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2015 DIGILAW 2801 (MAD)

Kanakku Ramasamy v. State

2015-08-14

R.MALA

body2015
ORDER The petitioner has come up with the present petition seeking to quash the alternate charge framed against him under Section 302 IPC in S.C.No.206 of 2013, on the file of learned District and Sessions (Mahila) Judge, (Mahalir Neethi Mandram), Madurai. 2. Heard both sides. 3. The learned counsel for the petitioner would submit that the petitioner is facing criminal case in S.C.No.206 of 2013. He got married to one Hemalatha on 24.06.2009. She died of suspicious circumstances on 11.11.2010. The case has been registered under Section 174 Cr.P.C. Then, during investigation, case has been altered into one under Section 304(B) IPC and charges have been levelled against this petitioner and his parents under Section 304(B) IPC. The case has been committed to the Sessions Court and the case has been made over to the Mahila Court as S.C.No.206 of 2013. At the time of framing of charges, the learned District and Sessions (Mahila) Court, (Mahalir Neethi Mandram), Madurai, has framed three charges 498(A), 304(B) and alternatively, Section 302 IPC. Without any materials, the learned Judge has framed alternate charge under Section 302 IPC and hence, he prayed for setting aside the same. 4. The learned counsel for the petitioner, by placing reliance upon a decision of the Supreme Court in 2013(7) SCC 256 [Jasvinder Saini v. State (Govt. of NCT of Delhi)], would submit that even though in the autopsy report, it was stated that multiple superficial surface incisions were made all over the body revealing nil other injuries, prima facie, there is no iota of evidence to prove the offence under Section 302 IPC. He would further submit that she committed suicide by hanging at the hook at ceiling, after locking inside the room. Hence, the Trial Court has committed an error in framing of alternate charge under Section 302 IPC and hence, he prayed for setting aside the same. 5. The learned Government Advocate (Criminal side) would submit that after due investigation, the respondent filed charge sheet only under Section 304(B) IPC and he has not filed any alternative charge sheet or additional charge sheet and hence, he leaves the matter for the discretion of Court. 6. I have considered the submissions made on either side and perused the materials available on record. 7. The marriage between the petitioner and Hemalatha was solemnized on 24.06.2009 and she died in suspicious circumstances on 11.11.2010 by hanging. 6. I have considered the submissions made on either side and perused the materials available on record. 7. The marriage between the petitioner and Hemalatha was solemnized on 24.06.2009 and she died in suspicious circumstances on 11.11.2010 by hanging. As per the post-mortem report, she has multiple superficial surface incisions all over the body. As such, the death is not a homicidal, but it is only a suicidal. In the charge sheet itself, it was stated that she committed suicide by hanging at the hook at ceiling, after locking inside the room. As per the doctor's final opinion, the death is due to asphyxia due to hanging. It is not the case of the prosecution that she was murdered or she was forcibly hanged in the rope, because, in the charge sheet itself, it was specifically stated that she locked inside. Charge sheet has also been filed only under Section 304(B) IPC. 8. It is true that, to charge the accused for the offence punishable under Section 304(B) IPC, the prosecution has to prove the following ingredients" "(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances; (b) such death should have occurred within 7 years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) to such cruelty or harassment the deceased should have been subjected soon before her death." In such circumstances, the learned District and Sessions (Mahila) Judge, (Mahalir Neethi Mandram), Madurai has correctly framed the charge under Sections 498(A) along with 304(B) IPC, but, however, in respect of the offence under Section 302 IPC, as already stated, the death is not a homicidal one. Section 302 IPC is the offence punishable for homicidal and not for suicidal. 9. It is true that the Supreme Court, in the decision reported in 2010(15) SCC 116 [Rajbir v. State of Haryana], has directed all trial Courts in India to add Section 302 in every case alleging commission of an offence punishable under Section 304(B) IPC, but, however, that has been correctly distinguished by the Apex Court in 2013(7) SCC 256 [Jasvinder Saini v. State (Govt. of NCT of Delhi)]. 10. of NCT of Delhi)]. 10. It is appropriate to incorporate paragraph No.15 of the judgement in Jasvinder Saini's case cited supra, which reads thus: "15................................................... ..... If the main charge of murder is not proved against the accused at the trial, the court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304-B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir case. The High Court no doubt made a half-hearted attempt to justify the framing of the charge independent of the directions in Rajbir case, but it would have been more appropriate to remit the matter back to the trial court for fresh orders rather than lending support to it in the manner done by the High Court." 11. Applying the judgment of Supreme Court, referred to above, to the case on hand, I am of the view that prima facie, the ingredients have not been made out to charge the petitioner for the offence under Section 302 IPC. In such circumstances, the learned District and Sessions (Mahila) Judge, (Mahalir Neethi Mandram), Madurai has committed an error in framing alternate charge under Section 302 IPC and the same is liable to be set aside and accordingly, set aside. R. MALA, J. 12. The Criminal Original Petition is ordered accordingly. Consequently, the connected miscellaneous petition is closed.