Himachal Pradesh High Court
Sham Sunder vs State Of Himachal Pradesh on 18 March, 1993
Equivalent citations: 1993CRILJ3631
ORDER
Bhawani Singh, A.C.J.
1. Petitioner Sham Sunder has assailed the framing of charge against him by Sessions Judge, Una, dated 17-10-1992 for offences under Sections 302/304B and 498 A of the Indian Penal Code.
2. The prosecution case, shortly stated, is that the accused had married the deceased (Seema) on 16th October, 1988. For sometime, the relations between the couple were good. However, they started becoming strained on account of the harassment of the deceased by the petitioner and his demands for dowry. On 25-7-1990, at about 8.45 p.m., the accused set her on fire by pouring kerosene oil on her while she was in the kitchen of the house. A doctor was called, on whose advice the deceased was shifted to District Hospital, Una, and then to P.G.I. Chandigarh within hours, where she died on 27-7-1990 at 8.45 p.m. During the course of investigation, the police examined certain witnesses, collected certain documents and other evidence relating to this case and then finally, on completion of investigation, the matter was brought before the trial court for the prosecution of the accused.
3. The sole question in this case is whether in the facts and circumstances of this case and on the material collected by the police, the involvement of the petitioner can be established. In order to examine this question, the learned counsel for the parties took me through the case file and made detailed submissions for and against the question of involvement of the accused in this case. Shri N. K. Thakur, learned counsel for the petitioner, vehemently contends that the trial court has framed the charge against the accused erroneously, although it could not be framed on the basis of the evidence intended to be adduced in the case by the prosecution. The liberty of the accused is seriously threatened in case this kind of lame prosecution is allowed to continue. Now, I turn to the cases on which great reliance was placed by the learned counsel for the petitioner.
4. In 1972 Cri LJ 329: (AIR 1972 SC 545) (Century Spinning & Manufacturing Co. Ltd. v. The State of Maharashtra) it has been held that para 16, page 335 :
"16. xx xx xx xx The argument that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused is not supportable either on the plain language of the section or on its judicial interpretation or on any other recognised principle of law. The order framing the charges does substantially affect the person's liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting authorities, by relying on the documents referred to in Section 73, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution."
Then in para 21 of this judgment, it has been said:
"21. xx xx xx xx xx xx xx xx xx xx It may be borne in mind that in this case there is no question of any further evidence being led for bringing home the charge to the appellants. If on the existing material there is no ground for presuming them to be guilty then there can hardly be any point in framing charges and going through the formality of a trial and then acquitting them. Such a course would merely result in unnecessary harassment to the appellants without serving the cause of justice."
5. In 1991 (2) Supp SCC 574 : (1991 Cri LJ 451) (Bhaskar Chattoraj v. State of West Bengal), the apex court was dealing with a case where the High Court had declined to quash the criminal proceedings instituted against the appellant for an offence under Section 448 of the Indian Penal Code and dismissed his petition on the ground that a perusal of the documents, submitted under Section 173 of the Code of Criminal Procedure, had spelt out a prima facie case against the appellant for his trial for the said offence. The appellant was put on trial along with others in this case although other accused were being proceeded against for offences under Sections 448 and 380 of the Indian Penal Code while the charge against the appellant was only under Section 448 of the Indian Penal Code, as already said above. The Court examined the entire record and came to the conclusion that the charge against the appellant ought to be quashed since there was no material connecting the appellant with the alleged offence of criminal trespass and no conviction could be recorded on mere vague allegations and the entire proceedings would, in these circumstances, amount to only to abuse of the process of the Court.
6. In AIR 1990 SC 1962 : (1990 Cri LJ 1869) (Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja), the Court again considered the principles which have to be kept in mind while framing the charge in a case. In para 7, the Court observed that:
"7. xx xx xx xx xx xx xx xx xx xx From the above discussion, it seems well settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."
7. Bearing in mind the principles laid down in the decisions aforesaid, the present case may now be examined. From the record, it appears that the deceased had gone to the house of Manju (8) daughter of real sister of the deceased at Talwara on 25-7-1990 and returned in the evening along with her. They took their food along with the petitioner on the roof of the house and after finishing it, the deceased came down to the kitchen to boil milk for the child. In the process of taking down the sugar box from the shelf, located immediately above the place where the stove was burning, she caught fire and she raised cries. The petitioner came down to the place and helped in extinguishing the fire. However, the deceased had received extensive burn injuries by this time. Immediately, a doctor was called who advised that the deceased be taken to the District Hospital, Una. Accordingly, the deceased was taken to District Hospital, Una, wherefrom she was taken to the Post Graduate Institute of Medical Sciences (PGI), Chandigarh, on 26-7-1990. She died there on 27-7-1990 at 8.45 p.m. Her statement was recorded by the police in the presence of the doctor. The mother of the deceased reached PGI on 27-7-1990 on the basis of a telegram despatched by the petitioner on 26-7-1990 and left Chandigarh after the death of the deceased on 27-7-1990.
8. Although the prosecution has tried to introduce Manju saying that the petitioner was responsible for the incident, however, it is not possible to place any reliance on her statement for weighty reasons being recorded hereafter. She was on the roof of the house while the deceased was in the kitchen for boiling the milk when the incident occurred. There could be no reason for the petitioner to commit the crime on that day in her presence since she was a close relation of the deceased and a guest over there. Moreover, there is no evidence of any quarrel having taken place preceding the incident. Proceeding further, while she was carried to the hospital from the village, Rajesh Kumar was in the van. He states that the deceased had told him on the way that the incident had taken place by a sudden fire from the stove. Same version is given by Up-Pradhan, Ranbir Singh, who, in addition to this has also said that the couple was leading a happy life. Ram Parkash is another witness who does not support the prosecution.
9. At Chandigarh her statement was recorded by the police on 26-7-1990 in the presence of Dr. R. S. Viswas at 4.30 a.m. and the doctor has certified that "statement taken in my presence in mentally fit condition." In her statement, the deceased stated, among other things, that she was boiling the milk on the stove at 8 p.m. and while taking sugar box from the shelf, her jumper fell on the stove and caught fire. She cried on which her husband who was playing with the child, came running to the place along with her father-in-law and mother-in-law. Doctor was called who advised that she be taken to Una and she was accordingly taken whereafter she was shifted to P.G.I., Chandigarh by a vehicle arranged by her husband. The incident had taken place all of a sudden because of fire to the jumper from the stove and she was not set on fire by anyone nor one has any suspicion on anyone nor she was interested in initiating any case against anyone.
10. She did not blame the petitioner when her mother met her on 27-7-1990. It has been stated by her mother that the deceased was unconscious when she reached PGI and she could not talk to her except making certain gestures. Although in her statement Smt. Kanta has introduced the story of harassment by the petitioner and demand for loan of Rs. 25,000/- for the construction of a house and giving of Rs. 7,000/ - for the purchase of a fridge, but all these statements appear to be thoroughly baseless since there is no evidence to support them. It can very well be said that the statement of Smt. Kanta Devi is of no help to connect the petitioner with the crime.
11. It has already been notice above that the incident took place on 25-7-1990 at 8-45 p.m. The deceased died on 27-7-1990 but the First Information Report was recorded on 29-7-1990 at 4-30 p.m. There is serious delay in the recording of this report and no explanation is forthcoming from the case file. This report was given by the father of the deceased, obviously, on the information supplied to him by his wife Smt. Kanta Devi. In this, he has introduced certain previous incidents of disaffection between the couple, efforts to settle them and involving other relations of the petitioner but most important is a reference about certain letters which are crucial to test the truthfulness of the case of the prosecution from the angle of the prosecution of the petitioner. Besides, they disclose certain interpolations incorporated for the purpose of involving the petitioner in this case by someone other than the deceased, naturally after her death. The handwriting expert has also opined that these interpolations are not in the handwriting of the deceased. Apart from what has been said by the handwriting expert, there is apparent difference between the writing of the deceased and the interpolations made at certain places in these letters. Letters dated 1-4-1989, 14-12-1989, 17-3-90, 7-5-90 and 8-7-90 are not at all damaging to the petitioner, rather they are favourable and demonstrate that the relations between the couple were quite cordial and the deceased was not being put to any kind of harassment by the petitioner. No demand for dowry or loan was ever made by the petitioner, rather the letter of 8-7-1990 shows that the petitioner was quite affectionate to his father-in-law and wanted a pantaloon to be given to him. From letter of 27-1-1990, it cannot be said that the deceased was being harassed when she was asked to join some kind of course or service, and, therefore, no meaning suggesting something against the petitioner can be attributed to it. Letters later in point of time completely eliminate any kind of ill-will or disaffection between the couple prior to the incident. The story of the petitioner having some kind of relationship with some girl is neither here nor there except for the purpose of allegation made by the mother of the deceased in this behalf. Death summary recorded in this case also mentions sustaining of burns from the stove. Inquest held in the case also points out the burning of the deceased by a stove all of a sudden. It is dated 27-9-90, after the recording of the First Information Report in this case.
12. In the aforesaid background, it is hardly possible to conclude that the petitioner was responsible for the commission of the crime. He cannot at all be connected with the incident which had taken place all of a sudden in the manner stated by the deceased herself in her statement before the doctor at PGI Chandigarh. It appears that the trial Judge did not examine the matter properly before proceeding to frame the charge in this case, otherwise from the kind of evidence discussed above, framing of charge was hardly possible. Allowing the prosecution of the petitioner in the circumstances would certainly amount to putting him to harassment of trial which in all probabilities would end in the acquittal of the petitioner.
13. The petition is, therefore, allowed and the charge framed against the petitioner and the proceedings pending before the trial court are hereby quashed.