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Judgment
Criminal Revision Case No.714 of 2022 is filed by the petitioners aggrieved by order dated 20.09.2022 in Crl.M.P.No.102 of 2020, arraying them as Accused Nos.4 and 5 during trial invoking Section 319 of the Cr.P.C.
Criminal Revision Case No.715 of 2022 is filed by Accused Nos.1 & 3 questioning the order dated 20.09.2022 in Crl.M.P.No.364 of 2021 directing to alter the Section of law from Section 306 to Section 304-B of the Indian Penal Code.
The defacto complainant is the father-in-law of Accused No.1. His deceased daughter was married to Accused No.1 on 19.03.2008. At the time of marriage Rs.10 lakhs worth gold, silver, six acres of land and other gifts were given. After marriage, on the insistence of Accused No.1 the land of six acres was divided into two. Three acres of land stood in the name of the deceased and three acres of land registered in the name of Accused No.1. Additional Dowry of Rs.1 lakhs, 5 Tulas of gold, 3 gold rings were given, since there was specific demand by A1 to A5, the deceased and A1 put up their family at Motinagar. A4 and A5, who are sister and brother-in-law of A1 used to go to their house and asked deceased to get additional dowry. The defacto complainant and others went and questioned as to why they were harassing her, though sufficient dowry was given. For some time she was looked after well. For two years after marriage since the deceased did not conceive, they approached a doctor. Though she became pregnant, there was a miscarriage after three months pregnancy. One week prior to her death, the deceased informed her father that all the accused were discussing about a marriage proposal for A1. During discussions they also discussed that if the deceased died, the property would go to A1. On 24.07.2013 the deceased committed suicide by hanging herself at her parents residence.
On the basis of the complaint made by 2nd respondent, Police conducted investigation and filed charge sheet. The Police initially registered the case for the offence under Section 304-B, 498-A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. However, charge sheet was filed under Section 306, r/w.34 and 498-A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.
At the time of filing the charge sheet, the names of the petitioners in Crl.R.C.No.714/2022 who are now A4 and A5 were deleted and charge sheet was laid against Accused Nos.1 to 3 only. Trial commenced and after examination of witnesses PWs.1 to 3 who are the father, mother and brother of the deceased, petition was filed under Section 319 of Cr.P.C., to include Accused Nos.4 and 5 as accused. Also an application for altering the charge from Section 306 to 304-B of the Indian Penal Code was filed.
The learned Sessions Judge by order dated 20.09.2022 directed Accused Nos.4 and 5 to appear to face trial for the following reasons:
i) In the complaint itself, it was mentioned that Accused Nos.4 and 5 who are residing at Secunderabad, used to visit the house of Accused No.1 and deceased and harass her.
ii) Accused Nos.4 and 5 were also present one week prior to the death of the deceased when there was a discussion regarding a proposal to get A1 married.
During the course of evidence, PWs.1 to 3 stated that A4 and A5 used to go to the house of A1 and harass the deceased for additional dowry and also reiterated that one week prior to the death of deceased, A4 and A5 were also present while discussing marriage alliance. On the basis of the said evidence narrated by PWs.1 to 3, the learned Sessions Judge found that there is more than prima facie case and sufficient material to proceed against Accused Nos.4 and 5.
On 20.09.2022, the learned Sessions Judge also passed the order for altering the Section of law from Section 306 to 304-B of the Indian Penal Code. The reasons given by the learned Sessions Judge are that;
i) The death occurred within seven years of marriage
ii) Soon before death, she was subjected to harassment by the husband and her relatives for dowry.
iii) PWs.1 to 3, specifically stated that A1 to A5 demanded amount and she died due to unbearable harassment.
Sri T.Niranjan Reddy, learned Senior Counsel appearing for the petitioners/accused in both the revisions cases argued that the orders of the learned Sessions Judge are contrary to the evidence and law. Only on the basis of bald statements made by the witnesses that A4 and A5 used to demand dowry, it cannot form basis to summon them as accused under Section 319 of Cr.P.C. If a Court has to summon an accused under Section 319 of Cr.P.C., mere suspicion or prima facie case is not sufficient to summon them. The evidence available on record should be of such a nature and enough to convict the persons summoned. Unless such evidence is present and findings are given to that effect, the Court cannot summon an accused to face trial under Section 319 of Cr.P.C.
Counsel further argued that during the course of investigation, statements under Section 161 of Cr.P.C. were recorded and during their evidence, PWs.1 and 2 have specifically stated that out of anger due to daughter’s death, they have falsely implicated Accused Nos.4 and 5 and named them in the complaint. Further, it was stated that the deceased never informed about any kind of harassment by A4 and A5 and that they were present in the alleged meeting for discussing the marriage of A1. It was made clear in the statement recorded under Section 161 of Cr.P.C. that A4 and A5 did not harass the deceased either for additional dowry and they have no role to play in the death of the deceased. The statement was made at the earliest point of time to the Police on the basis of which the Accused Nos.4 and 5 were not charge sheeted. The witnesses PWs.1 to 3 are giving different versions at different times. PW1 in his complaint though stated that A4 and A5 were responsible, has disowned his statement made in the complaint and stated in Section161 Cr.P.C statement that they are not responsible and out of grief and anger their names were included.
Learned Senior Counsel also submitted that there is no reason to alter the charge from Section 306 of IPC to 304-B of IPC. The facts of the case clearly indicate that there were no events in proximity with the death of the deceased to suggest that there was demand for dowry. In the said circumstances, the learned Sessions Judge had totally erred in passing an order, altering the charge from Section 306 to 304-B of the Indian Penal Code.
Learned Senior Counsel relied on the following Judgments; i) Hardeep Singh v. State of Punjab and others (2014) 3 Supreme Court Cases 92; ii) Periyasami and others v. S.Nallasamy (2019) 4 Supreme Court Cases 342; iii) Brijendra Singh and others v. State of Rajasthan (2017) 7 Supreme Court Cases 706; iv) Sukhpal Singh Khaira v. State of Punjab (2019) 6 Supreme Court Cases 638; v) Dr.Nallapareddy Sridhar Reddy v. State of Andhra Pradesh and others (2020) 12 Supreme Court Cases 467; vi) Anant Prakash Sinha alias Anant Sinha v. State of Haryana and another (2016) 6 Supreme Court Cases 105; vii) Charan Singh alias Charanjit Singh v. State of Uttarakhand 2023 SCC OnLine SC 454; and viii) Surender Singh and others v. State of Andhra Pradesh rep. by Public Prosecutor 2020 SCC OnLine TS 874.
On the other hand learned counsel appearing for the 2nd respondent/defacto complainant would submit that when the case is filed under Section 397 of Cr.P.C., the scope is very limited and this Court cannot assess evidence to base its findings. The marriage had taken place on 19.03.2008 and the death occurred on 24.07.2013. It is specifically mentioned that A4 and A5 have harassed the deceased by going to their house. Even prior to her death, A4 and A5 were part of the discussion along with A1 to A3 who planned to perform marriage to A1 again with another woman.
The learned Sessions Judge findings in both the applications are based on record. The same cannot be set aside in the revision before this Court.
The Constitutional bench of the Hon’ble Supreme Court in Hardeep Singh’s case held as follows:
“105. Power under Section 319 CrPC 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.
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” 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.”
The test that has to be applied for adding an accused is to see whether there is evidence enough to show the complicity of the accused and not mere probability.
The basis, as already stated for summoning A4 and A5, are the statements of P.Ws.1 to 3. The statements made by P.Ws.1 to 3 are on the basis of the alleged information given by the deceased. It is hearsay evidence. None of the witnesses P.Ws.1 to 3 state about any kind of meeting with A4 and A5 or A4 and A5 asking or confronting P.Ws.1 to 3 in any manner. The allegation that one week prior to the death, A4 and A5 were also part of the discussions for marriage of A1 is also on the basis of information given by the deceased. The information that was given was the presence of A4 and A5.
The accused A4 and A5 are called to face the charge under Section 304-B of IPC. To attract an offence under Section 304-B of IPC, there has to be harassment for additional dowry in proximity with the death. Admittedly, there is no demand but a discussion regarding the alleged marriage of A1. No details of such proposed alliance of A1 are given. On the vague allegation of the deceased informing that A4 and A5 harassed the deceased and instigated A1 without giving any details, it cannot be said that A4 and A5 have to face trial for the offence under Sections 304-B of IPC.
In Kahkashan Kausar @ Sonam and others v. State of Bihar [(2022) 6 Supreme Court Cases 599], the Hon’ble Supreme Court held that unless there are specific and distinct allegations against the accused, the proceedings can be quashed.
The Hon’ble Supreme Court in the case of Preeti Gupta v. State of Jharkhand [(2010) 7 Supreme Court Cases 667] held that the Courts have to scrutinize the allegations made with great care and circumspection, especially against husband’s relatives who were living in different cities and rarely have visited or stayed with the couple.
Admittedly, A4 and A5 are living separately even by the date of marriage of A1 with the deceased. Only on the basis of the alleged information provided by the accused to PW 1 to 3, which is hearsay and without any other corroborating or direct evidence, A4 and A5 cannot be asked to face trial by summoning them under section 319 CR.PC. For the said reasons discussed, the order dated 20.09.2022 in Crl.M.P.No.102 of 2020 summoning A4 and A5 deserves to be set aside.
Learned Sessions Judge had directed altering charge from 306 to 304-B of IPC. In the present case, the death was within seven years and specific allegations are made regarding demand of dowry against A1 to A3. In the present circumstances, no prejudice would be caused to the accused if the charge is altered from Section 306 to 304-B of IPC.
Criminal Revision Case No.714 of 2022 is allowed, setting aside the order summoning A4 and A5.
Criminal Revision Case No.715 of 2022 questioning the alteration of charge is dismissed.
Consequently, miscellaneous applications pending, if any, shall stand closed.