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2009 DIGILAW 2074 (PNJ)

Mahinder Singh v. Swaran Kaur

2009-11-30

S.S.SARON

body2009
Judgment S.S.Saron, J. 1. This revision petition has been filed against the order dated 4.9.2009 passed by the learned Additional Sessions Judge, Yamunanagar at Jagadhri, whereby the application of the State for summoning respondents-1 to 4 as additional accused in terms of Section 319 Code of Criminal Procedure (Cr.P.C. - for short) has been dismissed. 2. The FIR in the case has been registered on the complaint filed by Mahinder Singh - petitioner under Section 156(3) Cr.P.C. It has been alleged that the marriage between Tajinder Singh and Balwinder Kaur was solemnized on 22.9.1985. After marriage, they lived as husband and wife but they had no issue. According to the complaint, the couple could not bear a child due to physical disability of Tajinder Singh - accused which came to light on his medical investigation. Thereafter in December 1999, Tajinder Singh, in due consultation with his mother - Swaran Kaur (respondent-1) as also Jaswant Singh - father of Tajinder Singh, decided to adopt the maternal grandson of the complaint i.e. the son of the other daughter of the complainant namely Smt Balbir Kaur wife of Pritpal Singh. Accordingly, their son namely Mehakdeep Singh was adopted in the month of December 1999. Although, Mehakdeep Singh had been adopted by Tajinder Singh - accused and his wife - Balwinder Kaur with the consent of Swaran Kaur (respondent-1), but the behaviour and attitude of Tajinder Singh and Swaran Kaur (respondent-1) as also Jaswant Singh (since deceased) was very rude and cruel towards Mehakdeep Singh. They treated him with cruelty by humiliating him. On account of this, Balwinder Kaur - daughter of the complainant got upset and mentally tense. Whenever the daughter of the complainant asked her husband - Tejinder Singh and her mother-in-law - Swaran Kaur as also her father-in-law - Jaswant Singh to celebrate the birthday of Mehakdeep Singh, they avoided the same on one pretext or the other. With the passage of time, their behaviour, it is stated, became worse towards Mehakdeep Singh. It is alleged that Tajinder Singh - accused, Smt Swaran Kaur (respondent-1) and Jaswant Singh (since deceased) conspired amongst themselves for committing the murder of Balwinder Kaur. In this way, Tajinder Singh, Swaran Kaur and Jaswant Singh used to instigate and abet Smt Balwinder Kaur for committing suicide. On 26.2.2002 at about 2 p.m., the complaint received a telephonic message at the farmhouse of his brother. In this way, Tajinder Singh, Swaran Kaur and Jaswant Singh used to instigate and abet Smt Balwinder Kaur for committing suicide. On 26.2.2002 at about 2 p.m., the complaint received a telephonic message at the farmhouse of his brother. He was informed by someone that his daughter had suffered a heart-attack and was admitted in the Civil Hospital at Jagadhri. The complainant along with his brother and other relatives reached there where they found Smt Balwinder Kaur lying dead. On inquiry, Tajinder Singh - accused, Smt Swaran Kaur (respondent-1) and Jaswant Singh (since deceased) conspired amongst themselves for committing the murder of Balwinder Kaur. In this way, Tajinder Singh, Swaran Kaur and Jaswant Singh used to instigate and abet Smt Balwinder Kaur for committing suicide. On 26.2.2002 at about 2 p.m., the complainant received a telephonic message at the farmhouse of his brother. He was informed by someone that his daughter had suffered a heart-attack and was admitted in the civil Hospital at Jagadhri. The complainant along with his brother and other relatives reached there were they found Smt Balwinder Kaur lying dead. On inquiry, Tajinder Singh - accused, Smt Swaran Kaur (respondent-1) and Jaswant Singh as also Harvinder Singh and Joginder Singh (respondents-2 and 3, respectively) stated that statement of Smt Balwinder Kaur had already been recorded by a Magistrate and in said statement, she did not blame anyone and did not hold anybody responsible for her death. The complainant and his relatives were under heavy shock and could not imagine the mala fide and dishonest intention as also the criminal conspiracy hatched by the aforesaid accused persons and relied upon their version. A Police personnel at the spot obtained the signatures of the complaint and his relatives on some blank papers and writings which were not read over to the complainant on the pretext that these were formal investigation of the Police i.e. the Panchnama. The post-mortem of Balwinder Kaur was conducted on 27.2.2002. It is thereafter that the complaint came to know from the locality that his daughter was either administered poison by Tajinder Singh and Swaran Kaur as also Jaswant Singh or she was forced to take poison due to intolerable and cruel act of the accused. The post-mortem of Balwinder Kaur was conducted on 27.2.2002. It is thereafter that the complaint came to know from the locality that his daughter was either administered poison by Tajinder Singh and Swaran Kaur as also Jaswant Singh or she was forced to take poison due to intolerable and cruel act of the accused. When the said fact came to the knowledge of the complaint, he went to the Police Station and requested the Police of PS City Jagadhri to take legal action against the accused for causing death of his daughter as the poison was administered to his daughter at the house of the accused. However, the Police informed the complainant that action would be taken after the receipt of the Viscera, which had been sent to the FSL Madhuban. The petitioner accepted the said position of the Police. Thereafter, the petitioner, from the locality, came to know that his daughter was murdered by Tajinder Singh - accused, Smt Swaran Kaur (respondent-1) with Jaswant Singh (since deceased) or she was forced to consume poison as the accused wanted to get rid of Balwinder Kaur with an intention to solemnize the second marriage of Tajinder Singh - accused. The petitioner also came to know that the statement of Smt Balwinder Kaur was not recorded by a Magistrate on 26.2.2002 and a false information was supplied by Tajinder Singh - accused as also respondents-1 to 3. The petitioner again visited the Police Station and narrated the version of the people of the locality. However, the Police maintained its stand that without the FSL report, they could not take any action. It is also stated that after the death of Balwinder Kaur, the daughter of the complainant, her son Mehakdeep Singh was also treated with utmost cruelty by the accused and ultimately shunted out from the house. Thereafter, the FSL report was received whereby the cause of death gave a positive report of Aluminium Phosphide poison. Therefore, it was requested that legal action be taken. On the basis of the complaint made by the petitioner, FIR for the offences punishable under Sections 306, 120B IPC was registered at PS City Jagadhri. The Challan (P2) in the case has also been filed on 12.3.2009 for the offence under Section 306 IPC against the accused. Except for Tajinder Singh - accused, the other accused were not charge sheeted (challaned) by the Police. The Challan (P2) in the case has also been filed on 12.3.2009 for the offence under Section 306 IPC against the accused. Except for Tajinder Singh - accused, the other accused were not charge sheeted (challaned) by the Police. The charge has been framed against Tajinder Singh - accused for the offence under Section 306 IPC. Thereafter, statement of Mahinder Singh - petitioner was also recorded as PW-1 on 19.8.2009 (P3). During the examination-in-chief, further examination was deferred as an application was filed by the learned PP under Section 319 Cr.P.C. which has been dismissed by the impugned order dated 4.9.2009. 3. Learned counsel for the petitioner has contended that the role attributed to Tajinder Singh - accused and Smt Swaran Kaur (respondent-1) is identical and, therefore, it Tajinder Singh was charge-sheeted (challenged) by the Police, Swaran Kaur (respondent-1) should also have been charge-sheeted (challenged). It is also stated that no reason has been recorded by the Police during investigation as to why the offence was not made out against Swaran Kaur (respondent-1). It is submitted that even though the offence may not be made out against respondents-2 to 4, however, Swaran Kaur (respondent-1) is liable to be summoned. 4. I have given my thoughtful consideration to the contentions of the learned counsel for the petitioner and gone through the record. 5. The learned trial Court by a detailed order has held that no ground is made out for summoning respondents-1 to 4 as additional accused. It has been observed that no prima facie evidence has appeared against accused - Harvinder Singh, Joginder Singh and Dr BK Sharma (respondents-2, 3 and 4 respectively) showing or suggesting their involvement in the commission of the offence. As regards Swaran Kaur (respondent-1) is concerned, it was noticed that it had been alleged that she subjected Balwinder Kaur (deceased) to cruelty and had been taunting her for not giving birth to a child. Besides, she allegedly asked Balwinder Kaur to leave her son by committing suicide. It was, however, noticed that in the statement recorded before the Police at the time of inquest proceedings, the complainant did not hold the mother-in-law of Balwinder Kaur (deceased) responsible for her death; rather the complainant pleaded in the complaint that Swaran Kaur (respondent-1) consented to the adoption of the child of the sister of Balwinder Kaur (deceased). Thereafter, the child was adopted also. Thereafter, the child was adopted also. Apart from this, there is no other additional evidence at the said stage to involve Swaran Kaur (respondent-1) in the said offence except the verbatim statement of the complainant - Mahinder Singh. The Police, after investigation, had found Swaran Kaur (respondent-1) to be not involved in the commission of the offence. 6. A person who is not included as and accused in the charge-sheet, can be summoned by a Magistrate after taking cognizance of the offence if there is some material and evidence against him. The evidence should indicate a reasonable prospect that the person who is to be summoned, would be convicted. The mere suspicion of his involvement is not sufficient enough to summon an accused. The exercise of power under Section 319 CrPC has been held to be discretionary. It is to be ascertained that the person who is to be summoned as an accused for the offence, had committed an offence and that for such an offence, the person to be summoned could well be tried with the accused already arraigned. The present is a case under Section 306 IPC and it cannot on the basis of the material on record at this stage be said against Swaran Kaur (respondent-1) that she had abetted the commission of suicide by Smt Balwinder Kaur (deceased). Therefore, the learned Trial Court having formed an opinion on the basis of appreciation of material on record and finding no ground for summoning respondents-1 to 4 as additional accused, no ground for summoning respondents-1 to 4 as additional accused, no ground is made out for interfering with the impugned order. 7. Consequentially, there is no merit in this petition and the same is accordingly dismissed. It is, however, made clear that nothing observed hereinabove shall be construed as an expression of opinion on the merits of the case against Tajinder Singh - accused and the learned trial Court shall consider the evidence and material as adduced on record independently and in accordance with law.