The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.464 of 2020 Rabi Pradhan and others …. Petitioners Mr. B. Nayak, Advocate State of Odisha -Versus - …. Opposite Party
Legal Reasoning
facie case exists but can be so used if more than a prima facie case Page 3 of 5 is found to exist. The Court is also not required to examine whether the evidence surfacing against the persons proposed to be arraigned as accused is sufficient to return a finding of guilt against them but to be satisfied that there is evidence justifying at least a trial against them. 11. Viewed in the above background, it is seen that P.W.1, the mother of the deceased stated enter alia under paragraph-5 of her deposition as follows:- “The house of accused persons located intervening four houses to that of time. On the relevant date, at about 10.30 pm while I was in my house heard a loud voice from outside. I could know that the said voice coming from the house of the accused persons. I rushed to the spot. There I found the accused persons namely, Pramila, Jayakrushna, Rabi, Lata, Laxmidhar and Sakhi setting fire on the body of my daughter pouring kerosene in their entrance room. Having seen me the accused persons conciled the body of my daughter. Immediately I ranged to my husband who in Nagpur then and intimated about the incident. Subsequently I found accused persons carrying the body of my daughter to the funeral ground of our village by means of a trali rickshaw. I also informed the incident to my kith and kins. They rushed to the funeral ground and prevented accused persons to dispose of the dead body.” 12. It is further well settled that the power under Section 319 Cr.P.C. can be used even on the basis of the examination in-chief of the witnesses. Nevertheless, to be satisfied of the sanctity of such statement given on oath this Court has perused the statement of Sugyani Baral recorded under Section 161 of Cr.P.C., wherein she has clearly stated that the accused persons including the present petitioners had caused the death of the deceased by pouring kerosene on her and setting her on fire. Their names also find place Page 4 of 5 in the FIR. Thus in view of the evidence as above it can be clearly seen that there is more than prima facie case against the petitioners to at least justify a trial against them. 13. Perusal of the impugned order reveals that the court below has also examined the deposition of P.W.1 as also the FIR to arrive at the same conclusion. In view of what has been discussed hereinbefore, this Court concurs with the finding of the court below and therefore, finds no reason to interfere therewith. In the result, the Criminal Revision is found to be devoid of merit and is therefore, dismissed. (Sashikanta Mishra) Judge B.C. Tudu Page 5 of 5
Arguments
Mr. S.K. Mishra, ASC CORAM: JUSTICE SASHIKANTA MISHRA ORDER_ 24.02.2023 Order No. 7. 1. 2. This matter is taken up through hybrid mode. Head learned counsel for the petitioners and learned counsel for the State. 3. The petitioner challenges the order dated 28.08.2017 passed by learned 1st Additional Sessions Judge, Khurda in S.T Case No. 41 of 2015 whereby they were added as accused persons under Section 319 of Cr.P.C. 4. The facts of the case are that an FIR was lodged by one Muchiram Boral against some persons including the present petitioners on 24.09.2014 which led to registration of Banpur P.S. Case No.287 of 2014 under Sections 498 (A)/302/304(B)/34 of IPC and Section 4 of D.P. Act. The basic allegation in the FIR is that the accused persons demanded dowry and for non-fulfillment of the same subjected the deceased to physical and mental cruelty after her marriage. On the date of occurrence, the victim was allegedly Page 1 of 5 killed by the accused persons by pouring kerosene on her and setting her ablaze. Upon completion of investigation charge sheet was submitted only against some of the accused persons deleting the names of the present petitioners on the ground that there is no evidence against them. 5. In course of trial, a petition was filed by the Public Prosecutor to arraign the present petitioners as accused persons in the case basing on the testimony of prosecution witness No.1, namely, Sugyani Baral. By the order impugned in the present revision, the court below after considering the deposition of P.W.1 and the FIR and other materials on record, held that there is prima facie evidence against the present petitioners and therefore allowed the petition. 6. Heard Mr. Biswajit Nayak, learned counsel for the petitioners and Mr. S.K.Mishra, learned Additional Standing Counsel for the State. 7. Mr. Nayak has assailed the impugned order by submitting that the power under Section 319 of Cr.PC. is required to be used sparingly and not as a matter of course. He further submits that if the testimony of PW.1 is read carefully it would reveal that the same is at variance from her earliest statement before the police and that her testimony before the Court was a clear improvement over her earlier version. Therefore, the court below committed material illegality in arraigning the petitioners are accused persons in the case. 8. Per contra, Mr. S.K.Mishra submits that in view of the clear testimony of P.W. 1 that she had seen the accused persons including the present petitioners setting fire on the body of her daughter after pouring kerosene in their entrance room, it is clear Page 2 of 5 that both of them were directly involved in the alleged occurrence and therefore have been rightly arraigned as accused persons. 9. Before proceeding further, it would be apt to refer to the provision under Section 319 of Cr.P.C, which is quoted herein below. to proceed against other persons “319. Power appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub- section (1), then- (a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” 10. It would be further apt to refer to the settled position of law regarding exercise of the power under Section 319 of Cr.PC. In this regard, the decision of the Apex Court in the case of Hardeep Singh vrs. State of Punjab, reported in (2014) 3 SCC 192 is relevant. The sum and substance of the above decision is that the power under Section 319 Cr.P.C. cannot be used only if the prima