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2019 DIGILAW 502 (MP)

Dharmendra v. State of M. P.

2019-07-10

ROHIT ARYA

body2019
ORDER : 1. This revision petition under section 401, Cr.P.C. is directed against the order dated 27.10.2018 passed by the Judicial Magistrate First Class, Indore District Indore in Mis. Cr. Case No. 1509/2018 arising out of Crime No. 372/2017 registered at Police Station Simrol, District Indore for the offence punishable under sections 498-A, 304-B/34, IPC read with sections 3/4 of the Dowry Prohibition Act, pending in the Court of 1st Additional Sessions Judge, Indore in Sessions Trial No. 36/2018, State of M.P. vs. Dharmendra and Others rejecting the application filed under section 227, Cr.P.C. for discharge of the applicants from the said offence. 2. Facts relevant and necessary for disposal of this revision petition are summarized below: (A)........ (i) marriage between applicant No. 1, Dharmendra and the deceased Roshini was solemnized on 18.05.2013, the married couple lived with joint family at village Datoda, tehsil Mhow District Indore. (ii) on 14.05.2017, the deceased suffered burn injuries due to slip of lantern carrying while going upstairs. She was rushed to the nearby hospital, Gaurav Hospital, Indore where despite sustained treatment she breathed her last at 02.00 after noon on 17.05.2017. (iii) the parents of the deceased were duly informed immediately after occurrence of the incident and they had arrived at the hospital. However, none of them either lodged FIR or made any allegations before the police present in the hospital. (iv) during her treatment, she had given her statement at 2.20 p.m. on 15.05.2017 to Dr. (iii) the parents of the deceased were duly informed immediately after occurrence of the incident and they had arrived at the hospital. However, none of them either lodged FIR or made any allegations before the police present in the hospital. (iv) during her treatment, she had given her statement at 2.20 p.m. on 15.05.2017 to Dr. Arvind Kaga to the following effect: ^^jkf= 10 cts ds djhc ykbZV pyh x;h rks eSus nhid tyk;k ¼fpeuh½ tyk;h vkSj eSa fpeuh ysdj Åij eafty dh vksj tk jgh Fkh fd p<+rs le; tyrh gqbZ fpeuh esjs diM+ks ij fxjus ls vkx yx x;hA ftlls esjs nksuks iSj] dej] isV] lhuk o cq>kus esa esjs nksuksa gkFk ty x;sA eSa fpYykbZ rks esjs ifr us ikuh dk eVdk ysdj esjs Åij ikuh Mkydj vkx cq>kbZ o esjs ifr] lkl&llqj o vU; bZykt gsrq bUnkSj yk;s o xkSjo vLirky esa HkrhZ fd;kA esjs llqjkyokyksa us esjs lkFk dksbZ ?kVuk ugha dh] ;g ?kVuk esjs lkFk vpkud gqbZA** On the same day, i.e. on 15.05.2017, the statement of the deceased was also recorded by the police under section 161, Cr.P.C. and the same is quoted-below: ^^dy jkf= 10%30 cts djhcu dh ckr gSA ?kj dh ykbZV pyh x;h Fkh rks eSa Åijh eafty ls uhps mrjdj fpeuh tykdj Åij p<+dj tk jgh Fkh fd tyrh gqbZ fpeuh esjs diM+ks ij fxj tkus ls esjs nksuks iSj] dej] Nkrh ty x;hA eSa fpYyk;h rks esjs ifr /kesUæ nkaxh us eVdk dk ikuh mBkdj esjs Åij Mkyk o vkx cq>k;h o eq>s bZykt okLrs yk;s HkrhZ fd;kA esjs lkFk esjs ?kj ij esjh lkl] llqj o esjs ifr jgrs gSA ;g ?kVuk vkdfLed gqbZA** Thereafter, Dr. Kaga has made a note appended thereto to the following effect: [BAYAN MERE SAMAKSH LIYA GAYE HAT] for the reason that both the hands of the deceased were bandaged, therefore, she could not sign the same. (Emphasis supplied) (v) on the same date, i.e. 15.5.2017, the police has also taken note of the fact that bondage hands of the deceased and the said statement was endorsed/verified under the signature of the Dr. Kaga and the person reducing the same in writing. (vi) thereafter, the deceased after death was cremated and rituals and ceremonies were completed in presence of the father and other relatives of the deceased. Kaga and the person reducing the same in writing. (vi) thereafter, the deceased after death was cremated and rituals and ceremonies were completed in presence of the father and other relatives of the deceased. (vii) after about five months, on 02.10.2017, FIR was lodged by the father of the deceased for the offence referred above. (B) Priti alias Bhuribai (applicant No. 2) is married sister, Munnibai (applicant No. 3) mother and Kailash (applicant No. 4) are father of the applicant No. 1, Dharmendra. (C) applicants have filed an application under section 227, Cr.P.C. before the trial Court for discharge by the impugned order, the said application is rejected. 3. Learned counsel for the applicants submits that in the wake of the aforequoted dying declarations of the deceased if read and appreciated in right perspective, the same shall lead to irresistible conclusion, that the FIR in question lodged at a distance of more than five months since the date of death of the deceased by the father of the deceased, is a false complaint with cooked up allegations having no foundation. In fact, the complainant was informed immediately after the incident, he and his family members had arrived at the hospital and in their presence police recorded the statement of the deceased. However, none of them lodged FIR or expressed any doubts against the applicants before the police. 4. Learned counsel relied upon judgment of the Hon'ble Supreme Court in the case of Ishwar Singh vs. State of Uttar Pradesh, AIR 1976 SC 2423 , wherein the effect of delay in lodging FIR has been considered with conclusion that for want of explanation, muchless plausible explanation of delay in lodging the FIR, it casts a doubt on the prosecution version and sustainability of the allegations contained thereunder and a judgment of this Court in the case of Ashok vs. State of M.P. Cr. Appeal No. 702/1998 decided on 02.08.2003, wherein under somewhat similar circumstances, the co-ordinate Bench has ruled that for want of plausible explanation for inordinate delay of filing the FIR, the prosecution evidence becomes untrustworthy for the reason either they stated nothing before the police immediately after occurrence of the incidence or lodged any FIR. Appeal No. 702/1998 decided on 02.08.2003, wherein under somewhat similar circumstances, the co-ordinate Bench has ruled that for want of plausible explanation for inordinate delay of filing the FIR, the prosecution evidence becomes untrustworthy for the reason either they stated nothing before the police immediately after occurrence of the incidence or lodged any FIR. Besides, the dying declaration of the deceased cannot be blinked away that there were no allegations that the deceased was subjected to cruelty and harassment due to non-fulfillment of demand of dowry or that they had set her to fire and the sanctity attached thereto has to be understood in right perspective regard being had to the legal maxim “Nemo moriturus praesumitur mentire” a man will not meet his Maker with a lie in his mouth” to bolster his submissions. 5. Per contra, learned State's counsel opposes the application supporting the order impugned. 6. Heard. 7. At the outset, this Court agrees with learned counsel for the applicants that the person making a declaration at the time of death shall not speak lie and the same is in conformity with the legal maxim quoted above. 8. Before adverting to the submissions so advanced, it is expedient to reiterate the law as regards scope of section 227 ‘discharge’ and section 228 ‘framing of charge’ Cr.P.C. 9. Hon'ble Supreme Court in the case of Dilwar Balu Kurane vs. State of Maharashtra, (2002) 2 SCC 135 : AIR 2002 SC 564 , relying upon the earlier judgment in the case of Union of India vs. Prafulla Kumar Samal, (1979) 3 SCC 5 : AIR 1979 SC 366 , it has been reiterated that while exercising the jurisdiction under section 227, the Court may at the time of framing the charge for the limited purpose may sift the evidence as it cannot be expected even at that initial stage to accept all that prosecution states as gospel truth even if it is opposed to common sense. 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 and any basic infirmities, etc., to find out prima facie case against the accused has been made out. 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 and any basic infirmities, etc., to find out prima facie case against the accused has been made out. Nevertheless, the trial Judge is not expected to conduct a roving enquiry into the pros and cons of the evidence on record as if he was conducting a trial. If two views are equally possible and the Judge is satisfied that the evidence giving rise to suspicion is not grave, he shall be fully justified in discharging the accused. Thus, the charge should not be framed in cases where the availability of material does not disclose the ingredients of the evidence, as framing of charge in such cases shall be an exercise of futility and results in wastage of valuable Court time at that stage, i.e. stage of framing of charge Niranjan Singh Karam Singh vs. Jitendra Bhimaraj Bijje and Others, AIR 1990 SC 1962 (referred to). The scope of sections 227 and 228 of the Code has also been reiterated in the case of R.S. Mishra vs. State of Orissa, (2011) 2 SCC 689 : AIR 2011 SC 1103 . Paragraph 21 quoted-below: “21. As seen from Section 227 above, 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 Section 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 Section 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 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.” 10. Now in the backdrop of the aforesaid principles of law if the facts noticed in hand are appreciated, it is well evident that (a) marriage between the applicant No. 1 and the deceased was solemnized on 18.05.2013 and they lived with joint family at village Datoda, tehsil Mhow District Indore; (b) for four years, there is no complaint against the applicants for demand of dowry or harassment or complaint of any sort whatsoever by the deceased to the complainant or the police; (c) after occurrence of the incident, the applicant No. 1/husband had rushed the deceased to the nearby hospital for treatment with an intimation to her parents; (d) the deceased was treated in the hospital; (e) the statement of the deceased before the doctor clearly spells out that either the applicant No. 1 or any other members of his family had done any act intentionally or unintentionally against the deceased; (f) likewise, her statement to the police under section 161 Cr.P.C. under the endorsement of Doctor Kaga and the person reducing the same in writing as evident from dying declaration; (g) evasive and general allegations of demand of dowry and harassment have been made without any specific details or instances at the time of lodging the FIR; (h) there is no explanation forthcoming for the inordinate delay of five months in lodging FIR and (i) the statements of the interested members of the family have been recorded in support of the alleged FIR but, in a stereotype manner. 11. 11. In view of the aforesaid, this Court is of the view that the order dated 27.10.2018 passed by the Judicial Magistrate First Class, Indore District Indore in Mis. Cr. Case No. 1509/2018 cannot be sustained. Accordingly set aside. 12. Consequently, the proceedings arising out of Crime No. 372/2017 registered at Police Station Simrol, District Indore for the offence punishable under sections 498-A, 304-B/34 IPC read with sections 3/4 of the Dowry Prohibition Act, pending in the Court of 1st Additional Sessions Judge, Indore in Sessions Trial No. 36/2018, State of M.P. vs. Dharmendra and Others, are hereby quashed. 13. This revision petition stands allowed and disposed of. 14. The Registry is directed to transmit the original record to the concerned Court forthwith.