Vishwanath Sahu And ORS. v. State Of Chhattisgarh

CRIMINAL REVISION No. 5 [hf/0F 2013 , I UNDER SECTION 397 READ'WITH SgCTiON 401 OF THE CODE 'OF CRIMINAL PROCEDURE, 1973 /_ PETITIONERS:'

1.

Vishwaxfath Sahu, s/ Q Ram Sahgi Sahu, aged 3lyearé, r/o-Lakhanpur, District , .

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Sarguja (C.G.)'

I Rulgan Sahu, 2.

Ram '/Sahai Sahu, s/o-late éged 58 years, éahai Sahu, aged Sumitragfahu, w/ o Ram .

55years {7Q} 2, ward No.

of Lakhanpur residents Both V\ District Sarguja (C.G.) Lakhanpur P.

S.

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f VERSUS «5'

State of Chhattisgarh, through the station House Officer, Police Station SPONDENT:

RE Udaipur District Sarguja Chhatti'sgarh Police Station :- Udaipur V Revenue District :- Sarguja Civil District :- Sarguja Arising out of the orders of Second Additional Sessions [ Judge Passed by the Court ) Chhattisgarh presided over by Smt.

109/2€12, "

Sarguja (Ambikappur Surnan Ekka in SessiOns Trial No.

'o'rdering framing for charge 'of'

offence 03/06/2013, e under section 304 B/34 of the Indian Penal punishabl charges actually so Code, (for short IPC) V framed.

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G?) Being aggrieved by the order detailed in the title, of this petitwn (hereinafter referred to as the impugned order), petitioners beg to make this petition for revision thereof, under 'i d grounds followmg facts Circumstances an folioWing thereafter.-

------r MM Sessions Tria No. 1 09/1 2.

l 3.

Subsequently, vide impugned order dated 3.6.13, the trial court i.e. the court of 2nd Additional Sessions Judge, Ambikapur vide the impugned order has framed charges against applicants for offence punishabie under Section 304-B/34 IPC.

4.

It this order which has been assailed by the applicants in the t instan case.

5.

Learned Sr.

Advocate for the applicants submitted that accepting the prosecution story as it is, according to him, two propositions could have been possible.

Firstly, once when the medical evidence has come that the cause of death was due to intake of poison, then it would had been a case of clear murder.

Secondly, even if the entire story of the prosecution has been accepted, the charge framed under Section 304-B IPC not made out as according to the counsel for the applicants, at best it could have been a case of 498-A IPC and not 304-8 IPC. He tried to emphasize from materials available in court. there nothing by which it could be established that soon before the death of the deceased, there was a demand of dowry or even an act of cruelty on the part of the applicants so as to establish the offence under Section 304-8 IPC.

Thus, for all these reasons, the charge framed against them is not made out and that the order dated 3.6.13 deserves to be set aside and applicants are liable to be discharged for offence punishable under Section 304-B/34 IPC.

6.

Opposing the submissions made on behalf of the applicants, Shri Bajpai, Dy. G.A for the state submits that the case of 304-B/34 IPC has been framed by court below account of prima facie materials available on record. He took the Court through the statements of Kabutari Bai (PW-3) - mother,'Jagdish Prasad Sahu (PW-2) - father, Santosh Kumar Sahu (PW-1) ~ brother Rakesh Kumar Sahu (PW-4) - brother-in-law of the deceased all of whom have stated that deceased Abha Sahu immediately after about 5-6 months from her marriage (which took place 27.4.09), was subjected to cruelty harassment account of demand of dowry.'

He has further stated that there was no need for framing a charge under Section 498-A IPC against the present

applicant for the reason that the very fact that the applicants have been charged for offence under Section 304-B IPC itself includes the offence under Section 498-A IPC.

State counsel has further submitted that while framing of the charge, the court has to look into as to whether from the available materials in the challan, a prima facie case is made out or not.

That in the instant case, there are sufficient materials on the part of the prosecution which was in fact placed before the court below and the court below after due consideration of all these facts had prima facie reached to conclusion applicants were found to have prima facie committed an offence punishable under Section 304-B IPC in the said circumstances, there no scope of interference at this stage, against the framing of charge.

7.

Having considered the rival contentions put forth by either side, it is trite to refer to a decision recently decided i.e.

Shoraj Singh Ahlawat_ and Ors.

vs.

State of U.P and Anr reported in AIR 2013 SUPREME COURT 52 wherein Hon'ble the Supreme Court has categorically held that the Magistrate, on the basis ofthe material available on reCord, only has to see whether there a ground to presume accused/applicant has committed an offence.

The Supreme Court has further held at stage of framing of charge, Court only required to evaluate the material documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed existence of all ingredients constituting alleged offence.

At stage, court not expected to go deep into probative value of the material on record.

What needs to be considered *7 is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out.

At that stage, even strong suspicion founded on material which leads the 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. 8.

Similarly, in the case of Amit Kapoor vs. Ramesh Chander and, Another reported in (2012) 9 Supreme Court Cases 460.

'Supreme Court has, in very categorical terms held in para-19 as under:- "At the in'itia/ stage of framing of charge, court is

concerned nol' With proof but With a strong suspicion that the accused has committed an offence, Which, if put to trial, could prove him guilty All that the Court has to see that the material on record and the facts would be compatible With the innocence of the accused or not.

The final test of guilt is not to be applied at that stage." ln the same judgment, the court below has clearly stated that the revisional jurisdiction should be exercised cautiously and that the scope of interference exercising revisional jurisdiction particularly while dealing with the framing of a charge has to be very limited. 9.

ln the instant case, when we refer to the judgments placed before court, statements of Kabutari Bai (PW-3) - mother, Jagdish Prasad Sahu (PW-2) - father, Santosh Kumar Sahu (PW-1) - brother, Rakesh Kumar Sahu (PW-5) - brother-in-law and also the statement of Satyawanti Gupta (PW-4), sister of the deceased clearly stipulate there was prima facie evidence against the present applicants in respect of subjecting deceased Abha Sahu to cruelty and harassment on account of demand of dowry.

Further, the circumstances under which the death of the deceased took place i.e.

firstly, applicant No.1 - Vishwanath Sahu tried to make out a story that the deceased met with an accident while the family were going on the motorcycle from Uproda Kodi to Lakhanpur but the evidence that has been collected shows that except for the deceased, no other person who was travelling on the motorcycle on the said date received any sort of injury.

Similarly, the motorcycle on which they were travelling was also not damaged which would show that no accident had taken place finally 7.10.10 when deceased died, postmortem report shows that the death took place because of the intake of poison.

These are the strong suspicions in respect of the death of the deceased having died othenNise than under normal circumstanCes. 10.

As regards contention of learned Sr.

Advocate for applicants, there no element of proof regarding harassment and cruelty that took place soon before death of the deceaSed.

lt submitted that Hon'ble Supreme Court in the case of Kalivagerumal and, another vs..State of Tamil Nadu reported in AIR 2003 Supreme Court Cases 382 held that the determinationrof theirperigd which can come

within term 'sooh before'

left to be determined by courts depending upon facts and circumstances of each case. If in the instant case, the time is to be seen from the statements that have corne before court below, it evidently clear marriage took place 27.4.09 and the harassment by the applicants to the deceased was after 5-6 months from the date of marriage and that in the intervening period, the deceased had also turned out from the house of the applicants and thereafter, matter was settled by Panchayat deceased came back to reside with applicant No.1 other applicants.

After these incidents thattook place in the intervening period, it can be safely presumed that theact part of the applicants subjecting deceasedto harassment cruelty issue of demand of dowry was soon before her death.

11.

lt settled position of law that while framing of the charge, court below need not meticulously analyze the evidence or scan records that have come before the court threadbare.

All that which required is from the available materials, whether prima facie an offence is made out or not and for that even if there is a strong suspicion against the persons, the charge can be framed.

12.

Thus, under the given circumstances, no such strong case has been made out by counsel for applicants so as to invoke revisional jurisdiction of this Court at this stage of framing of charge. 13.

Thus, criminal revision being devoid of merit, same accordingly dismissed.

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Sd/- l P. Sam Koshy l Judge i Priya