Naveen vs The State Of Haryana

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s). OF 2022 (Arising out of Special Leave Petition (Crl.) No.3746 of 2022)

NAVEEN ….APPELLANT(S)

VERSUS

STATE OF HARYANA & OTHERS ….RESPONDENT(S)

JUDGMENT

Rastogi, J.

1. Leave granted.

2. The instant appeal has been filed assailing correctness of

order dated 6th January, 2022 passed by the High Court of Signature Not Verified Digitally signed by DEEPAK SINGH Date: 2022.11.02 Punjab and Haryana at Chandigarh, setting aside order dated 10:27:46 IST Reason:

10th February, 2020 passed by the Additional Sessions Judge,

1 Bhiwani, Haryana, whereby the learned trial Judge rejected

the application filed by the complainant under Section 319

CrPC to summon the appellant (accused) to face trial in

Sessions Case No.59 of 2018 with reference to FIR No.156

dated 12th March, 2018 registered under Sections 307, 364,

366, 376 read with Section 34 IPC at Police Station City

Bhiwani, Haryana.

3. Brief facts of the case culled out from the record are that

FIR No.156 dated 12th March, 2018 was registered for offence

under Sections 307, 364, 366, 376 read with Section 34 IPC at

Police Station City Bhiwani on the basis of the written

complaint filed by Kamlesh w/o Balwan, caste Jat, resident of

New Bharat Nagar, Bhiwani, Haryana alleging therein that her

daughter aged 20 years was taking coaching of SSC from

Evermount Coaching Centre, Old Bus Stand, Bhiwani and she

disclosed that on 10th March, 2018 at about 9.00 a.m., she

went to the coaching centre, but did not return home up to

1.00 p.m. Thereafter, she made enquiries from her friends

and acquaintances but could not find her whereabouts.

2 Later, she came to know that the victim girl was admitted in

Sunflag Hospital, Rohtak. When they reached the hospital at

9.00 p.m., they were told that the victim girl was in ICU Ward

and two boys, Arjun and Naveen, sons of Balwan Jat, resident

of Beri, District Jhajjar, had brought the victim girl to the

hospital in unconscious state.

4. She further disclosed that her daughter has been enticed

to Rohtak by Arjun, in a pre­planned manner, in collusion

with his other friends where she was raped and an attempt

was made to eliminate her by hanging. When Arjun and his

accomplices felt that the victim girl had died, they shifted her

to the hospital in order to save their skin. Accordingly, she

prayed that legal action may be taken against the culprits.

5. After registration of the FIR, the investigation swung into

motion and on receipt of the Ruqa regarding the death of the

victim girl on 13th March, 2018, Section 302 IPC was added

and consequent upon verification, allegations against Arjun

were found to be true, whereas remaining culprits, i.e. Naveen

(brother of the appellant) and Mehar Singh(son of Shardha

3 Nand) were found innocent and, therefore, the above­named

persons were kept in column no.2 and subsequently, accused

Arjun was arrested and after completion of investigation, the

report under Section 173 Cr.PC was submitted before the Ld.

Ilaqa Magistrate on 5th June, 2018 against the accused Arjun.

After charge­sheet came to be filed, charges were framed

against accused Arjun on 6th August, 2018.

6. An application was filed by the complainant through

learned Public Prosecutor under Section 319 CrPC on 29 th

October, 2018 for summoning of Naveen s/o Balwan and

Mehar Singh s/o Shardha Nand, as additional accused along

with accused Arjun, on the premise that she had named both

these persons(Naveen and Mehar Singh) as accused in her

initial version but the police did not challan them in collusion

with them and as she now has deposed in the Court naming

these persons as accused, hence, these two persons shall also

be summoned to face trial along with the main accused Arjun.

In support thereof, it was urged that the complainant Kamlesh

as PW.10 specifically deposed against the proposed accused

4 Naveen and Mehar Singh as accomplices of accused Arjun

because these two persons were also present in the hospital

with the deceased and their presence is established from the

CCTV footage of Sunflag Hospital, Rohtak and they should

also be summoned to face trial with accused Arjun.

7. In counter, learned counsel for the appellant submitted

that the complainant PW.10 has made deliberate

improvements in her statement and is trying to involve the

innocent persons. It was also submitted that from the

statement of PW.6 Mahipal, the Hotel Manager and PW.8

Deepchand, Waiter, it is clear that the deceased used to

accompany the accused Arjun voluntarily to their hotel. Even

from the deposition of PW.5 Deepak Kumar, Nodal Officer,

Idea Cellular Company Limited, Panchkula, it could easily be

established that on the date of occurrence, the CCTV footage

of the hotel where the alleged fateful incident occurred, proves

that the accused Arjun and deceased/ prosecutrix were not

accompanied by any other person at the time of their visiting

the hotel and as per case of the prosecution, the alleged

5 occurrence had taken place in the hotel and not in the

hospital where the accused had taken the

deceased/prosecutrix and if the proposed accused persons

had visited the hospital, in no manner, they become

accomplices with the respondent/accused who was facing

trial.

8. Taking into consideration the overall material available

during the course of trial, the learned trial Judge was satisfied

that it was not a case to invoke Section 319 CrPC and

returned a finding that the evidence of summoning an

additional accused should be of such nature from which it can

be seen that if the evidence recorded during the course of trial

remain unrebutted, there are chances of conviction of the

proposed accused persons and mere prime facie evidence is

not sufficient to summon the additional accused and

accordingly dismissed application by order dated 10 th

February, 2020.

9. We have heard learned counsel for the parties and with

their assistance perused the material on record.

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10. It is worthy to note that trial of accused Arjun, case

bearing No.SC/59/2018, titled as “State Versus Arjun” was

concluded and he was held guilty and convicted for offence

under Section 302 IPC with imprisonment for life by judgment

dated 28th July, 2022.

11. The scope and ambit of Section 319 CrPC has been well­

settled by the Constitution Bench of this Court in Hardeep

Singh v. State of Punjab and others1 and paras 105 and

106 which are relevant for the purpose are reproduced

hereunder:

“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.

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 cross­examination, 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

1 (2014) 3 SCC 92

7 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.”

12. The Constitution Bench has given a caution that power

under Section 319 CrPC is a discretionary and extraordinary

power which should be exercised sparingly and only in those

cases where the circumstances of the case so warrant and the

crucial test as noticed above 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.

13. While applying the afore­stated principle, we may

examine the facts of the instant case. It will manifest that the

present incident is based on circumstantial evidence. As per

the prosecution case, the alleged occurrence has taken place

in the hotel and not in the hospital. In hospital, the appellant

had taken the deceased/prosecutrix and if the appellant as

8 proposed, visited the hospital, that in no manner could make

him an accomplice with the accused Arjun and apart from the

evidence of the complainant PW.10, the statement of other

prosecution witnesses, PW.6 Mahipal, the Hotel Manager and

PW.8 Deepchand, Waiter, no one has accompanied the

deceased other than accused Arjun. The CCTV footage of the

hotel where the alleged occurrence has taken place which

came on record during the course of trial indicates that no

other person had visited the hotel except Arjun who was made

accused and faced trial.

14. So far as Mehar Singh is concerned, it may be noticed

that it was conceded before the High Court that the name of

Mehar Singh does not figure anywhere during the investigation

and there is no evidence against him to deny him from facing

prosecution. That apart, it was recorded by the High Court

that the hotel staff and of the hospital staff showed presence of

two boys and that corroborates the initial stand of the

complainant that two boys were there at the time of

occurrence but that appears to be factually incorrect. The

9 presence of two boys was in the hospital and not in the hotel

as per the case of the prosecution and this what was deposed

by the prosecution witnesses whose statements were recorded

during the course of trial as PW.6 and PW.8 and also the

record of the CCTV footage of the hotel as a part of evidence

relied upon by the prosecution.

15. After we have examined the material on record, in our

considered view, the evidence recorded during the course of

prosecution, if remains unrebutted, will not be sufficient to

lead the conviction so far as the present appellant is

concerned and accordingly the order passed by the High Court

dated 6th January, 2022 is not sustainable in law and deserves

to be set aside.

16. Before parting with, we make it clear that what has been

observed by this Court is only for the purpose of disposal of

the present appeal in reference to the power invoked under

Section 319 CrPC by the High Court to summon the present

appellant for facing trial with reference to FIR No.156 dated

10 12th March, 2018 registered under Sections 302, 307, 364,

366, 376 read with Section 34 IPC at Police Station City

Bhiwani where by judgment dated 28 th July, 2022 accused

Arjun has been held guilty and convicted for offence under

Section 302 IPC and sentenced to life imprisonment against

which the appeal has been filed in the High Court at the

instance of accused Arjun that may be decided uninfluenced

by the observations made on its own merits in accordance

with law.

17. Consequently, the appeal stands allowed and the order

impugned dated 6th January, 2022 passed by the High Court

is set aside.

18. Pending application(s), if any, stand disposed of.

….………………………J. (AJAY RASTOGI)

…………………………….J. (C.T. RAVIKUMAR) NEW DELHI NOVEMBER 01, 2022.

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