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Rajasthan High Court · body

2018 DIGILAW 1218 (RAJ)

Atul Gupta S/o Karamchand Gupta v. State

2018-05-09

DEEPAK MAHESHWARI

body2018
JUDGMENT : Heard learned counsel for the accused-petitioner as also learned Public Prosecutor appearing for the State. 2. This criminal revision petition has been preferred on behalf of the accused-petitioner to challenge the order impugned dated 22.7.2008 passed by learned Addl. District & Sessions Judge, Fast Track No.1, Ajmer in sessions case no. 59/2008 whereby the charge for the offence under Sec.306 IPC has been framed against the accused-petitioner. 3. Brief facts of the case are that on 21.5.2007, a written report was submitted by Sudhir Goyal to Station House Officer, PS Adarsh Nagar, Ajmer informing him about the death of his sister Anjali who was residing at Adarsh Nagar, Ajmer. It was also stated that after getting the medical examination done, the informant would like to initiate the legal proceedings, if required. Thereafter the complaint was filed in the court of Judicial Magistrate , Ist Class No.4, Ajmer on 29.3.2008 by Sudhir Goyal. It was stated therein that on 20.5.2007, brother of Sudhir Goyal i.e. Sudesh Gupta received a telephonic call from his nephew Mohak informing him about the death of his mother Anjali. On receiving this information, complainant informed Superintendent of Police, Ajmer about the death of Anjali and rushed to Ajmer. On 21.5.2007, post mortem of the dead body was conducted and proceeding under Sec.174 Cr.P.C was initiated. Repeated requests were made by the complainant side to take legal action against the culprits. As per visra report no.844/17, it was found that the death of Anjali has taken place on account of consumption of some poisonous substance. It was mentioned in the complaint that the deceased Anjali was administered some insecticides which caused her death. 4. On the basis of this complaint, FIR No.54/2008 was registered at P.S. Adarsh Nagar, Ajmer for the offence under Secs. 302, 202, 201 and 120B IPC. After conducting the investigation, charge-sheet for the offence under Sec. 306 IPC was filed against the accused Atul Gupta. Learned Trial court proceeded to frame charge for the aforesaid offence vide order impugned. 5. Learned counsel for the petitioner contends that there was no sufficient material available to frame charge against the accused-petitioner. He submits that the FIR was delayed by more than ten months. Initially when the proceeding under Sec.174 Cr.P.C was conducted, no allegation of causing death of Anjali was made by the complainant side. 5. Learned counsel for the petitioner contends that there was no sufficient material available to frame charge against the accused-petitioner. He submits that the FIR was delayed by more than ten months. Initially when the proceeding under Sec.174 Cr.P.C was conducted, no allegation of causing death of Anjali was made by the complainant side. Lateron a suspicion was raised by them about the death of Anjali. Counsel further submits that even in the statements recorded under Sec.161 Cr.P.C, the witnesses have deposed that deceased Anjali used to remain under depression as her husband did not allow her to go to maternal home. This might have been the reason for committing the suicide by Anjali. Learned counsel also contends that this could not be considered the sufficient material to frame charge for the offence under Sec.306 IPC. He further submits that as per the essential ingredients of Sec.306 IPC, abetment by the accused for commission of suicide by the deceased is required to be established. The abetment, as defined under Sec.107 IPC is required to be proved and then only the trial court could have framed the charge for the offence under Sec.306 IPC. Counsel contends that this element is completely lacking in the case in hand. He, therefore, prays that the learned trial court has proceeded to frame the charge without any justification and hence the charge is liable to be quashed and set aside. In support of his contention, learned counsel has placed reliance on some of the judicial pronouncement, which will be discussed in the later part of the order. 6. Per contra, learned Public Prosecutor appearing for the State submits that the information about the death of deceased was immediately sent on 21.5.2007 mentioning therein that legal proceedings, if required, will be initiated. Lateron when the complainant side came to know about the suspicious circumstances in which death of their sister Anjali took place, the complaint was lodged before the competent court. Learned Public Prosecutor contends that even in the statement recorded during the enquiry under Sec.174 Cr.P.C, it was stated by the witnesses that the accused Atul Gupta used to misbehave and harass his wife Anjali after consuming alcohol. He also used to rebuke her and to mentally torture her. Under these compelling circumstances, Anjali committed suicide. Learned Public Prosecutor contends that even in the statement recorded during the enquiry under Sec.174 Cr.P.C, it was stated by the witnesses that the accused Atul Gupta used to misbehave and harass his wife Anjali after consuming alcohol. He also used to rebuke her and to mentally torture her. Under these compelling circumstances, Anjali committed suicide. He also submits that in view of this, charge framed against the petitioner for the offence under Sec.306 IPC is completely justified. He has placed reliance on the judgment rendered by Hon’ble Supreme Court in Chitresh Kumar Chopra Vs. State (Government of NCT of Delhi), 2009 (16) SCC 605 . 7. After having given thoughtful consideration to the rival contentions and having gone through the relevant record of the trial court, including the statements recorded under Sec.174 Cr.P.C, as also under Sec.161 Cr.P.C, two categories of allegations emerged against the accused petitioner. Firstly, after consuming alcohol he used to tease his wife Anjali, rebuked her, gave beatings to her and mentally tortured her during last 5-6 years prior to death; secondly, it is stated by the witnesses that he did not let her go to her parental house. These facts have been deposed by the brothers and sisters-in-law of deceased namely Sudhir Goyal, Sudesh Kumar, Smt. Shobha Rani, Smt. Rani Gupta,and Anuj Kumar Gupta. Ms. Shubhra and Master Mohak who happened to be daughter and son of deceased have also been examined under Sec. 161 Cr.P.C. They have stated that on the previous night of fateful day, all the family members were watching the newly purchased television and no quarrel took place between their parents. All of a sudden, on the next day morning, their mother started vomiting and their father called the doctor. All the family members gathered and doctor declared that their mother was no more. It has also been stated by the children that sometimes there was quarrel between their parents for not allowing their mother to go to their Nana’s house. As per other documents annexed with the charge-sheet namely postmortem report, list of pathology report and FSL report, it is apparent that there was no sign of external/internal injury on the body of deceased. The FSL report shows the positive test for the presence of organochloro insecticide and gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates and tranquillizers. The FSL report shows the positive test for the presence of organochloro insecticide and gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates and tranquillizers. Hence the cause of death has been indicated as presence of organochloro insecticides in viscera. 8. On the basis of above material, it is clear that death of Anjali was not natural but because of presence of organochloro insecticides. It is also apparent that there are two sets of evidence available on record, one is against the accused and another is favourable to him. In such set of evidence, it is to be ascertained whether there is sufficient material available on record to frame the charge for the offence under Sec. 306 IPC while taking into consideration the definition of abetment as given under Sec.107 IPC. 9. Learned counsel for the accused-petitioner has relied on certain judicial pronouncements to support his contentions whereby the Hon’ble Apex court in the case reported in AIR 1972 SC 545 (Century Spinning and Manufacturing Co. Ltd Vs. State of Maharashtra) has held as under: 16. …..If, on this material, the Court comes to the conclusion that there is no ground for presuming that the accused has committed an offence, then it can appropriately consider the charge to be groundless and discharge the accused. The argument that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused is not supportable either on the plain language of the section or on its judicial interpretation or on any other recognised principle of law. The order framing the charges does substantially affect the person's liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting authorities, by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it, has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution. 21. ... The responsibility of framing the charges is that of the Court and it, has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution. 21. ... If on the existing material there is no ground for presuming them to be guilty then there can hardly be any point in framing' charges and going through the formality of a trial and then acquitting them. Such a course would merely result in unnecessary harassment to the appellants without serving the cause of justice. Hon’ble Supreme Court also in another case reported in AIR 1977 SC 1489 , State of Karnataka Vs. L. Munishwamy has held as under: 10. ... the order framing a charge affects a person's liberty substantially and therefore it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial. In Vadilal Panchal's case. (supra) section 203 of the old Code was under consideration, which provided that the Magistrate could dismiss a complaint if after considering certain matters mentioned in the section there was in his judgment no sufficient ground for proceeding with the case.. To extent section 227 of the new Code contains an analogous power which is conferred on the Sessions Court. It was held by this Court, while considering the true scope of s. 203 of the old Code that the Magistrate. was not bound to accept the result of an enquiry or investigation and that he must apply his judicial mind to the material on which he had to form his judgment. These decisions show that for the purpose of determining whether there is sufficient ground for proceeding against an accused, the court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. The Hon’ble Supreme Court in the case reported in AIR 2002 SC 564 (Dilawar Babu Kurane Vs. State of Maharashtra) has also observed as under: 12. Now the next question is whether a prima facie case has been made out against the appellant. The Hon’ble Supreme Court in the case reported in AIR 2002 SC 564 (Dilawar Babu Kurane Vs. State of Maharashtra) has also observed as under: 12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused (emphasis added), and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. Further the Hon’ble Apex Court in the case reported in AIR 2008 SC 2991 (Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra) has held as under: 15. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. (emphasis added) The Hon’ble Supreme Court in the case reported in AIR 2009 SC 2792 (Sarabjit Singh & anr Vs. State of Punjab and anr.) has observed as under: 18. The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 22 7 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. (emphasis added) Further in the case reported in 2015 (2) RLW 1498 (Raj.) (Arvind Kumar Jain Vs. State of Raj., the Hon’ble Apex Court has observed as under: 11. (emphasis added) Further in the case reported in 2015 (2) RLW 1498 (Raj.) (Arvind Kumar Jain Vs. State of Raj., the Hon’ble Apex Court has observed as under: 11. Hence in the light of the above, law could be summarized that while framing charges, the Court can weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out and after scanning the material on record with the limited purpose as stated above if a grave suspicion against the accused has been shown which has not been explained properly then the court is justified in framing charges while passing the order under Sec.227 Cr.P.C and 228 Cr.P.C, the Court would consider the broad probabilities of the case. (emphasis added). The total effect of the evidence, the documents produced before the court and any basic infirmities appearing in the case and so on, the court can also look into the record submitted by defence which is beyond suspicion or doubt and the accused cannot be deprived of taking advantage of the material which the prosecution itself has placed on record. It is well settled principle of criminal jurisprudence that at the time of framing of the chartge, the trial court should not act either as a mute witness or as a post office for the prosecution or as the mouth piece of the prosecution. At the time of framing of the charge, the trial court has to be aware of the fact that the accused is entitled to a fair trial under the constitution of India. Thus, in order to ensure fairness, the trial court has to sift the evidence to the limited extent of discovering whether strong suspicion exists against the alleged accused or not? It is further required to examine the record to see if the ingredients of the alleged offence exist or not? (emphasis added). Lastly, it has to correlate the alleged conduct of the accused to the ingredients of the offence. 10. On taking help of above stated principles laid down by Hon’ble Apex Court, it is crystal clear that at the stage of framing charge, application of judicial mind is required to be made by the trial court. The charge cannot be framed simply by placing reliance upon the prosecution story. 10. On taking help of above stated principles laid down by Hon’ble Apex Court, it is crystal clear that at the stage of framing charge, application of judicial mind is required to be made by the trial court. The charge cannot be framed simply by placing reliance upon the prosecution story. The trial court is required to weigh the evidence though to the limited extent of deciding whether strong suspicion exists against the accused or not. It is also to be taken into consideration that if two views are equally possible and the evidence produced before the trial court gives rise to suspicion as distinguished from grave suspicion, then he will be fully within his right to discharge the accused. 11. In the judgment relied upon by the learned Public Prosecutor in the case of Chitresh Kumar (Supra), it has been observed as under: “25. It is trite that at the stage of framing of charge, the court is required to evaluate the matelrial and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences (emphasis added). For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for “presuming” that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.” 12. On close scrutiny of material available on record in this matter, it appears that though the information of sudden death of Smt.Anjali was received by her brothers and information regarding the death was also given by them to Superintendent of Police, P.S. Ajmer on 21.5.2007, yet the complaint was filed by them before the competent court of jurisdiction on 29.3.2008 i.e. with a delay of almost 10 months. It indicates that initially the complainant side was not having any suspicion about the death of Anjali. It indicates that initially the complainant side was not having any suspicion about the death of Anjali. However, if the statements recorded under Sec.161 Cr.PC and also in the proceeding initiated under Sec.174 Cr.P.C, are taken into consideration, they only speak about the ill-treatment and harassment meted out by accused after consuming alcohol towards his wife. As per the statements, only an apprehension is reflected that accused Atul Gupta and his father & mother have administered some poisonous/obnoxious substance to Anjali on account of which she died. No cogent evidence has come out in their statements that when and in what manner, such poisonous substance was administered to Anjali. It may be contended that as the witnesses were not present on the scene of occurrence, it could not be expected from them to give such details. But the son and daughter of deceased namely Shubhra and Mohak, who were present in the house where the death of Anjali took place, even they have not deposed about any incriminating evidence against the accused to have administered any obnoxious/poisonous substance to Anjali. They have not even stated about the instigation of accused to their mother to have consumed such substance. On the contrary, they have narrated that no quarrel took place between these parents prior to death of Anjali. 13. Learned trial court has framed charge against the accused petitioner for the offence under Sec.306 IPC. Section 306 IPC may be reproduced below: “306. Abetment of suicide:- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 14. It makes abetment of commission of suicide punishable. Abetment has been defined under Sec.107 IPC as under: “107. Abetment of a thing:- A person abets the doing of a thing, who- Firstly:- Instigates any person to do that thing; or Secondly:-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly:- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.- A person who, by willful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. ……. Explanation 2.- Whoever, either prior to or at the time of the commission of an act, does anything is order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act. 15. In the considered opinion of this court, for framing the charge under Sec.306 IPC, the essential ingredients as mentioned in the aforesaid sections are required to be established by the prosecution evidence, but in the facts & circumstances of the case, the evidence collected during investigation does not establish the essential ingredients of any abetment. There is not even an iota of evidence against the accused to prove that he had instigated deceased to commit suicide or had engaged with somebody in conspiracy for commission of suicide by Anjali or have intentionally aided her to commit suicide by any act or illegal omission. No evidence is there on record to show as to how Anjali committed suicide or consumed poisonous substance. It further requires to be observed that alleged regular routine during last 5-6 years on part of the accused to consume alcohol and to ill-treat his wife cannot by itself be termed as abetting her to commit suicide on the fateful day in absence of any specific evidence. Moreover, Ms. Shubhra and Master Mohak have stated that no quarrel or incident took place on the previous night between their father and mother. In such circumstances, it cannot be inferred that this was the ground on which abetment of committing suicide can be presumed against the accused. 16. It has also been stated that not allowing the deceased by the accused to go to the parental house was the reason for her harassment and it might have prompted her to commit suicide. But this fact cannot be lost sight off that the marriage between the accused and the deceased took place way back in the year 1991 and the death has taken place after almost 16 years on 20.5.2007. But this fact cannot be lost sight off that the marriage between the accused and the deceased took place way back in the year 1991 and the death has taken place after almost 16 years on 20.5.2007. If, after a long period of 16 years of existing marriage, not allowing the wife to go to her parental house, can prompt her to commit suicide, then it could only be inferred that she was hyper sensitive in her attitude. This cannot ordinarily drive a wife to commit suicide and therefore cannot be considered as an abetment to commit suicide. 17. In view of discussion made above, this court is of the considered view that in the facts and circumstances of the case in hand, there was no justification for the trial court to proceed to frame charge under Sec.306 IPC against the accused petitioner. The order impugned dated 22.7.2008 is quashed and set aside. The revision petition is allowed accordingly.