RAVINDRA SINGH, J. - (1.) THIS application under section 482 Cr.P.C.has been moved by the applicants Prasoon Gupta, Pramod Gupta and Smt.Vimla Gupta with a prayer to quash the order dated 26.7.2010 passed by learned Additional Sessions Judge, Court No. 1 Jhansi in S.T.No. 96 of 2009 whereby the charge under section 306 I.P.C. and alternative charge under section 302/34 I.P.C.has been framed.
(2.) THE facts, in brief, of this case are that the FIR of this case has been lodged by Santosh Kumar Gupta against the applicants on 3.1.2009 at 2.00 P.M.in respect of the incident which had occurred on 2.1.2009 at about 10.00 A.M. at the police station Chir Gaon in Case Crime No. 1 of 2009 under sections 328 and 304 I.P.C. alleging therein that the marriage of the deceased Smt. Archana Gupta, the sister of the first informant, was solemnized with the applicant Prasoon Gupta about 20 years prior to the alleged incident. The deceased was living in her in-laws house, she was issue less, she was always subjected to the cruelty by her in-laws, she was physically and mentally tortured by extending threat that after committing her murder, the second marriage would be performed so that generation may continue. The deceased has remained with her mother for about three years, but after holding the Panchayat, the first informant tried to persuade the in-laws of the deceased to behave in a proper manner but no change was made in the behaviour of the in-laws of the deceased. On 2.1.2009 at about 10.00 A.M. a telephonic massage was given by the applicant Prasoon Gupta to the first informant for calling her sister from the applicant's house, then the first informant along with his two brothers came to the village of the applicant, they met with the deceased, they were apprised by the deceased that she was beaten by the applicants and some poisonous substance was administered to her. She asked for saving her life then she was becoming unconscious, by arranging a motor vehicle she was taken to the Medical College, Jhansi where she was admitted but during the course of the treatment she died at about 1.00 A.M., the in-laws of the deceased seeing the serious conditions of the deceased ran away from their village after lodging the F.I.R, the investigation was done by the I.O. and the charge sheet was submitted under section 306 I.P.C., on which the learned Magistrate concerned has taken the cognizance and the case has been committed to the court of session. Heard Sri Brijesh Sahai and Sri Jitendra Kumar Singh, counsel for the applicants, learned A.G.A. for the State of U.P. It is contended by learned counsel for the applicants that in the present case, the F.I.R. has been lodged under section 328 and 304 I.P.C. In the present case, the viscera was preserved but according to the report of the Public Analyst, the poison Aluminium Phosphide was found in viscera, during investigation the I.O. collected the evidence showing that the deceased had committed suicide, therefore, charge sheet under section 306 I.P.C. has been submitted, on which the learned Magistrate concerned has taken the cognizance, but on the same material collected by the I.O. the trial court has framed the charge under section 306 I.P.C. and its alternative charge under section 302/34 I.P.C. vide order dated 26.7.2010. The order dated 26.7.2010 is illegal because there is no material to show that offence under section 302 read with 34 I.P.C.is made out. Apart from it, the main charge under section 306 I.P.C. and its alternative charge under section 302/34 I.P.C. are self contradictory because the charge under section 306 is framed only in case of suicide but the charge under section 302/34 is framed only in case of homicide because both the charges are distinct and in different categories, therefore, the trial court has committed a manifest error by framing the charge under section 306 I.P.C and its alternative charge under section 302/34 I.P.C.
(3.) IN reply of the above contention it is submitted by learned A.G.A. that according to the F.I.R. the deceased was beaten by her in-laws, thereafter, the poisonous substance was administered to her, in viscera report, the poison aluminium phosphide was found, it discloses the commission of the offence punishable under section 302/34 I.P.C. Learned Trial court has not committed any error in framing the alternative charge under section 302/34 I.P.C. by framing the charge under section 306 I.P.C., the impugned order dated 26.7.2010 is not suffering from any illegality or irregularity. The present application is devoid of merits, the same may be dismissed.;