Rajasthan High Court - Jodhpur
Anil Bishnoi vs State & Anr on 16 April, 2018
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 109 / 2018
Anil Bishnoi S/o Shri Lekh Ram, Aged About 21 Years, By caste
Bishnoi, R/o Heerani Dhani, Jetpura Kalla, P.S. Degana, District
Nagour.
----Petitioner
Versus
1. State of Rajasthan Through Public Prosecutor
2. Sarvan Kumar S/o Shri Bagda Ram, By caste Bishnoi, R/o
Village Andolav, Tehsil Khinvsar, District Nagaur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. B.L. Bishnoi
For Respondent(s) : Mr. O.P. Rathi, Public Prosecutor.
For Complainant(s): Mr. M.R. Suthar.
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order 16/04/2018 Accused-petitioner has preferred this revision petition under Section 397 read with Section 401 Cr.P.C. to assail order dated 19th of December 2017, passed by Addl. Sessions Judge, Merta (for short, 'learned trial Court'), framing charge against him for offence under Section 304-B IPC and alternatively under Section 302 IPC.
Succinctly stated, facts of the case are that second respondent complainant lodged an FIR that his daughter entered into matrimony with the petitioner on 23 rd of March 2015 and at the time of marriage requisite Streedhan was given by him to his daughter. Castigating the petitioner for subjecting his daughter (2 of 7) [CRLR-109/2018] to cruelty or harassment for or in connection with any demand for dowry, complainant has also stated in the report with clarity and precision that she died in mysterious circumstances on 24 th of September 2015 at matrimonial home. Investigation in the matter commenced and eventually accused-petitioner was charge- sheeted for offence under Section 498A and 304-B IPC. In due course of time, Addl. Chief Magistrate, Degana committed the case to learned trial Court. The learned trial Court heard arguments before framing charges and by the impugned order found prima facie material for framing charge against the petitioner for offence under Section 498-A and 304-B IPC. The learned trial Court has also framed an alternative charge against the petitioner for offence under Section 302 IPC by simply referring to a judgment of Supreme Court in case of Rajbir @ Raju and Anr. vs. State of Haryana [(2010) 15 SCC 116].
It is argued by learned counsel for the petitioner that prima facie there was no material available on record to frame charge under Section 302 IPC against the petitioner. It is also argued that the learned trial Court, while framing alternative charge under Section 302 IPC has not at all cared to examine prima facie case against the petitioner. It is also submitted by learned counsel that from the impugned order prima facie satisfaction of the learned trial Court on the strength of material showing possibility about commission of crime is not borne out and the alternative charge under Section 302 IPC is framed mechanically by relying on aforesaid judgment of the Supreme Court.
(3 of 7) [CRLR-109/2018] Per contra, learned Public Prosecutor and the learned counsel for the complainant have opposed the revision petition in unison. It is argued by learned Public Prosecutor that the learned trial Court has framed alternative charge under Section 302 IPC by relying on the judgment of the Supreme Court and therefore no interference is warranted. Learned counsel for the complainant has also urged that framing alternative charge under Section 302 IPC in the given circumstances cannot be faulted.
I have bestowed my consideration to the arguments advanced at Bar and perused the materials available on record.
From the material, it is borne out that wife of the petitioner died when their matrimony was in infancy inasmuch as within six months of marriage. It is also clear from the autopsy report of deceased that it was an unnatural death, may be due to poisoning or drowning. The FSL report in this behalf is clear and unequivocal giving negative tests for metallic poisons, methyl alcohol, cyanide, alkaloids, barbiturates, tranquilizers and insecticides. Be that as it may, the fact remains that being an unnatural death within 7 years of matrimony, prima facie, learned trial Court has rightly decided to frame charge against the petitioner under Section 304-B IPC. However, while adverting to the alternate charge under Section 302 IPC, it may be observed that no cogent reasons are forthcoming from the impugned order and the learned trial Court has simply exercised its discretion (4 of 7) [CRLR-109/2018] mechanically by relying on the judgment of Supreme Court in Rajbir (supra). As a matter of fact, the learned trial Court has not at all cared to discuss the material available on record for recording its prima facie satisfaction to frame alternative charge under Section 302 IPC. The directions issued in Rajbir (supra) are not general and sweeping directions, and therefore, Court cannot shirk from its obligation to examine material available on record. The Court has simply observed as under:
"We further direct all trial Courts in India to ordinarily add Section 302 to the charge of Section 304B, so that death sentences can be imposed in such heinous and barbaric crimes against women."
In a subsequent judgment, Supreme Court, in case of Jasvinder Saini & Ors. Vs. State (Govt. of NCT of Delhi) [(2013) 7 SCC 256], clarified the position and observed that the directions issued in Rajbir's case (supra) are not to be adhered to mechanically without adverting to evidence adduced in the case. The Court held:
"A reading of the order which the trial Court subsequently passed on 23rd February 2011 directing addition of a charge under Section 302 IPC makes it abundantly clear that the addition was not based on any error or omission whether inadvertent or otherwise in the matter of framing charges against the accused. Even the Respondents did not plead that the omission of a charge under Section 302 IPC was on account of any inadvertent or other error or omission on the part of the trial Court. The order passed by the trial Court, on the contrary directed addition of the charge under Section 302 IPC entirely in obedience to the direction issued by this Court in Rajbir's case (supra). Such being the position when the order passed by the trial Court was challenged before the High Court the only question that fell for determination was whether the addition of a charge under Section 302 IPC was justified on the basis of the direction issued by this Court in Rajbir's case (5 of 7) [CRLR-109/2018] (supra). The High Court has no doubt adverted to that aspect and found itself to be duty bound to comply with the direction in the same measure as the trial Court. Having said so, it has gone a step further to suggest that the autopsy surgeon's report was prima facie evidence to show that the offence was homicidal in nature. The High Court has by doing so provided an additional reason to justify the framing of a charge under Section 302 IPC.
Be that as it may the common thread running through both the orders is that this Court had in Rajbir's case (supra) 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. It is common ground that a charge under Section 304B 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 304B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304B 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 304B 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's case (supra). The High Court no doubt made a half hearted attempt to justify the framing of the charge independent of the directions in Rajbir's case (supra), but it would have been more appropriate to remit the matter back to the trial Court for fresh (6 of 7) [CRLR-109/2018] orders rather than lending support to it in the manner done by the High Court.
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 and Ors. (2004) 5 SCC 347 where this Court has recognized 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. Reference may also be made to the decisions of this Court in Ishwarchand Amichand Govadia and Ors. v. State of Maharashtra and Anr. (2006) 10 SCC 322 and the decision of the Calcutta High Court in Rajendra Singh Sethia v. State and Ors. 1989 Cri.L.J. 255 and that delivered by the Allahabad High Court in Shiv Nandan and Ors. v. State of U.P. 2005 Cri.L.J. 3047 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."
The same view is further reiterated by Supreme Court in case of Vijay Pal Singh & Ors. Vs. State of Uttarakhand [(2014) 15 SCC 163], while making distinction between both the offences.
In view of foregoing discussion, the impugned order to the extent the learned trial Court has framed alternative charge against the petitioner under Section 302 IPC cannot be sustained and the order to that extent is hereby annulled. The matter is remanded back to learned trial Court for hearing (7 of 7) [CRLR-109/2018] arguments on charge afresh for passing appropriate order strictly in accordance with law.
Revision petition stands disposed of accordingly.
(P.K. LOHRA)J.