Raju vs State of Uttar Pradesh and Others

Vishnu Chandra Gupta, J.—This Criminal Revision is directed against orders of trial court dated 18.9.2014 and 20.10.2014 whereby the Revisionists/accused facing trial in S.T. No. 1572 of 2000 were charged in the alternative under Section 302 IPC in addition to charges under Sections 498A/304B IPC and Section 3/4, Dowry Prohibition Act already framed and thereafter rejection of application under section 217 Cr.P.C. moved by them for directing the prosecution to produce all the 17 witnesses already examined to substantiate the additional/alternative charge under section 302 IPC respectively. The brief fact for deciding this revision in nutshell are that in the trial, the prosecution had examined as many as seventeen witnesses. When the trial fixed for delivery of judgment, the trial court after observing it that alternative charge under Section 302 IPC has not been framed by his predecessor in this case of 304B IPC therefore, alternative charge under Section 302 IPC is required to be framed in the interest of justice and after framing alternative charge in addition fix the case for prosecution evidence on 23.9.2014. The prosecution did not adduce any addition evidence and case was proceeded further. The revisionists then moved an application under Section 217, Cr.P.C. with a prayer to direct the prosecution to produce 1 to 17 witnesses already examined to substantiate the additional/alternative charge under Section 302 IPC. The trial court after observing that the prosecution did not avail the opportunity granted by the court and did not adduce any evidence thus, the evidence of prosecution was closed and case was listed for recording statement under section 313 Cr.P.C., rejected the application of the revisionists.

Heard the learned Counsel for the revisionists and learned AGA for the State and perused the record of the case.

It appears that after taking into consideration the directions issued by a two-Judge Bench of Hon''ble Supreme Court passed in Rajbir @ Raju and Another Vs. State of Haryana, AIR 2011 SC 568 : (2010) 12 JT 544 : (2011) 1 RCR(Criminal) 69 : (2010) 12 SCALE 319 by which the Hon''ble Supreme Court directed all trial courts in India to add Section 302 in every case alleging commission of an offence punishable under Section 304-B IPC, the additional alternative charge has been framed against the revisionists. A plain reading of Section 216, Cr.P.C. would show that the court''s power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgment is pronounced. Sub-sections (2) to (5) of Section 216, Cr.P.C. deal with the procedure to be followed once the court decides to alter or add any charge. Section 217, Cr.P.C. deals with the recall of witnesses when the charge is altered or added by the court after commencement of the trial. There can, in the light of the above, be no doubt about the competence of the court to add or alter a charge at any time before the judgment. The circumstances, in which such addition or alteration may be made, are not, however, stipulated in Section 216, Cr.P.C. It is all the same trite that the question of any such addition or alternation would generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court.

The directions issued in Rajibir''s case (Supra) were re-examined in Jasvinder Saini and Others Vs. State (Govt. of NCT of Delhi), (2013) 7 AD 367 : AIR 2014 SC 841 : (2014) 117 CLT 514 : (2013) 3 DMC 39 : (2013) 3 JCC 2168 : (2014) 1 JT 373 : (2013) 4 RCR(Criminal) 316 : (2013) 8 SCALE 377 : (2013) 7 SCC 256 by the Hon''ble Supreme Court and in paragraphs 14 and 15, the Apex Court ruled as under:

"14. Be that as it may, the common thread running through both the orders is that this Court had in Rajbir case directed the addition of a charge under Section 302 IPC to every case in which the accused are charged with Section 304-B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court.

It is common ground that a charge under Section 304-B 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 perusal of impugned order, it reveals that the trial court in that view of the matter acted mechanically in framing 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 Rajibir''s case (Supra).

In the light of what I have said above, the order passed by the trial court for framing additional charge in alternative under Section 302 IPC clearly untenable and shall have to be set aside.

In view of the discussion made herein above, the orders impugned dated 18.9.2014 and 20.10.2014 are not sustainable and are hereby set aside. However, that would not 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 it in view the decision of the Apex Court in Hasanbhai Valibhai Qureshi Vs. State of Gujarat and Others, AIR 2004 SC 2078 : (2004) CriLJ 2018 : (2004) 4 JT 305 : (2004) 4 SCALE 174 : (2004) 5 SCC 347 : (2004) 3 SCR 762 : (2004) 2 UJ 1027 : (2004) AIRSCW 2063 : (2004) 3 Supreme 71 where the Hon''ble Supreme Court has recognised 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". (SCC p. 350, para 10) : (para 10 of AIR).

Reference may also be made to the decisions of Hon''ble Supreme Court in Ishwarchand Amichand Govadia and Others Vs. State of Maharashtra and Another, (2007) CriLJ 51 : (2006) 2 DMC 651 : (2006) 10 SCALE 148 : (2006) 10 SCC 322 : (2006) 7 SCR 229 Supp and the decision of the Allahabad High Court in Shiv Nandan and Others (In Jail) Vs. State of U.P., (2005) CriLJ 3047 which too are to the same effect.

In any such fresh exercise which the trial court may undertake, it shall remain uninfluenced by the observations made by the this Court on merits of the case. Accordingly this criminal revision is allowed. The accused/revisionists are directed to appear before trial Court on 16.04.2015.