Mishrilal and Another vs State of M.P.

C.K. Prasad, J.—The two petitioner are aggrieved by the order dated 12-7-94 passed by the Addl. Sessions Judge, Narshigharh, in S.T. No. 87/92, whereby he has directed for framing of charges against the petitioners for offences u/s 302 IPC and in the alternative under Sections 304B, 177, 498A and 201 IPC by its order dated 12-7-94. The learned Judge by the said order has also directed that S.T. 87/92 as also S.T. 43/93 shall be disposed of analogously and the evidence taken in S.T. 87/92 shall be read also in S.T. 43/93.

The petitioners aggrieved by the aforesaid order have preferred this revision application.

Shri Jaisingh, attempted to argue that direction of the learned Judge for taking on to record the evidence recorded in S.T. 87/92 in S.T. 43/93 is illegal. However, later on he gave up this attempt and submitted that he will confine his prayer in relation to framing of charges only. It may be stated here that evidence of seven witnesses have already been recorded in the trial.

The charge levelled against the petitioner Mishrilal is that on 7-9-91, he has murdered Rashmi wife of Pravin Kumar, which is punishable u/s 302 IPC. Alternatively this petitioner Mishrilal has been charged that he demanded dowry and subjected her to cruelty for dowry and as a result whereof, the said Rashmi died otherwise than under normal circumstances. Similar charges have been levelled against petitioner No. 2 Pradeep Kumar. It may be stated that Mishrilal is the father-in-law of deceased Rashmi and Pradeep Kumar is the younger brother of the husband of deceased Rashmi.

Shri Jaisingh appearing on behalf of the petitioners submitted that there is no evidence allected during the course of the entire investigation u/s 203 IPC. He has further submitted that the material collected during the investigation may justify framing of the charge against these two petitioners for an offence u/s 304B IPC but the charge u/s 302 IPC is absolutely groundless. He prayed that the order of the Trial Judge to that extent may be set aside.

Petitioner No. 1 tried to project the death of Rashmi a case of suicide and, in fact, he has given an information of this effect to the police. However, during the course of investigation it has come into light that the deceased Rashmi was found in a room unconscious and her husband was also there. Shri Singh appearing on behalf of the petitioner submitted that as petitioner No. 1 was not in the town at the time when the deceased was found unconscious, he cannot be charged for an offence u/s 302 IPC,

For the purpose of framing of the charge u/s 304B IPC there is sufficient material and those materials are that the death of deceased Rashmi did not take place normal circumstances, the death has taken place within seven years of the marriage and there was demand of dowry by the petitioners. During the course of investigation, it has also come in the light that the husband of the deceased assaulted her and the deceased became unconscious, thereafter.

Shri Jaisingh submitted that there is no doubt that the petitioner was not in the town when the occurrence has taken place. As such no charge u/s 402 IPC can be framed against him. He submitted that for framing alternative charge, doubt must relate to the offender and not offence. Counsel in support of his submissions has placed reliance on a judgment of this Court in the case of Mardan Singh and Others Vs. State of Madhya Pradesh, . He also sought support for his submission from the judgments of Nanak Chand v. State of Punjab (AIR 1935 SC 274) and Jadunandan Gope and Ors. v. The State (AIR 1934 Pat 403).

ft is apt to reproduce Section 221 of the Cede of Criminal Procedure :

Section 221 :

(1) If a single act or series of act is of such a nature that it is doubtful which of several offences the facts which can be provided will constitute the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offence.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although be was not charged with it.

In my opinion, there is no doubt that it is only in situation when there is doubt relating to the offence that Section 221 provides for framing of the alternative charge. A reading of Section 221 Cr.P.C. makes it clear that only ''when it is doubtful which of the several offences the facts which can be proved will constituted, alternative charges can be framed. This provision will apply only in cases where there is no donbt about the facts which can be proved, but a doubt arises as to which of several offences had been committed on proved facts, in which case any number of charges can be framed and tried or alternative charge can be framed. In fact authorities relied on by Shri Jaisingh to support the view which has been taken by me. This would be evident from the following paragraphs of the judgment in the case of Nanak Chand. v. State of Punjab (supra).

"Provisions of Section 236 can apply only in cases where there is any doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can be framed."

The doubt being with relation to the offence, I am of the view that the learned Trial Judge was justified in framing alternative charges under Sections 302 and 304B IPC.

For the reasons stated above, I direct for dismissal of revision application. Records of the Trial Court be sent down immediately.