Darshana Devi v. State of Haryana & Anr.

Present: Mr. Jagjeet Beniwal, Advocate, for the petitioner. SABINA, J. Petitioner has filed this revision petition challenging the order dated 17.8.2010, passed by learned Sessions Judge, Bhiwani, whereby application moved by the prosecution under Section 319 Code of Criminal Procedure (in short 'Cr.P.C.) was dismissed. After hearing the learned counsel for the petitioner, I am of the opinion that the instant petition deserves dismissal. Section 319 Cr.P.C. reads as under :- “Power to proceed against other persons 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 Crl.

Revision No. 2506 of 2010 (O&M) 2 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 afresh, 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. Thus, as per the above provision at any stage of trial the Court may summon any person to face the trial, who is also liable to face the trial alongwith the accused. In the present case final report/challan was presented against accused Dinesh by the Investigating Agency.

Respondent No.2 Amit was found innocent during investigation. After the examination of the prosecutrix before the trial Court, the prosecution moved an application under Section 319 Cr.P.C. The prosecutrix while appearing in the witness box had deposed that on 13.1.2010 she was sleeping in her room. Father-in- law, mother-in-law and children of the prosecutrix were sleeping in another room. Accused Dinesh alongwith Amit entered her room. Dinesh was their neighbour and Amit was a regular visitor in the house of Dinesh. Amit caught hold of her hand and closed her mouth with the other hand. Dinesh removed the quilt and broke open the string of her salwar and and fell on Crl. Revision No. 2506 of 2010 (O&M) 3 her. The prosecutrix managed to remove the hand of Amit from her mouth and shouted for help. Her father-in-law came inside the room and the accused Dinesh and Amit fled away from the spot. The learned trial Court while dismissing the application, moved by the prosecution, in paras 10 to 12 of the impugned order has held as under :- “10.

It has come in the statement of the prosecutrix that the room where the prosecutrix was sleeping is at the back of the plot, while the remaining rooms of the house are in the front. To enter the back area, a person has to come from the front and then enter the 'nohra' and then come to the veranda and to go to the backyard. The incident took place at 1.00 a.m. The prosecutrix was stated to all alone in the room. She had not bolted the room from inside. It has come in the cross-examination that there are trees between the house and the room where she was sleeping. The prosecutrix has denied that Amit had got a case registered against her brother-in-law.

Hoshiar Singh PW5 had stated that he did not know Amit, but had seen his photograph in the house of Dinesh. It was categorically put to the witness that the DSP had conducted the investigation and from verification of his all record it was found that Amit was at village Digal. This fact was denied by PW5. The witness had denied that the police did not find any conversation between Dinesh and Amit that night.