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2013 DIGILAW 328 (MP)

Dhapubai v. State of M. P.

2013-03-11

S.R.Waghmare

body2013
ORDER 1. By this petition, the petitioners have challenged the order dated 29.3.2012 passed by the Additional Sessions Judge, Dewas in Sessions Trial No. 102/12 framing charges under section 306 of the IPC in the alternative for offence under sections 302 and 498A of the IPC against the present petitioners. 2. The prosecution case in a nutshell is that the deceased Sarita @ Nagina; wife of the petitioner No. 4, Sanjay caught fire and sustained grievous burn injuries and was taken to the hospital. However, she succumbed to the injuries during the treatment and the police registered the merg and after recording of statements registered the offence under section 306 of the IPC against the present applicants. 3. Counsel for the petitioners have vehemently urged the fact that prima facie there were no ingredients for framing charges for offence punishable under section 306 or 302, 498A of the IPC; primarily bacause the statement of the deceased Sarita was recorded under section 161 of the CrPC and she did not state anything against the present petitioners. In fact, she has exonerated them and the statements of the witnesses have been due to instigation and recorded after a lapse of 25 days. Counsel vehemently urged the fact that the entire prosecution case was malafide because the father of the deceased lodged a written complaint before the SDOP, Bagli for registration of the offence, 25 days after the incident had occurred. And even if the allegations are considered there was just omnibus statements and prima facie there is no direct evidence collected by the prosecution regarding the murder of the deceased as alleged and offence under section 302 of the IPC can not be made out in any circumstance. Counsel prayed that the impugned order framing charges be set aside. 4. Counsel for the petitioners also vehemently urged the fact that even if the documents on record are considered, the MLC by the Choithram Hospital and Research Centre clearly indicated that history as told by patient is that Sarita was cooking food and suddenly caught fire, she had poured kerosene on the wood when suddenly the fire flared up and the incident had occurred at 12.30 pm. She was brought to the Choithram Hospital on 27.2.2011 at 5.00 pm itself and Dr. She was brought to the Choithram Hospital on 27.2.2011 at 5.00 pm itself and Dr. Sharad Dubey has certified that the patient was having 90% burns and in this light also counsel stated that the dying declaration has been duly verified by Naib Tahsildar and after the doctor certified that the patient was fit to give the statement. The entire dying declaration was in accordance with the provisions of law and there was no need to doubt the present petitioners unnecessarily. Moreover, counsel submitted that all the petitioners had been roped on the basis of omnibus statements and did not deserve to undergo the rigors of the long trial when there was no evidence on record. The apex Court has time and again deprecated the practice of roping of all the family members (relied on Preeti Gupta and another v. State of Jharkhand and another [2010 CRI. L.J. 4303]. He however candidly admitted that anticipatory bail had been granted to all the petitioners under the circumstances. 5. Counsel for the respondent/State has however opposed the submissions of the counsel of the petitioners and stated that the father of the deceased has complained before the SDOP and crime was registered against the petitioners. He stated that there is no infirmity in the order framing charge. Counsel prayed dismissal of the application. 6. On considering the above submissions, the evidence on record, I find that the revision petition is not maintainable at this stage, primarily because prosecution cannot be stifled at this stage, the charges have to be framed on the basis of material and prima facie case as put up before the Court. I find that it is not a fit case for grant of relief of discharge at this stage since at the time of framing of charges prima facie the offence has to be made out. So also it would be profitable to rely on State of M.P. v. S.B. Johari and others: 2006 (1) JLJ 142 (SC) = 2000 (2) MPLJ 322, whereby the Court held thus: “It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further, then a charge has to be framed.” [Also see Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic Control Bureau: (2010) 1 SCC 138; State of Maharashtra and other v. Somnath Thapa and others: (1996) 4 SCC 659 ]. 7. Similarly I find that mainly the petitioner seems to be aggrieved by the framing of charge under section 302 as well as for offence under section 306 of the IPC because it is the popular understanding that under section 464 of the CrPC it is not possible for a Court to convict an accused for an offence in which no charge has been framed under section concerned or unless the Court is of the opinion that a failure of justice would in fact occasion. I find that the apex Court has in the matter of Dalbir Singh v. State of U.P. [Appeal (Crl.) No. 479 of 1999] held that where the accused is charged under section 302 of the IPC, he could be convicted for offence under section 306 of the IPC. The only caution that is directed by the apex Court is that the trial should have been a fair one and proper opportunity to defend has been granted to the accused. This case was relied on by the Bombay High Court in the matter of Kisan @ Pilaji Gangaram Khatale v. the State of Maharashtra [2007 CriLJ 130 = 1 (2007) DMC 330] and their Lordships held that when an accused is charged for offence punishable under sections 498A, 302 read with section 34 of the IPC and the charge had already been framed, then the prosecution had filed an application praying for framing of an alternative charge under section 306 of the IPC and the Court held that to consider the - “Severity of cruelty and whether it was sufficient to drive her to commit suicide or not, could be considered only during trial if charge under section 302 is not established. I am satisfied that no prejudice whatsoever could be caused to the petitioner by framing an alternative charge under section 306 of the IPC. I am satisfied that no prejudice whatsoever could be caused to the petitioner by framing an alternative charge under section 306 of the IPC. In the result, the petition fails and is dismissed as such. And in this light also no fault can be found with the trial Court for framing charge for offence under section 302 of the IPC.” 8. Consequently, the petition is dismissed as being sans merit. The record of the trial Court has been requisitioned. Therefore, the Registry is directed to return the record forthwith and the trial Court is directed to complete the trial as expeditiously as possible under intimation in writing to this Court preferably within a period of one year from today.