MANOJ KUMAR Vs. PRABHU RAM

JUDGEMENT

(1.) THIS petition filed under Section 401 of the Criminal Procedure Code, 1973 challenges order dated 11.7.2003 passed by the Additional Sessions Judge, Gurgaon, dismissing an application of the complainant- petitioner for summoning five persons as accused under Section 319 Cr.P.C. The complainant-petitioner has prayed that Prabhu Ram, his wife Resham Devi, his son Sunil Kumar and his daughter-in-law Pinki and Subhash s/o Siri Ram be summoned as additional accused to face trial in respect of offences punishable under Section 306 IPC. It is appropriate to mention that Krishan Kumar son of Prabhu Ram is already facing trial under Section 306 IPC in case FIR No. 95 of 10.7.2002 under Section 306 IPC P.S. Tauru.

(2.) THE facts in brief are that on the statement made by one Manoj Kumar, the FIR was registered who alleged that his sister Birmati was married to Krishan Kumar. She was tortured by her husband's in-laws to such an extent that they ultimately murdered her on 22.6.2002. The further allegation is that the culprits later on sprinkled kerosene oil on her body to mislead the police that it was a case of suicide. After investigation, the police had filed challan only against Krishan Kumar the husband of the deceased. Prabhu Ram (father-in-law), Resham Devi (mother-in-law), Sunil Kumar (brother of Krishan Kumar) and his wife Pinki (wife of Sunil Kumar) and Subhash were not challaned. They were found innocent during investigation. The main accused namely Krishan Kumar is facing trial and prosecution has examined complainant Manoj Kumar PW-1 on 22.1.2003. On the statement made by Manoj Kumar as PW-1, an application under Section 319 Cr.P.C. for adding the afore-mentioned persons as additional accused was filed. The application has been dismissed by the learned Additional Sessions Judge with the observation that during investigation, the police had seized ration card, which revealed that Birmati deceased sister of Manoj Kumar PW-1 used to live separately alongwith her husband Krishan Kumar. In other words their ration card was separate from her parents-in-law and brother-in-law. This has also been found from the examination of the respectables of the village and the family dispute was the basic reason which ultimately led to the commission of a suicide. The observation of the learned Sessions Judge in para 5 reads as under :-

(3.) AFTER hearing the learned counsel, I am of the considered view that the powers given under Section 319 Cr.P.C. are to be used sparingly and only if there is convincing evidence against the persons sought to be added as an accused. The learned Additional Sessions Judge, thus, rightly relied upon the judgment of the Supreme Court in Municipal Corporation Delhi v. Ram Kishan Rohtagi and others, 1983 S.C. Cases (Crl.) 115 : 1983(1) RCR(Crl.) 73 (SC) and Michael Machado and another v. Central Bureau of Investigation, AIR 2000 SC 1127 : 2000(2) RCR(Crl.) 75 (SC). The observation in Michael Machado's case read as under :-