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2014 DIGILAW 1293 (MP)

Kiran Kumar v. State of M. P.

2014-10-09

S.K.PALO

body2014
JUDGMENT : S.K. Palo, J. 1. Heard. 2. The petitioner has filed this revision under Section 397 read with Section 401 of Cr.P.C., 1973 challenging the legality and validity of order dated 10.09.2013 passed by 4th Additional Sessions Judge, Gwalior in Sessions Trial No. 379/2013 by which charge under Section 498(A) and 304(B) of IPC and in alternate charge under Section 302 and in alternate Section 306 of IPC has been framed against the petitioner. 3. Briefly stated the prosecution story is that on 20.04.2013 Kalicharan Arya lodged a report at Police Station Hazira district Gwalior that her cousin sister Radha W/o Sunil died due to burn injuries. Merg No. 20/2013 under Section 174 of Cr.P.C. was instituted. After due investigation, it was found that Radha was married to Sunil Koli on 27.04.2009. She was subjected to harassment and cruelty for demand of motorcycle, chain and rupees fifty thousand. Her husband Sunil, mother-in-law Munni, brother-in-law Sonu alias Anil, sister-in-law Pinki and Kiran Kumar (husband of sister-in-law) harassed her. Due to this harassment and cruelty, she died on 20.04.2013 by setting fire. Therefore, Crime No. 1014/2013 under Section 304(B) and 34of IPC has been registered at Police Station Hazira. Charge-sheet has been filed. The accused persons including the petitioner were levelled charge under Section 498(A) and 304(B) of IPC and in alternate Section 302 and 306 of IPC. The petitioner challenged the order dated 10.09.2013 on the ground that the petitioner is not a family member of the in-laws of the deceased. He has been falsely implicated. Allegations levelled are baseless and police statement recorded almost after 20 days, therefore, raises serious doubt over the prosecution story. No offence is made out against the petitioner under Section 304(B) of IPC for demand of dowry. The petitioner has not been named by the mother of the deceased in her police statement. It is also argued that the deceased Radha lodged an FIR on 12.04.2010 alleging such demand of dowry by the husband Sunil and subjected her to cruelty. She has also not named the petitioner in that FIR nor she named the petitioner in her police statement. Therefore, subsequent naming of the petitioner in this case is nothing but roping in him in the case. Therefore, no case is made out against the petitioner under Sections 498(A), 304(B) or302 and 306 of the IPC. She has also not named the petitioner in that FIR nor she named the petitioner in her police statement. Therefore, subsequent naming of the petitioner in this case is nothing but roping in him in the case. Therefore, no case is made out against the petitioner under Sections 498(A), 304(B) or302 and 306 of the IPC. No doubt, the earlier report lodged by the deceased on 12.04.2010 was against Sunil, husband of the deceased. In that case, the police statement Merg as Ex. P-2 contains name of Sunil only and name of the petitioner is not reflected. 4. The police statement of Munni Bai mother of the deceased shows that:- 5. The police statement of Ravi Kumar, the brother of the deceased, also recorded on 21.04.2013, shows that:- 6. In the statements recorded by the learned Trial Court also, it is not alleged that the petitioner Kiran Kumar was engaged in harassing or treating the deceased cruelty. At the other hand Radha, the wife of the petitioner, and the petitioner was called in (Kiran Kumar Vs. State of M.P.) 4 Cr.R. No. 29/2014 to negotiate the differences by the mother of the deceased. 7. It is to be noted here that the petitioner has not been named in the FIR by the deceased in a previous case, which was lodged in the year 2010. Subsequently, in that case a compromise was arrived by the deceased and her husband Sunil and judgment was pronounced on 18.03.2013. Deceased Radha has not supported the prosecution story, when her statement was recorded on 18.03.2013. Nine witnesses have been examined by the Trial Court. 8. What transpired between 18.03.2013 and 20.04.2013 cannot be gathered from the earlier statement of Radha. In the last para of the police statements of Munni Bai and Ravi Kumar clearly indicate that Pinki and Kiran Kumar (petitioner) did not come to negotiate and they were instigating the in-laws to demand dowry. They were also saying that till parents of deceased Radha does not satisfy the demand of dowry, she should not be called to her matrimonial home. It is also alleged in the statement dated 30.10.2013 of Munni that when she reached the in-laws' house of deceased Radha, her in-laws Pinki and Kiran Kumar were also present. That being so, a verdict in this regard, at this juncture, would be too premature. 9. It is also alleged in the statement dated 30.10.2013 of Munni that when she reached the in-laws' house of deceased Radha, her in-laws Pinki and Kiran Kumar were also present. That being so, a verdict in this regard, at this juncture, would be too premature. 9. Be that as it may, the theory of roping in by the members of the family of deceased cannot be accepted. It can only be deduced after the examination of the witnesses. Hence, the citation Kans Raj Vs. State of Punjab and others reported in : AIR 2000 SC 2324 cannot be attracted at this stage. 10. Learned trial court has framed charge under Sections 498(A) and 304(B) of IPC and in alternate Section 306 of IPC. 11. The petitioner has instigated or abetted the deceased for committing suicide is not seen prima facie from the record. It is also seen that the learned Trial Court has framed charge under Section 302 of IPC perhaps pursuant to the direction made in Rishishwar Vs. State of Haryana reported in : 2010 15 SCC 116 . But Hon'ble the Supreme Court in Jasvinder Saini and others Vs. State (Government of NCT of Delhi) reported in : 2013 (7) SCC 256 , has made it clear that:- 14. Be that as it may, the common thread running through both the orders is that this Court had in Rajbir case directed the addition of a charge under Section 302 IPC to every case in which the accused are charged with Section 304-B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court." 12. The learned Trial Court in that view of the matter acted mechanically for it framed an additional charge under Section 302 of IPC without adverting to the evidence prima facie available in the record. 13. No other meaning could be deduced from the order of this Court." 12. The learned Trial Court in that view of the matter acted mechanically for it framed an additional charge under Section 302 of IPC without adverting to the evidence prima facie available in the record. 13. In view of the matter, it would be proper and just to allow this revision so far as charge under Section 302 and 306 of IPC framed against the petitioner. Hence, the revision is allowed to that extent only and that to with regard to the petitioner only. It would be pertinent to make it clear that the remaining charges framed against the petitioner would remain to be considered and decided by the learned Trial Court in accordance with law. With the above direction, the present revision is disposed of.