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2019 DIGILAW 2168 (RAJ)

RUKMA DEVI v. STATE OF RAJASTHAN

2019-08-09

MANOJ KUMAR GARG

body2019
JUDGMENT 1. Instant criminal revision petition has been filed by the petitioners against the order dated 04.07.2019 passed by the learned Additional Sessions Judge (Women Atrocity Cases), Jodhpur Metropolitan whereby the learned Judge has framed the charges against the petitioners for offences under Sections 498A, 304B/34 in alternate 302/34 IPC. 2. Counsel for the petitioners submits that after thorough investigation, the Police filed the challan against the petitioners for offences under Sections 498A and 304B IPC but the trial court framed the charges in the alternate for offence under Section 302/34 IPC which is per se illegal as there is no evidence against the petitioners in this regard. In such circumstances, the impugned order of framing charge in the alternate for offence under Section 302/34 IPC against the petitioners deserves to be quashed and set aside. To buttress his contention, the counsel for the petitioners has relied upon the judgment of the Honble Court Supreme Court in the case of Jasvinder Saini & Ors. vs. State (Govt. of NCT of Delhi) [2013 (2) WLC (SC) Cr. 493]. 3. Per contra, learned Public Prosecutor has vehemently opposed the submissions made by the counsel for the petitioners and submits that the learned trial court has rightly framed the charge in the alternate for offence under Section 302/34 IPC against the petitioners and the impugned order requires no interference from this Court. 4. Heard the learned counsel for the parties and perused the impugned order of framing charge. 5. The marriage of Samta @ Sumitra was solemnized about one and half year ago with Amra Ram and according to the statements of the complainant and other witnesses, after 2-3 months of marriage, the petitioners started harassing the deceased Samta @ Sumitra physically and mentally and due to physical and mental torture, Samta @ Sumitra expired in her in-laws house. The Police after thorough investigation filed challan against the petitioners for offence under Section 304B and 498A IPC. 6. Counsel for the petitioner drew the attention of this court to the judgment of Jasvinder Saini (Supra) in which the Honble Supreme Court has held as under: "13. The Police after thorough investigation filed challan against the petitioners for offence under Section 304B and 498A IPC. 6. Counsel for the petitioner drew the attention of this court to the judgment of Jasvinder Saini (Supra) in which the Honble Supreme Court has held as under: "13. Be that as it may the common thread running through both the orders is that this Court had in Rajbirs case (supra) directed the addition of a charge under Section 302 IPC to every case in which the accused are charged with Section 304-B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court. It is common ground that a charge under Section 304B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial Court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. If the main charge of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial Court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbirs case (supra). The High Court no doubt made a half hearted attempt to justify the framing of the charge independent of the directions in Rajbirs case (supra), but it would have been more appropriate to remit the matter back to the trial Court for fresh orders rather than lending support to it in the manner done by the High Court. 7. Upon perusal of the order of the trial court, it seems that the trial court framed the charge for offence under Section 302 IPC relying upon the case of Rajbir @ Raju & Anr. vs. State of Haryana [ AIR 2011 SC 568 ] but in the case of Jasvinder Saini (Surpa) it was clearly held by the Honble Apex Court that there is no absolute direction in Ranbirs case (Supra) that in every case of charge under Section 304-B, charge under Section 302 IPC has to be invariably added. In the instant case, in the alternate charge under Section 302 IPC has been added by the trial court without assigning any cogent reason. 8. Consequently, the revision petition is partly allowed. The order impugned dated 04.07.2019 passed by the trial court is set aside to the extent of framing charge in the alternate for offence under Section 302/34 IPC. Now the trial court may proceed with trial against the petitioners only for offences under Sections 498A and 304B IPC as framed by it.