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2023 DIGILAW 372 (ALL)

Sudesh Pal v. State of U. P.

2023-02-07

UMESH CHANDRA SHARMA

body2023
JUDGMENT : UMESH CHANDRA SHARMA, J. 1. Heard Sri Ayank Mishra, learned counsel for the applicant, Sri Pankaj Kumar Tripathi, learned A.G.A. for the State and perused the record. 2. The applicant has filed the present Application U/s 482 Cr.P.C. to quash the entire proceeding under Sections 498-A, 504, 304-B, 306 I.P.C. and Section ¾ Dowry Prohibition Act, arising out of Crime No. 45 of 2021, Police Station Daurala, District Meerut, pending in the Court of C.J.M. Meerut on the ground that the daughter of the informant opposite party no. 2, who was the wife of the applicant committed suicide after institution of divorce petition by the applicant. According to the F.I.R, the marriage of the daughter of opposite party no. 2 was solemnized with the applicant on 19.11.2018. The family members were not satisfied with the dowry and they were pressurising the deceased (Mohini) for providing a car in dowry, which could not be fulfilled, hence she was ousted from her matrimonial house on 04.06.2020 and when she came to know about the divorce petition, she committed suicide. According to the applicant, the F.I.R has been lodged after a lapse of a week without any explanation for the delay in lodging the F.I.R, thereafter the I.O. started investigation and recorded the statement of the informant and prepared site plan. As per the postmortem report, the cause of death was shock and haemorrhage as a result of anti-mortem injury. In the F.I.R, the complainant has specifically averred that his daughter has committed suicide. The I.O. recorded the statement of the witnesses - Kushal Pal, Sattya Pal and Shyamveer. From the version of the prosecution story, only Section 306 I.P.C. is attracted. But after the investigation, the I.O. submitted the charge-sheet under Sections 498-A, 323, 504, 506, 304-B I.PC and ¾ Dowry Prohibition Act. 3. The I.O. has overlooked the guidelines issued by the Apex Court in several judgments, wherein the implication of the entire family had been forbidden. The I.O. has investigated the case in a very casual manner. Sections 306 and 304-B I.P.C. are two different Sections, which cannot sail together. 4. The present case is the best example of misuse of the procedure. The Sessions Court has framed an alternative charge under Section 306 I.P.C. alongwith Section 304-B I.P.C. From the bare perusal of the F.I.R, no offence under the aforesaid Sections are made out. Sections 306 and 304-B I.P.C. are two different Sections, which cannot sail together. 4. The present case is the best example of misuse of the procedure. The Sessions Court has framed an alternative charge under Section 306 I.P.C. alongwith Section 304-B I.P.C. From the bare perusal of the F.I.R, no offence under the aforesaid Sections are made out. The applicant is wholly innocent and has been falsely implicated in the aforesaid case. He did not demand any dowry and did not commit any cruelty or assault against the deceased. The prosecution is based on malicious intentions and is not sustainable in the eye of law. The applicant has good moral character and has no criminal history, if the present proceeding is not quashed, he would suffer irreparable loss and injury, hence the proceeding of the S.T. No. 105 of 2022 mentioned above be set aside. 5. The applicant has annexed all the relevant papers with the application. 6. Heard and perused the record. 7. During the argument, the learned counsel for the applicant did not argue on all of the aspects and facts mentioned in the application, but has argued only on the point that if a charge is framed under Section 304-B I.P.C. then no alternative charge under Section 306 I.P.C. could be framed. 8. This Court is of the view that if the charge-sheet has submitted under Section 304-B of the I.P.C. an alternative charge under Section 302 I.P.C. alongwith the main charge under Section 304-B I.P.C. shall be framed but no alternative charge should be framed under Section 306 I.P.C. The reason behind this is that if in a criminal case a charge under Section 304-B I.P.C. is being framed and the prosecution succeeds in proving the case beyond reasonable doubt, the accused may be convicted under Section 304-B and if the trial court comes to the conclusion that it is a case of abatement to commit suicide, the court can very well punish the accused under Section 306 I.P.C. even in the absence of charge under Section 306 I.P.C. as the punishment under Section 306 I.P.C. is lesser than the punishment provided under Section 304-B I.P.C. In K. Prema S. Rao vs. Yadla Srinivas Rao, AIR 2003 SC 11 and Balool vs. State of Rajasthan, (2003) Cri. L.J. 3286, it is held that the accused persons charged under Sections 498-A, 304-B and 120-B I.P.C. can be convicted under Section 306 I.P.C. if evidence proves the same, even if no charge under Section 306 I.P.C. has been framed. 9. The Apex Court has held in Rajbir vs. State of Haryana, AIR 2011 SC 568 that if a charge-sheet has been submitted under Section 304-B I.P.C. an alternative charge under Section 302 should be framed and if the court comes to the conclusion that the accused is guilty under Section 302 I.P.C. in that case the accused may be convicted and punished under Section 302 I.P.C. because the sentence provided under Section 302 I.P.C. is more severe than the punishment provided under Section 304-B I.P.C. The Apex Court in Rajbir (supra) has directed all the trial courts in India to ordinarily add Section 302 I.P.C. to the charge of Section 304-B I.P.C. In this regard Registrar Generals of all the High Courts have been directed to circulate this judgment to all the trial courts in India. 10. Thus this Court is of the considered view that an alternative charge may be framed under Section 302 I.P.C. but no alternative charge should be framed under Section 306 I.P.C. 11. So far as the innocence or guilt of the accused is concerned, at the very outset a charge-sheet under Section 304-B I.P.C. has been filed and there is an unnatural death of the deceased during the subsistence of the marital relation between the applicant and the deceased and there was a matrimonial dispute between the wife and the husband and a divorce petition was also filed by the applicant. This Court is not competent to decide the fact and evaluate the evidence under Section 482 Cr.P.C. therefore no case is made out to quash the entire proceeding of the concerned sessions trial. 12. On the basis the aforesaid discussions, the Court comes to the conclusion that the trial court has wrongly framed an alternative Charge under Section 306 I.P.C. therefore this Application U/s 482 Cr.P.C. is liable to be allowed partly. ORDER: 13. The application is partly allowed in respect of framing of alternative charge under Section 306 I.P.C. on 01.08.2022 and the alternative charge framed under Section 306 I.P.C. is set aside. The learned trial court is directed to frame the charge afresh. ORDER: 13. The application is partly allowed in respect of framing of alternative charge under Section 306 I.P.C. on 01.08.2022 and the alternative charge framed under Section 306 I.P.C. is set aside. The learned trial court is directed to frame the charge afresh. The charges so framed may also be altered exercising the power conferred under Section 216 Cr.P.C. instead of framing the fresh charges. 14. A copy of this order be sent to the concerned court for compliance.