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2018 DIGILAW 869 (JK)

Harjit Singh v. State of J&K

2018-11-03

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. The instant Criminal Revision has been filed by the petitioners for setting aside of the order dated 15.11.2011, passed by the learned 2nd Additional Sessions Judge, Jammu in criminal challan file No. 144/Challan titled State of J&K vs. Harjit Singh and ors., by virtue of which charges under Sections 498-A, 306 RPC and 3/4 of Prevention of Dowry Act have been framed against them. 2. The facts necessary for the disposal of the present criminal revision, in short, are that on 28.07.2010, the complainant Paramvir Singh S/o Narinder Singh R/o Karan Bagh Ext. Upper Gadi Garh Jammu moved an application before SHO Police Station, Satwari Jammu that his sister Harmeet Kour was married to Harjit Singh on 9th May, 1997 in accordance with Sikh rites and customs. At the time of marriage, gifts of Rs.1.5 lacs were given to accused and his family. In the complaint, it was further stated that from the very inception of marriage accused/petitioners Harjit Singh, Kulwant Kour, Jasbir Singh and Gurcharan Singh started harassing and humiliating the deceased-Harmeet Kour for bringing less dowry. The accused/petitioners threw deceased from her matrimonial house number of times, constraining the deceased- Harmeet Kour to return to her parental house on many occasions. All reconciliations failed on account of adamant attitude of the accused/petitioner. The accused pressurized deceased-Harmeet Kour for divorce and she refused and was thrown out of her matrimonial house. The threats continued unabated. On 27th July, 2010 the accused Harjit Singh threatened Harmeet Kour either give him divorce or face the consequence. Harmeet Kour went into depression and committed suicide on account of harassment and maltreatment at the hands of the accused/petitioners who are responsible for death of deceased Hammeet Kour. 3. On the report of complainant-Paramvir Singh, an FIR No. 126/2010 for commissions of offences under Sections 498-A, 306 RPC and 3/4 P/D Act came to be registered against the accused-petitioners and the investigation was assigned to Kulbir Singh SI. He went on spot of occurrence, prepared the spot sketch, got conducted the photography of corpse, got conducted the postmortem of the deceased from GMC, recorded the statement of witness under Sections 161 and 164-A of Cr. P. C., collected the postmortem of the deceased-Harmeet Kour. He went on spot of occurrence, prepared the spot sketch, got conducted the photography of corpse, got conducted the postmortem of the deceased from GMC, recorded the statement of witness under Sections 161 and 164-A of Cr. P. C., collected the postmortem of the deceased-Harmeet Kour. The Investigating Officer of the case, concluded the investigation that the accused from inception of the marriage harassed the deceased-Harmeet Kour and tortured her physically and mentally by demanding dowry. The deceased-Harmeet Kour tried for reconciliation, but failed as a result of rigid attitude of the accused. The deceased was turned out from the matrimonial house and physical & mental torture by the accused compelled Harmeet Kour to commit suicide. 4. The Trial Court, after considering the charge-sheet, concluded that the material available on record is enough for framing charges punishable for offence under Sections 498-A, 306 RPC and 3/4 of Prevention of Dowry Act against the accused. Feeling aggrieved by the order of framing of charges, the petitioners have preferred this criminal revision. 5. The case of the petitioners is that on 9th May, 1997, the marriage of petitioner No.1-Harjit Singh was solemnized with Harmeet Kour and out of the matrimonial wedlock, a male child was born in the year 1998. It is stated that relation between the petitioner No.1 and Harmeet Kour was not cordial in view of her having the habit of leaving the company as well as house of the petitioner No. 1 without even informing the petitioner No.1. The petitioner No.1 remained making serious endeavours to make his wife to understand the pious relation of husband and wife. It is stated that in the year 2005, Harmeet Kour without caring for the petitioner No. 1 and her minor son left her matrimonial house and did not come back and when petitioner No.1 contacted his in-laws, he was informed that his wife is living at Bangalore. Thereafter the brother-in-law of the petitioner No.1 brought the wife of petitioner No.1 back to Jammu. It is further stated that from 2005 to 2006, the wife of the petitioner No.1 remained living at her parental house and in the year 2006 a compromise was arrived at between the petitioner No.1 and his wife and they both started living in a rental accommodation alongwith their son. It is further stated that from 2005 to 2006, the wife of the petitioner No.1 remained living at her parental house and in the year 2006 a compromise was arrived at between the petitioner No.1 and his wife and they both started living in a rental accommodation alongwith their son. Wife of the petitioner No.1 after living with him for about one and a half year, deserted the petitioner No.1 and her minor son on 25.12.2008 and started living at her parental home and never came back till her death. During all this period, the deceased-Harmeet Kour was not in contact with the petitioner No.1 or with her minor son and any other family members of the petitioner No.1. It is stated that the petitioners herein have been arrayed as accused persons in FIR No.126/2010 registered by Police Station Satwari, Jammu under section 498-A 306, RPC and 3/4 of Prevention of Dowry Act, in reference to which a criminal challan titled State of J&K vs. Harjit Singh and others has been filed before the court of learned Additional District Judge, Jammu. 6. 6. Aggrieved of the order dated 15.11.2011, petitioners have challenge the same on various grounds: (i) That the allegations against the petitioner prima facie did not disclose any offence much less offence under Section 306 RPC; that the allegations leveled against the petitioners do not constitute any offence much less the offences punishable under section 498-A 306 RPC and ¾ Prevention of Dowry Act; that the Court below has not considered the allegations alleged against the petitioners in the criminal challan in true and right perspective, as such, serious prejudice has been caused to the petitioners; that the ingredients of section 498-A, 306 RPC and ¾ P. D. are not prima facie established against the petitioners, so as to make them accused; that the charges which have been framed against the petitioners are totally fake and does not show any thing against the petitioners to connect prima facie occurrence of the offence under Section 306 RPC and the FIR registered by the respondent No. 2 Police Station against the petitioners, on the face of it, is full of lies, containing completely false and frivolous allegations; that the respondent No2 has filed the charge sheet against the petitioners by succumbing to the pressure and influence exerted by the complaint party, otherwise, as is clear from the investigation report and other documents collected and submitted by the respondent No. 2 before the trial Court; that no offence punishable under Sections 496-A, 306 RPC and 3/4 of Prevention of Dowry Act is made out against the petitioners; that the order impugned passed by the learned trial court is also liable to be set aside on the ground that the said order has been passed by the court below on assumptions andpresumptions, as under the criminal jurisprudence, the Court below was obliged under law to record its complete satisfaction while charging the person for any offence punishable under the penal code; that the trial court has also not appreciated the fact that the police during the investigation of the case has not established any prima facie case which warranted filing of challan against the petitioners under Sections 498-A, 306 RPC and ¾ of Prevention of Dowry Act; that the learned trial court while taking cognizance of the charge sheet presented against the petitioners and also while framing charges against them have failed to appreciate that all the witnesses cited by the prosecution in support of their case are interested witnesses as all the witnesses are the close relatives and family members of the deceased; that there was no independent witness or even eyewitness to the alleged occurrence, which renders the criminal challan as also the order impugned framing charges against the petitioners vitiated and are liable to be set aside and the petitioners are required to be discharged from the aforesaid criminal case. 7. I have heard counsel for parties; counsel for petitioners has argued that mere harassment is no offence; that presumption u/s 114(c) of Evidence Act is not available to the prosecution; that there is no specific demand of dowry; that deceased had run away with someone and was traced from Bangalore. Counsel has relied upon AIR 2004 SC 2790 case titled Hans Raj v State of Haryana; and Harjit Singh v State of Punjab reported in AIR 2006 SC 680 . 8. I have considered the rival contentions. Petitioners have been charge sheeted by the Court below u/s 498-A, 306/RPC by way of detailed order dated 15.11.2011. 9. The learned Additional Sessions Judge, Jammu after relying upon the various decisions of the Hon’ble Supreme Court, statements of witnesses as well as on the basis of material on file, held that the charge sheet discloses the commission of offences under Sections 498-A, 306 RPC, 3/4 Prevention of Dowry Act, against the accused/petitioners and accordingly, charged the petitioners for the commission of the aforesaid Sections. 10. The allegations against petitioners are that on 28.07.2010, the complainant Paramvir Singh S/o Narinder Singh R/o Karan Bagh Ext. Upper Gadi Garh Jammu moved an application before SHO Police Station, Satwari Jammu that his sister Harmeet Kour was married to Harjit Singh on 9th May, 1997 in accordance with Sikh rites and customs. At the time of marriage, gifts of Rs.1.5 lacs were given to accused and his family. In the complaint, it was further stated that from the very inception of marriage accused/petitioners Harjit Singh, Kulwant Kour, Jasbir Singh and Gurcharan Singh started harassing and humiliating the deceased-Harmeet Kour for bringing less dowry. The accused/petitioners threw deceased from her matrimonial house number of times, constraining the deceased- Harmeet Kour to return to her parental house on many occasions. All reconciliations failed on account of adamant attitude of the accused/petitioner. The accused pressurized deceased-Harmeet Kour for divorce and she refused and was thrown out of her matrimonial house. The threats continued unabated. On 27th July, 2010 the accused Harjit Singh threatened Harmeet Kour either give him divorce or face the consequence. Harmeet Kour went into depression and committed suicide on account of harassment and maltreatment at the hands of the accused/petitioners who are responsible for death of deceased Hammeet Kour. The threats continued unabated. On 27th July, 2010 the accused Harjit Singh threatened Harmeet Kour either give him divorce or face the consequence. Harmeet Kour went into depression and committed suicide on account of harassment and maltreatment at the hands of the accused/petitioners who are responsible for death of deceased Hammeet Kour. On the report of complainant-Paramvir Singh, an FIR No. 126/2010 for commissions of offences under Sections 498-A, 306 RPC and 3/4 P/D Act came to be registered against the accused-petitioners and the investigation was assigned to Kulbir Singh SI. 11. In 2015 (2) SCC 417 in case titled State through Inspector of Police v. A. Arun Kumar, it is held as under:- “8. The law on the point is succinctly stated by this Court in Sajjan Kumar v. CBI [2] wherein after referring to Union of India v. Prafulla Kumar Samal [3] and Dilawar Balu Kurane v. State of Maharashtra [4] this Court observed in para 19 thus: "It is clear that at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial." This Court went on to cull out principles as regards scope of Sections 227 and 228 of the Code, which in our view broadly apply to Sections 238 and 239 of the Code as well. It was observed thus in para 21: "Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C. 21. It was observed thus in para 21: "Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C. 21. 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 under Section 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. (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. 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." 12. It is clear, thus, that at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding, prima facie, whether the Court should proceed with the trial or not. While applying above said principles of law, it is evident that there are sufficient grounds to proceed against the accused persons as per facts which have come during investigation. The factual aspects of matter taken in this petition are defenses, which petitioners have to prove during trial, Death in the case has not been disputed. Relationship of petitioners with deceased has also not been disputed. Although presumption u/s 114(c) of Evidence Act is not available, but still there is sufficient material to form an opinion for framing of charges. 13. The law cited by counsel for petitioners is not applicable as in both case law, the appellants therein were convicted and then Apex Court after appreciating the evidence formulated the laws. But in present case, trial is yet to start and evidence is yet to be produced and cross examined. 14. Hence, this petition is dismissed. Stay, if any, is vacated. Record be sent back immediately.