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Madhya Pradesh High Court · body

2011 DIGILAW 1184 (MP)

Sunaina Bai v. State of M. P.

2011-10-17

U.C.MAHESHWARI

body2011
ORDER (Oral) 1. The applicant/complainant, has filed this revision being aggrieved by the order dated 6.5.2010 passed by the Sessions Judge, Dhindori in S.T.No. 17/10 whereby after evaluation of the papers of the charge sheet, on framing the charges against the respondent No.2 to 7 for the offence of section 498-A/3 8 of IPC, inspite availability of the prima facie ingredient for framing the charge of the. offence of section 318 of the IPC, the same was not framed against the respondent No.2 to 7. 2. The facts necessary to adjudicate this revision in short are that on receiving a report of the applicant/complainant Smt. Sunit Bai in writing at Police Station Dhindori, a crime No. 192/09 was registered against respondent No.2 to 7 on dated 17.6.09 for the offence under sections 498 and 34 of IPC and under section 3/4 of the Dowry Prohibition Act, 1961. In the course of the investigation, on establishing the prima facie circumstance with respect of the offence of sections 376 and 318 of the IPC, the same were also inserted in the matter. On completion of the investigation, the above-mentioned respondents were charge sheeted for the offence of section 498A read with sections 34, 376 of the IPC and section 3/4 of the Dowry Prohibition Act. After committing the case to the Sessions Court, on evaluation of the papers of the charge-sheet, the charge of sections 376 and 498A of the IPC was framed against respondent No.2 Parath Singh while the charge of section 498A of the IPC was framed against respondents 3 to 7. Such respondents abjured the guilt and thereafter the respondent No.2 Parath Singh came to this Court with the Cr.R.No. 865/10 which was allowed in part vide dated 17.8.2010 and pursuant to that the respondent No.2 has been discharged from the offence of section 376 of the IPC while the remaining charge against him was affirmed. It is noted that the applicant was not impleaded as party in such revision. Subsequent to disposal of the aforesaid criminal revision, the present applicant also came to this Court with this revision with a prayer to frame the charge of sectio11318 of the IPC in additional to the charge of section 498A of the IPC against respondents No.2 to 7. 3. Subsequent to disposal of the aforesaid criminal revision, the present applicant also came to this Court with this revision with a prayer to frame the charge of sectio11318 of the IPC in additional to the charge of section 498A of the IPC against respondents No.2 to 7. 3. Appellant counsel after taking me through the papers placed on the record including the charge-sheet and the impugned order said that at the initial stage of lodging the FIR by the applicant, the averments, regarding alleged miscarriage was also stated in her report in writing and on recording her interrogatory statement under section 161 of the CrPC again the same was stated. Inspite availability of such prima facie evidence in the charge sheet for framing the charge of section 318 of the IPC, the same has not been framed and Sessions Court has discharged respondents No.2 to 7 from such charge. With these submissions, he prayed to frame the additional charge of this section against respondents No. 2 to 7 by allowing this revision. 4. Smt. Nirmala Nayak, learned Govt. Advocate has supported the arguments advanced by the applicant's counsel. 5. On the other hand, Shri Paritosh Trivedi, learned appearing counsel of respondents No.2 to 7 said that in the lack of any medical evidence, mere on the basis of the averments of the FIR and interrogatory statement of the applicant or on the basis of any other such statement, the charge of section 318 of the IPC could not be framed against any of the respondents. In alternate, he said that, in any case, if the Court comes to the conclusion that the ingredient of section 318 of the IPC are made out in the matter then even on taking into consideration the face value of the FIR and the interrogatory statements of the above mentioned witnesses as accepted in its entirety, the ingredient of such offence for framing such charge is made out only against the respondent No.2 and not against the other respondents. He also referred the concerning part of the FIR and the interrogatory statement of the complainant in this regard and prayed to dispose of this revision accordingly. 6. Having heard the counsel, I have carefully gone through the available record along with the papers of the charge sheet and the impugned order. He also referred the concerning part of the FIR and the interrogatory statement of the complainant in this regard and prayed to dispose of this revision accordingly. 6. Having heard the counsel, I have carefully gone through the available record along with the papers of the charge sheet and the impugned order. True it is that the impugned case has been registered at the instance of a written report given by the complainant. As per averments of such complainant, respondent No.2, after giving her assurance to get married with her, developed physical relations and sexually exploited her and the same was carried with her continuously for near about eight months, due to which, she got pregnant. After having pregnancy of seven months, the same was got terminated at the instance of respondent No.2. As per further averments, at the time of such termination, the child was alive who was concealed by the respondent at some place which was not known to her as she was unconscious. The same version was stated in the written report and also reproduced in the FIR and even on recording the interrogatory statement, same during thing was stated by the complainant which was recorded on 7.11.09. 7. In view of the aforesaid, on examining the case at hand, it is apparent that the alleged miscarriage was carried-out at the instance of respondent No.2 Parath Singh and not by other respondents and, in such premises, on evaluation of the charge-sheet, the trial Court ought to have framed the charge of section 318 of the IPC also against the respondent No.2 but the same was not framed and, thereby, the trial Court has committed error in this regard. Thus till this extent the impugned order deserves to be modified. So far respondent No.3 to 7 are concerned, on evaluation of the entire papers of the charge sheet I have not found any ingredients of the offence under section 318 of the IPC against any of them. Resultantly, this revision deserves to be dismissed till the extent of respondents No.3 to 7. 8. I am apprised by the appearing counsel that subsequent to discharge of respondent No.2 from the offence of section 376 of the IPC, the case has been remitted back to the Court of JMFC Dhindori to hold the trial for the offences under section 498-A of the IPC. 8. I am apprised by the appearing counsel that subsequent to discharge of respondent No.2 from the offence of section 376 of the IPC, the case has been remitted back to the Court of JMFC Dhindori to hold the trial for the offences under section 498-A of the IPC. As per schedule of the Code of Criminal Procedure, the case of section 318 of the IPC is also made triable by the JMFC. Keeping in view such position also this order is being passed. 9. In view of the aforesaid discussion, by allowing this revision in part, the aforesaid trial Court is directed to frame the charge of section 318 of the IPC against respondent No.2 Parath Singh and proceed with the trial in accordance with the procedure. It is made clear that if some of the evidence has already been recorded in the trial then for the purpose of aforesaid section, the trial Court shall carry-out denovo trial with respect of aforesaid offence for adjudication of the same. 10. The revision is allowed in part as indicated above. Puran Singh Parmar for applicant; Smt. Nirmala Nayak, Government Advocate for respondent No.1; Paritosh Trivedi for respondents No.2 to 7.