Penal Code, 1860 – Sections 302/304B – 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.
Criminal Procedure Code, 1973 – Section 216 – Alteration of charge – Charge under Section 304B IPC is not a substitute for a charge of murder punishable under Section 302 IPC – If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC trial Court can frame charge of murder punishable under Section 302 IPC, which would then be main charge and not alternative charge. 

         Be that as it may the common thread running through both the orders is that this Court had in Rajbir’s case (supra) 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 304B 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 304B also there is a death
involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304B 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 304B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial Court in that view of the matter acted mechanically for it framed 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 Rajbir’s case (supra). The High Court no doubt made a half hearted attempt to justify the framing of the charge independent of the directions in Rajbir’s case (supra), but it would have been more appropriate to remit the matter back to the trial Court for fresh orders rather than lending support to it in the manner done by the High Court.
            14. In the light of what we have said above, the order passed by the trial Court and so also that passed by the High Court are clearly untenable and shall have to be set aside. That would not, however, 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 in view the decision of this Court in Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors.(2004) 5 SCC 347 where this Court has recognized
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. Reference may also be made to the decisions of this Court in Ishwarchand Amichand
Govadia and Ors. v. State of Maharashtra and Anr.
(2006) 10 SCC 322 and the decision of the Calcutta High Court in Rajendra Singh Sethia v. State and Ors. 1989
Cri.L.J. 255 and that delivered by the Allahabad High Court
in Shiv Nandan and Ors. v. State of U.P. 2005 Cri. L.J 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 High Court on merits of the case including those touching the probative value of the autopsy surgeon’s opinion.

Click here to download Judgement


0 Comments

Leave a Reply

Avatar placeholder

Your email address will not be published.

%d bloggers like this: