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2012 DIGILAW 1160 (RAJ)

Chutara Ram v. State of Rajasthan

2012-05-08

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant revision petition has been filed by the petitioners challenging the order dated 4.7.2008 passed by the learned Additional Sessions Judge (Fact Track) No. 1, Jodhpur in Sessions Case No. 178/2007 (State of Rajasthan v. Jawari Lal & Ors.) , whereby the trial Judge accepted an application filed by the prosecution under Section 319 Criminal Procedure Code and directed summoning of the petitioners as additional accused to stand trial with the charge-sheeted accused Jawari Lal and Chuki Devi. 2. Succinctly stated, the facts of the case are that Jawari Lal, who is already standing trial in the above-mentioned case, was married to deceased Dhanu ten years prior to the incident. The case of the prosecution is that Dhanu was done to unnatural death in her matrimonial home on 18.8.2007. 3. The F.I.R. in relation to the unnatural death was filed her father Uda Ram with the allegation that his daughter was murdered by her marital relatives including the petitioners. The police investigated the matter and filed a charge- sheet against Jawari Lal the husband of the deceased-and Chuki Devi the mother-in-law of the deceased for the offences under Sections 306 and 498-A, I.P.C. 4. The trial Court, by the order dated 7.12.2007 proceeded to frame charges against Jawari Lal and Chuki Devi for the offences against Sections 306 and 498-A, Indian Penal Code Both these accused pleaded not guilty and claimed trial. The prosecution examined as many as seven witnesses in support of its case. 5. Thereafter as application was filed under Section 319 Criminal Procedure Code seeking summoning of the present petitioners as additional accused in this case. The learned trial Court, by the impugned order dated 4.7.2008, accepted the application and summoned the petitioners to stand trial along with the charge- sheeted accused persons for the offences under Sections 498-A, and 304-B, Indian Penal Code The said order has been subjected to challenge by way of the present revision petition. 6. Mr. J.S. Choudhary, learned Senior Advocate, assisted by Mr. Tarun Dhaka, submits that the impugned order has been passed with a total non- application of mind to the facts of the case. 6. Mr. J.S. Choudhary, learned Senior Advocate, assisted by Mr. Tarun Dhaka, submits that the impugned order has been passed with a total non- application of mind to the facts of the case. He submits that even the principal accused Jawari Lal and Chuki Devi are not being tried for the offence under Section 304-B, Indian Penal Code and rightly so because admittedly the marriage of the deceased with accused Jawari Lal took place ten years prior to her unnatural death and as such the offence tinder Section 304-B, Indian Penal Code cannot be invoked in the case. He submits that there is no finding of the learned trial Court that the case of the prosecution, as against the newly added accused persons, i.e. the petitioners, was likely to result into their conviction, therefore, he submits that the impugned order is absolutely illegal and amounts to an abuse of the process of the Court as having been passed in total disregard to the provision of Section 319 Criminal Procedure Code 7. He further submits that the trial Court has also totally over-looked the fact that even the application filed by the prosecution was for summoning the accused to stand trial for the offences under Sections 498-A and 306 Indian Penal Code only, but despite that the learned trial Court, in a perfunctory manner, took, cognizance against the petitioners for the offence under Section 304-B, Indian Penal Code Learned counsel also submits that the allegations made by the prosecution witnesses against the petitioners at the trial are all by way of improvement. He submits that there was no allegations against these accused persons in the investigation statements of the prosecution witnesses regarding any harassment having been meted out to the deceased for bringing less dowry; thus a prayer is made that the impugned order is absolutely illegal and deserves to be quashed. Reliance in support of the arguments has been placed on a decision of the Hon'ble Apex Court in the case of Ram Singh & Ors. v. Rant Nizvas & Anr., 2009 (Suppl.) Cr.L.R. 581. 8. Per contra, learned Public Prosecutor and the counsel for the complainant Mr. Reliance in support of the arguments has been placed on a decision of the Hon'ble Apex Court in the case of Ram Singh & Ors. v. Rant Nizvas & Anr., 2009 (Suppl.) Cr.L.R. 581. 8. Per contra, learned Public Prosecutor and the counsel for the complainant Mr. J.S. Bhati have opposed the arguments advanced on behalf of the petitioners and submit that for the purpose of proceeding against the non- charged-sheeted accused under Section 319 Criminal Procedure Code, only the existence of a prima facie case is required, which the learned trial Court has held to be existing. It is, thus, submitted that the order impugned does not call for any interference by this Court in the exercise of its revisional jurisdiction. 9. Having considered the arguments advanced at the bar and after going through the impugned order and the record. It becomes apparent that the petitioners were not charge-sheeted in the matter after a detailed and thorough investigation conducted by the police. Admittedly, the marriage of the deceased was solemnized with accused Jawari Lal beyond the outer limit of seven years as prescribed under Section 304-B, Indian Penal Code Thus, the impugned order passed by the learned trial Court, whereby the petitioners have been summoned for the offence under Section 304-B, Indian Penal Code, suffers from total non-application of mind. 10. That apart, the statements of the prosecution witnesses, who have been examined at the trial, do not inspire confidence to the extent that it can be held that the case against the newly added accused, i.e. the petitioners herein, can possibly result into their conviction. When the complainant was examined during the course of investigation, he made no allegation against the petitioners that they had ever harassed or humiliated the deceased on account of bringing less dowry. The complainant and the other witnesses have been confronted with the earlier statements deposed by them to the Investigating Officer. The case of the complainant and the witnesses during the course of investigation was that the deceased was murdered by the accused persons. As is apparent, it is not the case wherein any presumption is available to the prosecution as the death of Dhannu occurred beyond the period of seven years: in view thereof, there had to be some positive evidence on the record to show that the accused instigated the deceased to commit suicide. As is apparent, it is not the case wherein any presumption is available to the prosecution as the death of Dhannu occurred beyond the period of seven years: in view thereof, there had to be some positive evidence on the record to show that the accused instigated the deceased to commit suicide. As has been discussed above, no such unimpeachable evidence is available on record. 11. The Hon'ble Apex Court, in the case of Ram Singh & Ors. v. Ram Niwas & Anr. , referred to above, observed as below: "The High Court, in our opinion, however, has committed a serious error in proceeding on the premise that mere existence of a prima facie case would be sufficient to exercise the Court's jurisdiction under Section 319 of the Code. We have noticed hereinbefore the importance of the word 'appears'. What is, therefore, necessary for the Court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as accused in the case. The High Court furthermore committed a serious error insofar as it failed to take into consideration that when the order dated 29.5.2003 was passed, the learned Judge was in a position to consider the evidence brought on record including the cross-examination of the prosecution witnesses. The High Court did not arrive at any finding that a case as been made out for exercise of such an extraordinary jurisdiction which, in terms of the judgments of this Court, is required to be exercised very sparingly." 12. The most striking feature of the case is that even the husband of the deceased, viz. Jawari Lal and the mother-in-law of the deceased, viz. Chuki Devi, are not being tried for the offence under Section 304-B, Indian Penal Code and despite that, the trial Judge summoned the petitioners for the said offence which exfacie cannot be applied even from the highest allegations of the prosecution. The charges qua these two accused persons were never considered for amendment or alteration. 13. In view of the above discussion, this Court is of the opinion that the impugned order passed by the learned trial Court deserves to be quashed. 14. Resultantly, the revision petition succeeds and is hereby allowed. The charges qua these two accused persons were never considered for amendment or alteration. 13. In view of the above discussion, this Court is of the opinion that the impugned order passed by the learned trial Court deserves to be quashed. 14. Resultantly, the revision petition succeeds and is hereby allowed. The impugned order dated 4.7.2008 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Jodhpur in Sessions Case No. 178/2007 is hereby quashed. The record of the Court below is directed to be sent back forthwith The trial Judge shall proceed with the trial against the two charge-sheeted accused, viz. Jawari Lal and Chuki Devi, in accordance with law.Revision allowed. *******