Admissibility of Dying Declarations for Summoning Additional Accused Under Section 319 CrPC; Supreme Court Affirms Higher Threshold

The present appeal before the Supreme Court originated from the judgment of the High Court of Judicature at Allahabad, which had affirmed the Trial Court’s dismissal of an application filed by the prosecution under Section 319 of the Code of Criminal Procedure (CrPC).

The matter is stemmed from a fatal shooting of the appellant's sister, Smt. Nishi (the deceased), by her husband, Rahul, on March 25, 2021. Though the initial First Information Report (FIR) named only the husband, the deceased, in a subsequent statement recorded under Section 161 CrPC implicated her mother-in-law (Rajo), brother-in-law (Satan @Vineet), and sister’s husband (Gabbar) as instigators.

Following the deceased’s death in May 2021, the chargesheet was filed only against the husband, exonerating the private respondents. The prosecution subsequently moved an application during the trial, relying on the deceased’s statements and the testimonies of the appellant (PW-1) and the deceased’s minor daughter (PW-2), who narrated the specific instigation provided by the respondents.

Both the Trial Court and the High Court dismissed the application, concluding that the material, including the minor daughter's testimony, was insufficient and not of the necessary strength and cogency to justify summoning the respondents. Aggrieved by which the appeallant approached the Allahbad High Court which upheld the trail court's dismissal.

While granting leave to appeal, the Supreme Court set aside the High Court’s judgment, holding that both lower court and High Court failed to apply the correct standard while dismissing the prayer to summon the additional accused.

The Apex Court reiterated that the power conferred under Section 319 CrPC is extraordinary and discretionary, intended to be exercised sparingly. However, its objective is paramount: to ensure that the real offender does not go unpunished.

Clarifying the applicable legal standard derived from Hardeep Singh v. State of Punjab (Click to Download), the Apex Court stressed that the degree of satisfaction required for summoning is higher than that warranted at the stage of framing of charge, yet must remain short of the satisfaction necessary to record a conviction. The satisfaction must rest on cogent and credible material brought on record during the trial, and not on conjectures.

Crucially, the Court determined that the High Court’s approach was erroneous because it amounted to conducting a "mini-trial" at the preliminary stage of summoning. The Court further observed that it is impermissible for courts exercising power under Section 319 CrPC to test the credibility or weigh the probative value of the evidence as would be done at the end of the trial. By discrediting the minor daughter’s testimony (PW-2) based on contradictions found in her cross-examination, the High Court had improperly infringed upon the trial judge's domain.

Regarding the deceased’s statements, the Supreme Court unequivocally held that the High Court erred in dismissing them as non-admissible dying declarations merely because a "substantial period" had lapsed between the recording of the statements and the death of the declarant.

Conclusively, the Supreme Court clarified that the law does not require the declarant to be under the shadow of death at the time of making the statement. Furthermore, a statement made to a police officer under Section 161 CrPC, relating to the cause or circumstances of death, shall be relevant and admissible under Section 32(1) of the Evidence Act, assuming the character of a dying declaration, notwithstanding the bar in Section 162 CrPC.

The lack of a Magistrate's presence or contemporaneous medical certification does not ipso facto render a dying declaration unacceptable, as these are merely matters of prudence. Based on the conjoint reading of the testimonies and the deceased’s recorded statements, which prima facie suggested the complicity of the husband’s relatives in the crime, the Court found sufficient grounds to proceed against them.

The Supreme Court allowed an appeal challenging the dismissal of an application under Section 319 of the CrPC, with a clarification that all the observations made herein are only for the purpose of deciding the application under Section 319 CrPC to summon the respondents as additional accused.

CORAM: JUSTICE SANJAY KAROL AND JUSTICE NONGMEIKAPAM KOTISWAR SINGH.