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2018 DIGILAW 135 (RAJ)

Sripal Dharmawat v. State of Rajasthan

2018-01-09

PRATAP KRISHNA LOHRA

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JUDGMENT : PRATAP KRISHNA LOHRA, J. 1. Accused-petitioners have preferred this revision petition under Section 397/401 Cr.P.C. to assail order dated 31st of August 2017, passed by Addl. Sessions Judge (Women Atrocities Cases), Udaipur (for short, 'learned trial Court'), framing charge against them for offence under Section 498-A, 406, 304-B read with Section 34 IPC. 2. The facts, apposite for the purpose of this revision petition, are that, at the threshold, respondent-complainant lodged an FIR against Manish and all the three petitioners castigating them for offence under Section 304-B, 498-A IPC. Police, after investigation, submitted charge-sheet against Manish -husband of deceased Monika, under Secs. 498-A, 406 IPC. Feeling dissatisfied with the charge-sheet, complainant submitted a petition under Section 190 Cr.P.C. for taking cognizance against petitioners. Thereupon, learned Addl. Chief Judicial Magistrate No. 2, Udaipur took cognizance against all the petitioners for offence under Sections 498A and 406 IPC. Being aggrieved by the same, petitioners preferred a revision petition before Sessions Court, Udaipur and the learned Sessions Judge set aside the order of cognizance. 3. Feeling aggrieved by the order of learned Sessions Judge, complainant laid a revision petition before this Court, which was registered as S.B. Cr. Revision Petition No. 423/2008. While allowing the said revision petition, the Court observed that learned trial Court should have taken cognizance against petitioners for offence under Sections 304-B, 498-A and 406 IPC as well as Section 120-B IPC. In compliance of the order passed by this Court, learned trial Court took cognizance against the petitioners for aforesaid offences and committed the case to the Court of Sessions by resorting to Section 209 Cr.P.C. 4. Subsequently, at the stage of framing charge, the accused-petitioners were not heard and thereupon again at their behest revision petition was filed before this Court, which was registered as S.B. Cr. Revision Petition No. 968/17. While disposing of the said revision petition, the Court observed that petitioners be afforded opportunity of being heard before framing charges. Later on, the learned trial Court heard arguments and by the impugned order framed charges against petitioners for the aforesaid offences by resorting to Section 228 Cr.P.C. 5. I have heard learned Senior Counsel for the petitioners, learned Public Prosecutor and learned counsel for the complainant at length and perused the materials available on record. 6. Later on, the learned trial Court heard arguments and by the impugned order framed charges against petitioners for the aforesaid offences by resorting to Section 228 Cr.P.C. 5. I have heard learned Senior Counsel for the petitioners, learned Public Prosecutor and learned counsel for the complainant at length and perused the materials available on record. 6. The crucial question, which requires judicial scrutiny in the instant case, is, what is the scope of judicial review in exercise of revisional jurisdiction against the order framing charge. The legal position is no more res integra that purpose of a charge is to tell an accused as precisely and concisely as possible of the matter with which he is charged and must convey to him with sufficient clearness and certainty what the prosecution intends to prove against him of which he will have to clear himself. Therefore, indisputably, at the time of framing charge, the Court is not required to screen evidence or to apply the standard whether the prosecution will be able to prove the case against accused at the trial. The purpose of Sections 227 and 228 Cr.P.C. is to ensure that the Court should be satisfied that the accusation made against an accused is not frivolous and there is some material for proceeding against him. Even a strong suspicion, of course founded upon material and presumptive opinion, would enable the Court in framing charge against the accused. 7. The Supreme Court in case of Sajjan Kumar vs. Central Bureau of Investigation [ (2010) 9 SCC 368 ], while examining the jurisdiction under Sections 227 and 228 Cr.P.C, held: "On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:- (i) The Judge while considering the question of framing the charges u/Sec. 227 of the Cr.P.C. 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. The test to determine prima facie case would depend upon the facts of each case. (ii) 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. The test to determine prima facie case would depend upon the facts of each case. (ii) 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. (iii) The Court 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, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal." 8. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal." 8. While examining the power of the Court at the stage of framing charge under Section 228 Cr.P.C. or while considering discharge petition under Section 227 Cr.P.C, the Court further held: "At the stage of framing of charge under Section 228 of the Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for the Magistrate or a Judge concerned to analyse all the materials including pros and cons, reliability or acceptability etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and free to take a decision one way or the other." 9. The same principle is further reiterated by the Supreme Court in a later judgment in case of State through Inspector of Police vs. A. Arun Kumar & Anr. [ (2015) 2 SCC 417 ]. Thus, for interfering with the charge in exercise of revisional jurisdiction, pre-requisite is that there is no prima facie material for framing charge. 10. In the instant matter, without entering into checkered history of the case, suffice it to observe that deceased Monika died after six months of matrimony at her matrimonial home under alleged suspicious circumstances. As per FIR, Monika was subjected to cruelty or harassment by the petitioners in connection with demand for dowry and after her death she was hurriedly cremated without any autopsy of the dead body. Therefore, the allegations in the FIR about unnatural death of Ms. Monika within seven years during subsistence of matrimony is clearly discernible from the FIR. Apart from it, during investigation, some incriminating material and evidence has also been collected by the investigating agency which includes initial police statements of some of the witnesses and their supplementary statements. 11. While passing the impugned order, learned trial Court has made sincere endeavour to prima facie examine the incriminating evidence. The learned trial Court, while framing the charge, has also examined the police statements of complainant Neeraj Jain, his father Bhanwarlal, mother Smt. Pushpa Jain and sister Ms. Sweta besides other relatives. 11. While passing the impugned order, learned trial Court has made sincere endeavour to prima facie examine the incriminating evidence. The learned trial Court, while framing the charge, has also examined the police statements of complainant Neeraj Jain, his father Bhanwarlal, mother Smt. Pushpa Jain and sister Ms. Sweta besides other relatives. Apart from it, the learned trial Court also considered a very vital fact that it is a case of unnatural death within seven years of marriage for prima facie applying presumption under Section 113-B of the Evidence Act to frame charge under Section 304-B IPC against accused-petitioners. The learned trial Court has also observed that accused persons are well within their right to dislodge the said presumption during trial. A close scrutiny of the impugned order, in my considered opinion, makes it clear that it does not suffer from any illegality or impropriety warranting interference in exercise of revisional jurisdiction. 12. As observed hereinabove, the learned trial Court has examined the materials available on record including the prima facie inculpatory evidence against petitioners in the backdrop of peculiar facts and circumstances of the case, therefore, unhesitatingly, I feel dissuaded to interfere with the impugned order. Resultantly, the petition fails and same is hereby dismissed.