Maniben Dahyabhai vs State of Gujarat

D.C. Srivastava, J.—This revision is directed against an order dated5th May 2000 of Additional Sessions Judge, Veraval,rejecting the application of the revisionists fordischarging them from the offences under which they areproposed to be tried. Shri M.J.Budhbhatti for therevisionist and Shri M.A.Bukhari for the respondent havebeen heard. The impugned order has been examined. Thelearned counsel for the revisionist has in support of hiscontention placed reliance upon the judgement of the ApexCourt in the case of LOKENDRA SINGH V. STATE OF M.P.reported in 1999 SCC 371 and has contended that onthe basis of this pronouncement the impugned order cannotbe sustained. For proper appreciation of thiscontention, we have to see the brief facts under whichthe application for discharge was rejected by the learnedAdditional Sessions Judge.

Initially the Police submitted a charge sheetafter completing the investigation against the accusedincluding the revisionist under Sections 302, 201 readwith Section 34 of the IPC. While considering theapplication for discharge the learned Additional SessionsJudge has, as required by Section 227 of Cr.P.C.,considered the entire material available before him,namely, Post Mortem Report, FIR and the statements of thewitnesses recorded by the investigating officer duringthe investigation u/s 161 of Cr.P.C. He has alsoreferred to a judgement of the Apex Court on the subject.

The Additional Sessions Jude was justified intaking the view that while framing the charge he has toconsider the entire material placed before him by theprosecution and from that material he has to come to theconclusion whether there is prima facie evidence toproceed against the accused or not. At that stage, ofcourse, he can sift and weigh the evidence but not withthe purpose that such evidence will be sufficient forconviction of the accused. On the other hand, sifting ofthe evidence is done only with a view to come to a primafacie conclusion that there is material against theaccused for proceeding against him under various Sectionsfor which he has been charge-sheeted. He has also takencorrect view that merely because charge sheet issubmitted under a particular section of IPC or particularsections of the IPC, he is not mechanically bound toframe charges under those sections as desired by theinvestigating agency. On the other hand from thematerial on the record he has to come to his ownconclusion that prima facie all the offences appear tohave been committed by the accused persons or not. Atthis stage, the Sessions Judge or the Additional SessionsJudge is required to consider whether the accused mighthave committed the offence and not that the accused musthave committed the offence for which they are to becharged. It is at the later stage, after collection ofevidence, that the Sessions Judge has to come to aconclusion whether the offences alleged to have beencommitted by the accused have been proved by theprosecution beyond all shadow of doubt or not.

The Apex Court in the case of Union of India (UOI) Vs. Prafulla Kumar Samal and Another, hasobserved that the Judge while considering the question offraming the charge u/s 227 of the Cr.P.C. has theundoubted power to sift and weigh the evidence for thelimited purpose of finding whether or not a prima faciecase against the accused has been made out. Where thematerials placed before the Court disclose gravesuspicion against the accused which has not been properlyexplained, the Court will be fully justified in framingthe charge and proceeding with the trial. It furtherlaid down that by and large however if two views areequally possible and the judge is satisfied that theevidence produced before him while giving rise to somesuspicion but not grave suspicion against the accused, hewill be fully within his right to discharge the accused.

Thus, in view of this verdict of the Apex Court,the Additional Sessions Judge could have been justifiedin discharging the revisionist only when he was satisfiedthat the evidence produced before him gives rise to somesuspicion but not grave suspicion against the accused.The Additional Sessions Judge has discussed the relevantevidence produced before him and from that evidence hecame to the conclusion that prima facie offencespunishable u/s 498(A) and 304(B) of the IPCread with Section 34 of the IPC could be proceeded withand the accused should be tried under these Sections.According to the Additional Sessins Judge, it was not acase where there was absolutely no evidence on which theaccused could be proceeded for trial. It was also not acase where the material placed before the AdditionalSessions Judge disclosed grave suspicion against theaccused which has not been properly explained.

In the light of the aforesaid principles laiddown by the Apex Court, the Additional Sessions Judge hasexamined the material placed before him. He has observedthat the charge sheet was submitted under Sections 302, 201 read with Section 34 of the IPC. But according tohim in view of the post mortem report, the burn injurieson the body of the deceased were found post mortem.Consequently, prima facie it was not shown that thedeceased committed suicide by burning herself. If burninjuries were the cause of death, then, such injuries inthe post mortem report should have been described as antemortem and not post mortem injuries. The post mortemreport further shows that ligature marks were also foundaround and below the thyroid cartillage encircling theneck horizontally and completely. In the post mortemreport it was further found that there was fracture ofthyroid cartillage bone. Tongue was found to beprotruded. The cause of death, mentioned in the postmortem report was asphyxia due to strangulation and noton account of burn injuries. The Additional SessionsJudge has also considered the inquest report and thestatements of the witnesses recorded by the InvestigatingOfficer u/s 161 of the Cr.P.C. and from such evidence hefound that prima facie the death of Manjulaben was causedon account of strangulation and not due to burn injuries.The Additional Sessions Judge has also taken intoconsideration the surrounding circumstances of the case,namely, the accused and the deceased were living in thesame house and the incident took place in their presencehence accused were the best persons to explain under whatcircumstances the deceased died. No explanation has comefrom their side on this point. The learned AdditionalSessions Judge has found that false explanation was givenby the accused in the FIR that it was a case of suicidecommitted by the deceased. It was also considered by theAdditional Sessions Judge that the father of the deceasedmade a statement before the police that the incident tookplace within seven years of marriage of the deceased withher husband and that the deceased was complaining to herfather about demand for additional dowry and complaintfrom the accused was that she has not brought sufficientdowry and on account of meagre dowry the accused used tobeat and ill-treat her physically as well as mentally.Mental cruelty was also stated by the father of thedeceased before the police. On such material, to mymind, the learned Additional Sessions Judge was justifiedin rejecting the application of the accused for dischargeand he has rightly observed that from the material placedbefore him the accused could be charged under Sections 498(A), 304(B) read with Section 34 of the IPC.

The case of LOKENDRA SINGH V. STATE OF M.P.reported in 1999 SCC 371 is distinguishable onfacts. In this case, the appellant was charged underSection 302 and in the alternative u/s 306 ofthe IPC. The trial Judge convicted the appellant underSection 302 but no finding in respect of the charge underSection 306 was recorded resulting in his acquittal underSection 306 of Cr.P.C. The State of Madhya Pradesh didnot file any appeal against acquittal u/s 306 of Cr.P.C.On appeal filed by the appellant, the High Courtacquitted the appellant of the charge u/s 302 butconvicted him u/s 306 of the IPC. On these facts it washeld by the Apex Court that the offence u/s 306 being nota minor offence in relation to Section 302 within themeaning of Section 222 of Cr.P.C. the High Court was notjustifed in convicting the appellant u/s 302 of the IPCafter having acquitted him of the charge u/s 302 of the IPC. The Apex Court confirmed the finding ofthe High Court acquitting the appellants u/s 302 of theIPC. It further found that Section 304(B) of the IPCsquarely applied to the facts of the case but since theincident took place prior to the introduction of thisSection, the accused could not be convicted u/s 304(B) of the IPC. I am afraid on the aforesaid facts,the law laid down by the Apex Court can be applied to thefacts of the present case before me which is essentiallyat the stage of framing of the charge. In my view, thisdecision is distinguishable on facts.

In view of the reasons stated above, I do notfind any illegality in the order passed by the AdditionalSessions Judge. The revision is therefore dismissed.