Rajasthan High Court - Jaipur
Brijendra Singh S/O Late Shri Chotelal ... vs State Of Rajasthan on 10 September, 2021
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Revision Petition No. 2573/2019
Brijendra Singh S/o Late Shri Chotelal, Aged About 48 Years, R/o
Plot No. 4, Pawan Vihar, Muhana Mandi Road, Police Station
Muhana Jaipur (South) Jaipur Raj.
----Petitioner/Complainant
Versus
1. State Of Rajasthan, Through P.P.
----Respondent
2. Atul Budaniya S/o Shri Ramnath, Aged About 24 Years, R/o House No. 104B, Krishna Vihar, Gopalpura Byepass Police Station Mahesh Nagar, Distt. Jaipur Raj.
3. Smt. Anita W/o Shri Satyanarayan, Aged About 34 Years, R/o Murlipura Distt. Jaipur.
----Respondents/Accused Connected With S.B. Criminal Revision Petition No. 2134/2019
1. Mukesh Budaniya S/o Shri Ramnath, R/o House No. 104- B, Krishna Vihar, Gopal Pura Bypass, Police Station Mahesh Nagar, Jaipur (Accused Petitioner No.1 Is Presently Lodged In Central Jail Jaipur)
2. Ramnath S/o Late Shri Hardeva, R/o House No. 104-B, Krishna Vihar, Gopal Pura Bypass, Police Station Mahesh Nagar, Jaipur
3. Manbhari Devi W/o Shri Ramnath, R/o House No. 104-B, Krishna Vihar, Gopal Pura Bypass, Police Station Mahesh Nagar, Jaipur
4. Satya Narain S/o Shri Jhabar Singh, R/o Plot No. 72, Shiva Nagar-Iv, Murlipura Scheme Jaipur.
----Accused Petitioners Versus
1. State Of Rajasthan, Through P.P.
----Non-Petitinoer
2. Brijendra Singh S/o Late Shri Chhotey Lal, R/o Plot No. 4, Pawan Vihar, Muhana Mandi Road, Police Station Muhana, Jaipur (South) Jaipur.
----Complainant-Respondent (Downloaded on 14/09/2021 at 09:41:56 PM) (2 of 9) [CRLR-2573/2019] For Petitioner(s) : Mr. Rajendra Kumar Soni in Criminal Revision Pettion No.2573/2019 and Mr. ViveK Raj Singh Bajwa with Mr. Amar Kumar in Criminal Revision Petition No.2134/2019 For Respondent(s) : Mr. Vivek Raj Singh Bajwa with Mr. Amar Kumar in Criminal Revision Petition No.2573/2019 and Mr. Rajendra Kumar Soni in Criminal Revision Pettion No.2134/2019 For State : Mr. Sher Singh Mahla, PP HON'BLE MR. JUSTICE PANKAJ BHANDARI Order ORDER RESERVED ON :: 19/08/2021 ORDER PRONOUNCED ON :: 10/09/2021
1. S.B. Criminal Revision Petition No.2573/2019: Brijendra Singh Versus State of Rajasthan & Ors. has been filed by the complainant- petitioner aggrieved by the order dated 6.9.2019 passed by the Additional Sessions Judge, Woman Atrocity Cases No.2, Jaipur Metropolitan, Jaipur, in so far as it relates to not taking cognizance under Section 302 IPC and in alternative, under Sections 304-B, 498-A, 201 read with Section 120-B IPC against respondents No.2 - brother-in- law of the deceased, namely, Atul Budaniya and respondent No.3 - sister-in-law of the deceased, namely, Smt. Anita.
2. Aggrieved by the same order, S.B. Criminal Revision Petition No.2134/2019 has been preferred by husband of deceased, namely, Mukesh Budaniya, father-in-law of deceased, namely, Ramnath, mother-in-law of deceased, namely, Manbhari Devi and husband of sister-in-law of deceased, namely, Satya Narain, challenging the order of cognizance and the issuance of the arrest warrants. (Downloaded on 14/09/2021 at 09:41:56 PM)
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3. In brief the factual matrix of the case are that FIR No.193/2017 was registered at Police Station, Mahesh Nagar, Jaipur (South) with the allegation that the complainant's daughter has been killed by her in- laws, namely, Mukesh Budaniya, Ramnath, Satya Narain and other family members for not being able to meet their demand of dowry. The complainant apprehending collusion of the Investigating Officer with the accused persons, filed S.B. Criminal Miscellaneous (Petition) No.2450/2017 wherein the High Court directed the Investigating Officer to make fair investigation. The police submitted a charge-sheet only against the husband and therefore, the complainant moved an application under Section 193 Cr.P.C. for taking cognizance against other accused persons. The said application was dismissed by the Court below vide order dated 16.05.2018, aggrieved by which, S.B. Criminal Revision No.1067/2018 was preferred by the complainant-petitioner and S.B. Criminal Revision Petition No.1012/2018 was preferred by the accused Mukesh Budaniya. This Court vide its judgment dated 25.1.2019 allowed S.B. Criminal Revision Petition No.1067/2018 and directed the trial Court to consider the entire facts and circumstances of the case and decide the application under Section 193 Cr.P.C. afresh and rejected the S.B. Criminal Revision Petition No.1012/2018. SLP bearing No.2699-2700/2019 was preferred by the accused(s) against this order, which was decided by the Apex Court on 29.3.2019. The Apex Court dismissed the said SLP with the clarification that in considering the facts and circumstances of the case while dealing with the application under Section 193 of the Cr.P.C., the learned Trial Judge shall do so objectively on the merits and shall not regard the order of the High Court as concluding the regard to proper exercise of the jurisdiction. The petitioners were also permitted to raise all appropriate contentions before the trial Court having regard to the material facts and (Downloaded on 14/09/2021 at 09:41:56 PM) (4 of 9) [CRLR-2573/2019] circumstances of the case. In the light of the direction of the Apex Court, the trial Court has passed the impugned order.
4. It is contended by learned counsel for the complainant that the Court below has erred in not taking cognizance under Section 302 IPC and in alternative, under Section 304-B, 498-A, 201 read with Section 120-B IPC against respondents No.2 and 3 and refusing to further investigate in the aforesaid matter against other co-accused persons. It is argued that there was material evidence available against brother-in- law Atul Budaniya and sister-in-law Smt. Anita before the Court below and hence, the Court below should have taken cognizance against them as well.
5. It is argued by counsel for Atul Budaniya and Smt. Anita that there is no evidence namesake against the respondents and the Court below has not committed any error in not taking cognizance against them.
6. The accused-petitioners in the revision petition No. 2134/2019 has contended that the impugned order has been passed contrary to the scheme of the Code of Criminal Procedure. It is contended that the provisions of Section 193 Cr.P.C. cannot be taken recourse to after charges have been framed, as after framing of the charges, the trial is said to have commenced and the stage of Section 193 Cr.P.C. has passed and the only provision, which enables addition of other persons as accused would be within the ambit of Section 319 Cr.P.C. It is contended that the trial Court framed charges against petitioner No.1 - husband for offences punishable under Sections 304-B, 498-A IPC and once the charges are framed against an accused, then cognizance for various offences cannot be taken against the said accused. It is also contended that while passing the order dated 25.1.2019, this Court directed for alteration/addition of charges framed against the husband, (Downloaded on 14/09/2021 at 09:41:56 PM) (5 of 9) [CRLR-2573/2019] which transpires under Section 216 Cr.P.C. and resort to Section 193 Cr.P.C., was not permissible under the law. It is also contended that if Section 193 Cr.P.C. is invoked, then provisions of Section 319 Cr.P.C. would become redundant. It is also contended that provisions of Section 193 Cr.P.C. cannot be invoked for adding other co-accused as accused once the charges have been framed and trial has commenced.
7. Counsel for the accused petitioners further contends that there cannot be a mechanical invocation of Section 302 IPC in every case related to dowry death and there has to be sufficient material and evidence available on record to mandate the same. Reliance, in this regard, has been placed on Jaswinder Singh & Ors. Versus State: 2013 (7) SCC 256. It is contended that the trial Court has erred in taking into consideration height of the room, juxtaposed against the height of the bed, length of the ligature, length of the peg, height of the deceased and has also erred in observing that it was not possible for the deceased to hang from the ceiling fan and it was not a case of suicidal hanging. It is argued that medical jurisprudence recognizes the concept of partial hanging wherein the dead body is partially suspended and the same suffers asphyxia on account of hanging itself in a sitting, kneeling, reclining or any other posture and in all such cases, death is inevitable from slow asphyxia, if there is enough force upon ligature to constrict neck. To substantiate his argument, attention of the Court is drawn to Medical Jurisprudence and Toxicology by Modi and Taylor's Principle and Practice of Medical Jurisprudence Vol.1. It is also contended that the deceased wrote a suicide note in her own handwriting stating that she was depressed as she wanted to meet her long lost mother, whom her father has divorced.
8. It is contended that the deceased hung herself from the peg of the fan and not from the blades of the fan and thus, presence of dust (Downloaded on 14/09/2021 at 09:41:56 PM) (6 of 9) [CRLR-2573/2019] on the blades cannot be held indicative of foul play. It is argued that there was profuse evidence that points towards suicide by the deceased.
9. Learned counsel for the accused petitioners has placed reliance on State of Punjab Versus Devinder Pal Singh Bhullar & Ors.: (2011) 14 SCC 770 and Fuljit Kaur Versus State of Punjab & Ors.: (2010) 11 SCC 455 and wherein the Apex Court held that the dismissal of the special leave petition in limine does not mean that the reasoning of the judgement of the High Court against which the special leave petition had been filed before this Court stands affirmed or the judgment and order impugned merges with such order of this Court on dismissal of the petition. It simply means that this Court did not consider the case worth examining for a reason, which may be other than the merit of the case.
10. Counsel for the accused-petitioners has also placed reliance on Hardeep Singh Versus State of Punjab & Ors.: JT 2014 (1) SC 412 wherein it was held that trial commences only on charge being framed. The degree of satisfaction required to invoke the provisions of Section 319 Cr.P.C. would be same as for framing a charge. Reliance has also been placed on Dharam Pal & Ors. Versus State of Haryana & Anr:
(2004) 13 SCC 9 wherein the Constitutional Bench of the Apex Court has held that cognizance of offence can only be taken once. It was further held that there cannot be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Sessions Judge. Reliance is also placed on Choru Lal Suthar & Ors.
Versus State of Rajasthan & Anr.: 2018 (2) Cr.L.R. (Raj.) 755 wherein the Coordinate Bench of this Court held that once trial Court frames charges against the accused received by it on committal, threshold of Section 193 Cr.P.C. no longer exists and law does not (Downloaded on 14/09/2021 at 09:41:56 PM) (7 of 9) [CRLR-2573/2019] permit addition of additional accused thereafter without recording evidence. Reliance is further placed on Balveer Singh & Anr. Versus State of Rajasthan & Anr.: (2016) 6 SCC 680 wherein it was held that if there is active committal by a Magistrate, he has already exercised the power of cognizance, Sessions Court cannot take cognizance for a second time "as a court of original jurisdiction" under Section 193 Cr.P.C. as cognizance of an offence can only be taken once, but if passive committal order has been made, Sessions Court is free to exercise the power of taking cognizance for the first time "as a court of original jurisdiction"
under Section 193 Cr.P.C.
11. In response, Counsel for the complainant-petitioner contends that the Court below has not erred in taking cognizance as the story put up on behalf of the accused was that the deceased has committed suicide with the help of a Chunni, whereas the twist mark on the neck was less than 1 cm which points to throttling with a wire. It is also contended that fracture of C-2 and C-3 can only occur, if the fall is from a height, whereas the distance between the fan and neck of deceased was not even one and a half feet and if Chunni is included, there remains no space to commit suicide by hanging.
12. I have considered the contentions and carefully perused the material available on record.
13. As far as S.B. Criminal Revision Petition No.2134/2019 is concerned, the primary objection of the counsel for the accused(s) is that the provision of Section 193 Cr.P.C. cannot be invoked once the (Downloaded on 14/09/2021 at 09:41:56 PM) (8 of 9) [CRLR-2573/2019] charges have been framed. Reliance in this regard has been placed on Choru Lal Suthar & Ors. Versus State of Rajasthan & Anr. (supra).
14. I have considered the contentions raised by the counsel and have also perused the judgment cited by the counsel. It is pertinent to mention that the order by which charges were framed, was challenged before this Court and this Court directed the Court below to decide application under Section 193 Cr.P.C. afresh. The SLP preferred against that order was dismissed by the Apex Court and the Apex Court also directed the trial Court to decide the application under Section 193 Cr.P.C., however, without being influenced by the observations made by this Court while dealing with the revision petition.
15. I am of the view that the proceedings reverted back to the original stage of taking of cognizance as the trial Court was directed to decide the application under Section 193 Cr.P.C. afresh. The purpose of directing the trial Court to decide the application afresh was to enable the trial Court to hear the parties and to decide the application under Section 193 Cr.P.C. by a reasoned order. The accused were named in the FIR and the Court below while deciding the application under Section 193 Cr.P.C. has taken into account the material available on record. Directing the trial Court to decide the application under Section 193 Cr.P.C. afresh does not fall within the purview of alteration/addition of the charge and hence, the said order cannot be said to be contrary to any of the provisions of the Code of Criminal Procedure.
16. There being a specific direction to the trial Court to decide the application under Section 193 Cr.P.C. afresh, the trial Court has dealt with the evidence, which was available before it, which includes twist mark on the neck, which was less than 1 cm, fracture of C-2 and C-3, no dust on the fan, which pointed towards involvement of the accused. I do not find any illegality in the same so as to invoke the revisional (Downloaded on 14/09/2021 at 09:41:56 PM) (9 of 9) [CRLR-2573/2019] jurisdiction under Section 397 Cr.P.C. The revision petition (S.B. Criminal Revision Petition No.2134/2019) filed by the accused(s) is accordingly dismissed.
17. As far as S.B. Criminal Revision Petition No.2573/2019: Brijendra Singh Versus State of Rajasthan & Ors. is concerned, it is argued that the Court below has erred in not taking cognizance against brother-in- law Atul Budaniya and sister-in-law Smt. Anita.
18. I have perused the impugned order.
19. The Court below has mentioned that in the FIR, names of brother-in-law Atul Budaniya and sister-in-law Smt. Anita were not specifically mentioned and no allegation whatsoever was levelled against them. The Court below did not fine any prima facie case against accused respondents -Anil Budaniya and Smt. Anita so as to take cognizance against them. I do not find any ground to interfere with the said order passed by the Court below. Hence, there is no ground made out in the revision petition (S.B. Criminal Revision Petition No.2573/2019) and the same is accordingly dismissed.
(PANKAJ BHANDARI),J SUNIL SOLANKI /19 (Downloaded on 14/09/2021 at 09:41:56 PM) Powered by TCPDF (www.tcpdf.org)