Crl. Rev. No.2128 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Rev. No.2128 of 2009 Date of Decision: 17.05.2010 Ram Singh Tyagi ....Petitioner Versus State of Haryana and another ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Surender Saini, Advocate for the petitioner. Mr. Pradeep Virk, D.A.G., Haryana for the respondent-State. Mr. Sukhdeep Parmar, Advocate for respondent No.2. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. (ORAL) The facts, in short, are that the present case was registered on the basis of information given to the police by Ram Singh Tyagi with the allegations that he was serving in the Office of District and Sessions Judge, Sonepat and has got two children, namely, Swati daughter and Anuj son. His daughter Swati was married with Dharender son of Sushil Tyagi according to the Hindu rites and ceremonies on 22.02.2002 and a sum of Rs.20 lacs was spent on the marriage by him. He had given sufficient dowry articles including one Santro car, 25 tolas gold, furniture, air conditioner and other household items. His daughter was M.A. B.Ed. Two Crl. Rev. No.2128 of 2009 2 daughters were born out of the wedlock. After the birth of the first daughter, husband of his daughter namely Dherender, mother-in-law Nirmala, father- in-law Sushil Tyagi and sister-in-law, namely, Divya who used to reside near by in the same sector started harassing and taunting his daughter on account of insufficient dowry. The in-laws were also not satisfied with the dowry articles given in marriage and started demanding dowry. He gave about Rs.1,50,000/- in all on two or three occasions, so that his daughter could live happily but accused were not satisfied. They used to taunt her to bring money from him for the marriage of the daughter born to her. Her daughter narrated all these facts to him as well as to his wife. When his daughter got pregnant for the second time, the in-laws got the sex determined and finding a female child, they pressurized his daughter to get it aborted. Second daughter was also born at his house at Sonepat and he had borne the entire expenses. Thereafter, they made the life of his daughter a hell. He along with his wife and his brother met the in-laws several times and to reason with them but of no help. It is alleged that Nirmala mother-in-law of the deceased demanded a sum of Rs.10 lacs about one week prior to the death of the daughter of the complainant. Complainant talked to her father-in-law namely Dr. Sushil Tyagi and his son-in-law but they also reiterated the demand. He also talked to sister-in- law namely Divya and her husband namely Rajiv. Rajiv expressed his inability to interfere but sister-in-law Divya also reiterated the demand and said that his daughter would not remain alive in case the amount is not paid. On 15.11.2008, his son-in-law informed him that his daughter Swati is missing and when he contacted them at about 9.00 p.m., his son-in-law informed him that Swati is no more. He reached her matrimonial home where he found her hanging on a ceiling fan. It is further alleged that either his daughter has committed suicide after getting fed up with the harassment caused to her or that accused have hanged her after Crl. Rev. No.2128 of 2009 3 committing her murder and as such, action be taken against the accused. Thereafter, the challan was filed against Dharender @ Ashu, husband of the deceased, Sushil Kumar Tyagi, father-in-law of the deceased, Nirmala Devi, mother-in-law of the deceased, whereas, the respondent No.2-Divya @ Neetu, who is sister-in-law of the deceased, was placed in column No.2. An application under Section 319 Cr.P.C was filed for summoning Divya @ Neetu. The same was dismissed by the Additional Sessions Judge, Gurgaon vide Order dated 03.06.2009. Hence, the present revision petition has been filed only on the ground that the trial Court has not considered the factum of specific allegations against Divya @ Neetu. The allegation against Divya @ Neetu is that one week prior to the death of Swati, she had demanded a sum of Rs.10 lacs and had threatened that in case the same is not given, Swati would not remain alive and thereafter, Swati was murdered and hanged to a ceiling fan just to make it a case of suicide. Learned counsel for the petitioner submitted that the trial Court had not considered the evidence by way of the statement of complainant PW-2 Ram Singh Tyagi and that there was a prima facie case against her and the trial Court should have summoned the respondent. The Additional Sessions Judge, Gurgaon while dismissing the application, specifically noted that the complainant while deposing in the Court has improved upon the allegations made in the complaint. As per the complaint, the complainant had given a total sum of Rs.1.5 lacs on two three occasions after the marriage, whereas, in the Court, it was stated that the amount was paid on seven different occasions. The Additional Sessions Judge, Gurgaon, while dismissing the application, discussed the cross-examination as under :- “ PW-2 in his cross examination admitted that it is not mentioned in the statement Ex.PC that sister in Crl. Rev. No.2128 of 2009 4 law Divya also said that he will have to pay Rs.10 lacs and that whatever her parents and brother are saying is correct. He further deposed that when Divya threatened him on telephone that his daughter will not remain alive, this fact was not taken seriously by him and he did not come to Gurgaon after the phone call upto her death. He also admitted that he had not disclosed in the statement Ex.PC, the date and time of telephone call made by Divya and who received the telephone call and the place where call was made. He also admitted that he had also not disclosed the telephone number from which the call was made. He also admitted that Divya was married in the year 2000 and before the marriage of his daughter and he also admitted that Divya and her husband are residing in a separate house, though in the same Sector.” The above facts, which are apparent from the cross- examination of PW-2 and as discussed by the Additional Sessions Judge, Gurgaon, are not disputed. Hon'ble the Supreme Court, in the case of Lal Suraj @ Suraj Singh vs. State of Jharkhand reported in 2009(1) R.C.R (Criminal) 504 has specifically held that the principle of strong suspicion cannot be made a basis for summoning under Section 319 Cr.P.C, unless a Court is satisfied that there is a possibility of conviction and observed in para 15 as under :- “ 15. The approach of the learned Sessions Judge was wholly incorrect. The principle of strong suspicion may be a criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration, but, for the purpose of summoning a person, who did not figure as accused, a different legal principle is required to be applied. A court framing a charge would have before it all the materials on record which were required to be Crl. Rev. No.2128 of 2009 5 proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 of the Code, the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction.” In Yuvaraj Ambar Mohite v. State of Maharashtra [2006(10) SCALE 369], it was observed that Section 319 Cr.P.C should be resorted to only if there is a possibility of the accused being convicted on the basis of the evidences brought on record even if the same is taken to be correct in its entirety. Similarly, in the case of Sarabjit Singh & Anr. vs. State of Punjab & Anr. reported in 2009(3) R.C.R. (Criminal) 388, Hon'ble the Apex Court reiterated the principle laid down that a person should be summoned only when Court finds that evidence on record is such which would reasonably lead to conviction of person sought to be summoned. In the present case, the statement of the complainant alone is not sufficient to summon Divya, who is the sister of the husband of the deceased especially in view of the serious discrepancies between the averments made in the complaint and the subsequent statement before the Court and what is finally revealed in the cross-examination. Even otherwise, as per the well settled proposition of law, a person should be summoned only if there is any possibility of recording a judgment of conviction, whereas, in the present case, all the other accused, namely, Dharender, Sushil Kumar and Nirmala Devi have also been acquitted vide judgment dated 15.01.2010 passed by the Additional Sessions Judge, Gurgaon. Learned counsel for the respondent, relied on the judgment of Hon'ble the Apex Court rendered in the case titled as Shashikant Singh v. Tarkeshwar Singh reported as 2002(3) R.C.R. (Criminal) 191 to state Crl. Rev. No.2128 of 2009 6 that the final judgment qua the accused has no baring on the application under Section 319 Cr.P.C and he can come to face de novo trial. However, the same is not applicable in the facts of the present case, as herein, the application under Section 319 Cr.P.C has been dismissed by the Additional Sessions Judge, Gurgaon on merits and not because of the acquittal of the other accused. The application under Section 319 Cr.P.C for summoning the petitioner was dismissed vide Order dated 03.06.2009, whereas, the other co-accused with more serious allegations were acquitted vide Order and Judgment dated 15.01.2010 by the Additional Sessions Judge, Gurgaon. Moreover, in the case of Shashikant Singh (supra) as relied on by the learned counsel for the petitioner, the other co-accused stood convicted and therefore, in those circumstances, it was held that the conclusion of the trial does not render application under Section 319 Cr.P.C as infructuous or without jurisdiction. Whereas, in the present case, the other accused stand acquitted. Meaning thereby, there is no evidence even to convict the other accused leave alone respondent No.2, who was found innocent during trial and her application under Section 319 Cr.P.C has also been dismissed on the ground that there is no sufficient material on record to summon her. In fact, it has come on record that the sister-in- law was married and staying separately. There is no material on record which may enable the Court to come to a conclusion that there is any possibility of the conviction on the basis of the material before it. Accordingly, I find no reason to interfere in the well reasoned order passed by the Additional Sessions Judge, Gurgaon dismissing the application. The revision petition therefore stands dismissed. (NIRMALJIT KAUR) 17.05.2010 JUDGE gurpreet