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Madhya Pradesh High Court · body

2019 DIGILAW 130 (MP)

Arjun Berman v. State of Madhya Pradesh

2019-02-08

B.K.SHRIVASTAVA

body2019
ORDER : This criminal revision has been filed on 19.11.2018 under section 397/401 of Cr.P.C. by the applicants against the order dated 25.9.2018 passed by the 13th Additional Sessions Judge, Jabalpur in Sessions Trial No.439/2018 by which the charges under sections 498-A, 304-B of IPC and section 4 of Dowry Prohibition Act have been framed against the applicants. 2. It appears from the challan papers that deceased Sapna D/o Late Bedlal Berman and Shyamrani Berman was married with applicant no.1 Arjun Berman since 3 years back from the date of incident i.e. 28.3.2018. The date of birth of deceased was 16.6.2000. Halke Bhai Berman and Chanda Bai Berman are the father and mother of Arjun (father-in-law and mother-in-law of deceased Sapna). 3. It is submitted by the counsel for applicants that the offence was registered only upon the basis of death of deceased Sapna within 7 years from the marriage. No any evidence of mental or physical cruelty was found. As per postmortem report, no any injury was found upon the person of deceased. The Investigating Officer did not examine any person residing in the same locality. Applicant nos.2 and 3 were residing separately from applicant no.1 and deceased. Applicant no.1 himself took the deceased to the doctor and tried to save her. But she expired due to illness in a natural course. Sufficient material was also not available against the applicants, but the trial court framed the charges against them, which are liable to be quashed. 4. On the other side, the State opposed the revision. It is submitted by the Government Advocate that the deceased was expired within 3 years from the date of marriage. Therefore, the presumption is available against the accused. The statements of mother, uncle and Aunt of deceased also show the cruelty and demand of dowry. The deceased expired by consuming poisonous substance, therefore, she died in the circumstances other than natural circumstances. Hence, the trial court did not commit any mistake by framing the aforesaid charges and this revision is liable to be dismissed. 5. The law regarding framing of charges and the power of revisional Court in the revision against the charge is well settled by catena of decisions. 6. In State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 it has been said that :- “Reading Ss. 5. The law regarding framing of charges and the power of revisional Court in the revision against the charge is well settled by catena of decisions. 6. In State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 it has been said that :- “Reading Ss. 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction”. 7. In Union of India v. Prafulla Kumar Samal and another, 1979 CRI.L.J. 154 [S.C.] after taking in to consideration the various authorities, the following principles laid down by the Apex Court :- “(1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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; (2) 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. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult 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 while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.” 8. Three Judges Bench of Supreme Court in Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and others, AIR 1980 SC 52 = 1979 Cri.L.J. 1390 said that :- “At the stage of framing charges, the prosecution evidence does not commence. The Magistrate has therefore, to consider the question as to framing of charge on a general consideration of the materials placed before him by the investigating Police Officer. The standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of S.277 or 228. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence”. 9. Again in Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others, AIR 1990 SC 1962 , the court said that It seems well settled that at the Ss.227-228 stage i.e., stage of framing the charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may 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. 10. The Court may 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. 10. In Tulsabai v. State of M.P., 1993 CRI.L.J. 368 [M.P.] the M.P. High Court said :- “After hearing counsel, I am of opinion that this Court need not delve deep into various aspects of the case in sifting and weighing the material at this stage. All that the court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime, as at the stage of framing of charge, the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing of charge under S. 227 or S. 228, Cr. P.C. At this stage, even a very strong suspicion founded upon materials before the Court, which leads the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence, as said by the apex Court, time and again. If any authority is needed. [see Supdt. and Remembrancer of Legal Affairs. West Bengal v. Anil Kumar, AIR 1980 SC 52 = 1979 Cri LJ 1390 and State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 = 1977 Cri LJ 1606]. Though guidelines as to the scope of inquiry for the purpose of discharging of an accused are contained in Section 227, Cr. P.C. itself. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused." The ground in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial that the guilt or innocence of the accused will be determined and not at the time of framing of charge. Therefore, the Court need not undertake an elaborate inquiry. It is in the trial that the guilt or innocence of the accused will be determined and not at the time of framing of charge. Therefore, the Court need not undertake an elaborate inquiry. The power conferred by S. 227 to discharge an accused is designed to prevent harassment to an innocent person by the arduous trial or the ordeal of prosecution. The power has been entrusted to the Sessions Judge to bring to bear his knowledge and experience in criminal trials. If the Sessions Judge after hearing the parties frames a charge and also makes an order in support thereof, the law must be allowed to take its own course”. 11. Three Judges Bench of Supreme Court in State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744 = 1996 AIR SCW 1977 said that at the stage of framing the charge there must exist ground for presuming that accused has committed the offence. The court said that word "presume" means probable consequence. If there is ground for presuming that the accused has committed the offence, a Court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence. In Black's Law Dictionary word 'presume' has been defined to mean "to believe or accept upon probable evidence". Legal Dictionary has quoted in this context a certain judgment according to which "A presumption is a 6 Cr.R.No.5642/2018 probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged." The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. 12. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. 12. In the case of State of Maharashtra v. Priya Sharan Maharaj and others, AIR 1997 S.C. 2041 = 1997 AIR SCW 1833 = [1997]4 SCC 393, the Apex court said that High Court cannot seek independent corroboration at stage of framing of charge and quash charge and discharge accused. At the state of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. 13. Again in Arun Vyas and another v. Anita Vyas, AIR 1999 SC 2071 = 1999 AIR SCW 1793, the Apex court observed that Section 239 has to be read along with S. 240 Cr. P. C. If the Magistrate finds that there is prima facie evidence or the material against the accused in support of the charge (allegations) he may frame charge in accordance with S. 240 Cr. P. C. But if he finds that the charge (the allegations or imputations) made against the accused do not make out a prima facie case and do not furnish basis for framing charge, it will be a case of charge being groundless, so he has no option but to discharge the accused. Where the Magistrate finds that taking cognizance of the offence itself was contrary to any provision of law, like S. 468 Cr. P. C., the complaint being barred by limitation, so he cannot frame the charge, he has to discharge the accused. 14. Further in the case of State of M.P. v. S. B. Johari and others, AIR 2000 SC 665 = 2000 AIR SCW 189 = 2000 CRI.L.J. 944, court also said that quashment of charge by appreciating materials produced by prosecution at the stage of framing of charge is not justified. At stage of framing charge, Court is not required to marshal materials on record but only has to prima facie consider whether there is sufficient materials against accused. At stage of framing charge, Court is not required to marshal materials on record but only has to prima facie consider whether there is sufficient materials against accused. Court observed :- “It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for conviction the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence, which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial”. 15. In the case of R.S. Mishra v. State of Orissa, AIR 2011 SC 1103 = 2011 CRI.L.J. 1654 (01-02-2011), the court took notice the word occurring in S. 228 "if after such consideration" and said that it provide an interconnection between S.227 and S.228. While dropping or diluting charge under particular section, although accused is not discharged, Court is expected to record reasons. The court observed :- “As seen from Section 227 while discharging an accused, the Judge concerned has to consider the record of the case and the documents placed therewith, and if he is so convinced after hearing both the parties that there is no sufficient ground to proceed against the accused, he shall discharge the accused, but he has to record his reasons for doing the same. Section 228 which deals with framing of the charge, begins with the words "if after such consideration." Thus, these words in Section 228 refer to the 'consideration' under S. 227 which has to be after taking into account the record of the case and the documents submitted therewith. These words provide an inter-connection between Sections 227 and 228. Section 228 which deals with framing of the charge, begins with the words "if after such consideration." Thus, these words in Section 228 refer to the 'consideration' under S. 227 which has to be after taking into account the record of the case and the documents submitted therewith. These words provide an inter-connection between Sections 227 and 228. That being so, while Section 227 provides for recording the reasons for discharging an accused, although it is not so specifically stated in Section 228, it can certainly be said that when the charge under a particular section is dropped or diluted, (although the accused is not discharged), some minimum reasons in nutshell are expected to be recorded disclosing the consideration of the material on record. This is because the charge is to be framed 'after such consideration' and therefore, that consideration must be reflected in the order.” 16. In the case of Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao, 2012 AIR SCW 5139, the Apex Court considered its earlier authorities about the scope of Sections 227 and 228 of Cr.P.C., and held that for framing of charge, a roving enquiry in pros and cons of matter and weighing of evidence as is done in trial is not permissible at this stage. The charge has to be framed if Court feels that there is strong suspicion that accused has committed offence. Thus, even 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, a charge can be framed. 17. Again in Prem Sharma @ Shiv Prasad Mishra Vs. Shivprakash Mishra, ILR [2013] M.P. 2029, the Court referred the Supdt. & Remembrancer of Legal Affairs, West Bengal, v. Anil Kumar Bhunja and others, AIR 1980 SC 52 , and Niranjan Singh Karam Singh Punjabi v. Jitendr Bhimraj Bijja and others, AIR 1990 SC 1962 said that according to the provisions of Sections 227 and 228 of Cr.P.C., it is for the Trial Court to consider the material available on record with the object that if it is not rebutted, then whether the accused can be convicted for a particular offence or not. By considering such material, if the accused is convicted for that offence, then charge for that offence shall be framed. 18. By considering such material, if the accused is convicted for that offence, then charge for that offence shall be framed. 18. In Ashok Sharma (Dr.) v. State of M.P., 2014 (II) MPJR 124 (DB), the Division Bench of this court observed that at the stage of framing of charge, appreciation of evidence produced before it is non-required. The court observed :- “It is true that at the time of framing of charge, the court has not required to appreciate the evidence to conclude whether the material produced before the court are sufficient or not for convicting the accused. There is difference between the evaluation of materials produced before the court and appreciation of evidence produced before the court at the time of framing of the charge. For evaluation, the court is allowed to look into the material only prima facie be satisfied about the existence of sufficient ground for proceeding against the accused”. 19. Also in the case of Devendra Singh & Ors. Vs. State Of M.P., ILR 2016 M.P. 259 [12.12.2014], the high court observed that the material and quality of evidence cannot be gone into and the Revisional Court has limitations which don't empower to intervene at an interlocutory stage. All that has to be looked into at the time of framing of charge, is existence of prima facie case. Court said in para 8 :- “8. Moreover, it is trite to state that at the time of framing of charge the material and quality of evidence cannot be gone into. This Court is well aware about the limitation of the Court while exercising the revisional jurisdiction, which does not empower to intervene at an interlocutory stage. Moreover, all that has to be looked into at the time of framing of the charge is that whether there was existence of prima facie case. So also it would be profitable to rely on State of M.P. Vs. S.B. Johari and others reported in 2002 (2) MPLJ 322 , whereby the Court held thus: It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further, then a charge has to be framed. Umar Abdul Sakoor Sorathia Vs. Intelligence Officer, Narcotic Control Bureau reported in (2000) 1 SCC 138 whereby the Court held thus: It is well settled that at the stage of framing charge the Court is not expected to go deep into the probative value of the materials on record. If on the basis of materials on record that Court could come to the conclusion that the accused would have committed the offence the Court is obliged to frame the charge and proceed to the trial. State of Maharashtra and others Vs. Som Nath Thapa and others reported in (1996) 4 SCC 659 whereby the Court held thus: The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.” 20. In the present case, the Marg Intimation No.15/2018 has been lodged by accused/applicant no.1 Arjun on 29.3.2018. It is stated that at about 9:00 p.m. in the night of 27.3.2018 Sapna Berman was vomiting, therefore, the husband took her to Dr.Neeraj Nema at Patan for treatment. He came back at about 3:00 O’Clock in the night. But the vomiting again started on 28.3.2018 at about 12:00 a.m., therefore, he again took the deceased to Dr.Nema and reached there at about 5:00 p.m. Doctor examined the deceased and declared her dead. The police inquired into aforesaid Marg. He came back at about 3:00 O’Clock in the night. But the vomiting again started on 28.3.2018 at about 12:00 a.m., therefore, he again took the deceased to Dr.Nema and reached there at about 5:00 p.m. Doctor examined the deceased and declared her dead. The police inquired into aforesaid Marg. Police also recorded the statements of various witnesses and thereafer, registered the Crime No.233/2018 under sections 304-B, 498-A/34 of IPC and section 3/4 of Dowry Prohibition Act on 4.7.2018 at about 10:50 a.m. During investigation, the police recorded the statements of Shyamrani, Roshani Berman and Brinda Berman, who are mother, Aunt and Uncle of deceased. The dead-body was sent for postmortem. It is true that as per postmortem, no any physical injury was found upon the person of deceased. The doctor said that exact cause of death cannot be given as no appreciable findings are seen. Therefore, the doctor preserved visra and sent for chemical examination. FSL report dated 9.7.2018 shows that Aluminum Phosphate was found in the visra of deceased. Therefore, it appears that the deceased consumed Aluminum Phosphate and committed suicide within a period of 3 years of her marriage. Because the death occurred within 7 years from marriage, therefore, presumption will be available against the accused persons because in the statements of all 3 witnesses the demand of motorcycle and cruel behaviour is also stated. 21. Witness Shyamrani, Roshani Berman and Brinda Berman first examined in Marg inquiry and, thereafter, their statements were recorded in the investigation. In addition to that, all 3 witnesses were also examined by the Magistrate under section 164 of CrPC on 7.7.2018. 22. It is stated in the aforesaid all statements that after 2 or 3 months from the marriage, the deceased came to her maternal home and told the witnesses that the accused persons are demanding motorcycle and also beat her. Shyamrani stated that she had gone to the house of accused persons with her another daughter Sapna and tried to convenience the accused persons that she is not in a position to give motorcycle because she is having 4 sons and 2 daughters and her financial status is not well. Shyamrani said that the accused persons again tortured to the deceased by demanding the motorcycle. The deceased was issuless and this was the additional cause for torturing her. Shyamrani said that the accused persons again tortured to the deceased by demanding the motorcycle. The deceased was issuless and this was the additional cause for torturing her. Because of torture given by accused persons, Shyamrani took back her daughter (deceased) about 8 months back from the date of incident. Thereafter, at the time of Chait Navratri the accused persons reached there with other relatives and took back the deceased to their home. Thereafter, Shyamrani received information regarding the death of Sapna by consuming poisonous substance. 23. In view of the aforesaid, it appears that prima facie, evidence was available for framing the charges against the applicants. The ingredients of demanding dowry as well as physical and mental torture are also found in the statements of aforesaid all 3 witnesses. 24. Looking to the aforesaid settled laws, it can be said that prima facie material was available before the trial court for framing the charges against the applicants and the trial court did not commit any mistake by framing the aforesaid charges against them. 25. Therefore, this revision, having no force, hence dismissed.