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2015 DIGILAW 670 (ALL)

Raju v. State of U. P.

2015-04-01

VISHNU CHANDRA GUPTA

body2015
JUDGMENT Vishnu Chandra Gupta, J. 1. This Criminal Revision is directed against orders of trial court dated 18.9.2014 and 20.10.2014 whereby the Revisionistsccused facing trial in S.T. No.1572 of 2000 were charged in the alternative under Section 3 02 IPC in addition to charges under Sections 498A/304B IPC and Section 3 /4 Dowry Prohibition Act already framed and thereafter rejection of application under section 217 CrPC moved by them for directing the prosecution to produce all the 17 witnesses already examined to substantiate the additionallternative charge under section 302 IPC respectively. 2. The brief fact for deciding this revision in nut cell are that in the trial, the prosecution had examined as many as seventeen witnesses. When the trial fixed for delivery of judgement, the trial court after observing it that alternative charge under Section 3 02 IPC has not been framed by his predecessor in this case of 304B IPC therefore, alternative charge under Section 3 02 IPC is required to be framed in the interest of justice and after framing alternative charge in addition fix the case for prosecution evidence on 23.9.2014. The prosecution did not adduce any addition evidence and case was proceeded further. The revisionists than move an application under Section 217 , CrPC with a prayer to direct the prosecution to produce 1 to 17 witnesses already examined to substantiate the additionallternative charge under Section 3 02 IPC. The trial court after observing that the prosecution did not avail the opportunity granted by the court and did not adduce any evidence thus, the evidence of prosecution was closed and case was listed for recording statement under section 313 CrPC., rejected the application of the revisionists. 3. Heard the learned Counsel for the revisionists and learned AGA for the State and perused the record of the case 4. It appears that after taking into consideration the directions issued by a two-Judge Bench of Hon'ble Supreme Court passed in Rajibir v. State of Haryana; AIR 2011 SC 568 by which the Hon'ble Supreme Court directed all trial courts in India to add Section 3 02 in every case alleging commission of an offence punishable under Section 3 04-B IPC, the additional alternative charge has been framed against the revisionists. A plain reading of Section 216, Cr.P.C would show that the court's power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgement is pronounced. Sub-sections (2) to (5) of Section 216, Cr.P.C. deal with the procedure to be followed once the court decides to alter or add any charge. Section 217 , Cr.P.C. deals with the recall of witnesses when the charge is altered or added by the court after commencement of the trial. There can, in the light of the above, be no doubt about the competence of the court to add or alter a charge at any time before the judgement. The circumstances, in which such addition or alteration may be made, are not, however, stipulated in Section 216, Cr.P.C.. It is all the same trite that the question of any such addition or alternation would generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court. 5. The directions issued in Rajibir's case (Supra) were re examined in Jasvinder Saini and others Vs. State (Govt. of NCT of Delhi); (2013) 7 SCC 256 by the Hon'ble Supreme Court and in paragraphs 14 and 15, the Apex Court ruled as under: "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 3 02 IPC to every case in which the accused are charged with Section 3 04-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 3 02 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court. 15. It is common ground that a charge under Section 3 04-B IPC is not a substitute for a charge of murder punishable under Section 3 02. No other meaning could be deduced from the order of this Court. 15. It is common ground that a charge under Section 3 04-B IPC is not a substitute for a charge of murder punishable under Section 3 02. As in the case of murder in every case under Section 3 04-B also there is a death involved. The question whether it is murder punishable under Section 3 02 IPC or a dowry death punishable under Section 3 04-B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 3 02 IPC the trial court can and indeed ought to frame a charge of murder punishable under Section 3 02 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. 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 3 04-B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients." 6. The perusal of impugned order, it reveals that the trial court in that view of the matter acted mechanically in framing an additional charge under Section 3 02 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajibir's case (Supra). 7. In the light of what I have said above, the order passed by the trial court for framing additional charge in alternative under Section 3 02 IPC clearly untenable and shall have to be set aside. 8. In view of the discussion made here in above, the orders impugned dated 18.9.2014 and 20.10.2014 are not sustainable and are hereby set aside. However, that would not prevent the trial court from re-examining the question of framing a charge under Section 3 02 IPC against the appellant and passing an appropriate order if upon a prima facie appraisal of the evidence adduced before it, the trial court comes to the conclusion that there is any room for doing so. However, that would not prevent the trial court from re-examining the question of framing a charge under Section 3 02 IPC against the appellant and passing an appropriate order if upon a prima facie appraisal of the evidence adduced before it, the trial court comes to the conclusion that there is any room for doing so. The trial court would in that regard keep it in view the decision of the Apex Court in Hasanbhai Valibhai Qureshi v. State of Gujarat; (2004) 5 SCC 347 where the Hon'ble Supreme Court has recognised the principle that in cases where "the trial court [upon] a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so". (SCC p. 350, para 10) 9. Reference may also be made to the decisions of Hon'ble Supreme Court in Ishwarchand Amichand Govadia v. State of Maharashtra and Anr.; (2006) 10 SCC 322 and the decision of the Allahabad High Court in Shiv Nandan v. State of U.P.; Cri.L.J 3047 which too are to the same effect. 10. In any such fresh exercise which the trial court may undertake, it shall remain uninfluenced by the observations made by the this Court on merits of the case. 11. Accordingly this criminal revision is allowed. The accused/revisionists are directed to appear before trial Court on 16.04.2015.