Karnataka High Court
Dr L Raghavendra vs State By Mandya West Police Station on 14 August, 2014
Author: C.R.Kumaraswamy
Bench: C R Kumaraswamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF AUGUST, 2014
BEFORE
THE HON'BLE MR. JUSTICE C R KUMARASWAMY
CRIMINAL REVISION PETITION No. 585 OF 2014
BETWEEN:
1. DR.L.RAGHAVENDRA
S/O LINGEGOWDA
AGED ABOUT 35 YEARS
OCC: DOCTOR (PHYSICIAN)
IN MEDICAL COLLEGE
MANDYA, R/AT NO.51,
M.C.ROAD, KALLAHALLI,
MANDYA-571401
2. SMT.INDRA
W/O LINGEGOWDA
AGED ABOUT 59 YEARS
R/AT NO.51, M.C.ROAD
KALLAHALLI
MANDYA-571401
3. LINGEGOWDA
S/O LATE NINGEGOWDA
RETD. PROFESSOR
R/AT NO.51, M.C.ROAD
KALLAHALLI
MANDYA-571401 ...PETITIONERS
(BY SRI.HANUMANTHARAYA.D, ADVOCATE)
2
AND :
STATE BY MANDYA WEST
POLICE STATION
REP BY STATE PUBLIC PROSECUTOR
HIGH COURT KARNATAKA
BANGALORE-560 001 ...RESPONDENT
(BY SRI.B.J.ESWARAPPA, HCGP)
*******
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397(1) CR.P.C BY THE ADVOCATE
FOR THE PETITIONERS PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO SET ASIDE
THE IMPUGNED REJECTION ORDER DATED:
19.07.2014 PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, MANDYA, IN
S.C.NO.159/2013 AND ALLOW THE APPLICATION
UNDER SECTION 216 OF CR.P.C AND
ALTER/DELETE THE CHARGE UNDER SECTION
302 OF IPC AGAINST THE PETITIONER IN THE
ABOVE CASE.
THIS PETITION COMING ON FOR ADMISSION,
THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
This Criminal Revision Petition is filed under Section 397(1) Cr.P.C. praying to set aside the impugned rejection order dated 19.7.2014 passed by the I Addl. District and S.J., Mandya, in S.C. 3 No.159/13, and allow the application under Section 216 of Cr.P.C. and alter/delete the charge under Section 302 of IPC against the petitioner in the above case.
2. This matter was listed for admission and also to hear on stay application. This matter was heard on stay application. Since this court was not inclined to grant stay of the further proceedings in S.C. No.159/2013, then the learned counsel for the revision petitioner sought to hear this matter on merits. Accordingly, this matter was heard on merits.
3. Learned counsel for the revision petitioner submits as under:
The impugned order passed by the learned Sessions Judge is perverse. Plain reading of the complaint and material on record manifest that the complaint itself is vague. Essential ingredients of Section 302 is not made out. On the basis of the allegations in the complaint charge cannot be made. 4 Recovery of the death note of the accused establishes that the deceased has committed suicide and her death note sent to hand writing experts. The death note sent to the hand writing expert indicates that it belongs to the deceased. The death note was not properly appreciated by the court below. There were about 150 statements recorded by the prosecution. While framing the charge court has to be very cautious and should look into all the circumstances. Death is not homicidal and it is a suicide. Post mortem examination report reveals that death is due to asphyxia, as a result of suspension by ligature around neck and suspension in unconscious state. There are no external injuries found on the body of the deceased. Reasons for unconsciousness is not revealed in the prosecution papers.
4. Learned counsel for the revision petitioner has relied on the rulings:
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1. Jasvinder Saini & others vs. State (Government of NCT of Delhi) (dated 02.07.2013).
2. C.B.I. vs. Karimullah Osan Khan (dated 04.03.2014).
3. Naresh Giri vs. State of M.P. (dated 12.11.2007).
I have perused the above rulings.
5. Learned High Court Government Pleader appearing for respondent State supports the impugned judgment and order.
6. The accused - revision petitioner has filed an application before the court of Sessions which is as under:
The Mandya West Police have filed charge sheet against accused persons which was registered in C.C. No.737/2013 for the offences punishable under 6 Sections 143, 498(A), 304(B), 302, 109 r/w Section 34 of Indian Penal Code and r/w Sections 3, 4 and 6 of D.P. Act. The case has been committed before the learned Additional District and Sessions Judge, Mandya in S.C. No.159/2013 and thereafter the trial court has framed charge against all the accused under Sections 143, 149, 498(A), 304(B) of Indian Penal Code and against accused Nos.1 to 3 for the offences punishable under Sections 302 r/w Section 34 of Indian Penal Code and Sections 3, 4 and 6 of Dowry Prohibition Act. The application was filed under Section 216 of Code of Criminal Procedure praying for deletion of charge framed under Section 302 of Indian Penal Code. The death note has not been considered by the learned Sessions Judge. About 154 statements were recorded. Death is homicidal. The post mortem report itself is in suspicious nature. The FSL and Histopathology reports does not disclose the reasons for death. The statements recorded were deleted and the surrounding 7 circumstances indicates that this is a case of suicide and it is the voluntary act of deceased.
7. Learned Additional Public Prosecutor has filed objection statement in the court below as under:
The application filed by the accused is not maintainable. Accused Nos.1 to 3 are involved in the offences punishable under Sections 302 r/w Section 34 of Indian Penal Code and Sections 3, 4 and 6 of Dowry Prohibition Act. There is prima facie case against the accused. The post mortem examination report indicates there are injuries found on the head. The doctor has opined that blood was clotted inside the head. When she was unconscious she has been hanged. The incident has occurred inside the house of accused Nos.1 to 3 and hence they are responsible to give explanation as to how this incident occurred. A suicide note is also written by the deceased. The learned Sessions Judge has framed charge under Section 302 r/w Section 34 of 8 the Indian Penal Code. The learned counsel for the accused has not raised any objection. Framing of charge proceedings have not been challenged. The learned Sessions Judge has perused the records and has framed the charges for the offences punishable under Section 302.
8. The sum and substance of the findings of the trial court is as under:
The Mandya East Police have registered a case in Crime No.221/2013. The concerned police laid charge sheet against the accused for the offence punishable under Sections 143, 498(A), 304B, 302, 109 r/w Section 149 of IPC and Section 3, 4 and 6 of Dowry Prohibition Act r/w Section 5 of the Official Secrets Act, 1983. That on 29.11.2009 accused No.1 married with daughter of complainant deceased D Tejaswini and accused Nos.1 to 4 and 6 demanded dowry of 1 K.G. gold and 10 K.G. silver ornaments and Rs.50,00,000/- alongwith one car 9 and they have given the same to the accused and after six months of the marriage the accused Nos.1 to 3 and accused Nos.4 to 6 joined together and pressurizing D Tejaswini to bring more dowry of Rs.50,00,000/- again for the construction of building and abusing her and assaulting her and subjected her to cruelty and accused Nos. 4 to 6 also came to the house of accused No.1.
There also they treated her in cruel manner. Thereafter the complainant deposited the amount in the joint account of accused No.1 and his daughter and thereafter inspite of the same they have not stopped coercing her not to speak with anybody. On 18.05.2013 at about 6.00 p.m. when D Tejaswini asked them to go to the marriage at Bangalore, accused Nos.1 to 3 restrained her and accused Nos.4 to 7 abetted them to assault her by taking advantage of the demand made by the deceased to go to the marriage as she will gave a complaint against them. Accused No.2 gave a Lattanige to accused No.1 to assault her, accordingly he assaulted 10 on her head with the said Lattanige and she fell unconscious on the ground. Accused No.3 brought the veil of the deceased and handed over to accused No.1 and tied the same on the neck of D Tejaswini and tied her to the ceiling fan and killed her and accordingly on the complaint of the complainant the Mandya East police registered case. The investigating agency collected the evidence. Accused No.1 moved bail petition before this Court. Bail petition was rejected. Thereafter he moved bail petition before the Apex Court and it was also rejected. Again accused No.1 moved for bail and that was rejected. Now the present application under Section 216 is filed by the accused for deleting the charge of Section 302 of IPC. It appears from the record that accused Nos.4 to 6 have also filed an application under Section 227 of Cr.P.C. seeking for discharge from this case. The application filed under Section 227 was also rejected. Thereafter, the learned 11 counsel for the accused requested to frame charge. A memo was also filed to frame charge.
The learned Sessions Judge at para 10 has made an observation that the accused have not raised any objection with regard to the draft charge produced by the learned prosecutor in this case. They have also filed a memo to frame charge as early as possible without submitting any objection to the draft charge. After perusing the material the trial court inferred that there are sufficient material to frame charge and the court dismissed the application filed under Section 227 of Cr.P.C. The court has satisfied about the existence of the constituents of the offence alleged.
The trial court at para 13 has observed that the court can frame a charge when there is a strong suspicion that the accused has committed an offence. In the instant case there is an observation in the post mortem report that the death is due to asphyxia, as a 12 result of suspension by a ligature around the neck and the suspension in unconsciousness cannot be ruled out. Prima facie indicates homicidal death of the deceased. Suicide or homicidal death is a question of fact and it is a matter of evidence. Contents of statement of witnesses and post mortem report clearly indicates prima facie commission of offence under Section 302 of IPC. Therefore, the application filed under Section 216 of Cr.P.C. was rejected.
9. Normally the trial court has got ample power to alter or amend a charge, provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about that charge or in not giving him a full opportunity of meeting it and putting forward any defence open to him, on the charge finally preferred against him. The court may alter or add to any charge upon its own motion or on application by the prosecution which should be made 13 immediately after the charge is explained by the court. Even when an application is moved by the private counsel engaged by the complainant, the alteration of charge can be made. It may be done even at the appellate stage before the pronouncement of the judgment of appeal, but it must exercise a sound and wise discretion in doing so.
10. In the instant case the application was moved by the accused for deletion of charge. Normally it is the prosecution who moves the application for alteration of the charge, but in this case the accused has moved to delete the charge for the offence under Section 302 of IPC. It is not the case of accused/revision petitioner that charge is framed without materials or allegations in the complaint does not constitute the offence complained of. The Learned counsel for Revision petitioner was not able to point that there is flagrant miscarriage of justice of law by 14 framing the charge. The court may join or change the charge. Section 216 Cr.P.C. does not contemplate to strike out the charge framed. The trial court after carefully considering the material on record and also statement of witnesses has come to a conclusion that there are no grounds to alter the charge framed by that court under Section 302 of I.P.C. In case if there is any prejudice caused to the accused while framing charge it will accrue to the benefit of the accused, at the conclusion of the trial and at this stage it is not proper to examine this aspect. Viewed from any angle this is not a fit case to interfere in the impugned order. Besides there is no impropriety, illegality or incorrectness found in the impugned order. In that view of the matter, this Criminal Revision Petition is liable to be dismissed.
11. In the result, I pass the following order. 15
ORDER This Criminal Revision Petition is dismissed. The observation made herein shall not influence the trial court while disposing the main matter.
I.A.1/14 for stay does not survive for
consideration and it is dismissed.
Sd/-
JUDGE
ykl