Supreme Court of India
NEERAJ KUMAR @ NEERAJ YADAVversusSTATE OF U.P. & ORS.
- Citation
- 2025 INSC 1386
- Decided
- 4 December 2025
- Disposal
- Appeal(s) allowed
- Bench
- SANJAY KAROL
Holding
The material on record prima facie indicated the involvement of the respondents, satisfying the strong and cogent evidence test, and therefore the power under Section 319 CrPC must be exercised to summon them as additional accused.
Summary
The appellant filed an FIR alleging his sister was shot by her husband, based on a nine‑year‑old niece’s information. The deceased gave two statements to police under Section 161 CrPC, first naming the husband and later implicating the husband’s mother, brother and brother‑in‑law as instigators; she later died. The prosecution sought to summon these relatives as additional accused under Section 319 CrPC, but both the trial court and the High Court dismissed the application, holding the evidence insufficient and questioning the credibility of the minor witness and the admissibility of the deceased’s statements as dying declarations. The Supreme Court held that the material on record, including the minor’s testimony, the brother’s statement, and the deceased’s statements, prima facie indicated the respondents’ involvement and satisfied the requirement of strong and cogent evidence for invoking Section 319. It clarified that the court should not conduct a mini‑trial at the summoning stage and that statements under Section 161 can be treated as dying declarations under Section 32 Evidence Act. Consequently, the High Court’s order was set aside and the appeal allowed.
Issues considered
- Whether the courts below were justified in dismissing the application to summon additional accused under Section 319 CrPC.
- Whether statements of a deceased recorded under Section 161 CrPC can be treated as dying declarations under Section 32 of the Evidence Act.
- Whether the testimony of a minor witness, despite alleged tutoring and lack of eyewitness status, can support the exercise of power under Section 319 CrPC.
- Whether the absence of the respondents' names in the FIR or lack of contemporaneous medical certification defeats the requirement of strong and cogent evidence for summoning.
Legislation cited
- Code of Criminal Procedure, 1973s. 319
- Evidence Act, 1872s. 161, s. 162, s. 32
- Indian Penal Code, 1860s. 302, s. 307, s. 316
Headnote
Issue for Consideration Issue arose whether the courts below, in the attending facts and circumstances, justified in dismissing the application for summoning additional accused. Headnotes† Code of Criminal Procedure, 1973 – s.319 – Power to proceed against other persons of offence – Summoning of additional accused – FIR by the appellant- brother that his sister was shot by her husband based on the information received by him from his niece, aged nine years that her father shot her mother – Two statements of the victim recorded u/s.161 CrPC,
Subjects
Summoning as additional accusedSummon in-laws as additional accusedMini-trial at the stage of summoningMedical certificationPreliminary stage of summoningDying declarationMinor witnessOmission of names in the FIRInconsistencies in the statements
Judgment
[2025] 12 S.C.R. 295 : 2025 INSC 1386
Neeraj Kumar @ Neeraj Yadav
v.
State of U.P. & Ors.
(Criminal Appeal No. 5229 of 2025)
04 December 2025
[Sanjay Karol* and Nongmeikapam Kotiswar Singh, JJ.]
Issue for Consideration
Issue arose whether the courts below, in the attending facts and
circumstances, justified in dismissing the application for summoning
additional accused.
Headnotes†
Code of Criminal Procedure, 1973 – s.319 – Power to proceed
against other persons appearing to be guilty of offence –
Summoning of additional accused – FIR by the appellant-
brother that his sister was shot by her husband based on
the information received by him from his niece, aged nine
years that her father shot her mother – Two statements of
the victim recorded u/s.161 CrPC, where in the first statement
she named her husband as the person who shot her, and
in the subsequent one she named her in laws alleging that
they had instigated her husband to shoot her – Thereafter,
she succumbed to death – However, chargesheet filed only
against the husband, exonerating the in-laws – During the
trial, the prosecution moved application u/s.319 to summon
the in-laws as additional accused on basis of the evidence
recorded during the trial which clearly disclosed their role
in the commission of the offence – Both trial court and High
Court dismissed the application holding that no strong and
cogent evidence to justify summoning u/s.319 – Justification:
Held: High Court’s approach is erroneous – High Court concluded
that victim’s daughter was not an eyewitness to the actual firing
and relied on her cross-examination – Drawing such an inference
amounts to conducting a mini-trial at the stage of summoning,
which is impermissible – At the stage of deciding the application
u/s.319, the Court is not required to test the credibility or weigh
* Author
296 [2025] 12 S.C.R.
Supreme Court Reports
the probative value of the evidence as would be done at the
end of the trial for determining the conviction or otherwise of
the accused – It has to consider whether the material on record
reasonably indicates involvement of the proposed accused so as
to exercise the extraordinary power – Thus, the reliance placed
by the courts below on daughter’s cross-examination to discredit
her testimony misplaced – Further, the minor daughter in her
statement recorded u/s.161, categorically named the respondents
as those who instigated the commission of the said crime – While
a statement recorded u/s.161 CrPC is not substantive evidence
in itself, it may be used to corroborate the evidence recorded by
the Court to invoke the power u/s.319 – Thus, conjointly reading
minor’s deposition along with her s.161 statement, a specific and
overt act has been assigned to the respondents – Furthermore,
the two statements of the deceased, clearly fall within the ambit
of s.32(1) of the Evidence Act – Perusal of both the statements
reveals that while the former primarily narrates the incident, the
latter elaborates on the circumstances that culminated in the fatal
act and brings forth the complicity of the respondents – High Court
erred in holding that these statements cannot be treated as dying
declaration merely because the death of the deceased occurred
after a substantial lapse of time from their recordings – What is
pertinent is that the statement relates either to the cause of death
or the circumstances leading to it – Depositions of the brother and
his niece, along with the statements of the deceased recorded
during the investigation, prima facie suggests the complicity of
the respondents in the commission of the said offence – Thus,
sufficient ground to exercise the power u/s.319 and summon them
to face trial – Objections raised by the respondents, including the
alleged tutoring of the minor witness, omission of their names in
the FIR, inconsistencies in the statements of the deceased and
lack of contemporaneous medical certification, are all premature
and cannot be conclusively decided at the stage of exercising
power u/s.319 – Judgment and order of the High Court set aside –
Evidence Act, 1872 – s.32. [Paras 11-18]
Case Law Cited
Hardeep Singh v. State of Punjab [2014] 2 SCR 1 : (2014) 3
SCC 92; S. Mohammed Ispahani v. Yogendra Chandak [2017]
10 SCR 29 : (2017) 16 SCC 226; Omi v. State of M.P. [2025] 1
SCR 266 : (2025) 2 SCC 621; Shiv Baran v. State of U.P. [2025]
[2025] 12 S.C.R. 297
Neeraj Kumar @ Neeraj Yadav v. State of U.P. & Ors.
8 SCR 229 : 2025 SCC OnLine SC 1457; CBI v. Tapan Kumar
Singh [2003] 3 SCR 485 : (2003) 6 SCC 175; Amish Devgan v.
Union of India [2020] 14 SCR 198 : (2021) 1 SCC 1; State of
Rajasthan v. Chatra [2025] 4 SCR 95 : (2025) 8 SCC 613; State
of M.P. v. Balveer Singh [2025] 2 SCR 836 : (2025) 8 SCC 545;
Dharmendra Kumar v. State of M.P. [2024] 7 SCR 218 : (2024)
8 SCC 60; Laxman v. State of Maharashtra [2002] Supp. 1 SCR
697 : (2002) 6 SCC 710; Bhagwan v. State of U.P. [2012] 12 SCR
774 : (2013) 12 SCC 137; Jagbir Singh v. State (NCT of Delhi)
[2019] 11 SCR 1137 : (2019) 8 SCC 779; Pradeep Bisoi v. State
of Odisha [2018] 12 SCR 947 : (2019) 11 SCC 500; Manjunath v.
State of Karnataka [2023] 14 SCR 727 : 2023 SCC OnLine SC
1421; Rattan Singh v. State of H.P. [1996] Supp. 9 SCR 938 :
(1997) 4 SCC 161; Kulwant Singh v. State of Punjab [2004] 1
SCR 1018 : (2004) 9 SCC 257; Amar Singh v. State of Rajasthan
[2010] 9 SCR 526 : (2010) 9 SCC 64 – referred to.
List of Acts
Code of Criminal Procedure, 1973; Penal Code, 1860; Evidence
Act, 1872.
List of Keywords
Summoning as additional accused; Summon in-laws as additional
accused; Mini-trial at the stage of summoning; Medical certification;
Preliminary stage of summoning; Dying declaration; Minor witness;
Omission of names in the FIR; Inconsistencies in the statements.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
5229 of 2025
From the Judgment and Order dated 22.04.2024 of the High Court
of Judicature at Allahabad in CRLR No. 4729 of 2023
Appearances for Parties
Advs. for the Appellant(s):
Abhishek Vikas, Shivam Sharma, Utkarsh Bhushan, Ms. Kritika.
Advs. for the Respondent(s):
Ms. Rajdipa Behura, Sr. Adv., Dr. Vijendra Singh, Aniket Tiwari,
Dhruv Joshi.
298 [2025] 12 S.C.R.
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Judgment / Order of the Supreme Court
Judgment
Sanjay Karol J.
Leave Granted.
2. The present appeal arises out of the impugned judgment and order
dated 22nd April 2024 passed by the High Court of Judicature at
Allahabad in Criminal Revision No. 4729 of 2023, which affirmed the
order dated 3rd August 2023 passed by the Court of Additional District
and Sessions Judge, Bulandshahar1 whereby the application filed by
the prosecution under Section 319 of the Code of Criminal Procedure,
19732, praying for summoning additional accused (Respondent Nos.2
to 4 herein)3 in Sessions Trial No.1151 of 2021 arising out of Case
Crime No.187 of 2021, was dismissed.
3. The facts in brief, shorn of unnecessary details, are as under:
3.1. On 25th March 2021, the appellant Neeraj Kumar lodged FIR
No. 187 of 2021 at PS Sikandrabad under Section 307 of the
Indian Penal Code, 18604 alleging that his sister Smt. Nishi5 had
been shot by her husband, Rahul, at her matrimonial home. The
said FIR was registered based on the information received by
him from his niece Shristi, aged about nine years, who informed
the appellant that ‘Papa has shot Mummy at home’.
3.2. The deceased was first taken to Government Hospital,
Bulandshahar, and thereafter to Kailash Hospital, Noida, where
she underwent treatment for the firearm injury sustained by her.
During the course of treatment, her statements were recorded
under Section 161 CrPC on two occasions – firstly on 25th March
2021 and then again on 18th April 2021. In her first statement,
she named her husband Rahul as the person who shot her; in
1 Hereinafter referred to as the ‘Trial Court’.
2 Hereinafter referred to as ‘CrPC’
3 Collectively referred to as ‘the respondents’.
4 Hereinafter referred to as ‘IPC’
5 Hereinafter referred to as ‘the deceased’.
[2025] 12 S.C.R. 299
Neeraj Kumar @ Neeraj Yadav v. State of U.P. & Ors.
the subsequent one, she further alleged that he had done so
at the instigation of his mother Rajo @Rajwati (Respondent
No.2 herein), brother Satan @Vineet (Respondent No.3 herein)
and brother-in-law Gabbar (Respondent No.4 herein). Both the
statements were video recorded.
3.3. On 15th May 2021, the deceased succumbed to the injuries
sustained. Following her death, the appellant, on 20th May 2021,
made another complaint before the SHO PS Sikandrabad,
requesting that appropriate legal action be taken against the
respondents (relatives of the husband), since the deceased
had categorically named them and mentioned their role in the
statement(s) recorded by the police.
3.4. Upon completion of the investigation, a chargesheet was filed on
16th July 2021 only against Rahul, the husband of the deceased,
under Sections 302 and 316 IPC, while exonerating the private
respondents herein.
3.5. The case thereafter proceeded to trial before the concerned
Court. The charges were framed on 18th October 2021 and the
appellant was examined as PW-1 on 28th March 2022 and he
deposed about the incident and the events immediately following
it. The minor daughter of the deceased, Shristi, was examined
as PW-2 on 12th July 2022. In her testimony, she narrated the
circumstances surrounding the said incident, stating that her
father had shot her mother at the instigation of the private
respondents herein.
3.6. On the strength of these testimonies and the statements of the
deceased recorded under Section 161 CrPC, the prosecution
moved an application under Section 319 CrPC, praying for
summoning the private respondents as additional accused
to face trial along with the husband of the deceased. It was
contended that the evidence recorded during the trial clearly
disclosed their role in the commission of the offence.
3.7. The Trial Court, vide its order dated 3rd August 2023 dismissed
the said application, holding that the material on record was
insufficient or was not of such strength and cogency to exercise
the extraordinary power provided under Section 319 CrPC.
300 [2025] 12 S.C.R.
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3.8. Aggrieved by the said order, the appellant preferred Criminal
Revision No.4729 of 2023 before the High Court, which was
dismissed vide the impugned judgment for the following reasons:
(i) The statements of the deceased dated 25th March 2021
and 18th April 2021 recorded before her death could not
be treated as dying declarations under Section 32 of the
Indian Evidence Act 18726 since her death had occurred
on 15th May 2021, after the expiry of a substantial period
from the date of recording such statements.
(ii) The statement of PW-1, the informant/brother of the
deceased, was held to be of limited evidentiary value
with respect to the actual occurrence, as he was not an
eyewitness to the incident.
(iii) The testimony of PW-2, the minor daughter of the deceased,
was also not sufficient to summon the respondents, since
she had admitted in her cross-examination that she reached
the place of occurrence only after hearing the sound of
two gunshots, thereby indicating that she was also not an
eyewitness to the said incident.
Relying on the above, the High Court concluded that no strong
and cogent evidence emerged justifying exercise of power under
Section 319 CrPC and accordingly affirmed the order passed
by the Trial Court.
3.9. It is against this judgment of the High Court that the appellant
is before us.
4. We have heard the learned counsel for the parties and perused the
material on record. The sole issue that arises for our consideration is
whether the Courts below, in the attending facts and circumstances,
were justified in dismissing the application for summoning the
respondents as additional accused?
5. Section 319 CrPC contemplates that:
“(1) Where, in the course of any inquiry into, or trial of, an
offence, it appears from the evidence that any person not
6 Hereinafter referred to as ‘Evidence Act’
[2025] 12 S.C.R. 301
Neeraj Kumar @ Neeraj Yadav v. State of U.P. & Ors.
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. …”
6. The law governing the summoning of an additional accused under
Section 319 CrPC is now well settled. The provision is an enabling
one, empowering the Court, during the course of an inquiry or trial,
to proceed against any person not already arraigned as an accused,
if, from the evidence adduced before it, such person appears to have
committed an offence. Its object is to ensure that no guilty person
escapes the process of law, thereby giving effect to the maxim judex
damnatur cum nocens absolvitur (Judge is condemned when guilty
is acquitted). It casts a duty upon the Court to ensure that the real
offender does not go unpunished, for only then can the concept of
fair and complete trial be realised.
7. It is no longer res integra that the power conferred under this Section
is extraordinary and discretionary in nature, intended to be exercised
sparingly and with due circumspection. While invoking it, the Court
must be satisfied that the evidence appearing against the person
sought to be summoned is such that it prima facie necessitates
bringing such person to face trial. The degree of satisfaction required
is higher than that warranted at the stage of framing of charge, yet
short of the satisfaction necessary to record a conviction. Such
satisfaction must rest on cogent and credible material brought on
record during the trial, and not based on conjectures or speculations.
In this regard, reference to a few judicial pronouncements of this
Court would be apposite.
7.1. The Constitution Bench of this Court in Hardeep Singh v. State
of Punjab7 extensively discussed the power conferred under
Section 319 CrPC. Relevant part is extracted hereunder:
“90. … all that is required for the exercise of the power
under Section 319 CrPC is that, it must appear to the
court that some other person also who is not facing the
trial, may also have been involved in the offence. The
7 (2014) 3 SCC 92
302 [2025] 12 S.C.R.
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prerequisite for the exercise of this power is similar
to the prima facie view which the Magistrate must
come to in order to take cognizance of the offence.
Therefore, no straitjacket formula can and should be
laid with respect to conditions precedent for arriving
at such an opinion and, if the Magistrate/court is
convinced even on the basis of evidence appearing in
examination-in-chief, it can exercise the power under
Section 319 CrPC and can proceed against such other
person(s). It is essential to note that the section also
uses the words “such person could be tried” instead
of should be tried. Hence, what is required is not to
have a mini-trial at this stage by having examination
and cross-examination and thereafter rendering a
decision on the overt act of such person sought to
be added. In fact, it is this mini-trial that would affect
the right of the person sought to be arraigned as an
accused rather than not having any cross-examination
at all, for in light of sub-section (4) of Section 319
CrPC, the person would be entitled to a fresh trial
where he would have all the rights including the right
to cross-examine prosecution witnesses and examine
defence witnesses and advance his arguments
upon the same. Therefore, even on the basis of
examination-in-chief, the court or the Magistrate
can proceed against a person as long as the court
is satisfied that the evidence appearing against such
person is such that it prima facie necessitates bringing
such person to face trial. In fact, examination-in-chief
untested by cross-examination, undoubtedly in itself,
is an evidence.
xxx
106. Thus, we hold that though only a prima facie
case is to be established from the evidence led before
the court, not necessarily tested on the anvil of cross-
examination, it requires much stronger evidence than
mere probability of his complicity. The test that has
to be applied is one which is more than prima facie
[2025] 12 S.C.R. 303
Neeraj Kumar @ Neeraj Yadav v. State of U.P. & Ors.
case as exercised at the time of framing of charge,
but short of satisfaction to an extent that the evidence,
if goes unrebutted, would lead to conviction. In the
absence of such satisfaction, the court should refrain
from exercising power under Section 319 CrPC. …
xxx
110. In Lal Suraj [Lal Suraj v. State of Jharkhand,
(2009) 2 SCC 696 : (2009) 1 SCC (Cri) 844] , a two-
Judge Bench held that there is no dispute with the
legal proposition that even if a person had not been
chargesheeted, he may come within the purview of the
description of such a person as contained in Section
319 CrPC. A similar view had been taken in Lok Ram
[Lok Ram v. Nihal Singh, (2006) 10 SCC 192 : (2006)
3 SCC (Cri) 532 : AIR 2006 SC 1892] , wherein it was
held that a person, though had initially been named
in the FIR as an accused, but not charge-sheeted,
can also be added to face the trial.
xxx
117.6. A person not named in the FIR or a person
though named in the FIR but has not been
chargesheeted or a person who has been discharged
can be summoned under Section 319 CrPC provided
from the evidence it appears that such person can
be tried along with the accused already facing trial…”
(emphasis supplied)
7.2. In S. Mohammed Ispahani v. Yogendra Chandak8, it reiterated
that under this Section the Court possesses the power to
summon the persons not named in the chargesheet to face trial,
if the evidence on record so warrants. It further clarified that
a statement recorded under Section 161 CrPC, though not an
independent piece of evidence, sufficient in itself to invoke the
power under this Section may, nevertheless, be relied upon for
8 (2017) 16 SCC 226
304 [2025] 12 S.C.R.
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corroborative purposes when supported by evidence emerging
during trial. It was observed as under:
“34. … No doubt, at one place the Constitution
Bench observed in Hardeep Singh case [Hardeep
Singh v. State of Punjab, (2014) 3 SCC 92 : (2014)
2 SCC (Cri) 86] that the word “evidence” has to be
understood in its wider sense, both at the stage of
trial and even at the stage of inquiry. In para 105
of the judgment, however, it is observed that “only
where strong and cogent evidence occurs against
a person from the evidence led before the court
that such power should be exercised and not in a
casual and cavalier manner”. This sentence gives
an impression that only that evidence which has
been led before the Court is to be seen and not
the evidence which was collected at the stage of
inquiry. However there is no contradiction between
the two observations as the Court also clarified that
the “evidence”, on the basis of which an accused
is to be summoned to face the trial in an ongoing
case, has to be the material that is brought before
the Court during trial. The material/evidence collected
by the investigating officer at the stage of inquiry can
only be utilised for corroboration and to support the
evidence recorded by the Court to invoke the power
under Section 319 CrPC.
35. It needs to be highlighted that when a person
is named in the FIR by the complainant, but police,
after investigation, finds no role of that particular
person and files the chargesheet without implicating
him, the Court is not powerless, and at the stage of
summoning, if the trial court finds that a particular
person should be summoned as accused, even
though not named in the chargesheet, it can do so.
At that stage, chance is given to the complainant also
to file a protest petition urging upon the trial court to
summon other persons as well who were named in
the FIR but not implicated in the chargesheet. Once
[2025] 12 S.C.R. 305
Neeraj Kumar @ Neeraj Yadav v. State of U.P. & Ors.
that stage has gone, the Court is still not powerless
by virtue of Section 319 CrPC. However, this section
gets triggered when during the trial some evidence
surfaces against the proposed accused.”
(emphasis supplied)
7.3. In Omi v. State of M.P.9, a coordinate bench of this Court laid
the following principles of law with regard to Section 319 CrPC:
“19. The principles of law as regards Section
319 CrPC may be summarised as under:
19.1. On a careful reading of Section 319 CrPC as
well as the aforesaid two decisions, it becomes clear
that the trial court has undoubted jurisdiction to add
any person not being the accused before it to face
the trial along with other accused persons, if the
Court is satisfied at any stage of the proceedings
on the evidence adduced that the persons who have
not been arrayed as accused should face the trial. It
is further evident that such person even though had
initially been named in the FIR as an accused, but not
charge-sheeted, can also be added to face the trial.
19.2. The trial court can take such a step to add such
persons as accused only on the basis of evidence
adduced before it and not on the basis of materials
available in the chargesheet or the case diary,
because such materials contained in the chargesheet
or the case diary do not constitute evidence.
19.3. The power of the court under Section 319 CrPC
is not controlled or governed by naming or not naming
of the person concerned in the FIR. Nor the same is
dependent upon submission of the chargesheet by
the police against the person concerned. As regards
the contention that the phrase “any person not being
the accused” occurred in Section 319 excludes from
9 (2025) 2 SCC 621
306 [2025] 12 S.C.R.
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its operation an accused who has been released by
the police under Section 169 of the Code and has
been shown in Column 2 of the chargesheet, the
contention has merely to be stated to be rejected.
The said expression clearly covers any person who
is not being tried already by the Court and the very
purpose of enacting such a provision like Section
319(1) clearly shows that even persons who have
been dropped by the police during investigation but
against whom evidence showing their involvement
in the offence comes before the criminal court are
included in the said expression.
19.4. It would not be proper for the trial court to
reject the application for addition of new accused by
considering records of the investigating officer. When
the evidence of complainant is found to be worthy of
acceptance then the satisfaction of the investigating
officer hardly matters. If satisfaction of investigating
officer is to be treated as determinative then the
purpose of Section 319 would be frustrated.”
(emphasis supplied)
7.4. Recently, this Court, through one of us (Sanjay Karol, J.), in
Shiv Baran v. State of U.P.10 summarised the principles that
the Court ought to keep in mind while considering an application
under this Section. It was observed:
“15. The principles that the Trial Court ought to follow
while exercising power under this Section are:
(a) This provision is a facet of that area of law which
gives protection to victims and society at large,
ensuring that the perpetrators of crime should not
escape the force of law;
(b) It is the duty cast upon the Court not to let the
guilty get away unpunished;
10 2025 SCC OnLine SC 1457
[2025] 12 S.C.R. 307
Neeraj Kumar @ Neeraj Yadav v. State of U.P. & Ors.
(c) The Trial Court has broad but not unbridled power
as this power can be exercised only on the basis of
evidence adduced before it and not any other material
collected during investigation;
(d) The Trial Court is not powerless to summon a
person who is not named in the FIR or Chargesheet;
they can be impleaded if the evidence adduced
inculpates him;
(e) This power is not to be exercised in a regular
or cavalier manner, but only when strong or cogent
evidence is available than the mere probability of
complicity;
(f) The degree of satisfaction required is much stricter
than the prima facie case, which is needed at the
time of framing of charge(s);
(g) The Court should not conduct a mini-trial at this
stage as the expression used is ‘such person could
be tried’ and not ‘should be tried’.
(emphasis supplied)
8. Keeping in view the principles delineated above, let us now examine
whether the Courts below have applied the correct standard while
declining the prosecution’s prayer to summon the respondents as
additional accused. As is evident from record, the prosecution has
relied primarily on three facets of evidence: (i) the testimony of
PW-1, the informant and brother of the deceased; (ii) the testimony
of PW-2, the minor daughter of the deceased, along with her
statement recorded during investigation; and (iii) the statements of
the deceased herself recorded under Section 161 CrPC. We may
consider each in turn.
9. The statement of PW-1, the appellant and informant, when read in its
entirety, clearly attributes specific roles to each of the respondents.
The relevant extract of the statement reads as under:
“… Due to three daughters of my sister, her Dewar- Satan,
Husband- Rahul, Sas- Rajwati,Nandoi- Gabbar used to
harass my sister- Nishi. When my sister- Nishi, became
308 [2025] 12 S.C.R.
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pregnant fourth time, sex determination test of child in her
ovary was got done by Dewar- Satan, Husband- Rahul,
Sas- Rajvanti, Nandoi- Gabber. In said test, it had appeared
that, this time also in her ovary is female child. Then her
Dewar- Sattan, Husband- Rahul, Sas- Rajwati, Nandoi-
Gabbar mounted pressure over her for getting abortion. In
this context, my sister had told me telephonically. She had
also told that, she is willing to give birth to her female child.
On the date of 25.3.21 at about 9.30 a.m. my niece[sister’s
daughter] namely- Shristi telephonically informed me that,
on instigation of uncle- Satan, grandmother- Rajwati and
Fufa - Gabbar, Papa opened fire upon mummy. At this
information, with members of my family, I proceeded for
matrimonial home of my sister- Nishi. In route, we got
information that; Nishi is brought to Rana Hospital at
Buland Shahar. …”
A perusal of his statement indicates that, allegedly, the deceased, his
sister, was continuously harassed by the respondents for having given
birth to three daughters, and that upon her subsequent pregnancy,
they compelled her to undergo a sex determination test. When it
was found that she was carrying a female foetus, they pressured
her to terminate her pregnancy. It is further deposed that his niece
(PW-2), an eyewitness to the occurrence, telephonically informed
him that her father had shot the deceased and that the respondents
had provoked him to commit the said act. His statement, therefore,
prima facie indicates active participation and instigation on the part
of the respondents in the commission of the offence.
10. While it is true that the appellant did not specifically mention in the
FIR that the husband of the deceased had fired at the instigation of
the respondents, as conveyed by his niece, however, it is trite law
that an FIR is not an encyclopaedia that must contain every minute
detail of the incident, since its primary purpose is to set criminal law
in motion. [See: CBI v. Tapan Kumar Singh11 and Amish Devgan v.
Union of India12] Therefore, at this stage, his deposition cannot
11 (2003) 6 SCC 175
12 (2021) 1 SCC 1
[2025] 12 S.C.R. 309
Neeraj Kumar @ Neeraj Yadav v. State of U.P. & Ors.
be construed as an embellished or improved one simply because
of the absence of certain particulars in the FIR, particularly when
his testimony is consistent with the overall narrative. Moreover, the
representation dated 20th May 2021, made before the SHO, wherein
he categorically named the respondents, further corroborates his
testimony.
11. The deposition of PW-2, Shristi, the minor daughter of the deceased,
prima facie has considerable evidentiary value, given the fact that
she is allegedly an eyewitness to the occurrence. She narrated the
events of the fateful day in the following terms:
“Mummy had asked to Papa for bringing tea leaves and
sugar. But Papa did not bring tea leaves and sugar.
Meantime my grandmother came and she asked my mother
to consume some pill (contraceptives), but my mummy
refused to take the same. So, my grandmother complained
to my Papa in this regard. Then my Fufa-Gabbar and
Uncle- Satan said that, she gives birth of only female
child. So, kill her. Hearing this, Papa opened fire upon
my mummy twice. Receiving fire arms/gun shot injuries,
my mummy fell down in her room. Then my uncle and
Fufa tried to find out that, whether my mummy is dead or
not? After examining they said, she still alive. So, kill her.
At this, Papa this time opened fire and shot three more
times, from his country made pistol. At this, I suggested
mummy to go house of Baba. At this, Mummy reached to
house of my Baba. He was at his home. He carried away
my mummy to Hospital. My uncle had given to my Papa
the said gun. My Papa had opened fire and shot every
time before me. Said occurrence is of morning. Name of
my grandmother is Rajo.”
(emphasis supplied)
From reading the above, it is evident that a quarrel took place between
her parents. During this altercation, her father, Rahul Yadav, obtained
a country made pistol from her uncle Sattan @Vineet (Respondent
No.3 herein) and, on the provocation of her grandmother Rajo @
Rajwati (Respondent No.2 herein) and her aunt’s husband Gabbar
(Respondent No.4 herein), fired at her mother/deceased. The High
310 [2025] 12 S.C.R.
Supreme Court Reports
Court, however, in the impugned judgment, concluded that PW-2
was not an eyewitness to the actual firing and relied on her cross-
examination wherein she stated – “I had heard the sound of firing.
From sound of firing I came to know that, that two times firing was
made. I had seen empty cartridge on ground.”. to hold that she had
reached the scene of occurrence only after hearing the gunshots.
In our considered view, the High Court’s approach is erroneous.
Drawing such an inference amounts to conducting a mini-trial at
the stage of summoning, which is impermissible. At the stage of
deciding the application under Section 319 CrPC, the Court is not
required to test the credibility or weigh the probative value of the
evidence as would be done at the end of the trial for determining
the conviction or otherwise of the accused. What the Court has to
consider at this stage is whether the material on record reasonably
indicates involvement of the proposed accused so as to exercise the
extraordinary power. Therefore, the reliance placed by the Courts
below on PW-2’s cross-examination to discredit her testimony was
misplaced.
12. The respondents have further contended that PW-2 did not
initially name the respondents in her statement recorded during
the investigation and that, being a minor, she may have been
influenced or tutored to implicate the respondents, as she was
residing with the appellant’s family following the incident. However,
we are not persuaded to accept this contention, as even in her
statement recorded under Section 161, had categorically named
the respondents as those who instigated the commission of the
said crime. She stated:
“Q.No.12: What happened to your mother and whether
father did something to her?
Ans: First Papa went out outside then return back, mother
asked him to bring Tea Leaves and Sugar and later on
asked him to bring chilli but he did not brought any of the
item mother started preparing kitchen after little quarrel.
In the meantime, Grand Mother came in and asked my
mother to take pills to which she refused. Then Grand
Mother went and called father, Rahul, Uncle-Gabbar,
Satan Uncle.
[2025] 12 S.C.R. 311
Neeraj Kumar @ Neeraj Yadav v. State of U.P. & Ors.
Q.13.: What happened next?
Ans: Grand mother told if she wont take pills then she
should take bullets now kill her. Uncle gave the pistol.
Q.14: What happened next?
Ans: Then papa fire two bullets and went away, Mummy
got up and went inside the room, then Satan Uncle and
Gabbar Uncle went inside to check and told she still alive
go and finish her .... then Papa again shot 3 more bullets
Q.15: Where your father go?
Ans: He went outside and I do not know where.
…
Q.20: At the time of incident, who else where there at the
time when your father shot your mother?
Ans: Fufa, Uncle and Grand Mother
Q. 21: Who amongst you were there?
Ans: We all were there (Three Sisters)”
(emphasis supplied)
While a statement recorded under Section 161 CrPC is not substantive
evidence in itself, it may be used to corroborate the evidence recorded
by the Court to invoke the power under Section 319 CrPC, as held
in S. Mohammed Ispahani (supra). Therefore, conjointly reading
PW-2’s deposition along with her Section 161 statement, we find
that a specific and overt act has been assigned to the respondents.
Whether she actually witnessed the firing or arrived immediately
thereafter, and the extent to which her statement inspires confidence,
are matters that are to be determined at the stage of trial, upon full
appreciation of the evidence. The testimony of a child witness shall
be weighed by the Court concerned in view of the principles in laid in
State of Rajasthan v. Chatra13 and State of M.P. v. Balveer Singh14.
13 (2025) 8 SCC 613
14 (2025) 8 SCC 545
312 [2025] 12 S.C.R.
Supreme Court Reports
13. Lastly, the prosecution has also placed reliance upon the statements
of the deceased recorded during the investigation under Section
161 CrPC to seek the summoning of the respondents. However,
the respondents have contended that such statements cannot be
relied upon as, firstly, they were neither recorded in the presence
of a Magistrate nor accompanied by any contemporaneous medical
certification regarding the mental fitness of the deceased to give
such statements; and secondly, both statements are inconsistent
inter se, since the first one does not name the respondents whereas
the second does.
14. We find these contentions bereft of any merit. We say so because
it is a well-established position of law that a statement made by a
deceased person, as to the cause of his death or to the circumstances
of the transaction which resulted in his death, to a Police Officer and
recorded under Section 161 CrPC, shall be relevant and admissible
under Section 32(1) of the Evidence Act, notwithstanding the express
bar provided in Section 162 CrPC. Such a statement, upon the death
of the declarant, assumes the character of a dying declaration. It is
also equally settled that a dying declaration need not necessarily
be recorded in the presence of a Magistrate, and that the lack of a
doctor’s certification as to the fitness of the declarant’s state of mind
would not ipso facto render the dying declaration unacceptable. This
position has been recently reiterated by this Court in Dharmendra
Kumar v. State of M.P.15, wherein it was held:
“65. Section 161CrPC empowers the police to examine
orally any person who is acquainted with the facts and
circumstances of the case under investigation. The police
may reduce such statement into writing also. Section 162(1)
CrPC, nonetheless, mandates that no statement made
by any person to a police officer, if reduced to writing, be
signed by the person making it, nor shall such statement
be used in evidence except to contradict a witness in the
manner provided by Section 145 of the Evidence Act.
However, sub-section (2) of Section 162CrPC carves out
an exception to sub-section (1) as it explicitly provides
15 (2024) 8 SCC 60
[2025] 12 S.C.R. 313
Neeraj Kumar @ Neeraj Yadav v. State of U.P. & Ors.
that nothing in Section 162 shall be deemed to apply
to any statement falling within the ambit of clause (1) of
Section 32 of the Evidence Act. In other words, a statement
made by a person who is dead, as to the cause of his
death or to the circumstances of the transaction which
resulted in his death, to a police officer and which has
been recorded under Section 161CrPC, shall be relevant
and admissible, notwithstanding the express bar against
use of such statement in evidence contained therein. In
such eventuality, the statement recorded under Section
161CrPC assumes the character of a dying declaration.
Since extraordinary credence has been given to such dying
declaration, the court ought to be extremely careful and
cautious in placing reliance thereupon…
66. As regards the assessment of mental fitness of the
person making a dying declaration, it is indubitably the
responsibility of the court to ensure that the declarant
was in a sound state of mind. This is because there
are no rigid procedures mandated for recording a dying
declaration. If an eyewitness asserts that the deceased
was conscious and capable of making the declaration, the
medical opinion cannot override such affirmation, nor can
the dying declaration be disregarded solely for want of a
doctor’s fitness certification. The requirement for a dying
declaration to be recorded in the presence of a doctor,
following certification of the declarant’s mental fitness, is
merely a matter of prudence. [Koli Chunilal Savji v. State
of Gujarat, (1999) 9 SCC 562 : 2000 SCC (Cri) 432]”
[See also: Laxman v. State of Maharashtra16; Bhagwan v.
State of U.P.17; Jagbir Singh v. State (NCT of Delhi)18;
Pradeep Bisoi v. State of Odisha19; and Manjunath v.
State of Karnataka20]
16 (2002) 6 SCC 710
17 (2013) 12 SCC 137
18 (2019) 8 SCC 779
19 (2019) 11 SCC 500
20 2023 SCC OnLine SC 1421
314 [2025] 12 S.C.R.
Supreme Court Reports
15. Coming to the instant case, the two statements of the deceased,
dated 25th March 2021 and 18th April 2021, clearly fall within the ambit
of Section 32(1) of the Evidence Act. For convenience, the relevant
portions of both these statements are extracted below:
First statement dated 25th March 2021:
“Statement of Victim ............. On asking, Mrs Nishi W/o-
Rahul … told that, Sir, I have three daughters. On this
issue often my husband used to quarrel with me. But
when today my husband quarrelled with me, firstly he
asked to our children to go out, but my elder daughter
Shrishti remained there and in her presence, my husband
opened fire upon me with country made pistol. Thereafter
I got dizziness. …”
Second statement dated 18th April 2021:
“What happened in occurrence? What all thing was
done? ....... Answer- I was shot by firearm .. .. .. .. ...
By whom? .... By my husband, I was shot on instigation
by one of my Nandoi (Brother-in-law of husband), my
[Saas] mother-in-law and Dewar [Brother-in-law] under
their conspiracy. ....... What is name of your Nandoi? His
name is Gabbar. … What was said by your Dewar? My
Dewar had me threatened me. Earlier, we used to reside
with him. My Dewar said to me that, he will get send me
home, then he will get me killed. What did your Mother-
in-Law say? ..... My mother-in-law said to me that, I shall
not permit to live in my house and you cannot live in my
house and I will get you killed ... .. ... My Nandoi said one
plot is in your name also. He instigated my husband to
open fire upon me. i.e. when your husband opened fire
upon you, your Nandoi was present on spot. Yes sir. They
had tried to hang me also. i.e. they done everything for
committing my murder. … My mother-in-law had given me
threat of getting my murder done and My Dewar also had
given me threat of getting my murder. … My mother-in-
law had given me threat of getting my murder done and
My Dewar also had given me threat of getting my murder.
Who had brought you to hospital? Sir, I was unconscious.
So, I do not about it.”
[2025] 12 S.C.R. 315
Neeraj Kumar @ Neeraj Yadav v. State of U.P. & Ors.
A perusal of both these statements reveals that while the former
primarily narrates the incident, the latter elaborates on the
circumstances that culminated in the fatal act and brings forth the
complicity of the respondents. The mere omission of their names
in the first statement, or the lack of the Magistrate’s presence or
medical certification, does not undermine the relevance of these
statements. Any inconsistencies between them, as well as their
evidentiary value, reliability, and the weight to be attached to them
are, again, matters which are to be examined at trial and not at the
preliminary stage of summoning.
16. Additionally, in our considered view, the High Court erred in holding
that these statements cannot be treated as dying declaration(s) merely
because the death of the deceased occurred after a substantial lapse
of time from their recordings. Such an approach is clearly untenable
since the law does not require that a declarant, at the time of making
the statement, to be under the shadow of death or the expectation that
death is imminent. Here the time gap between the incident and the
death is less than 2 months. In any event, Section 32 of the Evidence
Act, contains no such limitation. What is pertinent is that the statement
relates either to the cause of death or the circumstances leading to
it. [See: Rattan Singh v. State of H.P.21; Kulwant Singh v. State of
Punjab22; and Amar Singh v. State of Rajasthan23]
17. Consequent to the above discussion, we find that the material
on record, i.e. the depositions of PW-1 and PW-2, along with the
statements of the deceased recorded during the investigation, prima
facie suggests the complicity of the respondents in the commission
of the said offence. There, thus, exists sufficient ground to exercise
the power under Section 319 CrPC and summon them to face trial
in Sessions Trial No.1151 of 2021. The objections raised by the
respondents, including the alleged tutoring of the minor witness,
omission of their names in the FIR, inconsistencies in the statements
of the deceased and lack of contemporaneous medical certification,
are all premature and cannot be conclusively decided at the stage
of exercising power under Section 319 CrPC.
21 (1997) 4 SCC 161
22 (2004) 9 SCC 257
23 (2010) 9 SCC 64
316 [2025] 12 S.C.R.
Supreme Court Reports
18. We clarify 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 and should not be
construed as remarks on the merits of the matter.
19. Therefore, the appeal is accordingly allowed. The impugned judgment
and order of the High Court, as referred to in Paragraph 2, is set
aside. Parties are directed to appear before the Trial Court on 08th
January 2026. We direct them to fully cooperate and not take any
unnecessary adjournments. The trial is expedited.
Pending application(s), if any, shall stand disposed of.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Nidhi Jain
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