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2002 DIGILAW 1171 (PNJ)

Jaswinder Kaur v. State Of Punjab

2002-11-01

NIRMAL SINGH

body2002
Judgment Nirmal Singh, J. 1. The facts in brief are that case against Baru Singh, Mehar Singh and petitioner was registered under sections 304-B/109/34 IPC on the statement of complainant Mewa Singh. After investigation, petitioner was found innocent. Baru Singh and Mehar Singh were sent up by the police to face trial for the offence under section 304-B/109 IPC. After recording statement of Mewa Singh, Public Prosecutor moved an application under section 319 Cr.P.C. for summoning the petitioner as an additional accused. The learned Additional Sessions Judge after recording the evidence summoned the petitioner as an additional accused to face trial alongwith Baru Singh and Mehar Singh. 2. Mr. Lalit Garg, learned counsel for the petitioner submitted that petitioner cannot be summoned as additional accused to face trial under section 304-B read with section 34 IPC. He contended that under section 304-B IPC, only the husband or any of his relative can be prosecuted who harassed the married woman on account of damand of dowry and death of the woman occurred in unnatural way within 7 years of her marriage and further it has to be proved that she was harassed soon before her death. He further contended that petitioner is not the relative of husband of deceased. He pointed out that petitioner was the mediator. He contended that the evidence against the petitioner is vague, contradictory. He pointed out that there is no evidence with the prosecution to prove that a prima facie case is made out against the petitioner to summon her as an additional accused. He further contended that powers under section 319 Cr.P.C. can be exercised only in a case when evidence indicates reasonable prospect of conviction and prima facie indicates complicity of the accused in the crime. In support of his submissions, he placed reliance on Michael Machando and another v. Central Bureau of Investigation and another, 2000(2) RCR(Criminal) 75. 3. Mrs. R.K. Nihalsinghwala, learned DAG submitted that learned trial Court after appreciating the evidence on record has passed a well-reasoned order. In support of his submissions, he placed reliance on Michael Machando and another v. Central Bureau of Investigation and another, 2000(2) RCR(Criminal) 75. 3. Mrs. R.K. Nihalsinghwala, learned DAG submitted that learned trial Court after appreciating the evidence on record has passed a well-reasoned order. She contended that at the time of summoning a person as an additional accused, it is not to be seen whether the evidence given by the witness in the court is sufficient to convict or to acquit but if from the facts, the complicity of the accused is established, then he can be summoned to face trial alongwith other co-accused, who are already facing trial. Before considering the rival contentions of the parties, it will be appropriate to notice the provisions of Section 304-B IPC, which reads as under :- "304-B. Dowry death - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative or her husband for or in connection with any demand of dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death." 4. A perusal of the section shows that under this section only husband or his relatives can be prosecuted. Admittedly, petitioner is not the relative of husbnad of deceased. She was only the mediator and helped the parties in the settlement of the marriage. During investigation, prosecution has failed to collect any evidence that petitioner ever harassed or demanded dowy from the deceased or from her relatives. 5. The evidence on the basis of which petitioner has been summoned is the statement of one Babu Singh that when husband of the deceased had gone to the house of Mewa Singh, complainant, to get back his wife, then petitioner accompanied him and he (Babu Singh) over-heard petitioner and Baru Singh talking with each other that Baljinder Kaur be done to death. The evidence given by Babu Singh is the improved version and is only to implicate the petitioner. 6. The evidence given by Babu Singh is the improved version and is only to implicate the petitioner. 6. In Michael Machando and another v. Central Bureau of Investigation and another, 2000(2) RCR(Criminal) 75, the Apex Court has held as under :- "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." 7. From the evidence recorded, there is no prospect of convicting the petitioner, rather it shows that petitioner has been falsely implicated. 8. For the reasons recorded above, this revision is accepted and order dated 21.9.2001 passed by learned Additional Sessions Judge is set aside. Learned Additional Sessions Judge shall proceed with the trial of accused, who are already facing trial.