Summary
The Supreme Court directed that the mother-in-law, brother-in-law and sister-in-law's husband of a woman shot dead by her husband be summoned as additional accused under Section 319 CrPC, holding that the depositions of her brother and minor daughter, read with the deceased's Section 161 statements admissible as dying declarations under Section 32(1) of the Evidence Act, prima facie showed their complicity, and that the courts below had wrongly conducted a mini-trial.
Issues
- Whether the trial court and High Court were justified in rejecting the prosecution's application under Section 319 CrPC to summon the respondents as additional accused.
- Whether the deceased's statements recorded under Section 161 CrPC could be treated as dying declarations although she died some weeks after they were recorded, without a Magistrate's presence or medical certification of fitness.
- Whether a court may test the credibility of a witness's testimony at the Section 319 stage.
Provisions considered
- Section 319, Code of Criminal Procedure, 1973An enabling, extraordinary power to be used sparingly, on evidence brought before the court during trial, where the satisfaction is more than the prima facie case needed for framing charge but short of what is needed for conviction; it does not permit a mini-trial and is not controlled by whether the person was named in the FIR or chargesheet. (¶¶ 5, 6, 7, 7.1, 7.2, 7.3, 7.4, 11, 17)
- Section 161, Code of Criminal Procedure, 1973A Section 161 statement is not substantive evidence but may be used to corroborate evidence recorded at trial when invoking Section 319, as was done with the minor daughter's statement. (¶¶ 7.2, 12)
- Section 162, Code of Criminal Procedure, 1973Sub-section (2) excludes statements within Section 32(1) of the Evidence Act from the bar on using statements to the police in evidence. (¶ 14)
- Section 32(1), Indian Evidence Act, 1872The deceased's statements to the police on the cause and circumstances of her death became relevant as dying declarations on her death; they need not be recorded before a Magistrate, lack of a doctor's fitness certificate does not ipso facto make them unacceptable, and the provision does not require the declarant to have expected imminent death. (¶¶ 14, 15, 16)
Held
- The power under Section 319 CrPC is extraordinary and discretionary, to be exercised sparingly where cogent evidence brought on record during the trial prima facie requires the person to face trial; the satisfaction required exceeds that at framing of charge but falls short of what is needed to convict. (¶¶ 6, 7)
- At the Section 319 stage the court must not test credibility or weigh probative value as at the end of trial; the High Court erred in using the minor daughter's cross-examination to infer that she was not an eyewitness, which amounted to an impermissible mini-trial. (¶ 11)
- An FIR is not an encyclopaedia; the informant's omission in the FIR of the instigation by the respondents did not make his deposition an embellishment, particularly when consistent with the overall narrative and his later complaint naming them. (¶¶ 9, 10)
- The minor daughter's deposition, read with her Section 161 statement used for corroboration, assigned specific overt acts to the respondents; whether she actually saw the firing, how far she is credible and the plea of tutoring are matters for trial. (¶¶ 11, 12)
- A statement by a deceased person to the police recorded under Section 161 CrPC about the cause or circumstances of her death is admissible under Section 32(1) despite Section 162 CrPC; absence of a Magistrate or medical certification, and omission of names in an earlier statement, do not destroy its relevance, and inconsistencies and weight are for trial. (¶¶ 14, 15)
- The High Court erred in refusing to treat the statements as dying declarations merely because the death occurred some time after they were recorded; Section 32 contains no such limitation and does not require the declarant to be under expectation of death, the test being whether the statement relates to the cause of death or the circumstances leading to it. (¶ 16)
- The depositions of PW-1 and PW-2 and the deceased's statements prima facie showed the respondents' complicity, and objections such as tutoring, omission from the FIR, inconsistencies and lack of medical certification were premature at the summoning stage; these observations are confined to the Section 319 application. (¶¶ 17, 18)
Result
Appeal allowed; High Court's judgment dated 22.04.2024 set aside and sufficient ground found to summon respondents 2 to 4 to face trial in Sessions Trial No. 1151 of 2021; parties to appear before the trial court on 08.01.2026, avoid unnecessary adjournments, and the trial is expedited.