SHIV NARAIN Vs. STATE OF U P

JUDGEMENT

(1.) The petitioners in this petition under Section 482, Code of Criminal Procedure, 1973 (for short Cr.P.C.) have sought to quash the order of the learned III Additional Sessions Judge, Kanpur whereby he by invoking power under Section 319, Cr.P.C. has arrayed them as accused persons in the Session case registered as S.T. No. 323 of 1994 under Sections 498-A and 306, I.P.C.

(2.) The prosecution case in short is that Bitola (hereinafter referred to as 'the deceased'), daughter of Surjan, the informant was given in marriage to accused Balwan Singh about seven years before the incident. Petitioners No. 2 and 3 are the parents and petitioner No. 1 is the brother of Balwan Singh. It is alleged that the deceased was tortured and ill-treated by the petitioners as well as her husband as sufficient dowry had not been given in the marriage. She had been complaining to her parents that she was being pastered to get scooter, some gold ornaments and cash of Rs. 20,000/-. Ultimately when their demand was not satisfied they committed her murder. A written report was lodged to the local police on receipt of which a case under Sections 498-A and 302, I.P.C. was registered and investigation commenced and on completion thereof a charge-sheet was led only against accused Balwan Singh under Section 498-A and Section 306, I.P.C. After commitment, the case was transferred to the file of III Additional Sessions Judge, Kanpur for trial in accordance with law. During trial, the learned trial Judge recorded the evidence of Suraj, the informant (P.W.I) who in his examination-in-chief supported the prosecution version as set out in the First Information Report. He specifically stated that accused Balwan Singh as well as these petitioners tortured the deceased on account of non-fulfillment of demand of dowry. In view of such evidence learned Counsel appearing for the State filed a petition under Section 319, Cr.P.C. to bring the petitioner to the array of the accused and to proceed with the trial. Upon hearing, the learned trial Judge allowed the prayer by order dated 26th July, 1996, a copy whereof is at Annexure-6 and issued process to the petitioner for their appearance. Aggrieved by the said order, the petitioners have approached this Court by filing the present petition.

(3.) Learned Counsel appearing for the petitioner has strenuously contended that the statement of informant, P.W. 1 with regard to the petitioners' involvement in the incident being not complete in all respects, inasmuch, as the statement so given by P.W. 1 is examination-in-chief implicating the petitioners in the incident having not been tested by cross-examination, the same should not be construed as 'evidence' for taking action under Section 319, Cr.P.C. Par centra, learned Counsel appearing for the State would urge that in view of the law laid down by a Division Bench of this Court in the case of Ram Gopal v. State of U.P., 1999 (38) A.C.C. p.123=I (1999) CCR 516 (DB), it was not obligatory of the Court to complete the examination of P.W. 1 for summoning the petitioner as accused with the aid of the aforesaid provision. In view of the submissions made at the Bar the sole question for consideration is whether statement of P.W. 1 recorded in examination-in-chief having not been tested by cross-examination can be treated as evidence to enable the Court to add the petitioners as accused by invoking power under Section 319, Cr.P.C.