Allahabad High Court
Vipin Kumar Pal vs State Of U.P. Thru. Secy. Home, Lko. And ... on 10 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 15 Case :- APPLICATION U/S 482 No. - 8027 of 2022 Applicant :- Vipin Kumar Pal Opposite Party :- State Of U.P. Thru. Secy. Home, Lko. And Another Counsel for Applicant :- Vikas Vikram Singh,Raghvendra Singh Counsel for Opposite Party :- G.A. Hon'ble Ajai Kumar Srivastava-I,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The instant application under Section 482 Cr.P.C. has been filed by the applicant for quashing the impugned orders dated 30.04.2020 and 10.10.2022, passed by Additional Session Judge, Court No.1, Lucknow in Sessions Trial No.1312/2021 "State vs. Vipin Kumar Pal and others", arising out of Case Crime No.118/2020, under Sections 498-A, 304B I.P.C. and 3/4 of Dowry Prohibition Act, Police Station Jankipuram, District Lucknow.
Sri Vikas Vikram Singh, learned counsel for the applicant has submitted that the learned trial Court while framing alternative charge under Section 302 I.P.C. has placed reliance upon the judgment passed by Hon'ble the Apex Court in Rajbir vs. State of Haryana reported in (2010) 15 SCC 116. However, learned trial Court while doing so, lost sight of the fact that Hon'ble the Apex Court in Jasvinder Saini and others vs. State (Govt. of NCT of Delhi) reported in 2013 7 SCC 256 has held that it is not each and every case of dowry death which requires framing of alternative charge under Section 302 I.P.C. necessary. His further submission is that before framing the alternative charge the Court has to examine the material on record.
It is further submitted by learned counsel for the applicant that the cause of death of the deceased which is decipherable from the post-mortem report is asphyxia as a result of anti mortem hanging. There was no external injury on the body of the deceased except ligature mark. He has also drawn attention of this Court to the fact that even the viscera report does not reveal availability of any chemical poisonous substance. Therefore, he submits that the cause of death being suicide within seven years of marriage, Section 304-B I.P.C. has already been invoked and in absence of any necessary ingredient as defined under Section 299 I.P.C., alternative charge under Section 302 I.P.C. could not have been framed by the learned court below. He thus, submits that the order framing alternative charge is vitiated which deserves to be quashed.
Per contra, learned A.G.A. has vehemently opposed the aforesaid prayer by stating that Hon'ble the Apex Court in Rajbir's case (supra) has held that alternative charge under Section 302 I.P.C. ought to be framed in mattes which are being tried under Section 304-B I.P.C. Thereafter, learned trial Court has rightly framed alternative charge under Section 304-II I.P.C. which does not causes any prejudice to the accused. Therefore, the instant application deserves to be dismissed.
Having heard learned counsel for the applicant, learned A.G.A. for the State and upon perusal of the record, it transpires that the first information report bearing no.118 of 2020, under Sections 498-A, 304-B I.P.C. and 3/4 D. P. Act, Police Station Jankipuram, District Lucknow came to be lodged against the present applicant by Ramesh Kumar, who is father-in-law of the present applicant.
Hon'ble the Apex Court in Jasvinder Saini's case (supra) in paras 14, 15, 16 and 17 has held as under :
"14. Be that as it may, the common thread running through both the orders is that this Court had in Rajbir case [Rajbir v. State of Haryana, (2010) 15 SCC 116 : (2013) 2 SCC (Cri) 149 : AIR 2011 SC 568] directed the addition of a charge under Section 302 IPC to every case in which the accused are charged with Section 304-B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court.
15. It is common ground that a charge under Section 304-B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304-B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304-B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304-B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir case [Rajbir v. State of Haryana, (2010) 15 SCC 116 : (2013) 2 SCC (Cri) 149 : AIR 2011 SC 568] . The High Court no doubt made a half-hearted attempt to justify the framing of the charge independent of the directions in Rajbir case [Rajbir v. State of Haryana, (2010) 15 SCC 116 : (2013) 2 SCC (Cri) 149 : AIR 2011 SC 568] , but it would have been more appropriate to remit the matter back to the trial court for fresh orders rather than lending support to it in the manner done by the High Court.
16. In the light of what we have said above, the order passed by the trial court and so also that passed by the High Court are clearly untenable and shall have to be set aside. That would not, however, prevent the trial court from re-examining the question of framing a charge under Section 302 IPC against the appellant and passing an appropriate order if upon a prima facie appraisal of the evidence adduced before it, the trial court comes to the conclusion that there is any room for doing so. The trial court would in that regard keep in view the decision of this Court in Hasanbhai Valibhai Qureshi v. State of Gujarat [(2004) 5 SCC 347 : 2004 SCC (Cri) 1603] where this Court has recognised the principle that in cases where "the trial court [upon] a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so". (SCC p. 350, para 10)
17. Reference may also be made to the decisions of this Court in Ishwarchand Amichand Govadia v. State of Maharashtra [(2006) 10 SCC 322 : (2006) 3 SCC (Cri) 554] and the decision of the Calcutta High Court in Rajendra Singh Sethia v. State [1989 Cri LJ 255 (Cal)] and that delivered by the Allahabad High Court in Shiv Nandan v. State of U.P. [2005 Cri LJ 3047 (All)] which too are to the same effect. In any such fresh exercise which the trial court may undertake, it shall remain uninfluenced by the observations made by the High Court on merits of the case including those touching the probative value of the autopsy surgeon's opinion.
This Court without expressing any view on the merit of the matter has been able to notice that the cause of death of the deceased, according to post-mortem report, is asphyxia as a result of anti mortem hanging. In viscera report, no chemical poisonous substance has been found. There is only one ligature mark on the body of the deceased.
Having regard to the aforesaid facts, it appears that learned trial Court proceeded to frame alternative charge under Section 302 I.P.C. without having due regard to the material available on record for framing alternative charge under Section 302 I.P.C. as held by Hon'ble the Apex Court in Jasvinder Saini's case (supra).
The upshot of aforesaid discussion is that the instant application succeeds and is allowed. The orders dated 30.04.2020 and 10.10.2022, passed by Additional Session Judge, Court No.1, Lucknow in Sessions Trial No.1312/2021 "State vs. Vipin Kumar Pal and others", arising out of Case Crime No.118/2020, under Sections 498-A, 304B I.P.C. and 3/4 of Dowry Prohibition Act, Police Station Jankipuram, District Lucknow, insofar as the same relates to frame the alternative charge under Section 302 I.P.C. are set aside.
However, it shall be open for the learned trial Court to frame the alternative charge under Section 302 I.P.C. in accordance with law having due regard to the material available on record for framing alternative charge under Section 302 I.P.C. as held by Hon'ble the Apex Court in Jasvinder Saini's case (supra).).
Order Date :- 10.11.2022/Mahesh