NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.134 OF 2019 (Arising out of SLP (Criminal) No. 1705/2015)

Dev Wati and Ors. ...Appellants

             Versus

The State of Haryana and Anr. ...Respondents

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

Leave granted.

2. This appeal is directed against the judgment dated 16.10.2014

passed by the High Court of Punjab and Haryana at Chandigarh

in Criminal Revision No. 3135/10 (O&M) upholding the judgment

dated 09.11.2010 passed by  the Sessions Court,  Faridabad  in

Sessions Case No. 54/2010.

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3.  By the impugned judgment, the application under Section 319

of the Code of Criminal Procedure (for short ‘the Cr.P.C.’) filed by

the  complainant  was  allowed and consequently the  appellants

herein were  summoned by the  Sessions  Court to face trial in

Sessions Case No. 54/2010.

4.   The brief facts arising out of this appeal are that a missing

complaint came to be lodged  by the brother of the deceased

(PW­9,  Harkesh).  After two days of  such complaint, the dead

body of the deceased Suraj was found.  Accused Rajpal @ Rajua,

Prem Pal and Devender @ Deven were put to trial for the

commission of the offence under Section 302 read with Section

34 of the Indian Penal Code (for short ‘the IPC’), apart from other

offences.  When the evidence was being recorded, PW­9, Harkesh

deposed before the Sessions  Court implicating the appellants

herein, i.e. Appellant No.1, Smt. Dev Wati, the wife of the

deceased, Appellant Nos. 2 and 3, Surinder Singh and Badan,

her  brothers,  Appellant  No.  4,  Smt.  Amarwati,  her sister  and

Appellant Nos. 5 and 6, Raju and Kalu, two sons of her sisters.

Thereafter, an application came to be filed by the complainant

under Section 319 of the  Cr.P.C. before the Sessions  Court,

which came to be allowed on the ground that on the insistence of

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Raju and Kalu, the deceased had gone along with them on their

motorcycle on being told that the appellants herein and one Omi

(being the wife of the deceased and her relatives) had called him

for a compromise in the matrimonial litigation pending between

the deceased and his wife. It is relevant to note here that the

deceased had allegedly been threatened by his wife and some of

her relatives  with  respect to the  ongoing  matrimonial  dispute.

Maintenance  proceedings  under  Section 125 of the  Cr.P.C.  as

well as a complaint for the offences punishable under Sections

498­A and 506 of the IPC were also pending against the

deceased.  The said proceedings were initiated by the wife of the

deceased. In addition to the same, two other criminal cases were

also lodged for the offences punishable under Sections 323, 324

and 504 of the IPC.  Be that as it may, in short it can be said that

there was a serious dispute between the deceased and his wife in

which the wife’s relatives were supporting her.   

5.   We have perused the deposition of PW­9, Harkesh to satisfy

our conscience, as the Courts have issued summons to the

appellants based on his deposition. The deposition of PW­9

clearly mentions that Appellant Nos. 5 and 6, Raju and Kalu had

come to the residence of the deceased wherein the complainant

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was also present, and had taken the deceased along with them

on their motorcycle claiming that Appellant Nos. 1 to 4 and one

Omi (to recall, the wife of the deceased and some of her relatives),

had  called  him  for a compromise in the ongoing  matrimonial

dispute.

6. The version in the FIR (P­7) lodged by Harkesh is practically

the same.  On registration of the FIR, though the police had

arrested three persons, namely, Rajpal @ Rajua, Prem Pal and

Devender @ Deven, the investigation report did not contain the

names of the appellants herein as accused.  It is also to be noted

that the post­mortem report reveals that it is a case of homicidal

death inasmuch as the cause of death was shock and

haemorrhage due to injuries to vital organs, including the brain

and lungs.

7.  Section 319 (1) of the Cr.P.C. empowers the Court to proceed

against other persons who “appear” to be guilty of  an offence,

though not accused before the Court.   A Constitution Bench of

this Court in the case of  Hardeep Singh v. The State of Punjab

[(2014) 3 SCC 92] has ruled that the word “appear” means “clear

to the comprehension”, or a phrase near to, if not synonymous

with “proved”,  and  imparts  a  lesser  degree of  probability than

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proof.   Though only a prima facie case is to be established from

the evidence led before the  Court, it requires  much stronger

evidence than a mere probability of the complicity of the persons

against whom the deponent has deposed. The test that has to be

applied is of a degree of satisfaction which is more than that of a

prima facie case as exercised at the time of framing of charge, but

short of satisfaction to an extent that the evidence, if goes

unrebutted, may lead to conviction of the proposed accused.  In

the absence of such satisfaction, the Court should refrain from

exercising the power under Section 319 of the Cr.P.C.   In our

considered opinion, the impugned judgment has been passed by

the  High Court  keeping the  aforementioned principle in  mind,

though  the said  judgment has not  been cited before the High

Court.   

8.   On considering the deposition of PW­9, we do not find any

valid ground to take a different view from that of the High Court

and the Sessions Court.   Additionally, though the advocate for

the appellants raised certain issues on facts, the same cannot be

considered at this stage, inasmuch as such factors will have to be

considered by the Sessions Court while deciding the  matter

before it on merits.   

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9.  In view of the above, we decline to interfere with the impugned

judgment.  Accordingly, the appeal stands dismissed.   

    ...............................................J.       [L. NAGESWARA RAO]

    ...............................................J.      [MOHAN M. SHANTANAGOUDAR]  

NEW DELHI;     JANUARY 24, 2019.

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