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2006 DIGILAW 2817 (PNJ)

Om Parkash And Ors. v. State Of Haryana

2006-07-17

SATISH KUMAR MITTAL

body2006
Judgment Satish Kumar Mittal, J. 1. The accused have filed this revision petition against the order dated 5.10.1999, passed by Additional Sessions, Judge, Hisar, whereby charge Under Section 302 read with Section 34 I.P.C. and in alternative Under Section 306 read with Section 34 I.P.C. has been ordered to be framed against the accused. 2. The brief facts of the case are that deceased Manohar Lal was working as an Accountant in Firm M/s Mohan Singh Sucha Singh, Grain Market, Ratia. Accused Om Parkash (now expired during the pendency of this petition) was one of the partners of the said firm. Accused Naresh Kumar, relative of accused Om Parkash, was also working as Accountant in the said firm. As per the prosecution version, on 19.5.1998, one Suresh Kumar, who was working in a different factory, had a telephonic conversation with Manohar Lal deceased. He enquired about sister of accused Naresh Kumar. The said conversation was over-heard by accused Naresh Kumar on parallel line. He felt aggrieved. He summoned deceased Manohar Lal and his father Lekh Raj (complainant) in the premises of Jindal Cotton Factory on 20.5.1998 at about 6 P.M. As per the prosecution version, accused Naresh Kumar and Om Parkash gave beatings to deceased Manohar Lal and thereafter asked the deceased and his father to leave the factory premises. Subsequently, on the next day, on 21.5.1998, the dead body of deceased Manohar Lal was found near a petrol pump. Thereupon, on a complaint made by father of the deceased, the police registered the case Under Section 302 I.P.C. against the accused. 3. During investigation, statements of various persons were recorded by the police. The complainant stated that his son had committed suicide because he felt humiliated, when he was given beatings by the accused. The other witnesses also stated that accused Om Parkash and Naresh gave beatings to Manohar Lal, who later on committed suicide. On the basis of the evidence collected during the investigation, the police submitted challan against the accused Under Section 306, 404 read with Section 34 I.P.C. Subsequently, report of the chemical examiner was received, which shows presence of aluminium phosphide in the viscera. On the basis of the evidence collected during the investigation, the police submitted challan against the accused Under Section 306, 404 read with Section 34 I.P.C. Subsequently, report of the chemical examiner was received, which shows presence of aluminium phosphide in the viscera. The trial Court, after taking into consideration the said chemical examiners report, framed the charge against the accused Under Section 302 read with Section 34 I.P.C. and in alternative Under Section 306 read with Section 34 I.P.C. Against the said order, the instant revision petition has been filed. 4. Learned Counsel for the petitioners submitted that there is absolutely no material on the record justifying the framing of charge Under Section 302 read with Section 34 I.P.C. All the prosecution witnesses, in their statements before the police Under Section 161 Cr.P.C., have stated that the accused gave beatings to Manohar Lal on account of bad conversation between him and one Suresh Kumar on telephone, because of which he felt humiliated and committed suicide. Merely because aluminium phosphide was found in the viscera of the deceased, it cannot be said that it was homicidal death. They further contended that in this case, no homicidal or other injury has been found on the person of the deceased to bring the case within the four comers of murder, as defined Under Section 300 I.P.C. and punishable Under Section 302 I.P.C. Secondly, learned Counsel submitted that no alternative charge Under Section 302 and 306 I.P.C. can be framed. They submitted that the prosecution has to make up its mind whether the facts which can be proved justify framing of charge Under Section 302 or Under Section 306 I.P.C. They submitted that both the offences are distinct offences and are diametrically opposite to each other, therefore, alternative charge cannot be framed in respect of these distinct offences. It is not permissible for the prosecution to say that the accused have committed murder and at the same time taking the alternative position that they have abetted the commission of suicide. It is not permissible for the prosecution to say that the accused have committed murder and at the same time taking the alternative position that they have abetted the commission of suicide. Learned Counsel for the petitioners submitted that the framing of charge in the alternative is permissible only within the parameters of Section 221 of the Code of Criminal Procedure (hereinafter referred to as the Code) and the facts of the instant case do not justify the faming of the alternative charge Under Section 02 and 306 read with Section 34 I.P.C. In support of their contention, learned Counsel relied upon a decision of Delhi High Court in Jatinder Kumar and Ors. V/s. State 1990(2) Recent Criminal Reports 117. 5. On the other hand, learned Counsel for the complainant submitted that in the facts and circumstances of the case and in view of the circumstantial evidence against the accused, the trial Court has rightly framed charge against the accused Under Section 302 read with Section 34 I.P.C. and in the alternative Under Section 306 read with Section 34 I.P.C. He submitted that Section 221 of the Code empowers the Court to frame the charge in alternative and the said power has been rightly exercised by the trial Court in the instant case. 6. Section 218 of the Code provides that for every distinct offence, there should be a separate charge and every charge should be tried separately. Section 221 which provides for framing the charge in alternative is an exception to Section 218 which reads as under: 221. Where it is doubtful what offence has been committed: (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it. A bare reading of the aforesaid Section shows that it applies to a case only when from the evidence led by the prosecution, it is doubtful which of several offences has been committed by the accused. The Supreme Court in State of W.B. v. Laisal Haque has observed that there must not be any doubt as to a single act or series of acts which constitutes the transaction, that is to say, there must not be any doubt as to the facts. The doubt must be as to the inference to be deduced from these facts, thus making it doubtful which of several offences the facts which can be proved will constitute. Thus Section 221 of the Code is not intended to be applied to a case where facts are in doubt. It only applies to a situation, if in a given case, on the facts, which can be proved by the prosecution, it is doubtful which of the offences the said offence will constitute the framing of charge and in that situation, the framing of charge in alternative is permissible. It is well settled, as held by the Delhi High Court in Jatinder Kumars case (supra) that ordinarily an alternative charge cannot be framed in respect of distinctive offences. The offence Under Section 302 I.P.C. and the offence Under Section 306 I.P.C. are distinct. The ingredients of two sections are altogether different. The prosecution has to take stand whether it is a case of murder or suicide. The prosecution cannot say that the accused have murdered the deceased and if the deceased has committed suicide, the accused have abetted the commission of suicide. The offences Under Section 302 and 306 I.P.C. are diametrically opposite to each other. The ingredients of two Sections are different. Even the offence Under Section 306 I.P.C. is not a minor offence in relation to offence Under Section 302 I.P.C. within the meaning Section 222 of the Code. The offences Under Section 302 and 306 I.P.C. are diametrically opposite to each other. The ingredients of two Sections are different. Even the offence Under Section 306 I.P.C. is not a minor offence in relation to offence Under Section 302 I.P.C. within the meaning Section 222 of the Code. Therefore, in my opinion, the framing of charge in alternative, as directed in the impugned order, is likely to prejudice the accused. Therefore, the framing of an alternative charge is not permissible in the instant case as there is a doubt about the facts which can be proved an in that eventuality, Section 221 of the Code is not applicable. 7 Even the facts of the instant case, in my opinion, do not justify framing of charge Under Section 302 read with Section 34 I.P.C. Merely because the aluminium phosphide was found in the viscera of the deceased, it cannot be assumed that the poison was administered by force to the deceased. The material available on record do not justify the conclusion drawn by the trial Court that there exists a suspicion that the petitioners-accused have committed an offence Under Section 302 I.P.C. All the prosecution witnesses, including the complainant, have categorically stated, in their statements that accused Om Parkash and Naresh gave beatings to Manohar Lal, who later on committed suicide. Keeping in view the said material collected during the investigation, the police submitted challan Under Section 306 read with Section 34 I.P.C., though F.I.R. was registered Under Section 302 read with Section 34 LP.C. In my opinion, the trial Court is not at all justified in framing the charge in alternative Under Section 302 read with Section 34 I.P.C. However, there is sufficient material on record, which justify framing of charge against the accused Under Section 306 read with Section 34 I.P.C. 8. In view of the above, this revision petition is partly allowed. The impugned order dated 5.10.1999, passed by Additional Sessions Judge, Hisar, is set aside, only to the extent of framing of charge in alternative Under Section 302 read with Section 34 I.P.C. However, it is made clear that in case any evidence comes during the trial, which discloses the commission of offence Under Section 302 I.P.C., it will be open for the prosecution to get the charge modified or altered Under Section 216 of the Code.