Supreme Court: In the present case, an appeal was filed against the impugned judgment and order dated 22-4-2024 passed by the Allahabad High Court which affirmed the order dated 3-8-2023 passed by the Court of Additional District and Sessions Judge, Bulandshahar, whereby the application filed by the prosecution under Section 319 of the Criminal Procedure Code, 1973 (‘CrPC’), praying for summoning the respondents as additional accused persons, was dismissed.
The Division Bench of Sanjay Karol* and Nongmeikapam Kotiswar Singh, JJ., opined that the High Court erred in holding that the statements made by the deceased herein on two different days, cannot be treated as dying declaration(s) merely because the death of the deceased occurred after a substantial lapse of time from their recordings. The Supreme Court stated that such approach is untenable since the law does not require that a declarant, at the time of making the statement, to be under the shadow of death or the expectation that death is imminent. After considering the depositions along with the statements of the deceased, it was held that there exists sufficient ground to exercise the power under Section 319 CrPC and summon the respondents as additional accused persons to face the trial.
Background
The appellant lodged FIR under Section 307 of the Penal Code, 1860 (‘IPC’) alleging that his sister (‘deceased’) was shot by her husband, and the said information was received from his 9 years’ old niece. During the deceased’s treatment, her statements were recorded under Section 161 CrPC, firstly on 25-3-2021 and then on 18-4-2021. In her first statement, she told her husband shot her; and in the subsequent statement, she alleged that he had done so at the instigation of Respondents 2, 3, and 4, that is, his mother, brother, and brother-in-law, respectively.
The deceased succumbed to injuries on 15-5-2021. After the investigation was completed, a charge sheet was filed under Sections 302 and 316 IPC, only against the deceased’s husband, while exonerating Respondents 2, 3, and 4. Thereafter, an application was filed under Section 319 CrPC, praying for summoning Respondents 2, 3, and 4, as additional accused persons to face trial along with the deceased’s husband, as the evidence recorded during the trial clearly disclosed their role in the commission of the offence.
The Trial Court dismissed the application and held that the material on record was insufficient or was not of such strength and cogency to exercise the extraordinary power provided under Section 319 CrPC. Aggrieved by the said order, the appellant preferred criminal revision before the High Court, but the same was also dismissed stating that the deceased’s statements could not be treated as dying declarations since her death had occurred after the expiry of substantial period from the date of recording such statements.
Analysis, Law, and Decision
The issue for consideration was “whether the Courts below, in the attending facts and circumstances, were justified in dismissing the application for summoning the respondents as additional accused?”.
The Supreme Court opined that Section 319 CrPC is an enabling provision, empowering the Court, during an inquiry or trial, to proceed against any person not already arraigned as an accused, if, from the evidence, such person appears to have committed an offence. It casts a duty upon the Court to ensure that the real offender does not go unpunished, as only then can the concept of fair and complete trial be realized.
The Supreme Court took note of the appellant’s statements which alleged that the deceased was continuously harassed by the respondents for giving birth to three daughters, and upon her subsequent pregnancy, they compelled her to undergo a sex determination test, and when it was found that she was carrying a female foetus, they pressured her for termination. Further, his niece, who was an eyewitness, telephonically informed him that her father shot the deceased, and the respondents provoked him to commit the act. The Supreme Court thus stated that the appellant’s statement, prima facie, indicates active participation and instigation on the respondents’ part.
The Supreme Court opined that at this stage, the appellant’s deposition cannot be construed as an improved one only due to the absence of certain particulars in the FIR, specifically when his testimony is consistent with overall narrative and he categorically named the respondents, which corroborated his testimony. Further, the appellant’s niece had considerable evidentiary value, as she is allegedly an eyewitness to the occurrence. As per her narration, it is evident that a quarrel took place between the deceased (her mother) and her father and during this altercation, her father obtained a country made pistol from her uncle and, on the provocation of her grandmother and her aunt’s husband, fired at her mother.
Thus, it was opined that the High Court’s conclusion that the appellant’s niece was not an eyewitness to the actual firing, is erroneous, and drawing such an inference amounted to conducting a mini trial at the stage of summoning, which was impermissible.
The Supreme Court stated that at the stage of deciding the application under Section 319 CrPC, the Court is not required to test the credibility or weigh the probative value of the evidence as it would be done at the end of the trial for determining the conviction or otherwise of the accused. The Court must consider whether the material on record reasonably indicates involvement of the proposed accused to exercise the extraordinary power. The reliance on the cross-examination of the appellant’s niece, to discredit her testimony was misplaced, and thus, after conjointly reading the deposition of the appellant’s niece along with her statement under Section 161 CrPC, a specific and overt act had been assigned to the respondents.
The Supreme Court opined that whether the niece actually witnessed the firing or arrived immediately thereafter, and the extent to which her statement inspired confidence, were matters that were to be determined at the stage of trial. Further, the child’s testimony shall be weighed by the Court considering the principles laid down in State of Rajasthan v. Chatra, (2025) 8 SCC 613 and State of M.P. v. Balveer Singh, (2025) 8 SCC 545.
Further, the Supreme Court opined that a statement made by a deceased person, regarding the cause of his death or to the circumstances which led to his death, to a Police Officer and recorded under Section 161 CrPC, shall be relevant and admissible under Section 32(1) of the Evidence Act, 1872, notwithstanding the bar provided in Section 162 CrPC. Such a statement upon the death of the declarant, would be considered a dying declaration, and it need not necessarily be recorded in the Magistrate’s presence, and that the lack of a doctor’s certification as to the fitness of the declarant’s state of mind would not ipso facto render the dying declaration unacceptable. Thus, both the statements of the deceased would fall under Section 32(1) Evidence Act.
The Supreme Court opined that the High Court erred in holding that these statements cannot be treated as dying declaration(s) merely because the death of the deceased occurred after a substantial lapse of time from their recordings. Such approach is untenable since the law does not require that a declarant, at the time of making the statement, to be under the shadow of death or the expectation that death is imminent. Further, Section 32 Evidence Act contained no such limitation and the thing that was pertinent was that the statement relates either to the cause of death or the circumstances leading to it.
The Supreme Court opined that the depositions of the appellant and his niece along with the deceased’s statements, prima facie suggests the complicity of the respondents in the commission of the offence. Thus, it was held that there exists sufficient ground to exercise the power under Section 319 CrPC and summon the respondents as additional accused to face the trial.
The appeal was thus allowed, and the impugned judgment and the High Court’s order were set aside. Further, the parties were directed to appear before the Trial Court on 8-1-2026.
[Neeraj Kumar v. State of U.P., Crl.A. No. 5229 of 2025, decided on 4-12-2025]
*Judgment authored by: Justice Sanjay Karol
Advocates who appeared in this case:
For the Appellant: Abhishek Vikas, AOR; Shivam Sharma, Utkarsh Bhushan, Advocates
For the Respondents: Dr. Vijendra Singh, Dhruv Joshi, AOR; Apurva Singh, Aniket Tiwari, Advocates
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