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Sunil Kumar Gupta vs The State Of Uttar Pradesh on 27 February, 2019

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 395 OF 2019
(Arising out of SLP(Crl.) No. 4626 of 2017)

SUNIL KUMAR GUPTA AND OTHERS …Appellants

VERSUS

STATE OF UTTAR PRADESH
AND OTHERS …Respondents

WITH

CRIMINAL APPEAL NO. 396 OF 2019
(Arising out of SLP (Crl.) No. 4560 of 2017)

KHUSBU GUPTA …Appellant

VERSUS

STATE OF UTTAR PRADESH
AND OTHERS …Respondents

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. These appeals arise out of the order dated 25.04.2017

passed by the High Court of Judicature at Allahabad in Criminal
Signature Not Verified

Revision No. 1354 of 2017 in and by which the High Court has
Digitally signed by
MAHABIR SINGH
Date: 2019.02.27
14:52:00 IST
Reason:

affirmed the order of the trial court summoning the appellants

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under Section 319 Cr.P.C. for the offence punishable under

Section 302 IPC.

3. Marriage of deceased Shilpa, daughter of Sudhir Kumar

Gupta (PW-1) was solemnized with Dimpal @ Akash Deep on

26.01.2006. Out of the wedlock, two children were born.

According to the complainant – Sudhir Kumar Gupta (PW-1), his

daughter Shilpa was complaining about the demand of dowry by

her husband Dimpal @ Akash Deep and the appellants-her

in-laws. Complainant-PW-1 alleged that on 19.08.2012, his

daughter Shilpa was set ablaze and she told him in full

consciousness that Chanchal @ Babita, Sachin, Sunil Kumar

Gupta (Elder uncle of Dimpal), Pushpa (wife of Sunil Kumar

Gupta), Vicky (Son of Sunil Kumar Gupta), Neeru, Shrikant Gupta

(Brother of Sunil Kumar Gupta), Bhagwan and Khusbu Gupta

have poured kerosene on her and burnt her. Dying declaration of

Shilpa was recorded by the Tehsildar on 19.08.2012 at 09.40 PM

in which she stated that Chanchal @ Babita poured kerosene and

set her on fire. Deceased Shilpa succumbed to injuries on the

same day at night i.e. 19.08.2012. On the complaint lodged by

Sudhir Kumar Gupta (PW-1), FIR was registered against nine

accused including the appellants under Sections 304-B, 498A,

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302 IPC and under Sections 3 and 4 of the Dowry Prohibition Act,

1961. On completion of investigation, charge sheet was filed

against Chanchal @ Babita (wife of Sachin Kumar) for the

offence punishable under Section 302 IPC. So far as other

accused are concerned, the charge sheet stated that no offence

was made out under Sections 498A, 304-B IPC and under

Sections 3 and 4 of the Dowry Prohibition Act, 1961.

4. In the trial, Sudhir Kumar Gupta (PW-1), Mohit Agarwal

(PW-2), and Munish Gupta (PW-3) were examined on

30.10.2014, 06.11.2015 and 08.11.2015 respectively. About one

year thereafter during the course of trial on 04.10.2016, an

application under Section 319 Cr.P.C. was filed by the

prosecution seeking to summon the appellants/accused for the

offence punishable under Section 302 IPC stating that their

names were mentioned in the FIR and also in the evidence of

PW-1 and PW-3. The trial court held that prima facie evidence is

available against the appellants for trying them for the offence

punishable under Section 302 IPC and allowed the application

and ordered issuance of summons to the appellants for trial under

Section 302 IPC. In the revision filed by the appellants, the High

Court by the impugned order dismissed the revision petition

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observing that there are specific allegations against the

revisionists and therefore, there is no illegality or impropriety in

the order of the trial court. Being aggrieved, the appellants are

before us.

5. Mr. Basava Prabhu S. Patil, learned senior counsel

appearing on behalf of the appellants has submitted that though

the names of the appellants were mentioned in the FIR,

subsequently they have been exonerated by the Investigating

Officer when the charge sheet was filed and this aspect was not

considered by the High Court. Placing reliance upon the

Constitution Bench judgment in Hardeep Singh v. State of

Punjab and Others (2014) 3 SCC 92, it was submitted that the

power under Section 319 Cr.P.C. is to be exercised sparingly and

only in those cases where circumstances of the case so warrant,

the accused could be summoned under Section 319 Cr.P.C. It

was submitted that in the present case, there are no strong and

cogent evidence for the trial court to exercise its jurisdiction under

Section 319 Cr.P.C to summon the appellants for trial under

Section 302 IPC. It was contended that when the dying

declaration of deceased Shilpa contains only the name of

Chanchal @ Babita, the trial court and the High Court ought not

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to have ordered summoning of the appellants for the offence

punishable under Section 302 IPC.

6. Per contra, Ms. Ruchi Kohli, learned counsel appearing on

behalf of the respondent-State submitted that based on the

evidence of PW-1 and PW-3, the trial court satisfied itself that

there are prima facie evidence available on record indicating

involvement of the appellants in the offence and the High Court

rightly declined to interfere with the order of the trial court

summoning the accused.

7. We have carefully considered the submissions and perused

the impugned order and other materials on record.

8. On 19.08.2012, immediately after the occurrence at

09.40 PM in her dying declaration recorded by the Tehsilar,

deceased Shilpa had stated “that she had a quarrel with her

sister-in-law (Dewrani) Chanchal @ Babita…..and that Chanchal

@ Babita poured kerosene and set her on fire”. In the complaint

lodged by PW-1 on the next day i.e. 20.08.2012, he has referred

to the names of the appellants. Though the charge sheet was

filed under Section 302 IPC only against Chanchal @ Babita, the

complainant has not filed any protest petition at that stage. In his

evidence, PW-1 has referred to the names of the appellants that

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his daughter Shilpa in consciousness told him the names of all

the appellants including Chanchal @ Babita and that they are

responsible for pouring kerosene and set her on fire.

9. Section 319(1) Cr.P.C. empowers the Court to proceed

against any person not shown as an accused if it appears from

the evidence that such person has committed any offence for

which such person could be tried together along with the

accused. It is fairly well settled that before the court exercises its

jurisdiction in terms of Section 319 Cr.P.C., it must arrive at

satisfaction that the evidence adduced by the prosecution, if

unrebutted, would lead to conviction of the persons sought to be

added as the accused in the case. In Hardeep Singh, the

Constitution Bench held as under:-

“105. 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.

106. 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

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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.” [underlining added]

10. Observing that for exercising jurisdiction and its discretion

in terms of Section 319 Cr.P.C., the courts are required to apply

stringent tests, in Sarabjit Singh and Another vs. State of

Punjab and Another (2009) 16 SCC 46, it was held as under:-

“21. An order under Section 319 of the Code, therefore, should
not be passed only because the first informant or one of the
witnesses seeks to implicate other persons(s). Sufficient and
cogent reasons are required to be assigned by the court so as to
satisfy the ingredients of the provisions. Mere ipse dixit would
not serve the purpose. Such an evidence must be convincing
one at least for the purpose of exercise of the extraordinary
jurisdiction. For the aforementioned purpose, the courts are
required to apply stringent tests; one of the tests being whether
evidence on record is such which would reasonably lead to
conviction of the person sought to be summoned.

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22. ……. Whereas the test of prima facie case may be sufficient
for taking cognizance of an offence at the stage of framing of
charge, the court must be satisfied that there exists a strong
suspicion. While framing charge in terms of Section 227 of the
Code, the court must consider the entire materials on record to
form an opinion that the evidence if unrebutted would lead to a
judgment of conviction.

23. Whether a higher standard be set up for the purpose of
invoking the jurisdiction under Section 319 of the Code is the
question. The answer to these questions should be rendered in
the affirmative. Unless a higher standard for the purpose of
forming an opinion to summon a person as an additional
accused is laid down, the ingredients thereof viz. (i) an
extraordinary case, and (ii) a case for sparingly (sic sparing)
exercise of jurisdiction, would not be satisfied.” [underlining added]

11. Applying the above principles to the case in hand, in our

considered view, no prima facie case is made out for summoning

the appellants and to proceed against the appellants for the

offence punishable under Section 302 IPC. As pointed out earlier,

in the dying declaration, deceased Shilpa has only mentioned the

name of Chanchal @ Babita; but she has not mentioned the

names of others. In his complaint lodged before the police on the

next day i.e. 20.08.2012, Sudhir Kumar Gupta-PW-1 has stated

that his daughter Shilpa told him that Chanchal @ Babita and all

other people set her on fire after pouring kerosene. PW-1 has

neither stated the names of the appellants nor attributed any

8
overt act. Likewise, in their evidence before the court, PWs 1

and 3 have only stated that Shilpa told them that Chanchal @

Babita and all others have set fire on deceased Shilpa. Neither

the complaint nor the evidence of witnesses indicates as to the

role played by the appellants in the commission of the offence

and which accused has committed what offence. Under such

circumstances, it cannot be said that the prosecution has shown

prima facie material for summoning the accused for the offence

punishable under Section 302 IPC.

12. Under Section 319 Cr.P.C., a person can be added as an

accused invoking the provisions not only for the same offence for

which the accused is tried but for “any offence”; but that offence

shall be such that in respect of which all the accused could be

tried together. It is to be seen whether the appellants could be

summoned for the offence under Section 498A IPC and under

Sections 3 and 4 of Dowry Prohibition Act. The statement of PW-

1 both in the complaint and in his evidence before the court is

very general stating that he had given sufficient dowry to Shilpa

according to his status and that the groom side were not satisfied

with the dowry and that they used to demand dowry each and

every time. Insofar as the demand of dowry and the dowry

9
harassment, there are no particulars given as to the time of

demand and what was the nature of demand. The averments in

the complaint and the evidence is vague and no specific demand

is attributed to any of the appellants. In such circumstances,

there is no justification for summoning the appellants even under

Section 498A IPC and under Sections 3 and 4 of Dowry

Prohibition Act. It is also pertinent to point out that upon

completion of investigation, the Investigating Officer felt that no

offence under Sections 498A, 304-B IPC and under Sections 3

and 4 of the Dowry Prohibition Act is made out. Charge sheet

was filed for the offence punishable only under Section 302 IPC

against Chanchal @ Babita. As held in the Constitution Bench

judgment in Hardeep Singh, for summoning an accused under

Section 319 Cr.P.C. it requires much stronger evidence than

mere probability of his complicity which is lacking in the present

case. The trial court and the High Court, in our considered view,

has not examined the matter in the light of the well-settled

principles and the impugned order is liable to be set aside.

13. In the result, the impugned order of the High Court is set

aside and these appeals are allowed. The Sessions Judge/Fast

Track No.1, Moradabad shall proceed with Session Trial

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No.35/2013 in accordance with law. We make it clear that we

have not expressed any opinion on the merits of the matter.

……………………….J.

[R. BANUMATHI]

………………………………J.

[R. SUBHASH REDDY]
New Delhi;

February 27, 2019

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