Giani Ram vs Tarun Dahiya and Others

Daya Chaudhary, J.—The present revision petition has been filed against order dated 17.9.2009 passed by Sessions Judge, Rohtak vide which an application u/s 216 Cr.P.C. moved on behalf of the prosecution to add charge u/s 302 read with Section 34 IPC has been dismissed.

Briefly, the facts of the case are that deceased Asha was married with accused Tarun Dahiya in the year 2007 and a daughter was born out of the said wedlock. As per case of the prosecution, accused Tarun (husband) Durga Dass and Mahenderwati (parents-in-law) and Renu (married sister-in-law) used to maltreat, harass and beat Asha with cruelty for or in connection with demand of dowry and they were also doubting her character. Although the matter was settled on many occasions but they continued treating her with cruelty. The father of the deceased was stated to have managed a separate rental accommodation for Asha and her husband at Rohtak. On 16.1.2008, Tarun, the husband of the deceased, telephonically informed Giani Ram, the father of the deceased that Asha had committed suicide by hanging. On receipt of information, the complainant Giani Ram and other persons went to the house of accused and on inquiry, it revealed to them that either Asha was hanged after killing by all the accused or she had committed suicide being fed up with cruel behaviour of the accused.

On the basis of complaint made by father of the deceased, FIR No. 11 dated 16.1.2008 was registered against Tarun Kumar (husband) Durga Das and Mahenderwati (parents-in-law) and Renu (sister-in-law) for offence punishable u/s 304B IPC at Police Station Urban Estate, Rohtak.

During investigation, accused Mahenderwati and Renu were found innocent and they were kept in column No. 2. Police Report u/s 173 Cr.P.C. was submitted against Tarun and his father Durga Dass.

The case was committed to the Court of Session for trial vide order dated 24.4.2008. Both the accused were charge-sheeted for commission of offence punishable under Sections 498A/304B IPC vide order dated 8.5.2008. Statements of the prosecution witnesses were recorded. Subsequently, an application u/s 311 Cr.P.C. was moved on behalf of the prosecution for summoning of additional evidence which was allowed and Dr. Sushma Jain PW-4 was ordered to be summoned for her examination vide order dated 22.4.2009. On completion of additional evidence on 17.8.2009, another application for framing of additional charge u/s 302 read with Section 34 IPC was also moved by the prosecution on the ground that as per statement of Dr. Sushma Jain, there was a ligature mark around and the neck was constricted and the cause of death was due to above-said injury on the neck besides three other injuries on other parts of the body which constitute an offence u/s 302 IPC.

Notice of the application was issued to the opposite side and in response thereto, reply was also filed. As per reply, no charge u/s 302 IPC was made out as per post mortem report and the statement of Dr. Sushma Jain PW-4 as charge u/s 304B IPC had already been framed and there was no requirement to frame charge u/s 302 IPC. Moreover, nothing was there in the FSL report and earlier charge u/s 498A and 304B IPC was framed after hearing the prosecution.

After hearing both the parties, the application was dismissed vide order dated 17.9.2009 with the observation that if at any subsequent stage the prosecution brings on record any evidence for commission of offence u/s 302 read with Section 34 IPC, it may avail the appropriate legal remedy.

The present revision petition has been filed on the ground that as per post mortem report and statement of Dr. Sushma Jain, PW-4, there was a ligature mark around and the neck was constricted and the cause of death was due to above said injury on the neck besides three other injuries on other parts of the body of the deceased which constitutes offence u/s 302 IPC.

Mr. Sanghi, learned Counsel fore the petitioner submits that the trial Court has failed to appreciate that if the facts alleged by the prosecution create doubt in the mind of the Court as to which of the various offences is made out, charges under all the sections which appear to be attracted may be framed though no challan for framing charge under a particular section is filed by the prosecution.

Learned Counsel for the petitioner further submits that as per statement of complainant Giani Ram, it was mentioned that either all the accused had hanged Asha after committing her murder or she herself had committed suicide being fed up from the accused and she died an unnatural death in the house of her in-laws. The injuries on her person cannot be self inflicted and were homicidal in nature. It is also the argument of the learned Counsel for the petitioner that from the evidence led by the prosecution, prima facie a case u/s 302 read with Section 34 IPC is made out. Learned Counsel for the petitioner also relies upon a judgment of Delhi High Court reported in Dinesh Mehta Vs. The State (Nct of Delhi), in support of his contention.

Mr. Y.P. Singh Advocate for respondent No. 2 submits that as per report of post mortem examination and even FSL, no offence is made out u/s 302 IPC as Dr. Sushma Jain PW-4 had already stated in her statement that definite opinion was to be given on receipt of report of the Chemical Examiner but nothing incriminating evidence has come in the FSL report and moreover charge under Sections 498A and 304B IPC was framed after hearing the other side. He also relies upon the judgment of this Court in Om Parkash v. State of Haryana 2006(4) R.C.R. (Criminal) 331 in support of his contention.

I have heard the arguments of the learned Counsel for the parties and have also gone through the impugned order and other documents available on the file.

The trial Court while dismissing the application u/s 216 Cr.P.C., has given a detailed finding that complainant himself has stated that either the accused had hanged Asha after committing her murder or she has committed suicide being fed up from the accused and during investigation, mother-in-law Mahenderwati and sister-in-law Renu were found innocent after considering all material on record and charges were framed under Sections 498A and 304B IPC. It has also been mentioned by the trial Court that no evidence has come on record to suggest remotely that anybody had seen accused committing murder of Asha. As per statement of Dr. Sushma Jain PW-4, the cause of death was due to injuries and ligature mark which can be possible even in case of dowry death for wich the accused had already been charged under Sections 498A/304B IPC. It has also come on record that Durga Dass accused filed Crl. Revision No. 1966 of 2008 for quashing of the charge framed against him and the same was dismissed as withdrawn by this Court vide order dated 24.9.2008. There was no fresh material before the trial Court to frame additional charge u/s 302 read with Section 34 IPC as charge under Sections 498A/304B IPC had already been framed on the basis of statement of the doctor, post mortem report and evidence of FSL. There was no fresh material available for alteration of the charge. The judgment cited by the learned Counsel for the petitioner is also not applicable on the facts of the present case as there was no doubt in the mind of the trial Court as a clear-cut finding has been given that prima facie a case under Sections 304B and 498A IPC was made out on the basis of evidence available on record and no offence was made out u/s 302 read with Section 34 IPC and this evidence was already available with the trial Court while framing charge under Sections 498A and 304B IPC.

There is no merit in the contentions raised by the learned Counsel for the petitioner and the same is dismissed.