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Allahabad High Court · body

2023 DIGILAW 1934 (ALL)

Satish Chaubey v. State of U. P.

2023-08-10

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : 1. Heard learned counsel for the revisionist, learned counsel for the opposite party Nos. 2 to 5, Sri Ramesh Chand Gupta, learned A.G.A. for the State and perused the material placed on record. 2. By means of present criminal revision revisionist, who is informant in S.T No. 10 of 2020 (State Vs. Sanjay Pathak) arising out of case crime No. 405 of 2019, under sections 498-A, 304B I.P.C. and Section 3 and 4 of Dowry Prohibition Act, P.S.-Panki, District-Kanpur Nagar, has assailed the impugned order dated 10.06.2022, passed by learned Additional Sessions Judge F.T.C. Court No. 1 Etawah, whereby applicant moved an application 30 KH for summoning of respondent Nos. 2, 3 and 4, who are father-in-law, mother-in-law and sister-in-law (Nanad) of the decreased as section 319 Cr.P.C. has been dismissed. The factual matrix of the case in brief are that an F.I.R. was lodged at the instance of informant Satish Chaubey at P.S. Panki, District-Kanpur Nagar on 8.10.2019 with averment that he had married his daughter Priyam @ Divya Pathak with accused Sanjay Pathak on 3.12.2016, in which he spent around rupees 15 lakh up to his capacity, but when she came back after sometime of marriage to the place of the informant, she told that her in-laws are very greedy people, they used to tease her for bringing less dowry. He consoled his daughter that in course of time things will get improve, but his daughter used to inform him that she is being subjected to torture by her husband and in-laws, her sister-in-law, Bittu Tiwari is very interfereing with regard to bringing of dowry. He would console his daughter that she should keep patience, things will get right. On 05.10.2019, his daughter telephoned him that her husband Sanjay Pathak, mother-in-law, Kanchan Pathak, father-in-law Devi Dyal are engaged in maar peet with her. He could not rush to the place of her daughter due to busyness. On the next day, he tried to communicate with his daughter telephonically but phone could not be connected. On same day at around 6:00 P.M., he received information that his daughter had died. The F.I.R. was lodged after 2 days of the incident. Additional City Magistrate, III conducted inquest on dead body of the deceased on 07.10.2019 at the place of the incident in presence of police and punch witnesses. On same day at around 6:00 P.M., he received information that his daughter had died. The F.I.R. was lodged after 2 days of the incident. Additional City Magistrate, III conducted inquest on dead body of the deceased on 07.10.2019 at the place of the incident in presence of police and punch witnesses. In inquest report, fresh marks of friction were found on neck of the deceased, in the opinion of Panch witnesses, the deceased died on 6.10.2019 by hanging. In the post-mortem report of the deceased Divya Pathak, a ligature mark 27 cm x 2 cm around the neck with gap of 10 cm R.P. side back of neck-distance 4.5 cm below chin, 6 cm below left ear,1.5 cm below right ear-on dissection white glistening subcutaneous tissue underline ligature mark was found. According to opinion of doctor, the cause of death was asphyxia due to ante-mortem hanging. The investigation was conducted by Circle Officer, who examined the witnesses, conducted local inspection of place of incident, prepared site plan and after concluding investigation, submitted charge-sheet against husband of the deceased namely, Sanjay Pathak and dropped the name of named accused persons Devi Dayal Pathak, Kanchan Pathak and Bittu Tiwari @ Sukriti, the sister-in-law of the deceased, finding their implication in the F.I.R. false. According to Investigating Officer, the parents-in-law of the deceased were residing separately from deceased and her husband, prior to death of the deceased and accused Bittu Tiwari was married 20 years ago and visit her parental place, occassionaly. Her matrimonial place lies in District-Kanpur Dehat. The Investigation Officer placed reliance on statements of independent witnesses Chaya Devi, Guddi wife of Ram Singh, Asha wife of Vinod Kumar, Balram, Jagdish Dubey, Sumant Pandey while exonerating the respondent nos. 2 to 4 in charge-sheet. The learned Magistrate took cognizance of the offence against chargesheeted accused Sanjay Pathak and committed the case for trial to court of Sessions. On commitment of the case for trial, charge were framed under Sections 498-A, 304B I.P.C. and Section 3 and 4 of Dowry Prohibition Act against accused Sanjay Pathak. 2 to 4 in charge-sheet. The learned Magistrate took cognizance of the offence against chargesheeted accused Sanjay Pathak and committed the case for trial to court of Sessions. On commitment of the case for trial, charge were framed under Sections 498-A, 304B I.P.C. and Section 3 and 4 of Dowry Prohibition Act against accused Sanjay Pathak. In prosecution evidence P.W.-1 Satish Chaubey, present revisionist was examined and after his cross-examination, an application under Section 319 Cr.P.C. has been moved by P.W.-1 Satish Chaubey, the informant with prayer to summon accused persons Devi Dyal, Kanchan Pathak and Bittu @ Sukriti under Section 319 Cr.P.C. to face trial together with accused Sanjay Pathak, who is already facing trial. Learned trial court rejected said application 30 Kha by impugned order after hearing the applicant, public prosecutor and learned counsel for accused-Sanjay Pathak, on ground that on perusal of evidence on record, it appears that the case is of suicide and not of homicidal death. On the basis of evidence on record, no fact or circumstance is disclosed on basis of which it prima facie appears that 4 accused-persons have participated in the offence. General allegations against these accused-persons with regard to demand of dowry and subjecting the deceased to torture are made in evidence of P.W. 1-Satish Chaubey, but no specific charge has been levelled therein. Independent witnesses are examined by Investigating Officer at C.D.-12, who have stated that proposed accused Devi Dyal Pathak and Kanchan Pathak were residing separately from their son Sanjay Pathak and proposed accused Bittu Tiwari was married 20 years ago and she resides in her matrimonial place at District-Kanpur Dehat. In these circumstances, it is difficult to believe that proposed accused persons had subjected the deceased to torture pursuant to demand of dowry. The deceased was residing with her husband Sanjay Pathak and she died due to hanging at the place of her husband during 7 years of her marriage, therefore, in considered opinion of the court, the summoning of proposed accused persons is not found justifiable in the light of law laid down by Apex Court in Hardeep Singh Vs. State of Punjab (2014) 3 SCC 92 . 3. Feeling aggrieved by impugned order, instant criminal revision have been preferred by the informant in the case. State of Punjab (2014) 3 SCC 92 . 3. Feeling aggrieved by impugned order, instant criminal revision have been preferred by the informant in the case. Learned counsel for the revisionist submitted that impugned order dated 10.06.2022, passed by learned trial court is against the law laid down by Hon’ble Supreme Court in catena of decisions with respect to exercise of powers under Section 319 Cr.P.C. The Court below has not considered the application under Section 319 Cr.P.C. as well as the statement of the revisionist given during the course of trial as P.W. 1 in correct perspective, while passing the impugned order. In present case all the essential ingredients of Section 498-A, 304-B and 3/ 4 D.P. Act are clearly made out against respondent nos. 2, 3 and 4 and complicity of these accused persons in the offence cannot be ruled out. The informant and family members of the deceased have supported F.I.R. version in their statement under Section 161 Cr.P.C. also. There is consistent version in the statement of informant in F.I.R., statement under Section 161 Cr.P.C. as well as his statement as P.W. 1 before the Court. On the basis of material on record, it is evident that there was continuous demand of dowry from the deceased Priam @ Divya by her husband as well as her in-laws, the proposed accused, who were also named in F.I.R. She was subjected to cruelty and torture by all the 4 named accused persons, but only the husband of the deceased has been chargesheeted and name of remaining three accused persons were wrongly dropped by the Investigating Officer on the basis of placing reliance on statements of unconcerned persons. The evidence of P.W. 1 is sufficient to establish prima facie case against proposed accused persons for summoning them under Section 319 Cr.P.C. The deceased was subjected to cruelty by all the named accused persons shown, before her death as evident from the evidence of P.W. 1 and previous version in F.I.R. as well as his statement under Section 161 Cr.P.C. The P.W. 1 has categorically stated in cross-examination that the deceased was not suffering from fever or she authored any suicide note. He denied the hand-writing of the deceased in suicide note during cross-examination. He lastly concluded that learned court below while passing the impugned order has completely ignored evidence regarding complicity of respondent nos. He denied the hand-writing of the deceased in suicide note during cross-examination. He lastly concluded that learned court below while passing the impugned order has completely ignored evidence regarding complicity of respondent nos. 2 to 4 in making demand of dowry, consequent torture committed against the deceased and the death of deceased in abnormal circumstances at her matrimonial home. From site plan prepared by police, it is clear that respondent Nos. 2 and 3 are living next to the house of the accused Sanjay Pathak (husband) and the same cannot be termed as separate living. There is specific allegations against respondent Nos. 2 to 4 by the revisionist in his evidence, therefore, there plea for separate living cannot absolve them from their criminal liability and they are liable to be tried together with accused Sanjay Pathak. Therefore, impugned order is liable to be set aside and necessary directions may be issued to summon respondents nos. 2 to 4 to face trial together with co-accused Sanajy Pathak. 4. Per contra, learned counsel appearing for respondent nos. 2 to 4 submitted that there is no legal or factual error in impugned order passed by learned court below by rejecting application under Section 319 Cr.P.C. moved by the revisionist for summoning respondent nos. 2 to 4 as additional accused to face trial in exercise of powers under Section 319 Cr.P.C. There is plethora of evidence of independent witnesses in support of stand of the respondents that they were living separately from accused Sanjay Pathak when the incident occurred. Respondent No. 4 is married sister-in-law of the deceased, whose marriage took place 20 years prior to the incident. Similarly, the respondent nos. 2 and 3, parents of the deceased were also residing separately from the deceased and accused Sanjay Pathak. The deceased was suffering from disease which might have created suicidal tendency in her, and as a result thereof she committed suicide. The private respondents played no role in unfortunate suicidal death of the deceased. Learned A.G.A. also supported the impugned order, the post-mortem report of the deceased, no injury mark was found on her except ligature mark on her neck, which appears to have caused due to hanging committed by the deceased. 5. Learned counsel for the revisionist placed reliance on certain judgments of Hon’ble Supreme Court to bolster his case in present revision. Hon’ble Supreme Court in Hardeep Singh Vs. 5. Learned counsel for the revisionist placed reliance on certain judgments of Hon’ble Supreme Court to bolster his case in present revision. Hon’ble Supreme Court in Hardeep Singh Vs. State of Punjab 2014 (Supreme) SC 27 by Constitution Bench judgment, settled the law with regard to exercise of powers under Section 319 Cr.P.C. to much extent in Hardeep’s case, following questions were to be answered by the Constitution Bench (i) What is the stage at which power under Section 319 Cr.P.C. can be exercised? (ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? (iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? (iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood convicted? (v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged? 6. Hon’ble Apex Court considered the scope of Section 319 Cr.P.C. in the light of afore formulated questions and observed as under:- 11. Section 319 Cr.P.C. as it exists today, is quoted hereunder: “319 Cr.P.C.-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. (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. (4) Where the Court proceeds against any person under subsection (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. Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C. It is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 Cr.P.C.? The submissions that were raised before us covered a very wide canvas and the learned counsel have taken us through various provisions of Cr.P.C. and the judgments that have been relied on for the said purpose. The controversy centers around the stage at which such powers can be invoked by the court and the material on the basis whereof such powers can be exercised. 15. Section 319 Cr.P.C. allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the chargesheet filed under Section 173 Cr.P.C. or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He can either be a person named in Column 2 of the chargesheet filed under Section 173 Cr.P.C. or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence. 71. It is, therefore, clear that the word “evidence” in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during investigation. 79. The word “evidence” therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 Cr.P.C. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial. 80. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. The ‘evidence’ is thus, limited to the evidence recorded during trial. 84. Further, in our opinion, there does not seem to be any logic behind waiting till the cross-examination of the witness is over. It is to be kept in mind that at the time of exercise of power under Section 319 Cr.P.C., the person sought to be arraigned as an accused, is in no way participating in the trial. 84. Further, in our opinion, there does not seem to be any logic behind waiting till the cross-examination of the witness is over. It is to be kept in mind that at the time of exercise of power under Section 319 Cr.P.C., the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the cross-examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross examine the witness(s) prior to passing of an order under Section 319 Cr.P.C., as such a procedure is not contemplated by the Cr.P.C. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence, unless the witness(s) is obliterating the role of persons already facing trial. More so, Section 299 Cr.P.C. enables the court to record evidence in absence of the accused in the circumstances mentioned therein. 85. Thus, in view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the stage of completion of examination in chief and court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence. 98. Power under Section 319 Cr.P.C. 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. 99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. 99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, 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 the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. 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 Cr.P.C. to form any opinion as to the guilt of the accused. 7. In Sandeep Kumar Vs. State of Haryana, 2023 Law Suits SC 722, Hon’ble Supreme Court while considering the scope of Section 319 Cr.P.C. set aside the order of High Court passed in Criminal revision against summoning order passed by learned trial court in exercise of powers under Section 319 Cr.P.C. and affirmed the summoning order passed by learned trial court with regard to 3 named accused-persons in F.I.R. whose name was dropped in charge-sheet. Hon’ble Apex Court in para 5 of the judgment in Sandeep Kumar observed as under : 5. In Hardeep Singh (supra), this court further said that the Court only has to see at the state of Section 319, whether a prima facie case is made out although the degree of satisfaction has to be much higher. “95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. “95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be “arrested” or “summoned”, as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons. In Para 106 it stated as under: Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, 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 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” it 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.” In our considered opinion, the prosecution had fully made out its case for summoning the three as accused under Section 319, Cr.PC, so that they may also face trial. 8. Learned counsel for revisionist also placed reliance in judgment of Manjeet Singh Vs. 8. Learned counsel for revisionist also placed reliance in judgment of Manjeet Singh Vs. State of Haryana in Criminal Appeal No. 875 2021 SCC Online SC 632, wherein Hon’ble Supreme Court had delivered a judgment expanding the gamet of the powers of trial court under Section 319 Cr.P.C. to ensure that the guilty does not get away from the chase of law, in that case an appeal had arisen out of a case of murder against the decision of the trial court that had dismissed the application of the appellant under Section 319 Cr.P.C. and she refused to summon the proposed persons as accused to face trial. The High Court also uphold the judgment of trial court, Hon’ble Supreme Court allowed appeal and summarised the principles explaining the ambit of Section 319 Cr.P.C. In that case, the appellant was the injured eye-witness and on the basis of his evidence, an application under Section 319 Cr.P.C. was moved to summon 4 named accused persons as additional accused to face trial in concerned sessions trial. The Hon’ble Apex Court summarized the ratio of its various decisions including Hardeep Singh Vs. State of Punjab (supra) in following manner:- 13. The Hon’ble Apex Court summarized the ratio of its various decisions including Hardeep Singh Vs. State of Punjab (supra) in following manner:- 13. The ratio of the aforesaid decisions on the scope and ambit of the powers of the Court under Section 319 CrPC can be summarized as under: (i) That while exercising the powers under Section 319 CrPC and to summon the persons not charge-sheeted, the entire effort is not to allow the real perpetrator of an offence to get away unpunished; (ii) for the empowerment of the courts to ensure that the criminal administration of justice works properly; (iii) the law has been properly codified and modified by the legislature under the CrPC indicating as to how the courts should proceed to ultimately find out the truth so that the innocent does not get punished but at the same time, the guilty are brought to book under the law; (iv) to discharge duty of the court to find out the real truth and to ensure that the guilty does not go unpunished; (v) where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial; (vi) Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it; (vii) the court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency; (viii) Section 319 CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial; (ix) the power under Section 319(1) CrPC can be exercised at any stage after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pre-trial stage intended to put the process into motion; (x) the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence; (xi) the word “evidence” in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents; (xii) it is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation; (xiii) if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s); (xiv) that the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, powers under Section 319 CrPC can be exercised; (xv) that power under Section 319 CrPC can be exercised even at the stage of completion of examination-in-chief and the court need not has to wait till the said evidence is tested on cross-examination; (xvi) even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in FIR but not implicated in the charge-sheet can be summoned to face the trial, provided during the trial some evidence surfaces against the proposed accused (may be in the form of examination-in-chief of the prosecution witnesses); (xvii) while exercising the powers under Section 319 CrPC the Court is not required and/or justified in appreciating the deposition/evidence of the prosecution witnesses on merits which is required to be done during the trial. 9. 9. From perusal of record, it appears that trial in the case was being conducted at District-Kanpur Nagar, under which jurisdiction, the alleged offence was committed, however on application of the informant, present revisionist, this court passed an order on 3.12.2021, transferring the trial from district Kanpur Nagar to District-Etawah, on ground that this was admitted that the accused Sanjay Pathak, who is already facing trial is practising lawyer in District-Kanpur Nagar and the informant was apprehensive that he will not get free and fair trial at District-Kanpur Nagar. In present case, complicity of accused Sanjay Pathak, father of Devi Dyal Pathak and mother Kanchan Pathak is shown in F.I.R. in causing death of the deceased as deceased telephoned her father, the informant on 05.10.2019 that these persons were engaged in maar peet with her on that day. As regard respondent No. 4 Bittu Tiwari, the married sister-in-law of the deceased is concerned, in F.I.R. it is stated that she along with other accused persons tease the deceased for bringing just dowry and these people were harassing her and her sister-in-law Bittu Tiwari used to speak much regarding dowry and was very interfering in the matter. 10. From perusal of post-mortem report of the deceased, it appears that cause of death therein is mentioned as asphyxia due to ante-mortem hanging and according to medical jurisprudence in absence of any other injury mark except ligature mark on neck, such type of death is usually considered as suicidal. The revisionist was examined as P.W. 1 during trial and trial is still pending in respect of co-accused Sanjay Pathak. A suicide note has been placed on record of trial court and same was shown to P.W. 1 during cross-examination, but he denied the hand writing of the deceased therein. He also denied his previous statement under Section 161 Cr.P.C. to police that his daughter used to have fever post birth of her child (daughter). He also denied defence suggestion that his daughter was patient of MDR-TB. P.W. 1 has stated in his examination-in-chief that his daughter Priyam @Divya was married with accused Sanjay Pathak on 03.12.2016. After sometime of marriage, his daughter used to make complaint of harassment and demand of dowry by accused Sanjay Pathak, Devi Dyal, Kanchan Pathak and Bittu Tiwari, whenever she would visit her parental place. P.W. 1 has stated in his examination-in-chief that his daughter Priyam @Divya was married with accused Sanjay Pathak on 03.12.2016. After sometime of marriage, his daughter used to make complaint of harassment and demand of dowry by accused Sanjay Pathak, Devi Dyal, Kanchan Pathak and Bittu Tiwari, whenever she would visit her parental place. Although, in F.I.R. no specific role has been assigned to respondent No.4 Bittu Tiwari in incident dated 05.10.2019, yet in statement under Section 161 Cr.P.C. of the informant and in his sworn testimony before the Court, he has stated that on 05.10.2019 his daughter telephoned him in the morning that her husband father-in-law and mother-in-law and sister-in-law (nanad) are engaged in maar peet with her due to demand of dowry. However, in cross-examination P.W. 1 could not tell as to which number, call was made by the deceased to him. This call was received on mobile number of his wife 8923139936. He has not saved the number from which call of his daughter was made. On 06.10.2019, Sanjay Pathak had telephoned on mobile number of his wife, rushed to the place of Sanjay Pathak at around 09:00 P.M on that day and found dead body of his daughter lying in a hospital. They found some injury mark on back of the deceased and he was not able to tell as to these were post-mortem marks. The dead body was cremated by Sanjay Pathak at Bithoor as body was handed over to him. He got F.I.R. scribed by his son and lodged it at P.S. concerned. He further stated that accused-persons were demanding Rs.10,00,000/- more as additional dowry. This is wrong to say that deceased was suffering from MDR-TB and she was being treated for that since 2018. His son-in-law used to make demand of dowry, when he visited the place of the witness. He had given Rs. 12 lakh to his son-in-law Sanjay after delivery of the child and prior to death of his daughter. The emphasis has been made by learned counsel for the revisionist that in site plan I.O. has shown residence of accused Devi Dyal Pathak and Kanchan Pathak in the vicinity of the place where the deceased was allegedly hanged after killing her by accused persons. Therefore, there is no much weight in logic of learned trial court that accused Devi Dyal and his wife were residing separately from accused Sanjay Pathak. Therefore, there is no much weight in logic of learned trial court that accused Devi Dyal and his wife were residing separately from accused Sanjay Pathak. 11. On perusal of copy of post-mortem report of the deceased, it appears that cause of death is mentioned as asphyxia due to ante-mortem, which is usually found in cases of suicidal death. However, Section 304 B I.P.C. is applicable in homicidal as well as suicidal death both, if other ingredients of offence under Section 304-B I.P.C. are made out. The learned trial court has rejected application for summoning respondent nos. 2 to 4 on compromise that there are no specific allegations against them with regard to complicity in the offence. Accused Bittu Tiwari, sister-in-law of the deceased, is a married lady who resides in different city and her marriage took place more than 20 years ago of the death of the deceased. The case of Bittu Tiwari, who is married sister-in-law of the deceased can be taken on different pedestal from other accused persons, who are parents-in-law of the deceased. Their residence is shown in site plan adjacent to the house of accused Sanjay Pathak, where unfortunate death of Divya occurred. Although, there are no specific allegations against parents-in-laws of the deceased in F.I.R. and sworn testimony of P.W. 1, during trial, yet their complicity has been stated in the offence, in F.I.R., statement under Section 161 Cr.P.C. of the informant as well as in his sworn testimony before the Court. Learned court below has not mentioned any documentary evidence in support of plea of separate living of the parents-in-law of the deceased from her and her husband during her lifetime. Learned court while rejecting application under Section 319 Cr.P.C. has not duly tested the evidence of P.W.1 at anvil of prima facie case envisaged for summoning accused under Section 319 Cr.P.C. to face trial along with accused person, who is already facing trial. The impugned order suffers from legal error and is not sustainable in the manner in which it exists. 12. The impugned order suffers from legal error and is not sustainable in the manner in which it exists. 12. Consequently, the revision stands allowed, impugned order dated 10.06.2022 passed by learned trial court is hereby set aside and the matter is remitted back to trial court to hear and decide application 30 kh under Section 319 Cr.P.C. moved by the informant for summoning other named accused persons under Section 319 Cr.P.C. afresh, in accordance with law after giving opportunity of hearing to the applicant and public prosecutor in the light of observations made in present criminal revision.