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Judgment
This revision is directed against the order dated 24.9.94, passed by the learned Sessions Judge, Jammu, whereby respondent No.2 herein was
discharged for the commission of an offence under section 302 R.P.C. The factual matrix of the case is that Smt. Anita Puri was married to
respondent No.2 about three years ago. At the time of marriage, the deceased Smt. Anita Purl had been working as Assistant Librarian on ad hoc
basis in the Jammu University but subsequently lost her job when the real incumbent joined the duty. It is alleged that respondent No. 2 and his
family members are greedy persons and they could not bear up the loss of service. The marital relations got strained and the spouse was constantly
at logger heads. Respondent No.2 started making demands for money. In order to placate his feelings, the petitioner herein who is his fatherinlaw
initially started giving rupees three thousands per month but subsequently the payments were reduced at rupees two thousand per month. Because
of financial constrains, this practice had to be discontinued in the year 1993. The rosy prospect of the marriage made heavy weather of itself when
respondent No. 2 started cherishing the feelings that deceased(Smt. Anita Puri) was a financial burden for him. He had the obsession of
ameliorating his financial position by making a life partner who was an earning hand and getting rid of the company of the deceased. He was of
tenly found in one of his tantrums when she was being abused and rebuked. Once the deceased took refuge in the protective umbrella of her father
(petitioner herein) for forty days. At that time, respondent No. 2 outwardly remorsed his own cruel and foolish behavior and begged remission.
The petitioner fell a prey to this Machiavellian game and sent the deceased with him. On 11.5.94, at about 12 A.M., father of respondent No. 2
came to the house of the petitioner and broke the news that deceased had died a natural death on account of heart failure. The petitioner, his wife
Smt. Santosh Nanda and his brother Bansi Lal reached the house of respondent No. 2 and saw the deceased's body lying on the bed and there
was a ligature mark of her neck. They smelt a rat in the cause of death and started raising hue and cry. The police reached the spot and dead body
was sent for postmortem which was performed on 27.5.94 wherein it is stated that death had occurred due to asphyxia as a result of strangulation.
On the receipt of this report on 27.5.1994, case was registered in the Police Station, Bakshi Nagar, Jammu under F.I.R. No. 130/ 94 for the
commission of offence under section 302 R.P.C. The investigation was carried and final report was submitted before the Chief Judicial Magistrate,
Jammu, who committed the case to the learned Sessions Judge, Jammu who vide his impugned order discharged respondent No. 2 for the
commission of offence under Sec. 302 RPC but charged him under section 306 read with section 498A R.P.C. Aggrieved by this order, the
petitioner filed the revision petition and has challenged the same on the following grounds:
The learned Sessions Judge has substituted his own opinion against the opinion of the Board of Doctors by holding that it was a case of sucidal
strangulation. This finding has been given on mere speculation on the evidence which the prosecution has yet to lead during the trial.
The deceased was an educated gentle lady having a young male child of one year four months in her lap. There, thus could be no occassion for
putting an end of her life by committing suicide.
As per the version of prosecution witness namely, Smt. Bholi (who is a tenant in the house of respondent No. 2), the deceased was last seen at
about 9 A.M. (on the fateful morning) in the company of respondent No. 2. This circumstances creates a strong suspicion against his innocence
and in the absence of any explanation cannot be ignored.
On the day of occurance at about 12 A.M., the father of respondent No. 2 had informed the parents of the deceased that deceased had died of
heart attack but actually she had died of strangulation. The intentional compaign of disinformation establishes the malafide intention to camouflage
the guilt.
Respondent No. 2 being a Veterinary Surgeon had anatomical knowledge. He was also sole in charge of the sconce of the crime. He thus
fabricated false evidence to subterfuge the case of murder into that of suicide.
The learned Judge has wrongly placed reliance on the writing contained in the text book of medical jurisprudence by Modi. He should have
firstly recorded the evidence of the concerned doctors and after confronting them with the contents of the text book, formed his opinion.
There was no proper application of mind and the impugned order was passed in haste. The learned Judge has even twisted the facts. For
example, it is on the record that the deceased was married to the respondent No.2 in December, 1991. Whereas , in the impugned order, it is
mentioned that they were married in August, 1991. In the impugned order it is stated that the deceased and respondent no.2 were living in rented
accommodation whereas, the fact is that the room where the occurrence took place belonged to the father of respondent No.2. Heard the
arguments.
Mr. M.A. Goni, the learned Counsel during his arguments has reiterated the grounds of revision and contended that there was sufficient
evidence to frame the charge under section 302 R.P.C. In support of his contention, he has cited the cases of Shree Atyachar Virodhi Parishad
Vs. Dalip nathamal and another (matrimonial Law Reporter 1989 268); Ganesh Lai Vs. State of Maharashtra (Matrimonial Law Reporter 1993
236); Prabhu Dayal and others Vs State of Maharashtra (matrimonial Law Reporter 1993 271) and State Vs Padam Singh (KLJ 1987 2.13).
Mr. J.P. Singh, the learned consel for respondent No. 2 has contended that petitioner herein is a person without interest and cannot file the
revision petition. He is a prosecution witness and has the only interest to blackmail respondent No.2. The alleged occurrence took place on
11.5.1994 whereas, the statement of the petitioner under Section 161 Cr.P.C. was recorded on 28.5.94. In support of his contention, he has cited
the case of Thakur Ram and others Vs. State of Bihar (AIR 1966 SC 911) He has also contended, that this court or the Sessions Judge can direct
further enquiry into any complaint under section 436 Cr.P.C."" but while exercising the power under section 435 Cr.P.C. or section 439 Cr.P.C.
only the order can be setaside and no direction can be given to make further enquiry or even charge cannot be framed. In case, during trial the
evidence for homicidal act comes, the trail court can alter the charge under section 227 Cr.P.C. On facts, he has contended that Amar Nath Bhat,
PW had seen respondent No.2 at about 10 A.M. while shaving his beard in his verandah and it thus cannot be said that he was last seen with the
deceased at 9 A.M. The site plan shows that the door was broken and thereafter entry was made inside. This entry of the site plan gets
corroboration from the testimony of Amar Nath PW who has deposed that the child was crying inside the closed room and respondent No.2 while
doing shaving had knocked at the door but the same was not opened in his presence. Injury No.1 on the postmortem report establishes a case of
hanging and there cannot be two alternate charge i.e. one of murder and the other that of suicide. That respondent No.2 rightly has been charged
under section 306 R.P.C. read with section 498A R.P.C. 4. In order to derive home his point that there could be no strangulation in the absence
of any fracture of hyoid bone and cervical vertebra, the learned counsel has drawn support from the ratio decided of the case State Constitution of
India Punjab Vs. Bhajan Singh and others (AIR 1975 SC 258), where the postmortem examination was performed but there was no express
opinion after examination hyoid bone and cervical vertebra as to whether death of two deceased persons was due to strangulation. In this case, no
adverse inference was drawn against the accused and he was not allowed to suffer because of the omission of the doctor. The learned counsel
further argues that as in the instant case also there is no express opinion about the hyoid bone and cervical vertebra so no inference. It is well
settled that at the sections 227228 Cr.P.C. stage i.e. stage of framing the charge, 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 sift the evidence as it can not be expected even at initial stage accept all that the prosecution
states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. This argument of the learned counsel is based
on the findings of the case of Naranjan Singh Karam Singh Punjabi Advocate Vs. Jitendra Bhimraj Bijja and others (AIR 1990SC 1962). 5.
Adverting to the facts of the case, it is found that whole controversy has arisen be. cause the postmortem report does not disclose the specific
cause of death. At this stage, sifting of evidence can be done only with a limited purpose which should not' be opposed to common sense or the
broad probabilities of the case. It has to be borne in mind that the petitioner being the father of the deceased has invoked the revisional jurisdiction
and should not use this court as an instrument for wrecking private vengeance.
The learned trial Judge seems to have been swayed by finding No.1 recorded on the autopsy report that it was a case of hanging and not of
strangulation as there was ligature mark 2 cm in width obliquely placed, about and to the right side of thyroid cartilage, extending up to the mastoid
process, dark brown in colour with no specific imprint. On the left side the ligature mark which was also 2 cm in width and faintly brown in colour
was extending up to the angle of jaw. No abrasions/bruises were present along the entire length of the ligature mark. Also, he had taken into
consideration the fact that there was no fracture of hyoid bone and cervical vertebra so it could not be a homicidal act. It is not understandable
how the learned Sessions Judge had ignored the other findings of the autopsy report such as injuries No.2 and No.3 which are of the following
effect:
Injury No.2: Three abrasions, each measuring 0.5 cm X 0.5 cm present over the base of the nails of Rt. thumb, Rt. index and the middle fingers
over the dorsel aspect.
Injury No.3 : A bruise 0.5 cm X 0.5cm present over the palmer aspect of the tip of Rt. index finger. Not only that finding No.5 on the above said
report is that ""nothing abnormal was detected in the subcutaneous tissue under the ligature mark (injury No.1) as well as there was no ecchymoses
bruising of the neck structure present."" In case the deceased had hanged herself and while struggling with the knot at the neck she had caused
above stated injuries No.2 and 3 in the right hand then corresponding there should have been bruises in the neck also. The authors of the autopsy
report in question are required to explain the seriddles of the case when they will appear as witnesses. The ligature mark which is visible to the
naked eye on the attached photograph is found not oblique but horizontal and not extending up to the angle of jaw or mastoid process. This aspect
of the case also requires explanation from the concern doctors of the report in question.
Similarly, the absence of fracture of hyoid bone and cervical vertebra could not be an evidence of clinching nature to hold at this stage that it was
not a case of homicidal strangulation because the medical jurisprudence leaves a room for taking a different view. At page No. 202 of the Modi's
Medical Jurisprudence and Toxicology 21 st Edition a chart of hanging and strangulation is given and under item 12, it is mentioned that in case of
strangulation."" fracture of the larynx and trachea, often found also hyoid bone."" It is thus not prescribed that in each and every case of strangulation,
there is fracture of hyoid bone. The word used is often which leaves the scope for an exception.
Be that as it may, vide seizure memo dated 11.5.1994 pieces of ""Dupata"" which is stated to have been used for hanging have been seized. It
was the primary duty of the Investigating Officer to show those pieces of the ""Dupata"" to the members of the medical board in order to elect their
opinion whether ligature mark in question could be caused by those pieces or not. If that has not been done, such an opinion can be obtained at the
time of recording their evidence and any opinion expressed there upon can have an effect of significant nature. Similarly, the medical opinions
recorded is the text book of above said Modi's Jurisprudence at page 196 can be of relevance when got explained from the concerned doctors to
the context of the facts of the present case. It is stated therein that, ""the mark may be oblique as in hanging, if the victim has been dragged by a
cord after he has been strangled in a recumbent posture, or if the victim was sitting and the assailant applied a ligature on the neck while standing
behind him, thus, using the force backward and upward. The base of the mark, which is known as a groove or furrow, is usually pale with reddish
and ecchymosed margin. It becomes dry, hard and parchment like several hours after death if the skin has been excoriated. The pattern of the
ligature may also be seen. Very often there are abrasions and ecchymosed in the skin adjacent to the marks. In some cases, the mark in the neck
may not be present at all, or may be very slight, if the ligature used is soft and yielding like a stocking or scarf, and if it is removed soon after the
death. A careful search of the neck may reveal minute fibres and any other material from the ligature. ""In the backdrop of the medical evidence of
such a nature it cannot be said conclusively at this stage that the cause of death of the deceased by homicidal strangulation is excluded altogether
and established by suicidal strangulation.
9 Similarly, the account given by Amar Nath Bhat PW regarding the closing of the door, weeping of the child from inside and battering of the door
by respondent No.2 from outside while making shave of the beard in the verandah will not absolve respondent No.2 of the incriminating of lastly
seen with the deceased. The witness and the Investigating Officer has to explain at the touchstone of cross examination why the statement of this
witness was recorded twice under the provision of Section 161 Cr.P.C. It is also not yet established by any evidence whether the deceased at that
time was dead or alive. The evidence of Mst Bholi Devi who lastly saw respondent No.2 and the deceased entering the room alongwith the child
at about 9 A.M. cannot be thrown overbroad. Also, the accusations of the petitioner, his wife Smt. Santosh Devi and brother Bansi Lal Nanda
that respondent No.2 had been treating the deceased with cruelty cannot be ignored. There is also legal presumption against respondent No.2 for
the commission of cruelty as the death took., place within 7 years from the solemnization of marriage. Their version that respondent No.2 had sent
his father to their home to inform them about the case of death by heart failure cannot be ignored at this stage. The apex court in the case of shree
Atyachar Virodhi Parishad Versus Dalip Nathumal Chordia and another (supra) had the occasion to deal with the death of newly married girl and
in para 16 at page 272; observed as under
It may not be out of place to mentioned that ""dowry"" which is a deep rooted social evil appears to be the cause of ever so many unfortunate
deaths of young ladies. It is an offence brutal and barbaric. It is generally committed inside the house and more often with a circumstances to give
an impression that it was a suicidal death. There will be all round attempt to cover up such offence by the family members rather than to expose it.
The Government has come forward with legislation from time to time to protect women and to punish those who commit attrocities on them.
In para No. 17 at page 273, a further observation has been made to the effect that, ""The criminal justice system must equally respond to the
needs and notions of the society. The investigating agency must display a live concern and sharpen their wits. They must penetrate into every dark
corner and collect all the evidence. The court must also display greater sensitivity to criminality and avoid Decided on all counts ""soft"" Justice"".
In the present case, it cannot also be said that the petitioner has set the criminal law in motion merely to wreck his private vengeance as there is
delayed recording of his statement under section 161 Cr.P.C. which in the circumstances cannot be attributed to him. The Police in fact registered
the case on 27.5.1994 when the autopsy report was received. The postmortem was conducted at the behest of the petitioner who even had raised
hue and cry to get the same done by a board of Doctors. On the same day, i.e. on 27.5.1994 FIR No. 130/94 for the commission of offence
under section 302 was registered. The statement of the petitioner and Smt. Santosh Nanda (parents of the deceased) were recorded on the next
day i.e. on 28.5.1994. Similarly, the statements of the other witnesses were recorded thereafter. In these circumstances the argument that
everything is concocted loses its significance.
Reading the provisions of section 227 and 228 together in junta position, it would be clear at the beginning and the initial stage of the trial, the
truth veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any/weight to the
attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a
sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard finding regarding the
juilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or section 228 of the code. At
that stage, the court is not to see whether there is sufficient ground for conviction of the accused or whether the Trial is sure to end in his
conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the
conclusion of the trial. But at the initial stage, if there is a strong suspicion which leads to the court to think that there is ground for presuming that
the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused.
In the case of union of India Versus Prafulla Kumar Samal and another (1979(2) SCR 229 at page 23435), the Hon'ble Fazil Ali, J
summarised some of the principles:
(1) That the Judge while considering the question of framing the charge under section 227 of the Code has the undoubted power to sift and weigh
the evidence for the limited purpose of finding out whether or not a primafacie case against the accused had been made out.
(2) Where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will
be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a primafacie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal
application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving
rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouthpiece
Constitution of India the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents
produced before the court, any basic infirmities appearing in the case and so on. This, however, does not mean that the Judge should make a
roving enquiry into the pros and cone of the matter and weigh the evidence as if he was conducting a trial.
In fact, section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging the accused. It provides that the
Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused."" The ""ground"" in the contest is not a
ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and
not at the time of framing of charges. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor it is
necessary to delve deep into various aspects. All that the court has to consider, is whether the evidentiary material on record if generally accepted
would reasonably connect the accused with the crime. This principle was enunciated by the apex court in the case of Shree Atyachar Virodhi
Parishad Vs. Dalip Nathumal Chordia and another (supra). In the presence of above stated pronouncements by the apex court on the point of
framing the charge or discharging the accused there remains no further necessity for the discussion of the law enunciated in the cases of Ganesh Lai
Vs. State of Maharashtra, Prabhu Dayal and Others Vs. State of Maharashtra and State Vs. Padam Singh (supra).
The learned counsel for respondent No.2 at the last leg of his argument has contended that the High Court and the Sessions Judge have
concurrent jurisdiction vested by section 436 Cr.P.C. to order inquiry where an accused has been discharged and while exercising jurisdiction
under Section 435 Cr.P.C. simpliciter the impugned order can only be setaside in case the law requires so but no order can be passed for framing
a charge. This argument of the learned counsel is devoid of any legal force as it runs contrary to the raison detre of the provisions of section 435 to
It cannot be said that an order passed by a Sessions Judge for discharging an accused is final and beyond the paternal supervisory revisional
jurisdiction of the High Court. This argument requires no further elucidation as it is against the very scheme of the Code of Criminal Procedure and
the State Constitution.
Viewing the case from all the perspectives, it is found that the impugned order suffers from manifest error of law and consequently there has
been a flagrant miscarriage of justice. The apex court in the case of Ayodhya Dubey Vs. Ram Summer Singh (AIR 1981 SC 1415) had directed
the retrial of the accused by settingaside the acquittal order when it was found that the Sessions Judge had acquitted the accused by ignoring the
probative value of the FIR and reliable testimony of eye witnesses and without considering the material evidence on record and his judgement was
full of inconsistencies and consisted of faulty reasoning. In the backdrop of the facts and the circumstances of the case, the revision petition is
accepted and the impugned order dated 24.9.1994, passed by the learned Sessions Judge, Jammu is setaside. The learned Judge is directed to
frame the charge against the accused under the provisions of section 302 read with section 498A Cr.P.C. and proceed with the trial of the case as
expeditiously as possible. Accordingly, bail granted by the learned Sessions Judge for the commission of an offence under Section 306 R.P.C.
stands cancelled.
The accompanying CMP No. 203/94 thus automatically stands disposed of.