Crl.R.No.1424 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.R.No.1424 of 2009 (O&M) Date of Decision: February 23, 2010 Manjit Kaur .....Petitioner v. Arjinder Singh and others ......Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.P.S.Ahluwalia,Advocate for the petitioner. Mr.Darling Behl, Advocate for respondent nos.1 to 3. Mr.Gaurav Garg Dhuriwala, AAG, Punjab. ...... RAM CHAND GUPTA, J. 1. The present revision petition has been filed under Section 401 read with Section 482 of the Code of Criminal Procedure (for short `Cr.P.C.’) for setting aside order dated 1.5.2009, Annexure P1, passed by learned trial Court, i.e., the Court of learned Additional Sessions Judge, Tarn Taran, vide which application moved by the present petitioner – complainant under Section 216 Cr.P.C. for altering charge from Section 306 read with Section 34 of the Indian Penal Code (for short `IPC’) to Section 302 read with Section 34 IPC was dismissed. 2. Briefly stated, on the complaint of the petitioner-complainant, FIR No.38 dated 18.6.2007, at Police Station Sarai Amanat Khan, District Crl.R.No.1424 of 2009 (O&M) -2- Amritsar, was registered for offence under Section 302 read with Section 34 IPC against respondent –accused nos.1 to 3. 3. As per the story of the prosecution, Kulwinder Kaur, daughter of complainant was married with accused Arjinder Singh in the year 1995. Arjinder Singh was retired from Army. He used to maltreat Kulwinder Kaur after consuming liquor. Even Bhupinder Singh, brother and Iqbal Singh father of Arjinder Singh also used to take liquor with Arjinder Singh and used to compel Kulwinder Kaur to cook meal in the late night. Kulwinder Kaur used to tell these facts to her parents and, however, they used to make her understand to remain calm on the plea that things may improve with the passage of time, but to no effect. Whenever Kulwinder Kaur used to stop the respondents from taking liquor and used to refuse to cook food for Bhupinder Singh in the late night, all the three respondents used to give her beatings. On 18.6.2007, at about 10.00 a.m., Kulwinder Kaur talked with her mother on telephone that on the last night all the respondents-accused had given her beatings after taking liquor and they were compelling her to cook food for Bhupinder Singh and his father in the night, however, she made her understand that she should not worry about these things and that she would be coming to see her in the evening. At about 3.30 p.m., complainant alongwith her husband Gurcharan Singh reached the house of their daughter at Village Kasel, however, their daughter was lying on a bed in the room and all the three accused were standing nearby the cot and they told them that Kulwinder Kaur had committed suicide by hanging herself with Chunni on the ceiling fan. 4. Initially the case was registered for offence under Section 306 read with Section 34 IPC, however, after receipt of postmortem report, it Crl.R.No.1424 of 2009 (O&M) -3- was found that the cause of death in this case was asphyxia as a result of strangulation, sufficient to cause death in ordinary course of nature, as per postmortem report, Annexure P2. Hence, final report, i.e., challan, under Section 173 Cr.P.C. was filed for offence under Section 302 read with Section 34 IPC, Annexure P3. 5. The opinion of the Medical Officer regarding cause of death is as under:- “ The injuries were ante mortem in nature. The cause of death in this case, in my opinion, is asphyxia, as a result of strangulation, which is sufficient to cause death in ordinary course of nature.” 6. However, learned trial Court ordered for framing of charge for offence under Section 306 read with Section 34 IPC instead of offence under Section 302 read with 34 IPC. 7. The present revision-petitioner filed Criminal Revision No.378 of 2008 in this Court against the order of learned trial Court dated 18.1.2008, Annexure P5, framing charge under Section 306 read with Section 34 IPC instead of Section 302 read with Section 34 IPC. The said petition was disposed of by this Court on 27.1.2009, vide Anneuxre P9, operative part of which reads as under:- “This petition is disposed of with an observation that if on the basis of the statement made before the trial Court, the complainant/prosecution is of the opinion that the charge deserve to be altered, it will be open to the petitioner or the prosecution agency to file an application under Section 216 Cr.P.C., for alteration/addition of the charge depending upon the circumstances existing. Safeguarding the above said right of the petitioner, the petition is disposed of.” Crl.R.No.1424 of 2009 (O&M) -4- 8. The petitioner moved an application under Section 216 Cr.P.C. before learned trial Court which was dismissed vide order dated 1.5.2009, Anneuxre P1 against which the present revision has been filed. 9. I have heard learned counsel for the parties and have gone through the whole record carefully. 10. It has been argued by learned counsel for the petitioner that during the course of trial, learned trial Court had recorded statement of the present petitioner as well as her husband as PW1 and PW3 and their testimonies are Annexures P7 and P8. It is further contended that Medical Officer Dr.Kirpal Singh, was examined as PW2 who conducted the post mortem examination, Annexure P2, on the dead body of the deceased, and whose statement is Annexure P6 in which in the examination-in-chief , he deposed that cause of death was asphyxia as a result of strangulation, which was sufficient to cause death in the ordinary course of nature. 11. It is contended that law is well settled that when death of a bride takes place within the four corners of the house, the presumption under Section 106 of the Indian Evidence Act is attracted and it is for the accused to explain how the crime was committed and how a living human being was turned into corpse. On this point he has placed reliance upon Amarjit Singh and others v. State of Punjab 1989 (1) RCR (Criminal) 18, and Trimukh Maroti Kirkan V. State of Maharasthra, 2006 (10) SCC 681. 12. It is further contended that for the purpose of framing of charge, only prima facie evidence is to be seen and that in case Court comes to the conclusion after trial that the accused is liable for conviction for lesser offence, the accused can legally be convicted for the lesser offence. Crl.R.No.1424 of 2009 (O&M) -5- Hence, it is contended that even if accused is charged for offence under Section 302 read with Section 34 IPC, and if after conclusion of the trial, learned trial Court comes to the conclusion that the offence under Section 306 read with Section 34 IPC is made out, accused can be convicted for the said offence. 13. It has further been contended that learned trial Court dismissed the application of the petitioner for framing charge for offence under Section 302 read with Section 34 IPC on the plea that if charge is framed under Section 302 read with Section 34 IPC, then the accused could not be convicted for offence under Section 306 IPC on the appreciation of evidence by relying upon judgment of Hon’ble Supreme court in Sangarabonina Sreenu v. State of A.P., (1997) 5 SCC 348. It is further contended that, however, in subsequent judgment delivered by Hon’ble three Judges of Hon’ble Apex Court in Dalbir Singh vs. State of U.P., (2004) 5 SCC 334 by overruling the said judgment it was held that where charge is framed under Section 302 IPC, the accused could be still convicted under Section 306 IPC on appreciation of evidence. Hence, it is contended that the impugned order passed by learned trial Court runs contrary to the dictum of Hon’ble Apex court in Dalbir Singh’s case ( supra ). 14. Hence it is argued that the impugned order passed by learned trial Court dismissing the application of applicant-complainant for altering charge from Section 306 read with Section 34 IPC to Section 302 read with Section 34 IPC be set aside and learned trial Court be directed to frame charge for offence under Section 302 read with Section 34 IPC. 15. Learned State counsel has also supported the argument of Crl.R.No.1424 of 2009 (O&M) -6- learned counsel for the complainant and contended that, prima facie, case for offence under Section 302 read with Section 34 IPC is made out against the accused and that they be ordered to be charged accordingly. 16. It is also contended that from a careful perusal of the postmortem report, it is shown that all the essential ingredients of strangulation are found in this case. He has placed reliance upon 22nd Edition (2003) of the Essentials of Forensic Medicine and Toxicology by Dr.K.S.Narayan Reddi, wherein tabular form at page 289 depicting the difference between hanging and strangulation is given and he specifically referred to essential differences at Nos.4 and 5. It is further contended that in this case neck was not found stretched or elongated and that subcutaneous tissues were ecchymosed and further argues that the same are essential features of strangulation. 17. On the other hand it has been argued by learned counsel for the respondents-accused that Dr.Kirpal Singh, who conducted the post mortem examination deposed in the cross-examination that possibilities of injuries having been received by the deceased by hanging cannot be ruled out, hence, it is argued that no case for offence under Section 302 IPC is made out and that learned trial Court has rightly framed charge under Section 306 read with Section 34 IPC. It is further contended that High Court should not interfere with the trial Court’s order framing of charge unless there is glaring injustice. On this point, he has placed reliance upon judgment of Hon’ble Apex Court rendered in State of Madhya Pradesh v. Rameshwar and others 2009 (2) RCR (Criminal) 709. 18. Law is well settled that at the time of framing of charge, only prima facie case is to be seen and even if there is strong suspicion about the Crl.R.No.1424 of 2009 (O&M) -7- commission of offence and the involvement of the accused, it is sufficient for the Court to frame charge and that there is no necessity of formulating the opinion about the prospect of the conviction. 19. Law is also well settled that veracity and effect of the evidence which the prosecution proposes to adduce are not to be meticulously gone into at that stage. On the point authoritative pronouncement of Hon’ble Apex Court in Supdt. and Remembrancer of Legal Affiars, West Bengal v. Anil Kumar Bhunja anothers, 1980 AIR (SC) 52 can be referred, relevant paragraph of which reads as under:- “18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence.” 20. In State of Maharashtra v. Som Nath Thapa, etc. 1996 (2) RCR (Criminal) 480, Hon’ble Apex Court observed as under:- “33. The aforesaid shows that if on the basis of Crl.R.No.1424 of 2009 (O&M) -8- materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.” 21. In State of M.P. v. Sudhir Pingle, 2000(1) RCR (Criminal) 523, it was observed as under: “4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the state of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceedings against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the material produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross- examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and others etc. 1991 (1) RCR Crl.R.No.1424 of 2009 (O&M) -9- (Crl.) 89: 1990 (4) SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarity be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh, 1977 (4) SCC 39, Union of India v. Prafulla Kumar Samal, 1979 (3) SCC 4 and Supdt. and Rememberancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979 (4) SCC 274, and held thus:” “From the above discussion it seems well settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift (sift ?) the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.” 22. In another judgment of Hon’ble Apex court in Sanghi Brothers (Indore) Pvt.Ltd., v. Sanjay Chaudhary and ors. 2008 (4) RCR (Criminal) 640, on the question of framing of charge, the Hon’ble Apex Court observed as under: “11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. Crl.R.No.1424 of 2009 (O&M) -10- As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed.” 23. Hence, in view of the aforementioned authoritative pronouncements of Hon’ble Apex Court, learned trial court is only to see prima facie case at the time of framing of charge and even if the Court think that the accused might have committed the offence, it can frame the charge though for conviction the conclusion is required to be that the accused has committed the offence and probative value of the material of the record cannot be gone into and that the material brought on the record by the prosecution has to be accepted as truth at that stage. 24. In the present case it is prima facie shown by the prosecution in the postmortem report that death of Kulwinder kaur was caused by strangulation in the house of the respondents-accused. Initially the complainant stated in her complaint before the police that Kulwinder kaur might have committed the suicide due to acts of cruelty and harassment being committed upon her by the respondents as was told to her by the accused themselves as her daughter was lying dead in the house of the respondents. In such like cases, direct evidence is generally not available and hence provision of Section 106 of the Evidence Act are to be invoked. Section 106 of the Indian Evidence Act is reproduced as under: “106. Burden of proving fact especially within knowledge- when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him” Crl.R.No.1424 of 2009 (O&M) -11- 25. A Division Bench of Hon'ble High Court in Amarjit Singh's case (supra) observed that provision of Section 106 of the Evidence Act can be invoked when it is disproportionately difficult by prosecution to establish facts as in case of death of a bride, the person in whose trust the bride was, be required to give an account of how the bride turned into corpse as that fact would be especially within his knowledge. 26. Dealing with the same point, Hon'ble Apex Court in Trimukh Maroti Kirkan's case (supra) observed as under: “15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.” 27. In the present case, explanation given by the respondents- accused that Kulwinder Kaur committed suicide has not been, prima facie, proved from postmortem report and hence, report under Section 173 Cr.P.C. was filed by prosecution for offence under Section 302 read with Section 34 IPC. 28. There is also force in the argument of learned counsel for the revision-petitioner that learned trial Court erred in observing that accused Crl.R.No.1424 of 2009 (O&M) -12- cannot be convicted for offence under Section 306 read with Section 34 IPC if charge is framed under Section 302 read with Section 34 IPC, as the offence under Section 306 read with Section 34 IPC is lesser than offence under Section 302 read with Section 34 IPC. The legal point has been settled by the Bench of three Hon'ble Judges of Hon'ble Apex Court in Dalbir Singh's case (supra) relevant paragraph of which reads as under: “17. There are a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to each one of them. Therefore, in view of Section 464 Cr.P.C., it is possible for the appellate or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangaraboina Sreenu was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the offence under Section 306 IPC.” 29. Hence, in view of decision of Hon'ble Apex Court in Dalbir Singh's case (Supra) learned trial Court has erred in observing that after framing of charge under Section 302 IPC, the present accused cannot be convicted and sentenced for offence under Section 306 IPC, if after appreciation of evidence it is found that case for an offence under Section 302 IPC is not made out and that the case for offence under Section 306 IPC alone is made out. Crl.R.No.1424 of 2009 (O&M) -13- 30. There is no dispute with the contention of learned counsel for the respondents-accused that this Court should not ordinarily be interfered with the trial Court's order for framing of charge unless there is glaring injustice as observed in Rameshwar's case (supra) by Hon'ble Apex Court and, however, it has been rightly argued by learned counsel for the petitioner that it is a case of glaring injustice as in view of the fact that prima facie case for offence under Section 302 read with Section 34 IPC is made out against the accused and if the respondents-accused are not charged for the said offence and if they are charged for offence under Section 306 read with Section 34 IPC only, they cannot be held guilty for offence under Section 302 read with Section 34 IPC on appreciation of evidence by learned trial Court. 31. Hence, in view of above discussion, the present revision petition is accepted and impugned order dated 1.5.2009, Annexure P1, passed by learned trial Court, dismissing the application of the petitioner- complainant is set aside, as prima facie case for offence under Section 302 read with Section 34 IPC is made out against the respondents-accused, as discussed above and the trial Court is directed to alter the charge against the respondents-accused from Section 306 read with Section 34 IPC to Section 302 read with Section 34 IPC. 32. However, nothing observed herein shall be having any effect on the final decision of the case by learned trial Court after conclusion of the trial. 23.2.2010 (Ram Chand Gupta) meenu Judge Note: Whether referred to Reporter. Yes/No Crl.R.No.1424 of 2009 (O&M) -14-