Arun Kumar Sharma & Ors vs State Of Uttarakhand & Anr

Lok Pal Singh, J

This criminal revision is directed against the order dated 15.12.2014 passed by II Additional Sessions Judge, Haridwar in Sessions Trial no.172 of

1999, State vs. Arun Kumar Sharma and others.

Factual background of the case is that on 10.09.1998 an F.I.R. was lodged by the complainant Akhilesh Kumar Sharma with P.S. Kotwali

Haridwar, District Haridwar stating therein that his sister Akarja got married with the revisionist Arun Kumar on 5.05.1992 as per Hindu rites and

rituals. In the marriage, they have spent about Rs.1,00,000/- but the revisionists were dissatisfied with the dowry given in the marriage and they used

to harass her for demand of dowry. This fact was told to them by his sister many times whereupon they tried to persuade the revisionists but to no

avail. After the marriage, the revisionists fulfilled the demand of Rs.50,000/- of the revisionists. It was alleged that from last month the revisionists

were demanding Rs.25,000/- and a motor cycle. When they showed their inability to give the amount of Rs.25,000/-, the revisionists badly beaten his

sister. On 10.09.1998 at about 08:30 am, neighbor of his sister gave him information on telephone that the revisionists have set his sister at fire. On

receiving this information, they went to the house of his sister where they found that his sister have sustained serious burn injuries. She told them that

the revisionists have set her at fire in order to kill her, due to non-fulfillment of demand of dowry. His sister was taken to the hospital where she

succumbed to the injuries. On the basis of F.I.R., case was registered against the revisionists under Section 304-B/498A IPC. The matter was

investigated and a charge-sheet was filed before the court. Thereafter, charges were framed against the revisionists under Sections 304-B and 498-A

IPC. On denial of guilt, trial begun. The prosecution witnesses were examined and after the closure of evidence, statement of the revisionists was

recorded u/s 313 of Cr.P.C. After hearing the arguments of respective parties, trial court fixed the case for delivery of judgment. On 15.12.2014, 2nd

Additional Sessions Judge, Haridwar, observed that the charge under Section 304-B and 498A IPC has been framed against the revisionists and

alternative charge u/s 302 IPC has not been framed. It was further observed that as per the proposition of law propounded by the Hon’ble Apex

Court, in a case of Section 304-B IPC, alternative charge u/s 302 is required to be framed. Charge u/s 302 of IPC was accordingly framed against the

revisionists.

Learned counsel for the revisionists would submit that the trial was fixed for delivery of judgment on 15.2.2014, but the trial court, instead of

pronouncing the judgment, all of a sudden framed additional charges against the revisionists u/s 302 and 34 IPC. He would submit that before framing

the alternative charge u/s 302 of IPC, the trial court did not provide any opportunity to the revisionists. Learned counsel would further contend that

trial court has passed the impugned order in a mechanical way. He would further submit that charge under Section 302 IPC has been added merely

because in the case of Rajbir Alias Raju and another vs. State of Haryana reported in (2010) 15 SCC 116, the Apex Court has directed all the trial

courts in the country to ordinarily add Section 302 IPC to the charge of Section 304-B, so as to enable the court to impose death sentences in heinous

and barbaric crimes against women. He would further submit that subsequently the aforesaid decision was reconsidered and clarified by another

Division Bench of the Hon'ble Apex Court in the case of Jasvinder Saini and others vs. State (Government of NCT of Delhi) (2013) 7 SCC 52.6 He

would refer to paragraphs 15, 16 and 17, which read as under:-

“15. It is common ground that a charge under Section 304B IPC is not a substitute for a charge of murder punishable under Section 302. As in the

case of murder in every case under Section 304-B also there is a death involved. The question whether it is murder punishable under Section 302 IPC

or a dowry death punishable under Section 304-B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether

direct or circumstantial to prima facie support a charge under Section 302 IPC the trial Court can and indeed ought to frame a charge of murder

punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If

the main charge of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative

charge of dowry death punishable under Section 304-B is established. The ingredients constituting the two offences are different, thereby demanding

appreciation of evidence from the perspective relevant to such ingredients. The trial Court in that view of the matter acted mechanically for it framed

an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in

Rajbir case2. The High Court no doubt made a half hearted attempt to justify the framing of the charge independent of the directions in Rajbir case,

but it would have been more appropriate to remit the matter back to the trial Court for fresh orders rather than lending support to it in the manner done

by the High Court.

In the light of what we have said above, the order passed by the trial Court and so also that passed by the High Court are clearly untenable and

shall have to be set aside. That would not, however, prevent the trial Court from re-examining the question of framing a charge under Section 302 IPC

against the appellant and passing an appropriate order if upon a prima facie appraisal of the evidence adduced before it, the trial Court comes to the

conclusion that there is any room for doing so. The trial Court would in that regard keep in view the decision of this Court in Hasanbhai Valibhai

Qureshi v. State of Gujarat4 where this Court has recognized the principle that in cases where “the trial Court upon a consideration of broad

probabilities of the case based upon total effect of the evidence and documents produced, is satisfied that any addition or alteration of the charge is

necessary, it is free to do so.â€​. (SCC p. 350, para 10)

I have heard learned counsel for the parties and perused the entire material available on file.

Before going any further, it would be apt to extract Section 216 of Cr.P.C., which is as follows:-

Court may alter charge. -(1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the

accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made,

proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the

prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be

proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the

altered or added charge is founded.â€​

A plain language of aforesaid Section would make it clear that the court may alter charge at any stage before the judgment is pronounced. There is

no bar of the stage and the charge may be altered at any stage. In the present case, the trial court had fixed the case for pronouncement of judgment

on 15.12.2014, but instead of doing so, the trial court deemed it appropriate to frame additional charge of Section 302 of IPC. A perusal of the

impugned order would reveal that the trial court, while framing additional charge of Section 302 of IPC against the revisionists, has recorded a finding

that there are allegations against the revisionists-accused persons of committing murder of the deceased. Contents of the F.I.R would reveal that from

the very inception, allegations were made against the revisionists that they committed murder of the deceased due to non-fulfillment of demand of

dowry. Impugned order also reflects that before adding Section 302 of IPC as alternative charge, the Trial Judge took into consideration the evidence

recorded.

Insofar as the judgment relied on by the counsel for the revisionists, is concerned, that is of no help to the petitioner. The ratio of the judgment in

Jasvinder Saini (supra) is not applicable to the facts and circumstances of the present case. In Jasvinder Saini’s case, Hon’ble Apex Court

has categorically held that the trial court, simply on the basis of direction issued in Rajbir’s case (supra), should not frame additional charge under

Section 302 IPC without adverting to the evidence adduced in that particular case. The direction was not meant to be followed mechanically and

without due regard to the nature of the evidence available in the case. In the case at hand, trial court, after considering the evidence recorded in the

case, has framed additional charge of Section 302 of IPC. The argument of learned counsel for the revisionists that the Trial Court has acted

mechanically in passing the impugned order, is misconceived.

In view of the foregoing reasons, I do not find illegality or perversity in the impugned order, which may require interference by this Court. Criminal

revision lacks merit and is hereby dismissed.

Trial Court is directed to proceed with the trial and conclude the same at the earliest.

Let a copy of this judgment be immediately sent to the Trial Court for information and ensuring compliance.