1:W XHE HZGH CO INAL REVISION No. Afeplicants Versns . Non-applicant •l-Laxmina rayan Agrawal,.son Of Shri Haja.ril_a_l Agrawal, Aged 60 years,Businessman. 2-Smt. Vimla Devi wife of ri Laxmi Narayan Ag.Ea'wal Aged 54 years, housewife. 3-Manish Agrawal, son of Shri. laxmi Narayan Agra'wal Aged 31 yearg, Businessman f A i.1 residents oS Awanti Vihar Colony, Raipur^, C.S. State of Cbhattisgarh. T&rough Police Station Civil Lines, Raipur, C.G ^^ CBIMINAI, REVISION U/S 397/481 O^ THE gS, P . © ^/y flMm «w 's HIGH COURT OF JUDICATURE AT BILASPUR (C.G) fl] CriminalRe^sionNo.91 of2003 '—-r"1— State of Chhattisearli iai Criminal revislon No.92 of 2003 Dr.Sarita Agrawal Vs. State ofChhattisgarh ORDBR Post for 'z.0.12.2004 Judge '^?: »x HIGH COURT O^ JUDICATURE AT BILASPUR (C.G) 01 Criminal Reviston No.91 of 2003 11>j], 121 LaxmiTiarayan Agrawal & ofhers Vs. State flf Chhattisgarh ^. &iminal revlslon No.92 of 2003 Dr.Santa Agrawal Vs. State ofChhattisgarh Appearaace in both fhe cases; ShriS.C.Datt, Seuior Advocate wifh Shri P. Diwakar, couiisel for fhe Petitioners. Shri J.D, Bajpai, Govemiaeut Advocate wifh Shri Neeraj Mehta, Shri Rajkumar Gupta aad Shri Saajeev Kumar Agrawa, Paael Lawyers for the State. Shri Rajeev Sbrivastava, counsel for the Coinplaiaaats/ Objectors, ORDER (^o. 12.2004) SunU Kumar Sinha, J, Sin^ce the crimiaal revisions, referred to above, arise out of a con^ion order dated 01.2.2004, they arc bem.g disposed of by this cominoa judgment -X I--......—.-1. -Y - 2-- \ • . ' . - (2) These revisions under section' 397 read wifh SeGtion 401 offhe Code ofCnmiiial PToeedure are directed against fhe order dated 01.2.2003 passed mSessions Trial No.391/2002 by the Sixfh. Additioual Sessions Judge, Raipur, District Raipur (C.G) whereby she fi-amed the chai^es under seetion 304-B aad in the altemative u/s 306" of.jthe Indian Penal Code against each of fh.e petitioners. Petitioners'no.l to 3 ia Cr. Rev. No. 91/2003 are the &theria ]aw, laofher in law aad the husband of fhe deceased, whereas petitioner no.l and 2 of Crihmiiial Revision No.92 of 2003 are fhe sister ia law (Naaad) and brofher-in-law (Dewar) of fhe deceased. (3) Briefly stated,facts offhe case are fhat Mardsh Agrawal was married with Puja, the deceased, on 24.5.2001. The niarriage was solemiiized at Raipur. After fhe mandage, Puja went to reside with her in laws and husbaad ia the matrimonial house iu which atl of fhem. (the appUcauts and fhe deceased) were Uviug togefher. Puja and Marush went for their Honeyinoou to South India on 5.6.2001. They stayed fhere upto 17.6.2001 and retumed back to Raipur. Theicafter on 22.6.2001 they went to visit the house of Diiiesh ^rawal at Bhilai who is ,the brofher of Manish, The Couple resided there for two days aud agaia. retumed back to Raipur on 24.6,2001. Puja conmutted suicide on 26.6.2001. The niei^ intimation was registeredvideNo,42/2001. The de- facto infomiant of the merg is SintVimla'Agrawal who is petitioner no.2 in Cr.Rey.No.91/2003. The mtimation is placed at Page 50 offhe ^ ^;!!! •\[^ -3- \, paper book. It was lodged on 26.6.2001 at about 18.00 hrs. The jncident is said to have takcn place at about 15,00 hours. The report reads that when fhe infonnaiit could not find her daughter-ia-law ia her IOODI iu fhe iBrst floor ofthe house, she started searctung her and ultimately her dead body, in fhe <?. bumt condition, was fouctd ip;' a store rooin {Lakadiwala roorri) <' \. in fhe first floor which was Ibcked, She iafonus in the msrg that fhe lock was ppened by her from outside aud fheu onty she could see fhe dead body. The iaquest was performed on 27.6.2001. In fhe meanwhile, fhe parents of the deceased rcsiding at Sambalpur, were also informed telephoiucally by fhe fanuly ineinbers of fhe petitioners and fhe dead body was seut for post mortein. The parents of the deceased namely Ramesli Chaadra Agrawal, SinfcNeela Devi reached Raipur and fheir stateinents were recorded ou 27.6.2001. The poUce also recorded the stateinents of Shyam. SuiKlcr Agrawal and Sm.t. Ratni Devi Agrawal on 28.06.2001, who are uucle and aunt the deceased, Thereafter, vanous Statements were also recorded by the poUce, in whieh the statements ^ of Siat.Vaadaaa, sister of the deceased, Rajul Kuiaar Jajodia, brother in law of fhe deceased, Rajkumar Gadodia, cousui of fhe ideceased and few others are fhere. Besides fhe above, fhe statenients of various neighbors were also recorded. The parents aad relations retumed back to their places ater the aforesaid enquiiy of iaquest. However, on 13.10.2001 Shyaia Sunder Agrawal, unck of the deceased loidged the First \ '- Iiiformation Report in Police Stetion, Givil Liries, Raipur in o -/,- consequence of which aa offence u/s304-B of fhe IPC was registered vide Cnme No.705/2001. In the said report, fhere were aUegations in relation to harassiuent and assault ia coniiection with dowiy and also about treatuient of fhe deceased wifh crueltyby fhe fanuly niembers ofin-laws. <1. (4) Oa fhe basis of the first ioformation report, fhe enquuy coininenced and ultimately fhe statements were again recorded u/s 161 Cr.P.C., by fhe m.vestigatmg agency. The stetenient of Shyam. Sunder Agrawal (Unck), Ramesh Chandra Agrawal (father), Smt. Neela Devi (inofher) and Siat. Ratai (auiit) were recordedon 17.10.2001 whereas fhe statenients of Vaadaaa Devi (sister) Rajul Kumar Jajodia (brother-in-law) were recorded on 26.2.2002 aud fhe stateiiients of vanous ofher wituesses iiicludiug the ne^hbors pf the family at Sambalpur were also recorded on various dates. The ^iolice a&er completion of enquiry ffled fhe chai^e sheet in. fhe concerued Court against alt the accused persons (petitioners) u/s 304-B read with section 34 IPC aad after conunittal, the m.atter waa taken up by the Sessions Court. The leamed AddL Sessions Judge afler considemig the records of tfae case aad the dociunents submitted fherewith and after heariag fhe subinission of counsel for fhe parties fi~amed charges u/ s 304- B aad ia the altematiye u/s 306 IPC agaiust each of the applicaats. The-petitioners have chaUenged fhe validity aad legaUly offhe said order in these petitions. ^ ^ ^••^. '•h -'?- (5) Leamed SeDior Cbuiisel Shri S.C.Datt, appeariug for the petitioners aiyied fhat mitiaUy fhe investigation done by fh.e police duriag the course of iaquest after lodgiag of the mei^ iatunation by the inofher-in.-law on 26.6.2001, none of fhe witnesses raised any aUegations either in relation to demaiid of dowiy or in relation to •har^'ssment on account of dowiy or regardiug iU-treataiient of fhe- deceased by fhe petitioners. Tbe entire enquiiy was coinpleted iu between. 26.6,2001 to 27,7.2001. Now, fhereafter, in St veiy planned niaxuier, the first iiifonnation reportwas lodged on 13.10.2001i.e., atoiost after about 2 Vi luonths fix>m fhe date of completion of enquuy of inei^ and then only, the same witaesses like mofher, fafher, uncle.auntandoth.er relatk>ns have raised aUegations agaiust ftie petitioners. He submits fhat iu fact, these subsequeut repeat statem.ents recorded after 13.10.2001 are uiidesirable, unpermissible ia procedure after com.pletion offull enquiry and are creatures of afterthought aad fhe order of fi-amiug charges agamst ftie petitioners are based on no credible Biaterial on record. He also submits ttiat the leamed Sessions Judge has coinpletely misinterpreted the provisions of law and has laechardcaUy fi-aiaed the char^es against the petittoners. He furfher submits fhat fhe necessaty ingredients of fhe oflfences charged with are inissing in the present case aad all the petitioners shouM. have been disclaarged by fhe Coiut below. Placing reliance x?n a decision of the M.P. H^b Court reported in 2002 (1) C.Cr.J. 77 IX.FI. leamed eoufisel for the petifioners submit^ fhat the totality ,of fhe circT.anstances .:»/•" -i- w •.^' 1% iacludiag those brought to fhe notice offhe Court, on behalfof the accused persons should be considered in order to detenniae whefher a case is fit for goiag to trial or not. He draws fhe attentiou of this Court towards the two stages of iuvestigation in. which, in the firststage, fhat is during fhe course of inquest none of th^'witnesses raised any aUegations against fhe petitioners aud subsequently in fhe second stage aflter a lapse of 2 Va inonfhs, fhey started raisiag aUegations ^amst fhein. He refers to a. portion of para 5 of fb.e aforesaid judgment which states that "there may be oonsiderdble material on reoord in a given case. However, the question ofprima,fc case would be a oase of degree. The court fs firmhf of the view that the trial Court before franting charges shoutd be alive to the totality of the drcwnstanoes induding fhose brcught to its notioe on behalfofthe accusedpersons in order to determine whether a case is fitfor going to trial." Leamed counsel for the petitioners also placed reliaace upon a decision ofthe Apex Court reported ia AJR 2002 S.C. 564 ffMtauwu" Bd&u au-cine -Vrs- State of BIdheirashtraj wherein. the Apex Court referring to a decision rendered in the matter of Union of India -vs- Praful KUTMJT Samal ccnd oihers, fl979 f3)SCC ffa.S) observed vide para 12 of fhe Judgmeut as under: "In exereMiag powers under Section 227 of fhe Code 6f Crimmal Piocedure, the settled position of law is that the Judge whUe considermg fhe question of fiamiug fhe chai^es under the said section has the undoubted powerto sift and we^ht fhe evidence for thelJTnited purpose offiitdiag out whefher'or not a prmia facie case agaiast thc .' i. /r^- ^ -7- accused persons has been niade out; where the mateiials placed before the Court disclose grave suspicion agaiast the accused which has not been properiy explamed fhe Court wiU. be fuUy justified in fi-aming a chai^e and proceeding with the trial; by and laige if two viewsare equaiy possible and the Judge is satisfied th.at fhe evidence produced before 1~iim wlule giviag raise to soine suspicion but not grave suspicion against ftte accused, he wiU be fuUy justified Jbo dischar^e the accused, aad ia exercisiag 'jurjjsdiction under section 227 of the Code of Cruniaal ,Procedure, the Judge camiot act merely as a post bf&ce or a moufhpiece of the prosecution, but has to consider the broad probabilities of the case, fhe total effect of the evidence aad the docuinents produced before fhe Cqurt but should not niake a roviag enquiry iato ftie pros and cons of the inatter aad weight fhe evidence as ifhe was eouductmg a trial." :lili He further reUes on a decision rendered in the inatter of JWranfan Stnah KarcunSSInsh PwiSalti—Vs-JitenderBhtmrai Bafaf and others. fAIR 1990S.C. 19621 and submits fhat as has been held by the Apex Court, even at the stage nf framing of chai^es, fhe Court is required to evaluate tiie inaterial aad documents on record, wifh. a view to fiad out fhat if fhey are taken at their face value, fhey disclose fhe existence of aU the ingredients constitutuig the alleged offence. He also aiyies fhat the Court may for this limited purpose shift the evidence as it cannot be expected even at that iuitial stage to accept all that fhe prosecution states as the gospel trufh, even if it is opposed to comnion sense or fhe broad probabflities of the case. .4^ (6) On the other haud, leamed State Counsel submits that at the stage of fi-amiag chai^es the court has only to see -8- T whether pnma facie fhere was suf&cient grouud to proceed against the accused. He also subnuts that at this st^;e, the court camiot appreciate fhe evidence to arrive at a pardcular conclusion. He placed reliaace on a decision ofthe Suprenie Court ia case of Stafo af JStiidhsa Prddesh-Vs- S. B. Johari eind athers reWrted ia f^tWO) 2 SCC wme 57. He submits fhat it would be justified 'in. qilashiug the charges if eveu on accepting the entire prosecution case, the chai^ed offence wouM not be made out He takesine to fhe various paragraphs offhe decision. referred to above. He also refers to the decision of Supreme Court iu case of Oni Wntf fSmt.) dnd aiwther -Vs- State throiwh Delihi AdmlnlstrdSdon and athers rcported ia fSOOl) 4 SCC 333 and argues fhat the High Court should not ordiaarily iaterfere wifh fhe trial Cpiut's order for framing chai^es unless fhere is glamig injustice. He takes nie to para 12 of fhe Jud^ment referring fhe quotations as it is fhat "it is the statutoiy obl^ations of the High Court not to iaterfere at fhe initial stage of framing cllai^es laerely oa hypothesis imagmation aad farfetehed reasons whlch ia law amount to uitErdictuig the trial agaiast the accused peisons. Unscrupulous litigants should be discouraged fixixu proteactuig the trial and preventmg culmination of the crimiaal case by haviug resort to uncaUed for and uujustifled litigation under the cloak of technicalities oflaw." Relymg upon fhese decisions, he alarmed this-Court for not appreciatmg fhe evidence at this stage and to accept it as it is and tfaen only to find out as to ;Kfher a pruna faeie case is made out agamst fhe petitioners 1:1'^" 1!i. /3r^ -3- or uot. Further relyiug'upon a decision ofHon'ble the Supreme Court reported in .2003 ABt SGW 111 Wtuwitr Semi -Vs- State of Asseun) be also aigues fhat inerely because the statements of illtreatment or harassment for fhe dowiy is aot made by parents axld relations of the deceased at the earUest stage aad fhey bave^Atated at,lQae earlier occasioas fhat they do not Iiave any suspicion, their' evidence should not be disbelieved and if fhe court finds fbat fhere ia prima facie evidence regardiug the ingrcdients ofoffence u/s 304-B ofthe IPC, fhen fhe cliarges should be sustaiued and the petitioners should be put to trial. He draws the attention of this Court to para 9 offhe Judgment III \: (7) In fhe light offhe aforesaid argmnents advanced by fhe leamed couasels for the pardes, this coiut is to find out as to whefher the charges firamed u/s 304-B or 306 ofIPC are to be sustained a%aisat fhe petitioners or not ? Considermg fhefirst ai^ument advanced by fhe learaed counsel for the petitioners that the enquiiy was finally coinpleted during the course of inqucst aad when the statements of the witnesses were recorded, these witnesses made ao allegations against the petitioners and almost each of them stated fhat they are having no suspicion regarding the deafh of the deceased. TIie witaesses are the father, niother, uncle, aunt and sister offhe deceased and therefore, no reUance can be placed on their subsequent unwaated impermissible statements. Ttus Court is Of the opinion that fh^ argument advaaced by the leara^d -lo- .) - eoiinsel for fhe petitioAers is non sustamabfe iu fhe eye oflaw. The first iaformation report was lodged on 13.10.2001 aad only thereafter the statements u/s 161 ofCr.P.C. were recorded. In the first mformation report as well as ia the statements ofthese witnesses i.e., the father, uiother, tiacle and fhe aunt tfaere are eertaia explanatiop/s regardihg not inaking any aUegations against fbe petitioners at fhe earUest atscge, The statenients recorded u/s 161 Cr.P.C., on 17.10.20plcaimot be brushed aside by this Court at ftus sta^e as learaed counsel for fhe petitioners could not point out any provisions of law which may render that affer conipletion of the enquuy offhe iaquest and after lodgiag fhe first infonnation report, no subsequent second statements u/s 161 Cr.P.C. can be recorded or the statements so recorded cannot be looked into. There is no doubt in the miad of fhis Court that in fhe scheme of Code of Criminal Procedure, the stage of recordiag stateinents u/s 161 .Cr.P.C. coines ater lodging the first iaformation report itself. Cbapter XIIoftIie Code of Criminal Procedure deals with information to the poUce and their poweis to irtvest^ate. Section 154 deals wifh infonnatioii in cogiiizable cases and section 155 deals wifh information as to the non-cogmzable cases and iayestigation ofthe same. Section 156 provides PoUce OfBcers power to investigate the cognizable offence aad section 157 provides procedure for mvest^ation. In consequence of the provisions given u/ss 159 & 160 of the Code of Crinunal Pnacedure, powers Iiave been given to fhe PoUce Officers to exffliime fhe witnesses -under fhe provisions of Sections 161 .,;« -II ; -- 'w' ! aad 162 of Cr.P.C. aud ultimately after conipletion of iavestigation, a report is to be filed u/s 173 of Cr.P.C. The scheme of the Code of Criminal Procedure aad the provisions given vide chapter XII fhereof clearly indicate that the poUce of&cers were fully enipowered to record the evidence u/s 161 of the Cr.P.6r,-wh£n a first in^irmation report in relation to a cogiuzable offencc is under uivesf^ation. If diiring fhe course of an iavest^ation of such a nature, soiae stateiaents u/s 161 Cr.P.C. are recorded aad after perusal ofthe said statements, a prima facie case is inade out agauust an accused, theu a charge sheet is to be filed aad the Court wlule ftaming chai^es should be weU wifhin fhe jurisdiction to consider the inatter on fhe basis offheaforesaid statemeuts. (8) In the l^ht of fhe above legal position, now fhe stateiueats of few witnesses are referable ia fhis case. Shyam Sunder Agrawal who is fhe uncle of fhe deceased and who is also fhe first informflnt ia this case has stated ia two places ia his statement in fhe foUoiwiag niatuier. 1) "W V^T W ^)^ sfj- f^ ^ 'H^ld ^lvff ^t ^uf R^d VH^ ^fff srmr ^" >HHi'i (vK^l) ^tvT^ f 3i}7 ^S^ t f^ ^t.^t., f^Jf ^TT' ^7f1?5~ cjf ^T ^t Wf^ SfT ^f^ TTJ^—TT^W rft ^^ e^ ^STT HH!^)4> -^q ^- ^ ^fH ^^ 3^F ^ifi—^tft'STSf vft U5T ^ f ^cW7 ^ c'FHftaft r 2) "^ '/(^u;? gW 'SlilclM ^t ^ ^R^ Vf^ VRT-^f, •7;7?" ^4 ^7 ^ ?m ^t W ^t ^vf lidl^'jl ^ <f)HUI ^ t /" (Please see page 144 and 145 offhe paperbook) :!NI: ^ -1-!_- The stateinent of Raiaesh Chandra Agrawal, father ofthe deceased is also as foUows: "i 1) "^jfT ^T Vfw W WKT ^ sfj-^t TjvlT WcJT^ sfj-f^ _^^NT f^t TT^s^jT ^- ?7§W<7 97<^ fl^ ^ f / ^jfT ^ yftr: ^-(^7/^7 ^' vtw ^ sfm' Sf^ VSvft' sfl- W V^T W ^c/c^ sff- fi} ^ <v^/CTr mvff ^t ^uf f^c^r vff? ^f sjmr VW Vg^ f fi? WJT'T Sff^T ^ fifKT ^f!7 q57 ^" qW ^ ^TT ^t.^. ^Pf7, f^jf ^g' ?jt sf^T ^ qTTt^ SfT l TTJ^-rTv^f ^fSfT ^FT ^T^ f efjf^ ^ft-^tft' fff^ ^ f^ srsj- ift ^sr ^ f ^tvi^ it^ vFT^ sff uT? ^S~ ^ft^'T V7 TT^ sff (T^ oft' ^J^ Vt^T ^ ^RT d'lldl STT f^ ^g- yg?T ^f fSffv ^cT ^HT ^t ^?^f sff l" 2) "Qi^^i'fl ^7 ^ ^T ^- ^ ift ^ f^^fW ^ ^^ ^i^ sn^ t ^ff^ g^ ^" ^w v^' ^ ^ ^s^ f^^iu!1 ^f ^t sft i v)^l^i ufT^ ^ wr^ ^ff f^Tf ^ Tjf^ejT/f ^IHI'^I ^ CTSTT ^zjff^) ^- d^d ?SWW s/j- ^F ^9' (T^ ^^W t^/' ^" ^ f^RST Tf^f f^JT STT I" (Please see page 148 aad 149 ofthe paper book) The stateinent ofSeela. Devi, is also referable. A portion of 1 her stateinent is as under: "^9' P/^qf? q5^ OTcW^T' 7^7' ^ ^V' ^f vf^f)' f 1 ?^5f ^ ^NUT ^t y5fT ^ ^3 S^ f ^ ^^ y^tf^ fif^r f i gu?/r q^- ^- ^- 77?77 ^ ^JT 3f)S Fl^d ?t IT^ sft f^ 3TV^ SfTV ^ ^t ^ / ^r f^w ^t^ g^~^y sf?r ^fw^ ^ ^IT ^pnjr STT f^'l. .^ (Please see page 152 offhe paperbook) * -(3 - Other stateinents are also there ia this case which supports fhe case of prosecution and which fuIGls the ittgredients of section 304-B.and/or section 306 ofthe IPC. ../,-: (9) Now aptllying "fhe priiiciples laid down ia fhe inatter of Niraiyas'Singh's case or ia tUe inatter pf DUawar Babu Kurane or in. the inatter ofS.B. Johari (all referred to above) which prohibits appreciation of evidence at fhe stage of fiamin.g of cbai^es to arrive at the conclusiou as to whefher fhc iDLatenals produced are priina facie sufficient or not for convicting fhe accused persons, ttie result would be that there is priina facie evidence agamst fhe appUcaats on fhe basis of which at least fhe char^es caa be fi-amed agaiust theia. Ifthe arguraents of fhe leamed counsel for fhe petitioners are accepted fhat the allcgations have coiue in fhe second stateinents oiily iu which the stoiy has been diEferentiy put up before the m.vest^atmg ageucy aad for fhis reason fhe statements should be discarded, then fhe same shatl amount to appreciatm.g the evidence of aU those witaesses which is not permissible uader the law at this stage, on the basis of various prououiiceincnts referred to above in. my judgment. Hence fhe first aiyuneat ofthe leamed counsel for the petitioner fails fhat siuce aUegations have come iu a subsequent stateinent shown to be recorded u/s 161 Cr.P.C., at a belated st^e should be discarded. (10) Now coming to. fhe second ax^umefit regarding iiusiaterpretation of provisions of law and also regardulg -l^t mechanicaUy fiamiag of chai^es, this Court can only say that no law has been misinterpreted. In fhis regard, Sections 227 aad 228 of Cr.P.C. are referable. The Sessions Court after giviag due regards to the provisions of fhese two sections aud consideriag the entire records of the case and the documents subinitted fherewith came t0 the conclusion that fhere were grounds for presuming fhat the accused persons have coiniuitted offences under fhe aforesaid sections of IPC, Iias fi-amed the charges and no niechaiucal process was adopted by the Court. The charges were framed after giving due opportunily of hearing to the parties aad also ou the basis of positive allegations on record. (11) The third argument about non existence of ingredients of fhe ofFences caruiot be sustained also. A bare perusal of section 304-B and Section 306 of IPC along-wifh Biaterial available on record goes to show that fhe deceased conunitted suicide by buming herselfwifhia a period offew days after the marriage in her inatnmoiual house where the petitioners were jointly residing and there are prima facie attegations that fhe deceased was subjected to harassinent aad cruelly by the petitioners ia connection wifh fhe dowiy. Prfma facie, fhere seems to be the involvenient of the petitioners. It is unfortuiiate that a newly inarried daughter-in- law could not receive resistaace or rescue of the femily members who say fhat even after the coinplete bums of90% 1--' ^ ^ $^ -15- they couM not notice 'the same in a sinall house where aU of fhemwere Uving joiafly. ..'.. \ 12) In the resiilt, fhis Court is ofthe opiaion fhat the leamed Sessions Judge has'not comniitted any error oflaw ia framiTig the charges agaiast the - pelitioners aad fhe impugaed order fi^Tnmg chai^es aud also the charges fiamed against them. caiuiot be interfered by this Court. The petitions Iiave no merit aad the same are dismissed confirming the ordeis passed by fhe Court below. SuniiKumarSinha Judge ..^.--t^-—.— -—-