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2019 DIGILAW 1880 (RAJ)

Deepesh Kumar v. State of Rajasthan

2019-07-03

MANOJ KUMAR GARG

body2019
ORDER : Manoj Kumar Garg, J. 1. The instant criminal revision petition has been filed under Section 397/401 Cr.P.C. against the order dated 16.01.2019 passed by the learned Additional Sessions Judge No. 1, Abu Road, District Sirohi in Sessions Case No. 9/2018, by which the learned trial court framed the charges against the petitioner for offence under Section 304-B and 498-A IPC. 2. Learned counsel for the petitioner submits that a perusal of the FIR as well as statements of Bhika Lal (the complainant) and Smt. Joshna, wife of Bhika Lal, and other witnesses reflects that no offence under Section 304-B IPC is made out against the petitioner. There is no evidence that the petitioner demanded the dowry or harassed the deceased soon before her death. In these circumstances, the impugned order framing charge against the petitioner for offence under Section 304-B IPC is liable to be set aside. 3. Per contra, learned Public Prosecutor supported the order passed by the learned trial Court and submitted that within seven years of marriage, the deceased was harassed for dowry by the petitioner due to which she died. In these circumstances, the offence under Section 304-B IPC is clearly made out against the petitioner. Therefore, the impugned order framing charges does not require any interference by this Court. 4. I have carefully considered the arguments advanced on behalf of the parties and perused the material available on record. 5. It is evident from perusal of the statement of Bhika Lal (the complainant), who is father of the deceased, that the daughter of the complainant was married with the petitioner on 18.07.2012 and after one year of the marriage, the petitioner started beating his daughter after consuming the liquor and harassing her. Accused also demanded money from his daughter. She was continuously harassed for dowry. At one point of time, the accused cut the hand of his daughter with blade. He also stated that one female child was also born out of this wedlock. When she along with her child came to his house, on the next day, the accused came with bottle of kerosene and tried to burn his daughter. He also threatened to kill her. The accused was arrested at that time by the police under Section 107 & 151 Cr.P.C. He further stated that the accused tried to kill his daughter with broken bottle of Beer also. He also threatened to kill her. The accused was arrested at that time by the police under Section 107 & 151 Cr.P.C. He further stated that the accused tried to kill his daughter with broken bottle of Beer also. His daughter lodged a case before the police station for offence under Section 498-A and 406, 323 IPC. The petitioner appeared before the police and confessed his guilt and mentioned that in future, he will not harass her so they withdrew that case and his daughter started residing again with the petitioner. Accused also gave an affidavit on the stamp of Rs. 100/-, in which he mentioned that he will not harass his daughter. Thereafter, his daughter went to the house of the petitioner. After some time, accused-petitioner again started harassing his daughter and day before the incident, he received a telephonic call from the accused that his daughter was missing since night but later the petitioner informed him on telephone that his daughter committed suicide. Likewise, the statement of Smt. Joshna wife of Bhika Lal, mother of the deceased, also gave similar statement as given by Bhikha Lal. 6. Section 113-B of the Indian Evidence Act, 1872 reads as under:- "113-B. Presumption as to dowry death.-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. 7. In the present case, from perusal of the record, it is evident that the deceased was continuously harassed since her marriage and earlier, one FIR was also lodged by the deceased against the petitioner for the offence under Section 498-A, 406, 323 IPC. When the petitioner confessed and filed an affidavit that in future, he will not harass his wife then she again started residing with her husband. However, the petitioner again started harassing the deceased. All these acts have been done within the seven years of the marriage. The contention of counsel for the petitioner that there is no evidence that the petitioner harassed the deceased soon before the death has no force. However, the petitioner again started harassing the deceased. All these acts have been done within the seven years of the marriage. The contention of counsel for the petitioner that there is no evidence that the petitioner harassed the deceased soon before the death has no force. The presumption is against the petitioner and the same will be decided at the final stage of the trial and not at the stage of charge. 8. It is settled law that at the time of framing the charges, the truth, veracity and the effect of the evidence, which the prosecution proposes to produce are not to be meticulously examined. At this stage, the Court has only to see whether the unrebutted evidence, which the prosecution is to adduce, make way for conviction and if it is so then the charge can be framed. But if the evidence itself does not disclose that the accused has committed the offence, then the charge should not be framed. The Court, while framing the charges, is required to evaluate the materials and documents on record with a view to find out if the facts emerging there from disclose the presence of all the ingredients constituting the alleged offence. 9. In the case of Sajjan Kumar v. Central Bureau of Investigation reported in (2010) 9 SCC 368 , Hon'ble Supreme Court in para 21 of the judgment has laid down the principles which are to be kept in mind by the Court while exercising jurisdiction under Sections 227 & 228 Cr.P.C., which are as below: "(i) The Judge while considering the question of framing the charges under Section 227 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. (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 state of Sections 227 & 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from taken at their face value disclose 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 at this stage, he is not to see whether the trial will end in conviction or acquittal." 10. In the case of Amit Kapoor v. Ramesh Chander & Anr. reported in (2012) 9 SCC 460 , Hon'ble Supreme Court has held that at the initial stage of framing of a charge, the Court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the Court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. All that the Court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. 11. In the case of Sheoraj Singh Ahlawat & Ors. v. State of Uttar Pradesh & Anr. reported in (2013) 11 SCC 476 , the Hon'ble Apex Court has held as below: "While framing charges, court is required to evaluate materials and documents on record to decide whether facts emerging there from taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into the probative value of materials on record. It needs to evaluate whether there is a ground for presuming that accused had committed offence. But it should not evaluate sufficiency of evidence to convict accused. Even if there is a grave suspicion against the accused and it is not properly explained or court feels that accused might have committed offence, then framing of charges against the accused is justified. It is only for conviction of accused that materials must indicate that accused had committed offence but for framing of charges if materials indicate that accused might have committed offence, then framing of charge is proper. Materials brought on by prosecution must be believed to be true and their probative value cannot be decided at this stage. The accused entitled to urge his contentions only on materials submitted by prosecution. He is not entitled to produce any material at this stage and the court is not required to consider any such material, if submitted. Whether the prima facie case made out depends upon facts and circumstances of each case. If two views are possible and materials indicate mere suspicion, not being grave suspicion, against accused then he may be discharged. The court has to consider broad probabilities of case, total effect of evidence and documents produced before it. The court should not act as mouthpiece of prosecution and it is impermissible to have roving enquiry at the stage of framing of charge." 12. Recently, the Hon'ble Apex Court in the case of 'State of Rajasthan Vs. The court has to consider broad probabilities of case, total effect of evidence and documents produced before it. The court should not act as mouthpiece of prosecution and it is impermissible to have roving enquiry at the stage of framing of charge." 12. Recently, the Hon'ble Apex Court in the case of 'State of Rajasthan Vs. Fatehkaran Mehdu' reported in AIR 2017 SC 796 , while dealing with the scope of interference under Section 397 Cr.P.C. when the charge had been framed, has held as under:- "26. The scope of interference and exercise of jurisdiction Under Section 397 of Code of Criminal Procedure has been time and again explained by this Court. Further, the scope of interference Under Section 397 Code of Criminal Procedure at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the Accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the Accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure. 27. Now, reverting to the limit of the scope of jurisdiction Under Section 397 Code of Criminal Procedure, which vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding. .... 29. The Court in para 27 has recorded its conclusion and laid down principles to be considered for exercise of jurisdiction Under Section 397 particularly in context of quashing of charge framed Under Section 228 Code of Criminal Procedure Para 27, 27(1), (2), (3), (9), (13) are extracted as follows: "27. .... 29. The Court in para 27 has recorded its conclusion and laid down principles to be considered for exercise of jurisdiction Under Section 397 particularly in context of quashing of charge framed Under Section 228 Code of Criminal Procedure Para 27, 27(1), (2), (3), (9), (13) are extracted as follows: "27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction Under Section 397 or Section 482 of the Code or together, as the case may be: (27.1) Though there are no limits of the powers of the Court Under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. (27.2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. (27.3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. (27.3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. (27.9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. (27.13) Quashing of a charge is an exception to the Rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 30. Applying the above tests, we are of the considered opinion that High Court erred in quashing the charges framed by the order dated 05.05.2009. In result, both the appeals are allowed. The order of the High Court is set aside and the order dated 05.05.2009 is restored. The learned Special Judge may proceed with the trial in accordance with the law expeditiously." 13. Thus, it is the well settled legal position that at the stage of framing charge for an offence against an accused only prima facie has to be seen whether sufficient grounds are available on record to proceed against him and even strong suspicion is enough to frame charge and at this stage of the proceedings evidence is not required to be analyzed as it is required to be done at the final stage after trial. It is also well settled that at this stage of the proceedings only the charge-sheet and evidence collected during investigation which has been produced along with the charge-sheet is required to be considered. 14. The coordinate Bench of this Court in the case of Sripal Dharmawat & Ors. Vs. State of Rajasthan & ors. (S.B. Criminal Revision Petition No. 1160/2017), decided on 09.01.2018 relating to charge under Section 304-B IPC, held as under:- "11. 14. The coordinate Bench of this Court in the case of Sripal Dharmawat & Ors. Vs. State of Rajasthan & ors. (S.B. Criminal Revision Petition No. 1160/2017), decided on 09.01.2018 relating to charge under Section 304-B IPC, held as under:- "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." 15. In view of above, this Court is of the opinion that trial court has not committed any error in framing charge for offence under Sections 304-B and 498-A IPC. 16. The revision thus being bereft of any force, is hereby rejected. Stay petition also stands rejected.