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2012 DIGILAW 2036 (RAJ)

Malli Devi @ Sakuntala v. State of Rajasthan

2012-09-28

RAGHUVENDRA S.RATHORE

body2012
JUDGMENT 1. - By this revision petition, filed by the accused, challenge has been made to the order dated 25.07.2012 passed by the learned Additional Sessions Judge, Rajgarh District Alwar, in Sessions Case No.6/2012. whereby he has framed charges against him for the offences under sections 498-A and 304-B IPC and in the alternative under section 302 IPC. 2. The instant criminal case was initiated on a report lodged by one Hitrendra Pradhan on 28.10.2011 at police station Tahla District Alwar in relation to the death of his sister. The report was registered as FIR No. 139/2011 under sections 498-A and 304-B IPC. There-upon, the investigation commenced and after conclusion of the same challan came to be filed by the police in the court of Additional Chief Judicial Magistrate, Rajgarh District Alwar for the offences under sections 498-A and 304-B/302 IPC. Subsequently, the learned Magistrate committed the case to the court of learned Additional Sessions Judge, Rajgarh for trial where it was registered as Sessions Case No.6/2012. Learned Additional Sessions Judge. Rajgarh, by his order dated 25.07.2012 (Annexure- 2) framed charges against the petitioners for the offences afore-mentioned. Being aggrieved of the order of framing charge, the petitioners have preferred the instant revision petition before this court. 3. It has been submitted by the learned counsel for the petitioners that the impugned order of framing charge is illegal and contrary to the settled principles of law. Further. he has submitted that the learned Sessions Judge has erred in framing the charge against the petitioners as there is no evidence on record in that respect. It is also submitted that neither the offence of demand of dowry, dowry death or that of murder is made out against the accused because the deceased had left behind a suicide note from which it is revealed that she was instigated and abated by some person who had met her at the bus stand. Learned counsel has submitted that the suicide note had been sent to the FSL and as per its opinion the handwriting tallies with the admitted hand-writing of the deceased. But, the learned trial court has not considered the said material evidence on record which totally changes the colour of the case and belies the prosecution case on the face of it. According to him. But, the learned trial court has not considered the said material evidence on record which totally changes the colour of the case and belies the prosecution case on the face of it. According to him. in such circumstances, there is no question of any offence of murder having been made out and in view of the fact that there is no evidence of demand of dowry, no presumption with regard to the commission of dowry death is also made out in the present case. 4. On the other hand, learned public prosecutor has supported the order passed by the learned trial court on 25.07.2012. He has submitted that the deceased had died unnatural death. Further, he has submitted that the death had occurred within seven years of marriage, it has also been submitted by the learned public prosecutor that the order of framing charge passed by the learned court below does not suffer from any infirmity and all other questions raised in regard to the present case are to be considered by the learned trial court at the appropriate stage. 5. The submissions made by the counsel for the rival parties have been thoughtfully considered and the material on record has been carefully perused. 6. Under the Code of Criminal Procedure, charges are framed by the learned trial court in exercise of the powers conferred under section 228 where it is of the opinion that there is ground for presuming that the accused has committed the offence. In case such a matter is exclusively triable by the court of sessions, it shall frame charge in writing against the accused person. In the instant case, there is evidence on record which has been collected during the course of investigation and filed along with challan and at the same time there is material evidence to the effect that the deceased had committed suicide in respect of which she had left a suicide note. The fact that the suicide note was written by the deceased herself, is now an established f2ct after receipt of the opinion of the FSL. 7. It would not be out of place to mention here that under section 226 of the Code of Criminal Procedure, while opening the case for the prosecution. The fact that the suicide note was written by the deceased herself, is now an established f2ct after receipt of the opinion of the FSL. 7. It would not be out of place to mention here that under section 226 of the Code of Criminal Procedure, while opening the case for the prosecution. the prosecutor has got to describe charge against the accused and also to mention about the evidence which it proposes to prove the guilt of the accused. Subsequent to it, is the stage where the court is to consider the record of the case and the documents submitted therewith. It is also to hear the submissions of the accused and prosecution in that behalf. The learned trial court has to. thereafter, pass an order either under section 227 or 228 Cr.P.C. if it is considered by the trial court that there is no sufficient ground for proceeding against the accused, then it has to discharge him and record his reasons for doing so. But, if the trial court is of the opinion that there is -round for presuming that the accused has committed the offence, then it shall frame charges in the matter.By considering the said two provisions, namely; 227 and 228 Cr.P.C., it is clear that at the beginning and initial stage of trial, the truth, veracity and effect of evidence which the prosecution proposes to adduce are not to be meticulously judged. It is also a well settled principle of law that a charge can be quashed if the evidence which the prosecution proposes to adduce to prove the guilt of the accused. even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. 8. In the instant case, apart from the evidence which the prosecution proposes to adduce during the trial, the evidence with regard to suicide note, admittedly written by the deceased herself, then in such a situation it becomes doubtful that the accused had committed the particular offence which are being alleged by the prosecution under section 302 or 304-B IPC. 8. In the instant case, apart from the evidence which the prosecution proposes to adduce during the trial, the evidence with regard to suicide note, admittedly written by the deceased herself, then in such a situation it becomes doubtful that the accused had committed the particular offence which are being alleged by the prosecution under section 302 or 304-B IPC. Even if the evidence which has been filed by the prosecution along with challan and also proposes to adduce during the trial is fully accepted before the same is challenged in the cross examination or rebutted by the accused at the stage of defence evidence, it cannot be said that there is sufficient ;round for proceeding against the accused for the offence under section 302/304-B IPC. in face of the document on record in the form of suicide note which has been established to be written by the deceased.At the stage of framing of charge, the trial court is required to evaluate the material and documents on record so as to find out that in the facts emerging therefrom are taken as it discloses the existence of the ingredients of constituting the alleged offences. There is no direct evidence for having committed the offence of murder and the alleged offence of dowry death is based on presumption whereas the fact regarding suicide having been committed by the deceased is. prima-facie. available on record, specially after the receipt of FSL report with regard to the scribe of the said note. 9. In view of above and after taking into consideration the facts and circumstances of the present case and the evidence on record including the suicide note written by the deceased which has been considered by the trial court in the impugned order, but had not been given due weight on the ground that it cannot be said to be fully correct and on the ground the accused cannot be discharged. But taking into consideration the fact that the suicide note is available on record and the fact that it has been written by the deceased is established by way of FSL report. then at least the question of suicide having been committed by the deceased should have been taken note of and appropriate orders ought to have been passed in this regard. then at least the question of suicide having been committed by the deceased should have been taken note of and appropriate orders ought to have been passed in this regard. It is not only the suicide note but the material facts which are emerging out of it ought to have been considered by the trial court at the stage of charge and while passing an order in respect of it.Learned counsel for the petitioner has also submitted at this stage that he may also file an application under section 216 Cr.P.C. before the trial court for reconsidering the question of framing of charge so that if deemed proper modification/alteration by made by the trial court in the order of framing charge passed by it earlier.After taking into consideration the over all facts and circumstances of the case, the material on record and the submissions made from both sides, it is deemed appropriate that the matter should be remitted to the trial court for reconsideration. 10. Consequently. the revision petition is allowed and the order dated 25.07.2012 be quashed and set aside. The petitioner is directed to file an application under section 216 Cr.P.C. The learned trial court shall reconsider the question of framing of charge as well as the application filed by the petitioner and decide the matter in exercise of its powers under section 216 Cr.P.C. *******