# Priti Devi Revisionist v. State of U.P. & Anr

- **Citation:** (2019) 3 ILRA 417
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-13
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/priti-devi-revisionist-v-state-of-u-p-anr-44772
- **Pages:** 10

## Headnote

A. Evidence Act,1872 - Section 32 - Multiple
Dying Declarations - Dying declaration is
relevant evidence - If in a case there are
more than one dying declaration and both
are contradictory to each other, it is the duty
of trial court to carefully examine the dying
declarations in the light of materials facts
and circumstances as well as evidence
placed before the Court. Such cases must be
decided on the facts of each case. (Para 12)

B. Code of Criminal Procedure,1973 -
Section 319 - Powers under Section 319
Cr.P.C. can be exercised only where
strong and cogent evidence are found
against a person and not in a casual and
cavalier
manner.
The
decree
of
satisfaction
before
summoning
the
offence under Section 319 Cr.P.C. must
be more than prima facie, which is
warranted at the time of framing of
charges against the accused. (Para 14)

Held: - In view of Section 32 of the Evidence
Act, dying declaration is a material piece of
evidence, which is much more than prima facie
and sufficient to summon the person concerned
under Section 319 Cr.P.C. as an additional
accused - Whether first dying declaration is
genuine or second dying declaration is genuine is
a subject matter of appreciation of evidence by
the trial court at the appropriate stage -Specific
allegation as well as motive against the present
revisionist is very much on record in the second
dying declaration. - Since the specific allegation
has been levelled by the deceased in her second
dying declaration only against present revisionist,
therefore, the said evidence is sufficient to
summon the revisionist. (Para 8, 12)

Criminal revision dismissed (E-5)

List of Cases Cited: -

## Text

3 All. Priti Devi Vs. Vs. State of U.P. & Anr.
417
opportunity and status to all women and
they cannot be left to bear the burnt of
discrimination, disparity and injustice in
family as well as public life.

24. On the basis of above
discussion, I do not find any material
irregularity or illegality or jurisdictional
error in the impugned order and the
revision has got no force.

25. The revision is dismissed.
----------

(2019)11ILR A417

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABD 13.09.2019

BEFORE
THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Revision No. 3369 OF 2019

Priti Devi ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Priyanka
Srivastava,
Sri
Abhishek
Srivastava

Counsel for the Opposite Parties:
A.G.A., Sri Rahul Saxena

A. Evidence Act,1872 - Section 32 - Multiple
Dying Declarations - Dying declaration is
relevant evidence - If in a case there are
more than one dying declaration and both
are contradictory to each other, it is the duty
of trial court to carefully examine the dying
declarations in the light of materials facts
and circumstances as well as evidence
placed before the Court. Such cases must be
decided on the facts of each case. (Para 12)

B. Code of Criminal Procedure,1973 -
Section 319 - Powers under Section 319
Cr.P.C. can be exercised only where
strong and cogent evidence are found
against a person and not in a casual and
cavalier
manner.
The
decree
of
satisfaction
before
summoning
the
offence under Section 319 Cr.P.C. must
be more than prima facie, which is
warranted at the time of framing of
charges against the accused. (Para 14)

Held: - In view of Section 32 of the Evidence
Act, dying declaration is a material piece of
evidence, which is much more than prima facie
and sufficient to summon the person concerned
under Section 319 Cr.P.C. as an additional
accused - Whether first dying declaration is
genuine or second dying declaration is genuine is
a subject matter of appreciation of evidence by
the trial court at the appropriate stage -Specific
allegation as well as motive against the present
revisionist is very much on record in the second
dying declaration. - Since the specific allegation
has been levelled by the deceased in her second
dying declaration only against present revisionist,
therefore, the said evidence is sufficient to
summon the revisionist. (Para 8, 12)

Criminal revision dismissed (E-5)

List of Cases Cited: -

1. Smt. Paniben Vs St. of Guj. 1992 SCC (Cri.) 403.

2. Kundula Bala Subrahmanyam Vs St. of A.P.
(1993) SCC (Cri.) 655.

3. Jagbir Singh Vs St. (N.C.T. of Delhi) 2019
SCC Online SC 1148.

4. Hardeep Singh & ors. Vs St. of Punjab & ors
2014(3) SCC 92.

5. Brijendra Singh & ors. Vs St. of Raj. (2017)
7 SCC 706.

6.S Ahmad Ispahni Vs Yogendra Chandak &
ors. (2017) 16 SCC 226.

7. Periyasamik & ors. Vs S.Nallasamy 2019 (4)
SCC 342

(Delivered by Hon'ble Sanjay Kumar Singh, J.)
418 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Sri Rahul Saxena, learned
Advocate has filed his Vakalatnama on
behalf of opposite party no.2, which is
taken on record.

2. Heard Sri Abhishek Srivastava
and Priyanka Srivastava, learned counsel
for the revisionist, Sri Ramesh Kumar
Pandey, learned Additional Government
Advocate assisted by Sri Ashish Kumar
Tripathi, learned Brief Holder for the
State/opposite party no.1, Sri Rahul
Saxena, learned counsel for opposite
party no.2 and perused the record with the
assistance of learned counsel for the
parties.

3. This criminal revision under
Section 397/401 Cr.P.C. has been filed by
the revisionist (Priti Devi) against the
order
dated
14.08.2019
passed
by
Additional Sessions Judge, Court No.6,
Pilibhit in exercise of powers under
Section 319 Cr.P.C. in S.T. No. 222 of
2018 (State Vs. Rajesh Kumar and
others), under Sections 498A, 304B
Indian
Penal
Code
and
4
Dowry
Prohibition Act, Police Station Jahanabad,
District Pilibhit, whereby application no.
33 kha dated 8.7.2019 under Section 319
Cr.P.C. of opposite party no.2/informant
has been partly allowed and revisionist
has been summoned under Sections
498A, 304B I.P.C. and under Section 4 of
D.P. Act as an additional accused to face
trial in the aforesaid case.

4. Filtering out unnecessary details,
the basic facts of the case, in brief, are
that the revisionist is sister-in-law as well
as bhabhi of the deceased (Gaytri) and
opposite party no.2/informant is father of
the deceased as well as father-in-law of
the revisionist. Marriage of the deceased
was solemnized with co-accused Rajesh
on 17.05.2013. On 28.5.2018, opposite
party no.2 lodged FIR under Sections
498A, 304B IPC and Section 3/4 D.P. Act
against Rajesh (husband) and Ramotar
(father-in-law) of the deceased, registered
as case crime no. 0191 of 2018 at Police
Station
Jahanabad,
District
Pilibhit
alleging therein that his daughter was
burnt in her matrimonial house by the
accused persons on account of nonfulfillment of demand of dowry. She was
admitted in district hospital, Pilibhit, and
thereafter, she was admitted in Ram
Kishore hospital, Bareilly. Subsequently,
she was taken to Guru Tej Bahadur
Hospital, where she died during her
treatment. In this case there are two dying
declarations of the deceased.

The First dying declaration of the
deceased was recorded on 7.5.2018 by
Naib Tehsildar, Pilibhit, Sadar when she
was admitted in district hospital, Pilibhit
which is reproduced herein-below:-

"Patient Gayatri Devi is fully
conscious and oriented and is able to give
statement in her full sense.

मैं गायत्री िेवी W/o राजेि कुमार
उम्र लगभग 22 वषि र्न० ग्रा०- ढ़र्िया बिल
थाना- जहानाबाि पीलीभीत अपने पूरे ह ि
हवास में बयान करती हाँ र्क आज र्िनांक
07.05.18 क ि पहर लगभग 2:PM पर गैस
चूल्हे पर खाना बना रही थी तभी अचानक
आग मेरे कपड में लग गयी र्जससे मैं जल
गयी। उक्त घिना में अन्य क ई उत्तरिायी नहीं
है।

ह०अप०

िेर बहािुर र्संह

नायब तहसीलिार

पीलीभीत सिर
3 All. Priti Devi Vs. Vs. State of U.P. & Anr.
419

समय 7.05PM

Patient Gayatri Devi was fully
conscious
and
oriented
and
gave
statement in her full sense"

The second dying declaration of the
deceased was recorded on 18.5.2018 by
Naib Tehsildar Bareilly when she was
shifted and admitted in Sri Ram Kishore
Memorial Hospital, Bareilly, which is
reproduced herein-below:-

" मरीज बयान िेने की प्तस्थर्त में है

मृत्यु पूवि बयान-

मैं गायत्री पत्नी राजेि कुमार आयु
लगभग 22 साल बयान करती हाँ र्क मेरी िािी
क 6 वषि ह चुका है। मेरे एक बेिा है। मेरे
पती गांव में मजिूरी का कायि करते हैं। र्िनांक
07.05.18 क मैं गैस पर चाय बना रही थी उस
समय ि पहर क लगभग 12 बज रहे थे। मेरे
ननि प्रीती से मेरा झगडा ह गया। जब मैं चाय
बना रही थी उसी समय उन्ह ंने र्मट्टी के तेल से
भरे ब तल खींचकर मुझे मारी ज गैस पर आ
र्गरी और फूि गयी। र्जससे तेल फैल गया
और आग लग गयी। आग भभकने से मेरे
कपड ं में लग गयी और मैं जल गयी। मेरी
सास ने पहले पीलीभीत में भती कराया उसके
बाि बरेली लाये। बयान पढ़कर सुनकर
तस्दीक र्कया। L.F.T.I गायत्री बयान िेने के
िौरान और उसके बाि मरीज ह ि में रहा

ह०अप०

18/5/18

1.10 PM"

5. The Investigating Officer after
investigation submitted charge-sheet only
against Rajesh Kumar (husband) and
Ramotar (father-in-law of the deceased),
under Sections 498A, 304B IPC and
Section 3/4 D.P. Act. Before the trial
court, statement of PW-1 Omkar (father
of the deceased), PW-2 Jaswant Singh
(brother of the deceased and husband of
revisionist) and PW-3 Km. Kanchan were
recorded.
Thereafter,
on
8.7.2019,
opposite party no.2 (father of the
deceased) moved an application under
Section 319 Cr.P.C. for summoning Preeti
Devi (revisionist), Nannhi (mother-inlaw) and Vikash (brother-in-law) of the
deceased as an additional accused to face
trial. The said application of opposite
party no.2 has been partly allowed by
impugned
order
dated
14.08.2019,
whereby only present revisionist Preeti
Devi has been summoned to face trial.
The said order dated 14.08.2019 is under
challenge in the instant revision.

6.

Learned
counsel
for
the
revisionist assailing the impugned order
dated 14.08.2019 submitted that:-

(i) Revisionist Preeti Devi is
sister of deceased's husband Rajesh as
well as wife of Jaswant Singh (brother of
the deceased), as such opposite party
no.2/informant of this case is father of the
deceased and father-in-law also of the
revisionist. Since, the revisionist was
harassed and tortured in her matrimonial
home, therefore, father of the revisionist
had lodged FIR on 17.09.2014 against her
husband and other family members of the
deceased (parents, brother and sister of
the deceased), in which charge-sheet was
submitted against Omkar/opposite party
no.2, Jaswant Singh, Ramkali and Km.
Kanchan.

(ii) Revisionist also filed a case
under Section 125 Cr.P.C. against her
husband Jaswant Singh (who is brother of
the deceased and PW-2 in the present
case), which has been allowed by ex-parte
order dated 26.06.2019 directing PW-2
Jaswant Singh to pay an amount of Rs.
2,500/- as maintenance to the revisionist.

(iii) Being annoyed against the
action of revisionist, family members of
420 INDIAN LAW REPORTS ALLAHABAD SERIES
the deceased Gaytri Devi in collusion
with each other moved an application
under Section 319 Cr.P.C. against the
revisionist on 8.7.2019 with mala fide
intention.

(iv) There are contradiction in
both dying declarations dated 7.5.2018 as
well as 18.5.2018, therefore, there was no
occasion to allow the application under
Section 319 Cr.P.C. of the prosecution.

(v) The trial court without
properly evaluating the material available
before him and without considering the
statements recorded under Section 161
Cr.P.C. and first dying declaration of the
deceased dated 7.5.2018 allowed the
application under Section 319 Cr.P.C. of
opposite party no.2 and summoned the
revisionist to face trial, which is illegal
and not sustainable in the eye of law.

(vi) Cause of death of deceased
as per post mortem report is contradictory
to the prosecution case.

(vii) Lastly, it is submitted that
the revisionist has been falsely implicated
in this case and no offence is made out
against the revisionist. Hence, impugned
order dated 14.08.2019 against the
revisionist is liable to be quashed by this
Court.

7. Per contra, learned Additional
Government Advocate and learned brief
holder for the State as well as learned
counsel appearing on behalf of opposite
party no.2 refuting the submissions
advanced on behalf of the revisionist
submitted that PW-1 Omkar, PW-2
Jaswant Singh and PW-3 Km. Kanchan in
their statements have made allegation
against the present revisionist Priti as well
as mother-in-law and brother-in-law of
the deceased. It is also submitted that
revisionist has not filed post mortem
report of deceased. In second dying
declaration dated 18.05.2018 of the
deceased specific allegation has been
levelled against the revisionist Priti Devi.
It is submitted that as per the second
dying declaration dated 18.05.2018, the
deceased received burn injury by the
deliberate act of revisionist Priti Devi,
who on account of skirmish took place
between them, thrown kerosene bottle on
the gas stove when deceased was cooking
tea and thereafter Gaytri died in hospital
during her treatment, therefore, the
revisionist was rightly summoned by the
order dated 14.08.2019 to face trial and
the present revision is liable to be
dismissed.

8.

After
having
heard
the
submissions of the learned counsel for the
parties and perusing the entire record, I
find that it is true that the revisionist is
neither named in the First Information
Report nor in the statement under Section
161 Cr.P.C. of the informant, but it is also
admitted facts on record that in this case
there are two dying declarations of the
deceased. First dying declaration was
recorded on 7.5.2018 by Sher Bahadur
Singh, Naib Tehsildar, Sadar, Pilibhit
when deceased was admitted in district
hospital, Pilibhit, while second dying
declaration was recorded on 18.5.2018 by
Ravindra Pratap Singh, Naib Tehsildar,
Bareilly when deceased was shifted and
admitted in Sri Ram Kishore Memorial
Hospital, Bareilly. Though, both the
dying declarations are contradictory to
each other, but both dying declarations
have been recorded by the Government
Official competent to record the same. In
both
the
dying
declarations,
it
is
mentioned that patient Gayatri Devi is
fully conscious and is able to give
statement in her full sense, therefore,
genuineness or otherwise of both the
3 All. Priti Devi Vs. Vs. State of U.P. & Anr.
421
aforesaid dying declaration can be taken
into consideration by the trial court at the
appropriate stage in the light of facts,
circumstances and material evidence on
the record of the case. At this stage, it
cannot be said by this Court that which
dying declaration is correct and which
dying declaration will prevail over other
dying declaration. This Court is of the
view that whether first dying declaration
is genuine or second dying declaration is
genuine is a subject matter of appreciation
of evidence by the trial court at the
appropriate stage. Specific allegation as
well as motive against the present
revisionist is very much on record in the
second
dying
declaration
dated
18.05.2018.

9. A dying declaration is relevant
evidence as declared by Section 32 of the
Indian Evidence Act, 1872. The Apex
Court in case of Paniben (Smt) Vs. State
of Gujarat 1992 SCC (Cri.) 403 has
discussed certain circumstances with
regard to dying declaration. The relevant
paragraph nos. 18 and 19 of the said
judgment are as follows:-

"18.
Though
a
dying
declaration is entitled to great weight, it
is worthwhile to note that the accused has
no power of cross-examination. Such a
power is essential for eliciting the truth as
an obligation of oath could be. This is the
reason the Court also insists that the
dying declaration should be of such a
nature as to inspire full confidence of the
Court in its correctness. The Court has to
be on guard that the statement of
deceased was not as a result of either
tutoring, prompting or a product of
imagination. The Court must be further
satisfied that the deceased was in a fit
state of mind after a clear opportunity to
observe and identify the assailants. Once
the Court is satisfied that the declaration
was true and voluntary, undoubtedly, it
can base its conviction without any
further corroboration. It cannot be laid
down as an absolute rule of law that the
dying declaration cannot form the sole
basis
of
conviction
unless
it
is
corroborated.
The
rule
requiring
corroboration is merely a rule of
prudence. This Court has laid down in
several
judgments
the
principles
governing dying declaration, which could
be summed up as under:

(i) There is neither rule of law
nor of prudence that dying declaration
cannot
be
acted
upon
without
corroboration. Munnu Raja Vs. State of
M.P. (1976) 3 SCC 104.

(ii) If the Court is satisfied that
the dying declaration is
true and
voluntary it can base conviction on it,
without corroboration. State of U. P. Vs.
Ram Sagar Yadav, (1985) 1 SCC 552;
Ramavati Devi Vs. State of Bihar (1983) 1
SCC 211.

(iii) This Court has to scrutinise
the dying declaration carefully and must
ensure that the declaration is not the
result
of
tutoring,
prompting
or
imagination.
The
deceased
had
opportunity to observe and identify the
assailants and was in a fit state to make
the declaration. K. Rama Chandra Reddy
Vs. Public Prosecutor (1976) 3 SCC 618

(iv) Where dying declaration is
suspicious it should not be acted upon
without corroborative evidence. Rasheed
Beg Vs. Sate of Madhya Pradesh (1974) 4
SCC 264

(v) Where the deceased was
unconscious and could never make any
dying declaration the evidence with
regard to it is to be rejected. (Kake Singh
Vs. State of M. P. 1981 supp SCC 25
422 INDIAN LAW REPORTS ALLAHABAD SERIES

(vi) A dying declaration which
suffers from infirmity cannot form the
basis of conviction. Ram Manorath Vs.
State of U.P. (1981) 2 SCC 654

(vii) Merely because a dying
declaration does not contain the details
as to the occurrence, it is not to be
rejected. (State of Maharashtra Vs.
Krishnamurthi Laxmipati Naidu 1980
Supp SCC 455

(viii) Equally, merely because it
is a brief statement, it is not be discarded.
On the contrary, the shortness of the
statement
itself
guarantees
truth.
Surajdeo Oza Vs. State of Bihar 1980
Supp SCC 769

(ix) Normally the court in order
to satisfy whether deceased was in a fit
mental condition to make the dying
declaration look up to the medical
opinion. But where the eye witness has
said that the deceased was in a fit and
conscious state to make this dying
declaration, the medical opinion cannot
prevail. (Nanahau Ram Vs. State of M.P
1988 Supp SCC 152

(x)
Where
the
prosecution
version differs from the version as given
in the dying declaration, the said
declaration cannot be acted upon. (State
U.P. Vs. Madan Mohan (1989) 3 SCC
390.

19. In the light of the above
principles, we will consider the three
dying declarations in the instant case and
we will ascertain the truth with reference
to all dying declaration made by the
deceased Bai Kanta. This Court in Mohan
Lal Gangaram Gehani Vs. State of
Maharashtra (1989) 1 SCC 700 held:

"Where there are more than one
statement
in
the
nature
of
dying
declaration, one first in point of time must
be preferred".

Of course, if the plurality of
dying declarations could be held to be
trust worthy and reliable, they have to be
accepted."

10.

Issue
of
multiple
dying
declaration has also been considered by
the Apex Court in case of Kundula Bala
Subrahmanyam Vs. State of Andhra
Pradesh
(1993)
SCC
(Cri.)
655.
Relevant observations made by the Apex
Court in para 18 of the said judgment are
as follows:-

"18. Section 32 (1) of the
Evidence Act is an exception to the
general rule that hearsay evidence is not
admissible evidence and unless evidence
is tested by cross-examination, it is not
credit-worthy. Under Section 32, when a
statement is made by a person, as to the
cause of death or as to any of the
circumstances which result in his death,
in cases in which the cause of that
person's death comes into question, such
a statement, oral or in writing, made by
the deceased to the witness is a relevant
fact and is admissible in evidence. The
statement made by the deceased, called
the dying declaration, falls in that
category provided it has been made by
the deceased while in a fit mental
condition. A dying declaration made by
person on the verge of his death has a
special sanctity as at that solemn moment,
a person is most unlikely to make any
untrue
statement.
The
shadow
of
impending death is by itself the guarantee
of the truth of the statement made by the
deceased
regarding
the
causes
or
circumstances leading to his death. A
dying
declaration,
therefore,
enjoys
almost a sacrosanct status, as a piece of
evidence, coming as it does from the
mouth of the deceased victim. Once the
3 All. Priti Devi Vs. Vs. State of U.P. & Anr.
423
statement of the dying person and the
evidence of the witnesses testifying to the
same passes the test of careful scrutiny of
the courts, it becomes a very important
and a reliable piece of evidence and if the
court
is
satisfied
that
the
dying
declaration is true and free from any
embellishment such a dying declaration,
by itself, can be sufficient for recording
conviction even without looking for any
corroboration. If there are more than one
dying declarations, then the court has
also
to
scrutinise
all
the
dying
declarations to find out if each one of
these passes the test of being trustworthy.
The Court must further find out whether
the different dying declarations are
consistent with each other in material
particulars before accepting and relying
upon the same."

11. Recently, the Apex Court in its
judgment dated 4th September, 2019 in
case of Jagbir Singh Vs. State (N.C.T.
of Delhi) 2019 SCC Online SC 1148 has
laid down parameter for considering the
multiple dying declaration in a case.
Relevant paragraph no. 30 of the said
judgment is as follows:-

"30. A survey of the decisions
would show that the principles can be
culled out as follows:

a. Conviction of a person can be
made solely on the basis of a dying
declaration which inspires confidence of
the court;

b. If there is nothing suspicious
about the declaration, no corroboration
may be necessary;

c. No doubt, the court must be
satisfied that there is no tutoring or
prompting;

d. The court must also analyse
and
come
to
the
conclusion
that
imagination of the deceased was not at
play in making the declaration. In this
regard, the court must look to the entirety
of the language of the dying declaration;

e. Considering material before
it, both in the form of oral and
documentary evidence, the court must be
satisfied that the version is compatible
with the reality and the truth as can be
gleaned from the facts established;

f. However, there may be cases
where there are more than one dying
declaration. If there are more than one
dying declaration, the dying declarations
may entirely agree with one another.
There may be dying declarations where
inconsistencies between the declarations
emerge. The extent of the inconsistencies
would then have to be considered by the
court. The inconsistencies may turn out to
be reconciliable.

g. In such cases, where the
inconsistencies go to some matter of
detail or description but is incriminatory
in nature as far as the accused is
concerned, the court would look to the
material on record to conclude as to
which dying declaration is to be relied on
unless it be shown that they are
unreliable;

h. The third category of cases is
that where there are more than one dying
declaration and inconsistencies between
the declarations are absolute and the
dying declarations are irreconcilable
being repugnant to one another. In a
dying declaration, the accused may not be
blamed at all and the cause of death may
be placed at the doorstep of an
unfortunate
accident.
This
may
be
followed up by another dying declaration
which is diametrically opposed to the first
dying declaration. In fact, in that
scenario, it may not be a question of an
inconsistent dying declaration but a dying
424 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration which is completely opposed
to the dying declaration which is given
earlier. There may be more than two.

i. In the third scenario, what is
the duty of the court? Should the court,
without looking into anything else,
conclude that in view of complete
inconsistency, the second or the third
dying declaration which is relied on by
the prosecution is demolished by the
earlier
dying
declaration
or
dying
declarations or is it the duty of the court
to carefully attend to not only the dying
declarations but examine the rest of the
materials in the form of evidence placed
before the court and still conclude that
the incriminatory dying declaration is
capable
of
being
relied
upon?
"
(emphasis supplied)

12. In the light of dictum of the
Apex
Court
in
above
mentioned
judgments, it is well settled that if in a
case there are more than one dying
declaration and both are contradictory to
each other, it is the duty of trial court to
carefully examine the dying declarations
in the light of materials facts and
circumstances as well as evidence placed
before the Court. Where there are more
than one dying declaration, no straight
jaket formula can be laid down. In the
circumstances, case must be decided on
the facts of each case. In the present case,
the trial court has partly allowed the
application no. 33 kha under Section 319
Cr.P.C. of the prosecution with finding
that since the specific allegation has been
levelled by the deceased in her second
dying declaration only against present
revisionist, therefore, the said evidence is
sufficient to summon the revisionist.
Since
there
were
no
corroborative
material against Nannhi Devi (mother-inlaw) and Vikash (brother-in-law) except
the statements of PW-1, PW-2 and PW-3,
therefore, prayer for summoning them has
been refused by the trial court. So far as
submission of learned counsel for the
revisionist regarding false implication of
the revisionist on account of FIR dated
17.09.2014 lodged by father of the
revisionist against opposite party no.2 and
his
family
members
as
well
as
proceedings of maintenance case no. 214
of 2018 filed by the present revisionist
Preeti Devi are concerned, the same has
been taken into consideration by the trial
court, while passing the impugned order
dated 14.08.2019.

13. Issues relating to scope and
object of summoning the accused under
Section 319 Cr.P.C. has been well
considered and settled by Constitutional
Bench consisting of five Judges of Apex
Court in case of Hardeep Singh and
others vs. State of Punjab and others
2014(3) SCC 92. Relevant paragraph nos.
105 and 106 of the said judgment are
reproduced herein-below:-

"105. Power under Section 319
Cr.P.C. is a discretionary and an extra-
ordinary 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
3 All. Priti Devi Vs. Vs. State of U.P. & Anr.
425
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 Cr.P.C. In Section
319 Cr.P.C. 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 Cr.P.C. to form any opinion as to
the guilt of the accused."

14. The aforesaid principles laid
down by the Apex Court in the case of
Hardeep Singh (supra) has been reiterated
further in case of Brijendra Singh and
others vs. State of Rajasthan; 2017(7)
SCC 706 as well as in the case S Ahmad
Ispahni vs. Yogendra Chandak and
others; 2017 (16) SCC 226 observing
that powers under Section 319 Cr.P.C.
can be exercised only where strong and
cogent evidence are found against a
person and not in a casual and cavalier
manner. The decree of satisfaction before
summoning the offence under Section
319 Cr.P.C. must be more than prima
facie, which is warranted at the time of
framing of charges against the accused.

15. The Apex Court in case of
Periyasamik
and
others
vs.
S.Nallasamy 2019 (4) SCC 342 has also
held that the additional accused cannot be
summoned under Section 319 of the Code
in casual and cavalier manner in the
absence of strong and cogent evidence.
Under Section 319 of the Code additional
accused can be summoned only if there is
more than prima facie case as is required
at the time of framing of charge but which
is less than the satisfaction required at the
time of conclusion of the trial convicting
the accused.

16. The grounds taken in the
criminal revision reveal that many of
them are disputed question of facts. This
Court is of the view that in view of
Section 32 of the Evidence Act, dying
declaration is a material piece of
evidence, which is much more than prima
facie and sufficient to summon the person
concerned under Section 319 Cr.P.C. as
an additional accused. It is also well
settled that the appreciation of evidence is
a function of the trial court. This Court in
exercise of power under Section 397/401
Cr.P.C. cannot assume such jurisdiction
and put to an end to the process of trial
provided under the law. The disputed
question of facts and defence of the
accused
cannot
be
taken
into
consideration at this pre-trial stage.
Factual submissions and defence as raised
in the criminal revision can be more
appropriately gone into by the trial court
at the appropriate stage.

17.
Under
the
facts
and
circumstances of the case, I do not find
any material illegality or perversity in the
order dated 14.08.2019 of the trial court,
therefore, the same is not liable to be
interfered
with,
as
the
same
is
impeccable.

18. As a fallout and consequence
of above discussions, the revision lacks
merit, and is, accordingly, dismissed.
----------
426 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)11ILR A426

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.09.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Revision No. 3450 OF 2019

Manidhar Mishra & Anr.
 ...Applicants/Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Sri Rajiv Lochan Shukla, Sri Ravikant
Shukla

Counsel for the Opposite Party:
A.G.A., Sri Pawan Kumar Mishra, Sri I.K.
Chaturvedi

A. Criminal Law -Code of Criminal
Procedure,1973 - Section 319 - Degree
of satisfaction - Standard of proof
employed for summoning a person as an
accused under Section 319 is higher than
the standard of proof employed for
framing a charge against an accused -
What is, necessary for the Court is to
arrive at a satisfaction that the evidence
adduced on behalf of the prosecution, if
unrebutted, may lead to the conviction
of a person sought to be added as the
accused in the case.

B. Criminal Law -Code of Criminal
Procedure,1973
-
Section
319
-
'Evidence' - Examination in-chief of
prosecution
witnesses
is
to
be
considered and there is no need to wait
for cross-examination. (Para 14)

Held: - In the testimony of PW-2, specific role
attributed to two accused persons Ankur
Mishra and Manidhar Mishra - Trial court
discussed the statement of PW-2 and PW-3
and
found
sufficient
evidence
showing
involvement of and for proceeding against the
revisionists Ankur Mishra and Manidhar Mishra
-Two eyewitnesses supported the prosecution
version and stated the involvement revisionists
in commission of the offence and if the same
remains unrebutted, the prosecution will
certainly succeed.
 (Para 17, 19)

Criminal revision dismissed (E-5)
List of Cases Cited: -

1. Sunil Kumar Gupta & ors. Vs St. of U.P. &
ors 2019 (108) ACC 29.

2. Hardeep Singh Vs St. of Punjab (2014) 3
SCC 92.

3.Sarabjit Singh & anr. Vs St. of Punjab & anr.
(2009) 16 SCC 46.

4. Babubhai Bhimabhai Bokhiria Vs St. of Guj.
(2014) 5 SCC 568.

5. Brijendra Singh Vs St. of Raj. AIR 2017 SC
2839.

6. Labhuji Amaratji Thakor Vs St. of Guj. AIR
2019 SC 734.

7. Rakesh Vs St. of Haryana AIR 2019 SC 2168

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Sri Rajiv Lochan Shukla,
learned Senior counsel assisted by Sri
Ravi Kant Shukla, appearing for the
revisionists, Sri I.K. Chaturvedi, learned
Senior counsel assisted by Sri Pawan
Kumar Mishra, appearing for the opposite
party no.2, the learned A.G.A. for the
State and also perused the record.

2. This revision has been filed by
the revisionist, Manidhar Mishra and
Gangadhar Mishra @ Ankur Mishra
against the judgement and order dated
05.09.2019 passed by learned Sessions