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Madhya Pradesh High Court · body

2013 DIGILAW 1170 (MP)

Ekta Natani v. State of M. P.

2013-09-26

M.K.MUDGAL

body2013
JUDGMENT M.K. Mudgal, J. Heard the arguments of both the parties and perused the record. With the consent of both the parties, the case is being disposed of finally at motion stage. 1. The petitioner/accused has filed this criminal revision under Section 397 read with Section 401 of the Code of Criminal Procedure being aggrieved by the order dated 6.6.2013 passed by the Court of Third Additional Sessions Judge, Guna in S.T. No. 332/12 framing the charges under Section 306 and in the alternative 302 of the IPC. The facts in brief of the case are that on 31.5.2012 when the dead body of the deceased Ankur (husband of the petitioner/accused) was found in his shop he was immediately taken to the hospital for medical help where he was declared dead. Thereafter a merge was registered on the report of Pramod at the police station and subsequently on the investigation on that report an FIR was registered against the petitioner/accused and one Rohit in Police Station Chachoda at Crime No. 238/12 stating that the petitioner was having an affair with co-accused Rohit and they used to harass the deceased with threats of implicating him in a false case of dowry that was the reason why the deceased committed suicide and the petitioner had abetted him to commit suicide. After completion of the investigation the charge sheet was filed before the trial Court. 2. The learned counsel for the petitioner during the course of arguments stated that he did not want to press this revision against the charge under Section 306 of the IPC. The learned counsel further submits that the petitioner challenges only the legality and propriety of the charge under Section 302 of the IPC which has been framed in alternative against the petitioner vide impugned order. The learned counsel for the petitioner strenuously pleads that there was no prima facie evidence on record for framing the charge under Section 302 of the IPC against the petitioner. In spite of that the said charge has been framed without any basis. Besides, the prosecution has not filed charge sheet under Section 302 of the IPC against the petitioner. Apart from that, the doctor who conducted the postmortem has not opined on any cause of death of the deceased in the postmortem report and he preserved the visara of the deceased for FSL examination to find out the cause of death. Besides, the prosecution has not filed charge sheet under Section 302 of the IPC against the petitioner. Apart from that, the doctor who conducted the postmortem has not opined on any cause of death of the deceased in the postmortem report and he preserved the visara of the deceased for FSL examination to find out the cause of death. No injury has been found on the body of the deceased. The counsel further submits that report from the FSL has not been produced before the trial Court so far, owing to which, there was no basis before the trial Court to frame the said charge. The counsel further submits that the entire case is based on circumstantial evidence. 3. Moreover, all the witnesses have deposed in their statements that the deceased committed suicide owing to having been harassed by the petitioner and co-accused Rohit, therefore, the charge framed by the learned trial court under Section 302 of the IPC be quashed. 4. The learned Panel Lawyer supporting the impugned order has submitted that the trial has been commenced before the trial Court and chief examination of five witnesses have been recorded by the trial court, hence, at this stage there is no need to interfere in the impugned order passed by the learned trial court. Learned Panel Lawyer further submits that report of FSL has not been received till now. On receiving the said report result might be different if the poisoning substance is found in the report. 5. The learned counsel for the complainant submits that the charge levelled by the trial court under Section 302 of the IPC is absolutely justified as the deceased Ankur was in the company of the petitioner/accused on the night of the incident so the petitioner/accused has to explain in what circumstances Ankur died. Because of this it may be presumed that the petitioner is liable for murder of the deceased Ankur (husband). 6. The learned counsel placing reliance on the judgments ILR [2008] M.P. 3284 Prahlad Tanwani Vs. State of M.P., (2012) 9 SCC 460 , Amit Kapoor Vs. Ramesh Chander and another, (2012) 9 SCC 734 , Praveen Pradhan Vs. Because of this it may be presumed that the petitioner is liable for murder of the deceased Ankur (husband). 6. The learned counsel placing reliance on the judgments ILR [2008] M.P. 3284 Prahlad Tanwani Vs. State of M.P., (2012) 9 SCC 460 , Amit Kapoor Vs. Ramesh Chander and another, (2012) 9 SCC 734 , Praveen Pradhan Vs. State of Uttaranchal and another has contended that at the stage of charge the court has to exercise his judicial mind to facts of case in order to determine whether a case for trial has been made out by prosecution or not. 7. Arguments of both the parties were considered and the record was perused. 8. For framing the charge the Hon'ble Supreme Court in P. Vijayan v. State of Kerala and anr., 2010 CRI. L.J. 1427 has held as under:- The words "not sufficient ground for proceeding against the accused" clearly show that Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to fact of case in order to determine whether a case for trial has been made out by prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of S. 227 the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. 9. Indisputably the deceased Ankur was the husband of the petitioner. He died on 31.5.2012 and his dead body was found in Shiva Electricals shop, Purana Bazar, A.B. Road Beenaganj. The FIR was registered under Section 306 of the IPC on 3.6.12 at Crime No. 238/12. The postmortem was conducted by Dr. 9. Indisputably the deceased Ankur was the husband of the petitioner. He died on 31.5.2012 and his dead body was found in Shiva Electricals shop, Purana Bazar, A.B. Road Beenaganj. The FIR was registered under Section 306 of the IPC on 3.6.12 at Crime No. 238/12. The postmortem was conducted by Dr. S.S. Gupta on 31.5.2012 and he has opined that no definite opinion can be given regarding the cause of death of Ankur Natani, visara are preserved for chemical analysis to find out the cause of death. In the postmortem report superficial injuries abrasion have been mentioned but the cause of death has not been attributed to these injuries. During investigation statements of Radheshyam Natani father of the deceased, Pradeep Natani-Uncle, Smt. Payal alias Sarika Natani-Sister, Pramod Jain, Smt. Rajrani-mother, Ghanshyam Kevat, Atul Khandelwal and Amit Khandelwal have been recorded. All the witnesses have stated in their statements that Ankur committed suicide owing to having been harassed by the petitioner and her paramour co-accused Rohit with whom the petitioner had illicit relationship before her marriage with the deceased Ankur. The deceased was not found in the bedroom of the petitioner where the deceased had stayed with the petitioner on the night of incident. His dead body was found in the shop which was locked from the outside. During investigation, the prosecution has not found the evidence of murder against the petitioner/accused. The prosecution case has not been against the petitioner under Section 302 of the IPC. For framing the charge under Section 302 of the IPC the prosecution has to prove prima facie that the death of deceased was of homicidal nature but in this case when the charges were framed against the petitioner there was no evidence on record for framing the charge under Section 302 of IPC. The judgment cited by the complainant's counsel are related to the principle of framing charges. In Amit Kapoor Vs. Ramesh Chander (supra), the Hon'ble Supreme Court has held as under:- Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 CrPC, unless the accused is discharged under Section 227 CrPC. The judgment cited by the complainant's counsel are related to the principle of framing charges. In Amit Kapoor Vs. Ramesh Chander (supra), the Hon'ble Supreme Court has held as under:- Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 CrPC, unless the accused is discharged under Section 227 CrPC. Under both Sections 227 and 228 CrPC, the court is required to consider the "record of the case" and the documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section concerned exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. On the basis of the said analysis, it can be inferred in this case that there was no sufficient evidence on record before the trial court for framing charge under Section 302 of the IPC against the petitioner. 10. The other cited judgment Prahlad Tanwani Vs. State of M.P. (supra) is related to the offence under Section 306 of the IPC. In this case the petitioner has not challenged the legality and propriety of the charge under Section 306 of the IPC, owing to which, this judgment has no importance in this case. Considering the above facts and circumstances of the case, it is concluded that the learned trial court has erred in framing the charge under Section 302 of the IPC against the petitioner. Therefore partly allowing the revision petition, setting aside the charge under Section 302 of IPC, affirming the charge under Section 306 of the IPC, the revision petition is disposed of accordingly. However, it is observed here that if the trial court during the course of recording the evidence finds sufficient evidence for the offence punishable under Section 302 of the IPC the court may take appropriate step in this regard.