- (1.) THIS revision petition has been filed against the order dated 08.05.2007 passed by the learned Additional Sessions Judge (Fast Track), No.2, Jaipur City, Jaipur, whereby he has framed charges against the petitioner for the offence under Section 306 IPC.
(2.) THE brief facts giving rise to this case are that the brothers of the deceased, namely Ram Kumar Aswani and Naresh Kumar Aswani had made a complaint to Superintendent of Police, Jaipur City, Jaipur on 19.08.1991. It was averred in the complaint that their sister, namely Bharti Singh, was married to Narendra Singh, petitioner one year ago. Further, it was averred that in extremely abnormal circumstances, Smt. Bharti Singh was found hanging to the ceiling fan at about 12.00 in the night, on 10.08.1991. It was mentioned in the complaint that the efforts were being made to give the incident a colour of suicide, whereas there were circumstances, which shows that it was a deep conspiracy of murder. THEreafter, the complainants have given various circumstances in this regard. As for instance, it has been mentioned that the deceased Smt. Bharti was a brave and bold lady who had married with Narendra Singh against the wishes of her family members and in no circumstances, she would have committed suicide. THE deceased had invited some persons for a meal on the next day i.e. 11.08.1991. She had prepared Mehandi, which shows that there was no reason or intention or prior preparation for committing suicide. It was also mentioned in the complaint that petitioner had married earlier also but had left his wife. It was averred in the complaint that the petitioner was not a man of good character and he had relations with other girls. He is said to have been involved in a murder case earlier. He was the main accused in that case and the police had been searching him. A Muslim person, who was going on a bicycle was murdered in Mahesh Nagar and his deadbody was thrown on the railway track. But as the petitioner had contacts at the higher level he remained absconding from the office as well as residence and had also left his sister at Jaipur. Later on, the said criminal case was dropped on account of some recommendation. Apart from it, it was mentioned in the complaint that the petitioner was involved in Jaipur Communal Riots during which he had burnt down many shops and his leg was also got burnt. It was also stated in the complaint that in the room, where the suicide is said to have been committed, there was only one folding bad and a small table. THE deceased Smt. Bharti was pregnant of eight months and she was not in a condition to get herself hanged to the fan, which was at a height of 10 feet, even by climbing on the table. Further, it was mentioned in the complaint that although both, petitioner and deceased, were working in the High Court and getting good salaries, but they did not have much house hold articles and the entire money was being spent by the petitioner in consuming liquor. On the day of incident, also the petitioner was under intoxication. It has also been mentioned in the complaint that despite of hanging to the ceiling fan, eyes and tong of the deceased Smt. Bharti were not coming out. A note is said to have been written by Smt. Bharti, which was very short and torn from the top as well as bottom. It is also mentioned in the complaint that the petitioner was always in need of money and he had been demanding the same from complainant family. Few months ago, a loan was taken in the name of sister of the complainants and her Luna vehicle was also got sold even then the petitioner did not have money to buy a scooter. He had taken money from the complainants on many occasions. Apart from it, the petitioner used to demand money through their sister. It was stated in the complaint that in the interest of justice and in view of the aforesaid circumstances, re-inquiry be got conducted by the specialist, as the case of murder of their sister was being given the colour of suicide by petitioner. Further, it was prayed in the complaint that a case of murder of Smt. Bharti Singh may be registered against the petitioner Narendra Singh. On the aforesaid complaint, a First Information Report (No. 249/1991) was registered on 19.08.1991 at Ashok Nagar, Jaipur for the offences under Sections 498-A and 304-B (the letter 'IPC' had been written by way of over-typing on some figures). In the meanwhile, an inquiry under Section 174 Cr.P.C. was conducted by ACM-I, Jaipur which was also handed over to the police. It appears that thereafter, usual investigation was conducted by the police from 28.08.1991 onwards. A site plan was prepared and statements of witnesses were recorded under Section 161 Cr.P.C. The said statements at the top mentions that it was being recorded in FIR No. 249/1991, registered at Police Station Ashok Nagar, Jaipur on 19.08.1991 for the offence under Section 304-B IPC. On conclusion of the investigation, the police filed challan (145) on 30.10.1991 for the offence under Section 306 IPC. Subsequently, the matter came up for trial before the learned Additional Sessions Judge (Fast Track), No.2, Jaipur City, Jaipur who had then framed charge by the impugned order dated 08.05.2007. Hence, this revision petition has been filed by the accused petitioner seeking to challenge the order of charge passed by the learned trial court. The learned counsel for the petitioner has submitted that the impugned order of charge is not sustainable in law as being contrary to the relevant provisions and material available on record. Further, he has submitted that the learned trial court has not properly considered the facts and circumstances of the case and also the statements of the witnesses. According to him there are three types of statements, namely that of friends, neighbours and the relatives. He has submitted that the charge had been framed against the petitioner, by the learned trial court, on the basis of surmises and conjectures. It has also been submitted that the deceased and the petitioner had cordial relations, it was a love marriage between them and that the deceased had left a suicide note. On the basis of the statements of the witnesses, the learned counsel for the petitioner has submitted that no offence under Sections 498-A and 306 IPC is made out against the petitioner. It is submitted that the petitioner has neither instigated nor abated the deceased to commit suicide. In support of his submissions, the learned counsel for the petitioner has placed reliance on the cases of Manish Kumar Sharma vs. State of Rajasthan, 1994 (1) RLR 94; Ramesh Chandra vs. State of Rajasthan, 1997 (1) RLR 651; Ramesh Kumar vs. State of Chhattisgarh, AIR 2001 SC 3837; Sanju @ Sanjay Singh Sengar vs. State of M.P., (2002) 5 SCC 371; Hans Raj vs. State of Haryana, (2004) 12 SCC 257; Netai Dutta vs. State of West Bengal, (2005) 2 SCC 659; Bhagwan Das vs. Kartar Singh & Ors., AIR 2007 SC 2045 and Sohan Raj Sharma vs. State of Haryana, AIR 2008 SC 2108. On the other hand, the learned Public Prosecutor has submitted that the order of charge passed by the learned court below is very much in accordance with law and based on material on record. Further, he has submitted that the charges framed against the petitioner are just and proper. According to him, from the complaint and the evidence collected by the Investigation Agency, including the enquiry conducted under Section 174 Cr.P.C., there is ground for presuming that the accused has committee an offence. He has read before me the complaint and the statements of some of witnesses recorded by the Police. The learned Public Prosecutor has referred to other evidence on record collected by the Investigation Agency. He has submitted that the deceased was at the residence of accused petitioner and undisputedly, the incident has taken place at his house. Therefore, he has submitted that such circumstances also connect the chain which leads to grave suspicion on the petitioner. The learned Public Prosecutor having supported the order of charge, submitted that the learned court below has rightly exercised powers under Section 228 Cr.P.C. and has made a prayer that no interference in the same is called for by this Court. Consequently, the revision petition deserves to be dismissed. Before considering the contentions raised by the counsels for the rival parties, it would be appropriate to refer the relevant provisions of law, its ambit and scope. Chapter XVIII of the Code of Criminal Procedure provides for trial before Court of Sessions. Under Section 228 of the Code of Criminal Procedure charges are framed in Sessions trial. Section 228 reads as under:- 228. Framing of charge.-:(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) Is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. In other words, the learned Judge is of the opinion that there is ground for presuming that the accused has committed an offence, which is exclusively triable by it, he shall frame a charge in writing against the accused. Thereafter, the charge shall be read and explained to the accused and he shall be asked as to whether he pleads guilty of the offence charged or claims to be tried.
(3.) THE Hon'ble Supreme Court has laid down the considerations to be applied by the Court at the time of framing of the charge. As early as in the year 1977, in the case of State of Bihar vs. Ramesh Singh, (1977) 4 SCC 39, the Hon'ble Supreme Court has laid down the tests and considerations to be applied by Court while appreciating Section 228 of the Code of Criminal Procedure. THE Hon'ble Supreme Court, in para 4 and 5 of the said case, has held as under:- 4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. THEreafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. 'THE Judge has to pass thereafter an order either under Section 227 or section 228 of the Code. If "the Judge consider that there is not. sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by Section 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-.........(b )is exclusively triable by the Court, he shall frame in writing a charge against the accused', as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. THE standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or section 228 of the Code. At that stage the Court is not to 'see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the 260 initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. THE presumption of the guilt of the accused which is to be drawn at the, initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not if the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the, trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if, on the other hand, it is so at the initial stage of making an order under section 227 or section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under section 228 and not under section 227. 5. In Nirmaljit Singh Hoon v. THE State of West Bengal and an- other(1)-Shelat, J. delivering the judgment on behalf of the majority for the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prakash Chandra Bose (2) where this Court was held to have laid down with reference to the similar provisions contained in sections 202 and 203 of the Code of Criminal Procedure, 1898 "that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused." Illustratively, Shelat J, further added "Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case." In the case of Supdt. And Rememberance or Legal Affairs, West Bengal vs. Anil Kumar Bhunja & Ors., (1979) 4 SCC 274, Hon'ble Supreme Court had reiterated the provisions of law at the stage of framing of charge. In para 18, the Hon'ble Apex Court has held as follows:- 18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of the offence. In the case of Stree Atyachar Virodhi Parishad vs. Dilip Nathumal Chorida & Anr., (1989) 1 SCC 715, the Hon'ble Supreme Court, in a case where newly married girl died, had laid down in para 14, 17, 18, 19 and 20 as under:- 14. These two decisions do not lay down different principles. Prafulla Kumar case has only reiterated what has been stated in Ramesh Singh case. In fact, sec. 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, he guilt or the innocence of the accused will be determined and not at the time of framing of charge. The Court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor it is necessary to delve deep into various aspects. All that the Court has to consider is whether the evidenciary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into. 17. It may not be out of place to mention that "dowry" which is a deep rooted social evil appears to be the cause of ever so many unfortunate death of young ladies. It is an offence brutal and barbaric. It is generally committed inside the house and more often with a circumstance to give an impression that it was a suicidal death. There will be all round attempt to cover up such offence by the family members rather than to expose it. The Government has come forward with legislations from time to time to protect women and to punish those who commit atrocities on them. In 1961 the Dowry Prohibition Act (Act 28 of 196 1) was passed prohibiting the taking or giving dowry. By the Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983) Chapter XX-A was introduced in the Penal Code with sec. 498-A creating a new offence of cruelty. It provides for punishment to husband or his relatives if they harass a woman with a view to coerce her to meet any unlawful demand for property. Section 174 of the Criminal Procedure Code was also amended to secure post-mortem in 568 case of suicide or death of a woman within seven years of her marriage. Section 113-A has been introduced in the Evidence Act, 1872 raising presumption of cruelty as defined under sec. 498-A IPC against the husband or his relatives if the wife commits suicide within a period of seven years from the date of her marriage. These provisions reflect the anxiety of the representatives of our people to deal firmly the menace of dowry deaths. Again, here are sweeping changes made in the Dowry Prohibition (Amendment) Act, 1984. A new offence called 'Dowry death' has been created by introducing sec. 304-B in the Penal Code. It raised presumption of culpability against the husband or relative hitherto unknown to our jurisprudence. It provides that where the death of a woman is caused by any bums or bodily injury or otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry, such death shall be called 'dowry death'. The section also provides hat such husband or relative shall be deemed to have caused her death and shall be punished with imprisonment for a minimum of seven years but which may extend to life imprisonment. 18. We are referring to these provisions not that they are attracted to the present case. It is only to emphasize that it is not enough if the legal order with sanction alone moves forward for protection of women and preservation of societal values. The criminal justice system must equally respond to the needs and notions of the society. The investigating agency must display a live concern and sharpen their wits. They must penetrate into every dark corner and collect all the evidence. The Court must also display greater sensitivity to criminality and avoid on all counts "soft justice". 19. In the instant case the trial court has considered every material on record in support of the charge framed. The trial court has also given reasons why a charge under sec.302 IPC is warranted against Dilip even though the police charge sheeted him under sec. 306 IPC. The High Court has gone on a tangent mainly relying on the dying declaration as if it has been conclusively proved to be the true and faithful version of the deceased. Apart from that, we are unable to compromise ourselves with the approach made and the opinion expressed by the High Court in respect of many of the matters. 20 We wish to add a word regarding interference by the High court against a charge framed by the Sessions Court. Section 227 which confers power to discharge an accused was designed to prevent harassment to an innocent person by the arduous trial or the ordeal of prosecution. How that intention is to be achieved is reasonably clear in the section itself. The power has been entrusted to the Sessions Judge who brings to bear his knowledge and experience in criminal trials. Besides, he has the assistance of counsel for the accused and Public Prosecutor. He is required to hear both sides before framing any charge against the accused or for discharging him. If the Sessions Judge after hearing the parties frames a charge and also makes an order in support thereof, the law must be allowed to take its own course. Self restraint on the part of the High Court should be the rule unless there is a glaring injustice stares the Court in the face. The opinion on any matter may differ depending upon the person who views it. There may be as many opinions on a particular matter as there are courts but it is no ground for the High Court to interdict the trial. It would be better for theHigh Court to allow the trial to proceed. ;