Ganesh Prasad Pathak And Others vs State Of Madhya Pradesh

Petitioners-accused have filed this criminal revision under Section 397 read with 401 of Cr.P.C. to set-aside the order dated 04.07.2016 passed by

III Additional Sessions Judge, Sidhi in ST No. 59/2016 whereby learned III Additional Sessions Judge, Sidhi framed the charges against the

petitioners-accused under Section 498-A/34 and 304-B read with Section 34 of IPC.

The prosecution case in brief is that marriage of Divya was solemnized with petitioner-accused no. 3 Vivek Kumar Pathak on 6. 05.2013. After

marriage deceased was residing with petitioners-accused at her matrimonial home. Petitioner no. 1 is father-in-law, petitioner no. 2 mother-in-law and

petitioner no. 4 is brother-in-law of the deceased Divya. Deceased Divya got burnt on 22.09.2014 she was admitted in Mishra Nursing Home, Sidhi

thereafter Sanjay Gandhi Medical College, Hospital, Rewa and she was admitted on 24.09.2014 in Suretak Hospital Nagpur. During the treatment she

died on 24.11.2014. Marg was registered and it is found that petitioners-accused demanded dowry and due to non-fulfillment of dowry they tortured

and humiliated her. So she committed suicide by pouring kerosene oil and set her on fire. After investigation charge-sheet was filed and charges also

framed as above.

Learned counsel for petitioners-accused submits that no case is made out under Section 498-A and 304-B of IPC against the petitioners-accused.

There is no material which is available on record on which it can be said that petitioners-accused demanded dowry and due to non-fulfillment of

dowry, they humiliated and tortured her. During the treatment, dying declaration of deceased was recorded. She stated that at the time of incident she

was cooking food on the gas, at that time her saree was came into contact with the gas, so she sustained burn injuries. Her husband petitioner no. 3

tried to save her and was admitted in the hospital. It is evident that deceased was burnt accidentally due to coming into contact with gas. Apart from

this deceased was alive after incident from 27.09.2014 to 24.11.2014 for about two months but she, her mother, father and brother or any relative did

not lodge any complaint against the petitioners- accused. After her death the relatives of the deceased started demanding huge amount but petitioners-

accused has expend huge amount in the treatment of the deceased, so they refused, then they have been falsely implicated in this case. So there is no

material which is available on the record, on which charges can be framed under Section 498-A and 304-B of IPC so he prays to set-aside the order

impugned.

Learned Government Advocate for State submits that the order of court below is proper, so no interference is warranted so she prayed for

dismissal of the Criminal Revision.

Heard both the parties and perused the record.

It is evident from the record that learned trial Judge framed the charges against the petitioners-accused under Sections 498-A and 304-B of IPC, so

it must be seen that what is the evidence against the petitioners-accused. Section 227 of Code Of Criminal Procedure, 1973 reads as under:

Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the

prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his

reasons for so doing.

Section 228 of Code Of Criminal Procedure, 1973 reads as under:

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.

Hon’ble Supreme Court in the case of Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijja and others AIR 1990 SC 1962

has held as under:-

Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors., [1979] 4 SCC 274 this Court observed in paragraph 18 of the

Judgment as under: ""The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or other- wise, 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 rounded upon materials before the

Magistrate which leads him to form a presumptive opinion as to 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 that offence"".

From the above discussion it seems well-settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a

view to finding out if the facts emerging therefrom taken at their face-value disclose the existence of all the ingredients constituting the alleged offence. The Court

may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is

opposed to common sense or the broad probabilities of the case.â€​

Hon’ble Supreme Court again in the case of Union of India Vs. Prafulla Kumar Samal and another AIR 1979 SC 366 has held as under:-

Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence

for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully

justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By

and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not

grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely

as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents

produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into

the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

Hon'ble Apex Court in the case of Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another 2005(2) SCC 561 has held as under:-

“It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts

emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the Court is not expected to

go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been

committed and not a ground for convicing the accused has been made out. At that state, even strong suspicion founded on material which leads that court to form a

presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect

of the commission of that offence.â€​

Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568 has held as under:-

“As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce

any material, Satish Mehra case , holding that the trial court has power to consider even materials which the accused may produce at the stage of Section 227 of the

Code has not been correctly decided.â€​

The Apex Court in the case of State of M.P. Vs. S.B. Johari and others reported in 2000(2) M.P.L.J (SC) 322, has held as under:-

“It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the

accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the

accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence

which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence

evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In

Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and

228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do

on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such

materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal

it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla

Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affair, West Bengal vs. Anil Kumar Bhunja (1979) 4 SCC 274 and held thus:

“From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a

view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court

may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is

opposed to common sense or the broad probabilities of the case.

(emphasis supplied)

It is evident from the record that marriage of the deceased Divya was solemnized with the petitioner no. 3 Vivek Kumar Pathak on 06.05.2013.

She died due to burn injuries on 24. 11.2014, so it is proved that deceased Divya has died in other than natural circumstances within the seven years of

marriage. It is true that dying declaration of deceased Divya is annexed in the case diary. She stated in her dying declaration that she was burnt due to

her saree coming into contact with the gas and petitioners- accused are not responsible for the incident and petitioner-accused no. 3 tried to save her,

but during the investigation the statements of father-Praveen Kumar Dwivedi, mother-Pratima Dwivedi, grand-father-Ramkilawan have been

recorded. They stated that petitioners-accused demanded dowry and due to non-fulfillment of dowry they tortured and humiliated the deceased-Divya.

It is also mentioned in the statement that they were informed that Divya had poured kerosene oil and set herself on fire and was crying to save her. So

prima-facie material is available in the statements of the witnesses on which this proceedings can be initiated. On foregoing discussion it is clear that

there are two types of evidence which are available on record. First evidence is dying declaration of the deceased and second set of evidence is

statements of witnesses. These two sets of evidence will be proved at the trial. It is established principle of law that charge can be framed on grave

suspicion . There is grave suspicion which exists in this matter because father, mother, uncle, grand-father of deceased stated that petitioners-accused

demanded dowry and due to non-fulfillment of dowry , they tortured and humiliated her. Deceased was admitted in Mishra Nursing Home, Sidhi

thereafter Sanjay Gandhi Medical College, Hospital, Rewa and she was admitted on 24.09.2014 in Suretak Hospital Nagpur but those documents were

not annexed in the case diary and petitioners-accused also did not produce these documents, so learned trial court framed charges against the

petitioners-accused on grave suspicion so it cannot be said that no material is available on record. So, order passed by the trial court is proper, no

interference is warranted in this criminal revision.

Accordingly, criminal revision is dismissed.