- (1.) The accused-petitioner has filed this Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. against the order dated 27.5.2014 passed by the Additional Sessions Judge, Karauli in Sessions Case No.58/2012 whereby the learned trial Court allowed the application under Section 216 Cr.P.C. filed by the respondent-complainant and ordered to frame additional charge against the petitioner for offence under Section 302 IPC.
(2.) Brief relevant facts for the disposal of this petition are that FIR No.339/2011 came to be registered against the petitioner and his other family members on 2.12.2011 at Police Station Sapotara (District Karauli) for the offences under Sections 498-A and 304-B IPC on the basis of a written report lodged by the respondent-complainant, father of the deceased wife of the petitioner and after investigation charge-sheet was filed against the petitioner only for the aforesaid offences. Charge was framed against the petitioner for the aforesaid offences and for offence under Section 4 of the Dowry Prohibition Act by the learned trial Court vide order dated 30.4.2012. During the course of trial statements of as many as thirteen prosecution witnesses were recorded and at this stage the aforesaid application under Section 216 Cr.P.C. came to be filed on behalf of the respondent and the learned trial Court after hearing both the parties by way of impugned order allowed the same as already stated. Feeling aggrieved, the petitioner is before this Court by way of this criminal revision petition.
(3.) In support of the petition, learned counsel for the petitioner submitted as below:- (1) In this case the application under Section 216 Cr.P.C. has been filed by the respondent-complainant whereas it is well settled legal position that in a criminal case instituted on the basis of FIR and investigation undertaken by police, the complainant/victim has no locus standi to participate in the trial of such a case and, therefore, the complainant was not entitled to move such an application and the same was liable to be dismissed as not maintainable but the learned Court below without considering this aspect of the matter allowed the same and the impugned order is liable to be set aside and quashed on this ground alone. It is further well settled that in a police case the complainant/victim of the crime at the most assist the Public Prosecutor to conduct the trial in a proper manner but he has no independent right either to actively participate in it or to move any application before the trial Court. (2) The application was filed by the respondent only by the reason that Hon'ble Supreme Court vide order dated 22.11.2010 passed in Criminal Misc.Petition No.23051/2010 (Rajbir @ Raju and Anr. Vs. State of Haryana) directed all the trial Courts in India to ordinarily add Section 302 IPC to the charge under Section 304-B IPC but the aforesaid Criminal Misc.Petition was finallly dismissed by the Hon'ble Court vide order dated 5.2.2011 finding no merit in the petition. As soon as the aforesaid petition was dismissed by the Hon'ble Court on merit vide order dated 5.9.2011, the prior order dated 22.11.2010 merged in it and the order dated 22.11.2010 lost its binding nature and the trial Court was not entitled to add charge under Section 302 IPC against the petitioner. (3) Otherwise also, Hon'ble Supreme Court in the case of Jasvinder Saini & Ors. Vs. State (Govt. Of NCT of Delhi, 2014 AIR(SC) 841, has held that charge under Section 302 IPC cannot be framed against a person accused of offences under Sections 498-A and 304-B IPC mechanically without adverting the evidence adduced in the case whereas in the present case no evidence has come on record showing commission of offence under Section 302 IPC by petitioner even prima facie. (4) It is well settled legal position that to frame charge for an offence it is not sufficient only to show prima facie case is made out against the accused but the legal requirement is that there must be strong suspicion against the accused showing his involvement in the incident for which he has been made accused and there is likelihood of his conviction but in the present case, neither from the evidence collected during investigation nor from the evidence produced during the course of trial the aforesaid requirement can be said to be fulfilled. (5) Learned Court below has wrongly observed in the impugned order that it was for the petitioner to explain under Section 106 of the Evidence Act how the deceased died, from where the poison was procured by which the death was caused and how it was administered to the deceased as these facts can only be within the knowledge of the petitioner. This observation of learned Court below is against the well settled legal position to the effect that in criminal cases it is for the prosecution to prove charge against an accused beyond reasonable doubt. (6) It is an admitted fact that there is no eye witness of the incident and the entire prosecution case is dependent on circumstantial evidence and there is no sufficient evidence on record showing even prima facie that the deceased was murdered by petitioner or any other person. (7) In such a case two contradictory stands cannot be taken by the prosecution one of "dowry death" and other of murder. On the basis of written report lodged by the respondent-complainant, FIR was registered for offences under Sections 498-A and 304-B IPC treating the death of the deceased as "dowry death" and after investigation also the case was found to be of dowry death and, therefore, charge-sheet for the same offences was filed and charges were also framed for the same offences and, therefore, during the course of trial the prosecution/complainant was not entitled to change its stand and to make prayer that the deceased was murdered by the petitioner.;