Hetram @ Babli vs State Of Rajasthan

2024 INSC 903 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.4656 OF 2024 (Arising out of S.L.P.(Criminal) No.4253 of 2023)

HETRAM @ BABLI ... APPELLANT(S)

VS.

STATE OF RAJASTHAN & ANR. ... RESPONDENT(S)

J U D G M E N T

ABHAY S.OKA, J.

Leave granted.

2. Heard the learned counsel appearing for the

appellant and the learned counsel appearing for the

respondent-State.

3. By the order dated 6th February, 2015, the learned

Sessions Judge rejected the application made under

Section 319 of the Code of Criminal Procedure, 1973 (for

short, "the CRPC") for issuing summons against the

present appellant. The application under Section 319 of

the CRPC was made by the second respondent. The Trial

Court rejected the application. The High Court has Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2024.11.26 interfered by the impugned judgment in a Revision 18:57:47 IST Reason:

Petition filed by the second respondent.

1 4. With the assistance of the learned counsel

appearing for the appellant and the learned counsel

appearing for the respondent-State, we have perused the

material on record. The application under Section 319 of

the CRPC was based on the depositions of two alleged eye

witnesses PW-2 Sona and PW-4 Seema. Both of them, in the

examination-in-chief, deposed that they had seen the

present appellant hitting on the left side of the head of

the deceased by a spade.

5. The learned counsel appearing for the appellant

submitted that there was no prima facie material against

the appellant. The submission of the learned counsel

appearing for the respondent-State, relying upon a

decision of this Court in the case of Hardeep Singh v.

State of Punjab1, is that the Court while dealing with the

appliation under Section 319 of the CRPC has to only see

the examination-in-chief and decide whether if the same

goes uncontroverted, it will lead to the conviction of

the persons sought to be implicated. He would,

therefore, submit that the High Court is right in

allowing the application.

6. We have carefully perused the evidence of both PW-2

ad PW-4. We have already referred to what they stated in

examination-in-chief. Their cross-examination shows that

1. (2014) 3 SCC 92.

2 the allegation made by them against the appellant in the

examination-in-chief is an omission. PW-2 stated that

apart from her and PW-4, there was no other eye witness.

The omission is significant and relevant. Therefore, in

view of explanation to Section 162 of the CRPC, it will

amount to contradiction.

7. This Court in the case of Hardeep Singh1 has

observed that the test to be applied for dealing with the

application under Section 319 of the CRPC is of more than

a prima facie which is required to be considered at the

time of framing of the charge. The test to be applied is

that if the evidence goes unrebutted, whether it would

lead to conviction. The Court has to record satisfaction

in such terms and if such satisfaction cannot be

recorded, the Court should refrain from exercising power

under Section 319 of the CRPC.

8. The learned counsel appearing for the respondent-

State relied upon the first sentence of paragraph 106 of

the aforesaid judgment. In a given case, if power under

Section 319 is sought to be exercised before cross-

examination of material witnesses, the Court cannot

postpone the consideration of the prayer under Section

319 of the CRPC on the ground that the cross-examination

of the witnesses is yet to be recorded.

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9. In the facts of the case, the occasion for

considering the application under Section 319 of the CRPC

arose after the cross-examination of the only eye

witnesses was recorded. Therefore, while deciding an

application under Section 319 of the CRPC, the Court must

consider the cross-examination as well. If an application

under Section 319 of the CRPC is made after the cross-

examination of witnesses, it will be unjust to ignore the

same. The power under Section 319 of the CRPC cannot be

exercised when there is no case made out against the

persons sought to be implicated. In view of the

omissions which are material and which amount to

contradiction, obviously no Court could have recorded a

satisfaction which is contemplated by Section 319 of the

CRPC. It is impossible to record a finding that even a

prima facie case of involvement of the appellant has been

made out.

10. Accordingly, we cannot sustain the impugned order

dated 8th February, 2023 of the High Court and the same is

set aside. S.B.Criminal Revision Petition No.375 of 2015

stands dismissed.

11. We make it clear that consideration by this Court

of the evidence of the two prosecution witnesses is only

for the limited purposes of considering the prayer under

Section 319 of the CRPC as against the appellant.

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12. The appeal is accordingly allowed.

..........................J. (ABHAY S.OKA)

..........................J. (AUGUSTINE GEORGE MASIH)

NEW DELHI;

November 20, 2024

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