Rajasthan High Court - Jodhpur
Dr. Bharat Gadvi vs State And Anr on 17 July, 2019
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 1355/2017
Dr. Bharat Gadvi S/o Shri Nathu Bhai, B/c-Charan, R/o-1,
Jalaram Nagar, Rajiv Nagar, Porbandar, P.s. Gidc Udhyog Nagar,
Gujarat.
----Petitioner
Versus
1. State Of Rajasthan
2. Bhartendra Singh S/o Mohan Singh Charan, B/c Charana,
R/o-House No.f-55, Tiger Hill P.s. Ambamata, District
Udaipur Raj.
----Respondents
For Petitioner(s) : Mr. Pankaj Gupta
Mr. P.C. Solanki
For Respondent(s) : Mr. Javed Gouri, P.P.
Mr. Praduman Singh
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order 17/07/2019 Instant criminal revision petition has been filed under Section 397 /401 Cr.P.C against the order dated 16.09.2017 passed by the learned Additional Sessions Judge (Women Atrocities Cases), Udaipur in Sessions Case No. 56/2016 whereby, the learned Judge ordered to frame charges against the petitioner for offences under Sections 498-A, 306 and 304-B IPC.
Brief facts of the case are that a written report has been filed by the complainant Bhartendra Singh before the S.H.O, Police Station Sukher, udaipur in which he stated that her daughter Karnika was married to Dr. Himanshu on 25.01.2016. the husband was working at Geetanjali Hospital and daughter of (Downloaded on 01/09/2019 at 10:28:21 PM) (2 of 18) [CRLR-1355/2017] complainant was also working in a private firm. Both the husband and wife resided at Flora complex, Bhuwana, Udaipur. After few days of marriage, his daughter started keeping sad and upset. She narrated to her mother and sister that her husband is harassing her mentally and physically and she was not happy. On 28.05.2016, the complainant's daughter was called at Porbandar where she was treated by one doctor at the instigation of husband, father-in-law and mother-in-law and some tests were conducted on her private parts which were very painful. It is stated that the doctor was known to her father-in-law. She narrated this incident to younger sister Devika. Thereafter, she came from Porbandar to Udaipur on 01.06.2016. She told her mother that her husband, father-in-law and mother-in-law were harassing her on small issues. On the next day i.e. 02.06.2016, the complainant's wife and younger sister took lunch for Karnika but they were told that Karnika had not come to office. When they reached home, the door was shut and there was no response from inside. After breaking the door they found Karnika hanging by ceiling fan. They immediately took her to hospital where the doctor declared her dead.
On this report, the police registered a case and started investigation. After due investigation, the police filed chargesheet against the present petitioner as well as husband Dr. Himanshu for the offence under Sections 498A, 306, 304-B IPC. Thereafter, the case was committed to the court of learned Additional Sessions Judge (Women Atrocities Cases) Udaipur whereby, arguments on the charge were heard. Thereafter, the learned Addl. Sessions Judge ordered to frame charges against the (Downloaded on 01/09/2019 at 10:28:21 PM) (3 of 18) [CRLR-1355/2017] petitioner for offences under Sections 498-A, 306 and 304-B IPC. Hence, this present revision petition.
Learned counsel for the petitioner Mr. Pankaj Gupta alongwith Mr. P.C. Solanki vehemently argued that no offence under Sections 498-A, 306 or 304-B IPC IPC is made out against the petitioner as the incident took place on 02.06.2016 and on the same day the complainant filed a report before the Police Station, Sukher where proceedings under Section 176 Cr.P.C were initiated. In that written report, the complainant has not mentioned about harassment meted out by the petitioner father-in-law. Petitioner is the father-in-law who resided at Porbandar, Gujarat. ON the next day, i.e. 03.06.2016, again a written report was submitted by the complainant before the police in which also the complainant did not mention any demand of dowry or harassment by the petitioner. It is argued that the petitioner is a retired C.M.H.O at present aged about 68 years of age. While drawing attention of this Court towards the statements of mother of deceased Smt. Darshana, sister of deceased Ms. Devika, it is argued that no demand of dowry or harassment by the petitioner has been mentioned by them. It is argued that the investigating officer gave notice to the doctors to inquire whether the investigation conducted on the deceased was necessary and whether the doctor was competent or not. A detailed reply was submitted by the doctor informing that the patient was unable to perform sexual intercourse since her marriage so the investigation was necessary and the doctor was also competent. He submits that after about 20 days of the incident, the police recorded statement of one Rajendra Singh who was brother of complainant in which he mentioned that present petitioner alongwith husband and others (Downloaded on 01/09/2019 at 10:28:21 PM) (4 of 18) [CRLR-1355/2017] harassed the deceased. Therefore, this statement is only an afterthought and no reliance can be placed on this statement. Therefore, the trial court has committed an error in framing charge for offence under Sections 498A, 306, 304-B IPC. Learned counsel for the petitioner placed reliance on the decision of Hon'ble Apex Court in the case of L. Krishna Reddy Vs. State reported in (2014) 14 SCC 401, Yogesh alias Sachin Jagdish Joshi Vs. State of Maharashtra reported in (2008) 10 SCC 394, Gangula Mohan Reddy Vs. State of A.P. reported in AIR 2010 SC 327, Sohan Raj Sharma Vs. State of Haryana reported in 2008 Cri.L.J.2569, Sanju @ Sanjay Singh Sengar Vs. State of M.P. reported in (2002) 5 SCC 37, (2004) 12 SCC 257 and decision of co-ordinate Bench of this Court in the case of Ramesh Chandra Vs. State of Raj. Reported in RLR 1997(1) 651.
Per contra, learned Public Prosecutor and learned counsel for the respondent Mr. Praduman Singh argued that there are statements of complainant father of deceased as well as statement of Rajendra singh alleging involvement of present petitioner in the crime. Further it is settled proposition of law that at the stage of framing of charge, the scope of powers conferred under Section 397 Cr.P.C is very limited. Therefore, the trial court has not committed any error in framing charge for offence under Sections 498A, 306, 304-B IPC.
I have thoughtfully considered the arguments advanced on behalf of the parties and perused the material available on record.
From the perusal of documents on record, it is evident that on the date of incident, the complainant lodged his first written report in which there was no averment with regard to demand of (Downloaded on 01/09/2019 at 10:28:21 PM) (5 of 18) [CRLR-1355/2017] dowry or harassment by the petitioner. On the next day, again a written report was filed by the complainant in which also, the complainant mentioned that the deceased narrated the incident to her mother and her sister and a specific allegation was levelled against the husband Dr. Himanshu and no allegation of harassment was made against the petitioner. It has been only mentioned that husband, father-in-law and mother-in-law of deceased used to harass her for small things. No specific averment with regard to demand of dowry or harassment was levelled by the complainant against the petitioner. A perusal of the statement of mother of the deceased, Smt. Darshana, it is evident that there is not a single line against the present petitioner. She has specifically levelled allegation against the husband of deceased Dr. Himanshu for harassment. Similar statement was given by sister of deceased Ms. Devika wherein, specific allegation was levelled against the husband of deceased.
The police gave notice to the concerned doctors with regard to necessity of the medical investigation of deceased and whether the doctors were competent or not. The doctor in the reply has specifically stated that the deceased was unable to perform sexual intercourse since her marriage and verbal consent was obtained before Gynec checkup and sonography. It is further mentioned that the examination was Trans Vesicle (lower abdominal) sonography and local examination of external genitalia. It is also mentioned that the deceased Karnika was taking treatment of Hypothyroidism and she was also taking some antipsychotic drugs. Therefore, the doctors who conducted the medical (Downloaded on 01/09/2019 at 10:28:21 PM) (6 of 18) [CRLR-1355/2017] investigation were competent and the investigation of private parts of the deceased was necessary. The investigating officer also gave notice to the Medical Board with regard to the investigation/test conducted upon Karnika to investigate whether the tests were necessary and whether this is a disease. The Medical Board gave its report that the tests were necessary for evaluation because some swelling was present in her private parts. The police also obtained copy of whatsapp chat between the deceased and her friend in which they talked about her medical problem. In the said chat also, there is no averment regarding demand of dowry or harassment by the petitioner.
Section 306 IPC reads as under:--
"306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
For commission of offence punishable under Section 306 IPC, abetment is the necessary thing, which has been defined in Section 107 IPC. Section 107 IPC, reads as under:--
"107. Abetment of a thing.--A person abets the doing of a thing, who- (First)- Instigates any person to do that thing; or (Secondly)-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly)- Intentionally aids, by any act or illegal omission, the doing of that thing."
Thus, for framing a charge for the offence under section 306 (Downloaded on 01/09/2019 at 10:28:21 PM) (7 of 18) [CRLR-1355/2017] IPC, the learned court below is to consider whether the abettor intentionally instigated or aided the commission of the suicide. It is also necessary to see that his act must fall in any of the three categories as enumerated under Section 107 IPC. It is necessary to prove that the said accused instigated the person to commit suicide or engaged himself with one or more other persons in any conspiracy for seeing that the deceased commit suicide.
From the material on record, it is evident that the deceased Karnika was suffering from medical problem due to which she was unable to do sexual intercourse since her marriage. She did not allow the husband to have any physical relationship and she was depressed.
Hon'ble Apex Court in the case of Bhagwan Das Vs. kartar Singh & Ors reported in AIR 2007 SC 2045 while considering the charges framed under Section 306/498A IPC against the accused persons held as as under :-
"15. In our opinion the view taken by the High Court is correct. It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in-laws. This, however, in our opinion would not by itself and without something more attract Section 306 IPC read with Section 107 IPC.
16. However, in our opinion mere harassment of wife by husband due to differences per se does not attract Section 306 read with Section 107 IPC, if the wife commits suicide. Hence, we agree with the view taken by the High Court. We, however, make it clear that if the suicide was due to demand of dowry soon before her death then Section 304B IPC may be attracted, whether it is a case of homicide or suicide. Vide Kans Raj v. State of Punjab and Ors. : 2000 CriLJ 2993 , (Downloaded on 01/09/2019 at 10:28:21 PM) (8 of 18) [CRLR-1355/2017] Satvir Singh and Ors. v. State of Punjab and Anr. : 2001 CriLJ 4625 , Smt. Shanti and Anr. v. State of Haryana : 1991 CriLJ 1713 ."
In the case of Gagula Mohan Reddy Vs State of A.P., the Hon'ble Apex Court while considering the mens rea and active act by the accused held as under :-
"18. In the instant case, the deceased was undoubtedly hyper sensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.
19. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) : 2009 (11) SCALE 24 had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word "instigation" and "goading".
The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
20. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
21. The intention of the Legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide. (Downloaded on 01/09/2019 at 10:28:21 PM)
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22. In the light of the provisions of law and the settled legal positions crystallized by a series of judgments of this Court, the conviction of the appellant cannot be sustained. Consequently, the appeal filed by the appellant is allowed and disposed of."
In State of West Bengal v. Orilal Jaiswal and Anr. : (1994) 1 SCC 73, the Hon'ble Apex Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
Hon'ble Apex Court in yet another case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) : 2009 (16) SCC 605 dealt with the dictionary meaning of the word "instigation" and "goading". The Hon'ble Apex Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of selfesteem and self- respect. Therefore, it is impossible to lay down any straight-jacket (Downloaded on 01/09/2019 at 10:28:21 PM) (10 of 18) [CRLR-1355/2017] formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. Thus, in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.
Similarly, it is necessary to examine the provisions of Section 304B IPC the petitioner has been charged, which reads as under:-
"304-B Dowry death- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death Explanation- For the purpose of this sub-section "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act 1961 (28 of 1961) (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life)."
To examine the fact whether any offence under Section 304B (Downloaded on 01/09/2019 at 10:28:21 PM) (11 of 18) [CRLR-1355/2017] IPC has been committed or not it is necessary for the prosecution to establish that soon before death the deceased was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry and then only such death can be called "dowry death". As discussed in the foregoing paras, the complainant lodged his first written report in which there was no averment with regard to demand of dowry or harassment by the petitioner. On the next day, again a written report was filed by the complainant in which also, the complainant mentioned that the deceased narrated the incident to her mother and her sister and a specific allegation was levelled against the husband Dr. Himanshu and no allegation of harassment was made against the petitioner. It has been only mentioned that husband, father-in-law and mother-in-law of deceased used to harass her for small things. No specific averment with regard to demand of dowry or harassment was levelled by the complainant against the petitioner.
After carefully going through the statements of the witnesses, it appears that none of the witnesses stated that soon before death the accused-petitioner had demanded dowry or asked for money and not a single witness deposed in the statement that the deceased was subjected to cruelty by her petitioner for or in connection with any demand for dowry. Thus, the basic ingredients for constituting offence under Section 304B IPC are (1) that the death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances; (2) that such death should have occurred within seven years of (Downloaded on 01/09/2019 at 10:28:21 PM) (12 of 18) [CRLR-1355/2017] her marriage; (3) that soon before death she was subjected to cruelty or harassment by her husband or any relative of her husband; and (4) that such cruelty or harassment should be for or in connection with demand for dowry.
In State of A.P. vs. Raj Gopal Asawa and another, reported in : (2004) 4 SCC 470, the Hon'ble Supreme Court para 10 and Para 11 observed as under :-
"10. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:-
"113-B: Presumption as to dowry death-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation For the purposes of this section 'dowry death' shall have the same meaning as in Section 304- B of the Indian Penal Code (45 of 1860)."
The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10th August, 1988 on 'Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of (Downloaded on 01/09/2019 at 10:28:21 PM) (13 of 18) [CRLR-1355/2017] 'dowry death' in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death.
11. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous (Downloaded on 01/09/2019 at 10:28:21 PM) (14 of 18) [CRLR-1355/2017] to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304- B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence." Thus, on the basis of the material collected during investigation, it can safely be said that there is no prima facie material which indicates that the petitioner ever instigated, prompted or pressurized the deceased with the intention that she should commit suicide. There is also no evidence to the effect that the appellant ever demanded dowry or harassed the deceased soon before her death for demand of dowry. Thus, the ingredients of Section 304-B IPC are totally lacking.
(Downloaded on 01/09/2019 at 10:28:21 PM)
(15 of 18) [CRLR-1355/2017] While examining the provisions of Section 227 & 228 Cr.P.C, in the case of Sajjan Kumar v. Central Bureau of Investigation reported in (2010) 9 SCC 368, the Hon'ble Supreme Court in para 21 of the judgment has laid down the following principles :
"(i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.(Downloaded on 01/09/2019 at 10:28:21 PM)
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(vi) At the state of Sections 227 & 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept al that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused at this stage, he is not to see whether the trial will end in conviction or acquittal."
Hon'ble Supreme Court in the case of case of Yogesh alias Sachin Jagdish Joshi Vs. State of Maharashtra reported in (2008) SCC 394 while considering the scope and ambit of Section 227 of the Code and relying upon principles laid down by Hon'ble Supreme Court in the case of State of Bihar Vs. Prafulla Kumar Samal & Anr. reported in AIR 1979 SC 366 held as under :-
"15. Chapter XVIII of the Code lays down the procedure for trial before the Court of Sessions, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to framing of charge under Section 228. It provides that upon consideration of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the Court is expected, nay bound to decide whether there is "sufficient ground" to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him.(Downloaded on 01/09/2019 at 10:28:21 PM)
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15. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution.
However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [See: State of Bihar v. Ramesh Singh and Prafulla Kumar Samal (supra)]."
After considering the case of Prafulla Kumar (Supra), the Hon'ble Supreme Court expounded the law in the case of tree Atyachar Virodhi Parishad and Ors. vs. Dilip Nathumal Chordia and Ors reported in (1989) 1 SCC 715, in following terms :-
"14.... In fact, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The 'ground in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of change. The Court, therefore, need not undertake an (Downloaded on 01/09/2019 at 10:28:21 PM) (18 of 18) [CRLR-1355/2017] elaborate enquiry in sifting and weighing the material . Nor it is necessary to delve deep into various aspects. All that the Court has to consider is whether the evidentiary material on record if generally accepted , would reasonably connect the accused with the crime. No more need be enquired into."
There cannot be two opinions that at the stage of framing charge reliability or acceptability etc of the evidence or credibility of evidence cannot be examined. However, at the time of framing charge, there must be some material on record to prima facie show that accused was guilty of the offence charged. After considering the facts of the present case and examining the law laid down by the Hon'ble Apex Court, the material available on record does not disclose the ingredients of the offence against the petitioner.
Accordingly, the revision petition is allowed and the order dated 16.09.2017 passed by the learned Additional Sessions Judge (Women Atrocities Cases), Udaipur in Sessions Case No. 56/2016 framing charges against the petitioner for offence under Sections 498-A, 306 and 304-B IPC is set aside. The court may proceed against the accused husband Dr. Himanshu in accordance with law. The record of the trial court be sent back forthwith.
(MANOJ KUMAR GARG),J 112-BJSH/-
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