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2012 DIGILAW 132 (RAJ)

Shrawan Singh v. State of Rajasthan

2012-01-11

SANDEEP MEHTA

body2012
JUDGMENT 1. - This criminal revision petition has been preferred by the petitioners challenging the order dated 30.5.2011, passed by the Additional Sessions Judge, Sojat, District Pali in Sessions Case No. 07/2011, whereby he has framed charges against the petitioners for the offences under sections 498-A, 304-B and 323 I.P.C. and in the alternative under section 302 I.P.C. 2. Assailing the impugned order, learned Counsel for the petitioners submits that the petitioners have the grievance regarding framing of the charge under section 302 I.P.C. against them. Learned Counsel submits that the Trial Judge has framed the charge against the petitioners under section 302 I.P.C. as an alternative charge in view of the directions of the Hon'ble Apex Court given in Rajbir alias Raju and another v. State of Haryana, 2010 (96) AIC 48 (SC) : 2010 (71) ACC 920 : AIR 2011 SC 568 . He submits that the Trial Judge has mechanically framed the charge under section 302 I.P.C. against the petitioners in this case without even adverting to the facts and circumstances of the case. He submits that the observations of the Hon'ble Supreme Court in the case of Rajbir's case (supra) were merely in the nature of obiter dicta and were passed looking to the peculiar facts and circumstances of that particular case. Reverting to the fact of the present case, learned Counsel submits that in the present case, it is the admitted case of the prosecution that deceased Smt. Chandu Kanwar committed suicide by hanging herself and on the post-mortem of her dead body being conducted, all the signs which were found on the dead body, disclosed that the cause of her death was asphyxia due to hanging. He also submits that no injury was found on the body of the deceased and, therefore, there was no justification for the Trial Judge to have framed the charge against the petitioners for the offence under section 302 I.P.C. as an alternative charge to the offence under section 304B, I.P.C. Referring to the decision of the Hon'ble Apex Court in Rajbir's case (supra), learned Counsel for the petitioners submits that in the said case, the facts of that case disclosed that the deceased therein was found to be suffering from five external injuries all over the thoracic region and the cause of death was found to be smothering and throttling subsequent to the assault and the Hon'ble Apex Court, after considering the post-mortem report of the deceased in that case, found that the deceased had been struck on the head repeatedly and thereafter she was throttled. Thus, the learned Counsel for the petitioners submits that essentially the facts of the case in Rajbir's case were illustrative of the fact that the death was homicidal and that too within a period of seven years and also accompanied with the demand of dowry, therefore, the Hon'ble Apex Court issued a direction that ordinarily a charge under section 302 I.P.C. should also be framed, as an alternative charge, to the charge under section 304B, I.P.C. The Counsel for the petitioners submits that the word "ordinarily" mentioned in the judgment in Rajbir's case cannot be interpreted to be as a mandatory direction in each and every case irrespective of the facts of the particular case. Thus, he submits that since in the instant case the cause of death of Smt. Chandu Kanwar being suicidal and not homicidal, the direction of the Trial Judge for framing charge under section 302 I.P.C. as an alternative charge to section 304B, I.P.C. cannot be said to be justified. 3. Per contra, learned Public Prosecutor has opposed the arguments of the learned Counsel for the petitioners and submits that the Trial Judge has rightly framed the charge under section 302 I.P.C. against the petitioners because the Hon'ble Supreme Court has issued a direction in the case of Rajbir that a charge under section 302 I.P.C. is essentially to be framed in a case of dowry death along with a charge under section 304- B. I.P.C. 4. I have given my thoughtful considering to the rival submissions made at the bar, carefully perused the impugned order as also the decision of the Hon'ble Apex Court rendered in the case of Rajbir's case (supra). 5. In the opinion of this Court, the interpretation of the observations made by the Hon'ble Apex Court in the case of Rajbir, referred to above, cannot be taken to mean that the Hon'ble Apex Court has issued the direction to frame a charge under section 302 I.P.C. against the accused charge-sheeted for the dowry death without reference to or without application of mind to the facts of the particular case. The directions, which have been issued by the Hon'ble Apex Court read as under: "We further direct all Trial Courts in India to ordinarily add section 302 to the charge of section 304-B, so that death sentences can be imposed in such heinous and barbaric crimes against women." Thus, the Hon'ble Apex Court has consciously used the word "ordinarily" whilst issuing the said direction. The said observation was clearly meant to convey a direction that the charge under section 302 I.P.C. has to be framed in a case of dowry death ordinarily but not mandatorily in each and every case involving dowry death. 6. Adverting to the facts and circumstances of the present case, this Court is f the opinion that considering the fact that in the instant case there were no marks of assault and as no injury was found on by the body of the deceased and also the fact that the Medical Officer who conducted the post-mortem of the deceased has found that the cause of death of the deceased in this case was asphyxia as a result of hanging, as opposed to the cause of death of the deceased in Rajvir's case (supra) wherein the cause of death of deceased in that case was found to be homicidal, t.e. as a result of assault and then strangulation), this Court feels that the learned Trial Judge has not at all applied his mind to the facts of the case while framing charge under section 302 I.P.C. against the petitioners as an alternative charge to section 304-B. I.P.C. 7. Resultantly, the revision petition succeeds. Resultantly, the revision petition succeeds. The impugned order dated 30.5.2011 passed by the learned Additional Sessions Judge, Sojat, district Pali in Sessions Case No. 7/2011, whereby he framed charges against the petitioners for the offences under sections 498-A, 304-B and 323 I.P.C. and in the alternative under section 302 I.P.C., is modified and now the direction for framing charge against the petitioners for the offence under section 302 I.P.C. as an alternative charge, is quashed. The Trial Court shall try the accused-petitioners for the offences under sections 498-A. 304-B and 323 I.P.C. The stay petition stands disposed of. The record of the Trial Court be sent back forthwith.Revision allowed. *******