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Judgment
Amar Saran, J.—Heard learned Counsel for the revisionist and learned Additional Government Advocate.
By means of this criminal revision the revisionist has challenged an order dated 11.9.2009 passed by the Special/Additional Sessions Judge, Siddharthnagar summoning the revisionist in a case u/s 304/34, I.P.C. in exercise of powers u/s 319, Code of Criminal Procedure.
It is argued by the learned Counsel for the revisionist that as per the F.I.R. there was no sufficient evidence for summoning the revisionist because as per the F.I.R., the informant was not an eye-witness as he has stated that when he reached the home of the revisionist and the co-accused Nafis, when he received information on mobile that his daughter had died, but he falsely stated in Court in his examination-in-chief that when he reached the place, then he saw quarrel taking place and Rahim, the revisionist was kicking the deceased, Shakir Jahan, whilst Reshma had given fist blow and initially summoned accused Nafis pressing her neck. By the time, he reached, the deceased had died and the revisionist and co-accused had left the dead body and had disappeared from there.
Learned Counsel has placed reliance upon the decisions of Hon''ble Apex Court in Lal Suraj alias Suraj Singh and Anr. v. State of Jharkhand (2009) 1 SCC 844; Anil Singh and Anr. v. State of Bihar and Ors. (2008) 1 SCC 708 and Kailash v. State of Rajasthan and Anr. (2009) 1 SCC 1006, for the proposition that the powers u/s 319, Code of Criminal Procedure should be exercised sparingly and the probability of conviction needs to be assessed.
It is noteworthy that in the case of Hardeep Singh v. State of Punjab and Ors. 2009 (1) JIC 362 (SC), the matter has been referred to the Larger Bench where the view taken in some decisions of the Apex Court that probability of conviction is required to be considered at the stage when an order is passed u/s 319, Code of Criminal Procedure has been questioned.
The revisionists, who are father-in-law and mother-in-law of the deceased are also residing in the same house, alongwith already summoned accused Nafis (husband of the deceased) where the dead body of the deceased was found. The cause of death, according to the post-mortem report, was asphyxia as a result of smothering.
As the death has taken place in the house where the revisionists used to reside, the onus lay on all the accused persons, i.e., the two revisionists and Nafis to explain as to how Smt. Sakir Jahan had died in their house.
It has been held in State of Maharashtra and Others Vs. Ravi Prakash Babulalsing Parmar and Another, and Raj Kumar Prasad Tamarkar Vs. State of Bihar and Another, that when the death takes place inside the house, the burden is cast on the accused to explain in view of Section 106 of the Evidence Act as to how the person has died in the house.
In such circumstances, it is not very material if some doubts are cast about whether the witness has been able to establish that he was an eye-witness of the incident. Also u/s 319, Code of Criminal Procedure, it has basically to be seen from the evidence where a person not being an accused could be tried with another for an offence "which he appears to have committed". The section requires nothing more.
I, therefore, find no illegality in the impugned order.
The revision is accordingly dismissed.
However, it is provided that if the revisionists appear before the court concerned in pursuance of the aforesaid order and apply for bail, within 3 weeks, their prayer for bail shall be heard and disposed of expeditiously in accordance with the decision of Full Bench of this Court in Amrawati and Anr. v. State of U.P. 2004 (57) ALR 290.