Crl. Rev. No. 1172 of 2009(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Rev. No. 1172 of 2009(O&M) Date of decision:- 30.3.2010 Jai Parkash ... Petitioner Versus State of Haryana & Ors. ... Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Sanjay Verma, Advocate, for the petitioner. Ms. Shalini Attri, DAG, Haryana. Mr. Deepak Manchanda, Advocate, for respondents No. 2 and 3. Gurdev Singh, J (oral) This revision by Jai Parkash – petitioner-complainant is directed against the order dated 13.3.2009 passed by Additional Sessions Judge Kurukshetra, vide which he dismissed the application filed by him under Section 319 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') for summoning Chander Bhan and Jaswanti Devi as additional accused in case pertaining to FIR No. 40, dated 3.6.2008, registered in Police Station Babain, under Sections 306, 309 IPC. Facts, in brief, are that the marriage of Sukhwinder Kaur-deceased was performed with Rajiv Kumar accused on 10.3.2008. After the marriage, she was being maltreated by that accused and her parents – Chander Bhan and Jaswanti Devi on the ground of demand of dowry. She was also being taunted by them on the ground that she was not able to perform the house- hold chores in proper manner. Both Rajiv Kumar and the deceased Crl. Rev. No. 1172 of 2009(O&M) -2- consumed poison. However, the Rajiv Kumar was saved whereas the deceased died. The above said FIR was registered and after the completion of investigation the challan was presented in the Court only against Rajiv Kumar and his parents were found to be innocent. He was charged for the offences under Section 306 and 309 IPC, to which he pleaded not guilty and claimed trial. The prosecution started producing its evidence. They examined number of witnesses including Jai Parkash – complainant PW-4, who is the father of the deceased. Thereafter, the above said application under Section 319 of the Code was moved by the Public Prosecutor. The same was contested by Rajiv Kumar accused, who filed his reply to the same. After hearing the public prosecutor for the State, learned defence counsel for the accused and going through the records of the case, the application was dismised vide aforesaid order. Notice of the revision was given to the respondents. I have heard learned counsel for the parties. It has been submitted by learned counsel for the petitioner that the order passed by the Additional Sessions Judge, suffers from illegality as during the investigation statement of the witnesses were recorded under Section 161 Cr.P.C, who categorically stated that Chander Bhan and Jaswanti Devi had also been harassing the deceased on the ground of demand of dowry and created such like circumstances, which compelled the deceased to commit the suicide. Those facts were further reiterated by Jai Parkash – complainant when his statement was recorded in the Court during the trial. From that evidence it appears that Chander Bhan and Jaswanti Devi committed the offence under Section 306 IPC for which they are liable Crl. Rev. No. 1172 of 2009(O&M) -3- to be tried along with Rajiv Kumar – accused. On the other hand, it has been submitted by learned counsel for respondents No. 2 and 3 that on the basis of the statement of the witnesses recorded during the investigation no order can be passed for summoning respondents No. 2 and 3 as additional accused. Such an order can be passed only on the basis of the evidence produced during the trial. On the basis of the evidence produced during the trial, it cannot be said that respondents No. 2 and 3 committed offence under Section 306 IPC. The order passed by the Additional Sessions Judge, does not suffer from any illegality. It is well settled that no order under Section 319 of the Code can be passed on the basis of the statements of the witnesses recorded under Section 161 of the Code and the material collected during the investigation. It is on the basis of the evidence produced before the Court during the trial that such a order can be passed in case the Court comes to the conclusion that it appears that the persons sought to be summoned as additional accused committed the offence for which they are liable to be tried along with accused already aaraigned. For proper appreciation of the matter the relevant portion of the statement of the complainant – Jai Parkash PW4 is reproduced below :- “On the next day, we received telephone call from Chander Bhan, the father of the accused. He asked us why we had sent Sukhwinder Kaur with Rajiv against his will. I and my brother Jai Singh went to the matrimonial house of my daughter at Behlolpur after two days. We requested accused and his parents not to maltreat Sukhwinder Kaur and we returned back. Crl. Rev. No. 1172 of 2009(O&M) -4- On the next date, Rajiv and his father Chander Bhan and mother Jaswanti murdered Sukhwinder Kaur......... ....... My daughter was killed by administering poison by the accused and his father and mother.” No doubt this complainant stated in his examination-in-chief that his daughter – Sukhwinder Kaur was murdered by Rajiv and respondents No. 2 and 3 by administering poison, but he stated in his cross – examination that he had not seen anybody administering the poison to Sukhwinder Kaur. At the most it can be said that this statement of the complainant is hearsay evidence. The conviction of the accused cannot be recorded on the basis of hearsay evidence. From the said statement of the complainant it cannot be held that it appears that respondents No. 2 and 3 committed any such offence for which they are liable to be tried along with Rajiv Kumar – accused. The order passed by learned Additional Sessions Judge, does not suffer from any illegality nor the same can be said to be incorrect, nor it can be held that the propriety required that such a order should not have been passed. Therefore, the same cannot be set aside while exercising the revisional jurisdiction. Revision petition is dismissed accordingly. March 30, 2010 (Gurdev Singh) tripti Judge