount of Rs. 15,000/- - Rs. 20,000/-. 15,000/- - Rs. 20,000/-. His other version is that when he had met his daughter-Usha Rani in the hospital at 10.30 p.m., she had told him that she was set on fire by Darshan, Lajpat Rai, Punnu Ram, Bhagwani Devi and Usha Rani, daughter-in-law of Punnu Ram. The above quoted statement, which was referred to at the risk of repetition clearly brings out that altogether a new case has been set-up by him for which no foundation was laid any time during the investigation of the case. It is for this reason that even in the impugned order dated 16.3.1994 of the Additional Sessions Judge, Kaithal in para 11, it was specifically observed that Kishan Chand, father of the deceased bride is certainly an agitated person and for that reason he had tried to exaggerate the things by saying that she was murdered, though factually, he was not present at the spot. Thus, the trial Judge had doubted this version of Kishan Chand and had not placed any reliance on it. Even the trial Judge had not accepted the version of Kishan Chand in respect of involvement of Darshan, brother-in-law and Usha, sister-in-law of the deceased. The other reason which persuaded the learned trial Judge in accepting the statement of Kishan Chand is contained in para 10 of the order, wherein he had drawn his own conclusion that articles demanded from the brides parents were required for use by Lajpat Rai and his parents. Taking notice of the background and status of the families of the parties and section of society to which they belonged the learned trial Judge went to the extent of drawing a conclusion that demand of Moped was made from Lajpat Rai by the parents of the petitioner for his benefit. The other observation that it was the duty of Lajpat Rai to have protected his wife from harassment and ill-treatment and that he failed to discharge his important marital duty has no bearing so far as accusation against the petitioner is concerned. Rather, these conclusions drawn by the trial Judge are not supported by any material on record because these facts have not been specifically stated by Kishan Chand during the course of his statement. Rather, these conclusions drawn by the trial Judge are not supported by any material on record because these facts have not been specifically stated by Kishan Chand during the course of his statement. These presumptions and inferences drawn by the trial Judge on the basis of statement of Kishan Chand cannot be made the basis for summoning Lajpat Rai as an accused to face the trial along with his parents in this case merely because during the course of trial, Kishan Chand had named petitioner also for being responsible for causing harassment to his daughter in relation to demand of dowry articles. The attempt of Kishan Chand to rope in every member of the family of the petitioner including sister-in-law and brother-in-law of the deceased is sufficiently indicative of the fact that his statement made during the trial cannot be taken into account for invoking the provisions of Section 319 of the Code. 18. The circumstances discussed above would not justify that the statement of Kishan Chand be made basis for summoning the petitioner-accused to face the trial along with other accused. All these aspects have been ignored by the Additional Sessions Judge in his order dated 16.3.1994 and for that reasons it has to be set aside. 19. For the aforesaid reasons, the petition is accepted and the impugned order is set aside and proceedings initiated against the petitioner-accused are quashed.