Packyaraj and Others vs State and Muthupandi

S. Tamilvanan, J.—The criminal original petition has been filed challenging the order passed by the Assistant Sessions Judge, Sivagangai, dated 29.07.2011 in S.C. No. 139 of 2005. It is seen that the learned Assistant Sessions Judge has re-transmitted the case bundle to the Sessions Court, Sivagangai. It is seen that the petitioners herein are arrayed as A1 to A3 in the case, which was registered for an offence punishable u/s 304(B) IPC. After the committal order, the learned Principal Sessions Judge, Sivagangai has made over the case to the Assistant Sessions Judge, Sivagangai for trial, according to law.

It is not in dispute that charges were framed by the Assistant Sessions Judge. Since the petitioners/accused pleaded not guilty, the case was posted for trial and 13 prosecution witnesses were examined.

As contended by the learned counsel appearing for the petitioners, P.W.1 alone was cross-examined by the petitioners/accused. On the aforesaid stage, the learned Assistant Sessions Judge, passed an order, whereby re-transmitted the case to the Sessions Court, Sivagangai, citing a decision rendered by the Hon''ble Supreme Court in Rajbir @ Raju and Another Vs. State of Haryana, , on the ground that Section 302 IPC has to be incorporated, as the case was originally filed u/s 304(B) IPC. Aggrieved by the said order passed by the Assistant Sessions Judge, the petitioners/accused have come forward with this petition u/s 482 Cr.P.C.

Mr. T.K. Gopalan, learned counsel appearing for the petitioners/accused submitted that the decision cited above is not applicable to the facts and circumstances of the case, as the case is only u/s 304(B) IPC and rightly made over by the learned Sessions Judge to the Assistant Sessions Judge to dispose the case, according to law. Though it is a part-heard case and 11 witnesses were examined, the learned Assistant Sessions Judge, without considering the ruling of the Hon''ble Apex Court properly, has mechanically re-transmitted the case to the Principal Sessions Court, as if Section 302 IPC has to be incorporated and that the case would be triable exclusively by Sessions Court.

Mr. Chellapandy, learned Additional Advocate General appearing for the first respondent drew the attention of this Court to the decision rendered in Rajbir @ Raju and Another Vs. State of Haryana, and submitted that it is mandatory on the part of the Court below to add Section 302 IPC, since the case was registered u/s 304(B) IPC. The Hon''ble Apex Court in the aforesaid Judgment in paragraph 11 has stated thus:

We further direct all trial Courts in India to ordinarily add Section 302 to the charge of Section 304B, so that death sentences can be imposed in such heinous and barbaric crimes against women.

Learned Additional Advocate General argued that the petitioners/accused are facing charges u/s 304(B) IPC, hence, as per the ruling of the Supreme Court, charge u/s 302 IPC should also be framed, hence, the learned Assistant Sessions Judge, has rightly re-transmitted the case to the Sessions Court.

It is also not in dispute that the Hon''ble Supreme Court has further directed in the aforesaid decision to send a copy of that order to Registrars General/Registrars of all High Court, in turn which will circulate the same to all the trial Courts.

It was argued on behalf of the first respondent that it was mandatory on the part of the Assistant Sessions Judge to re-transmit the case to the Sessions Judge, since the charges were framed u/s 304(B) IPC, so as to add Section 302 IPC, otherwise, it would amount to contempt of Court.

Per contra, Mr. T.K. Gopalan, learned counsel appearing for the petitioners relying on various decisions submitted that the direction given by the Hon''ble Supreme Court in the decision reported in Rajbir @ Raju and Another Vs. State of Haryana, is not applicable to the facts and circumstances of the present case, as there is no scope to incorporate Section 302 IPC, even as per the complaint given by the defacto-complaint.

In the instant case, as per the complaint given by the defacto-complainant, the alleged victim Thavamari had come to her parents residence on 13.02.2004 from her matrimonial home. After taking supper along with other family members in her parental house, the said victim went to her bed. At about 4 a.m., her father went out of his house, so as to attend his usual business and at about 6 a.m., the deceased went out of the house and the defacto-complainant was thinking that she went out of the house to attend natures call, subsequently on hearing the alarming voice outside the house, the defacto-complainant, here brother went outside the house and found his sister was standing in burn injuries.

It is not in dispute that the occurrence had taken place at the parental house of the deceased, Thavamari and as per the complaint, she had committed self-immolation. There was no other injuries found on her body, except burn injuries. Even as per the complaint given by the defacto-complainant, none of the petitioners/accused were present, while she was committing self-immolation at her parental residence. As per the postmortem report, complaint and FIR, there is no evidence or material to show that the occurrence could have been a homicide committed by the petitioner/accused herein. In the aforesaid circumstances, there is no scope to frame charge u/s 302 IPC as held by the Hon''ble Apex Court in State of Haryana and another v. Dharam Singh and Others, reported in (sic), wherein it has been held as follows:

The factual scenario has been spelt out above. The High Court came to an abrupt conclusion regarding entitlement relying on an earlier decision without indicating as to how the factual scenario was similar.

As contended by the learned counsel appearing for the revision petitioners/accused, the factual aspect relating to Rajbir @ Raju and Another Vs. State of Haryana, is entirely different, wherein the alleged victim was found dead in a suspicious circumstance at her matrimonial home, within 7 years after her marriage with injuries. As per the Judgment, it is seen that the Doctor has found that the deceased head was repeatedly struck, which was also throttled. In the said case, the victim girl Sunita was a pregnant of 4 months. As per the postmortem report, number of injuries were found in the body of the deceased. In the aforesaid circumstances, certainly, the offence would attract 302 IPC in addition to Section 304(B) IPC.

It cannot be disputed that as per Article 141 of the Constitution of India, the law declared by the Supreme Court is binding on all Courts, within the territory of India.

As submitted by the learned counsel appearing for the petitioners/accused, the ruling of the Hon''ble Apex Court has to be applied in the real letter and spirit of the interpretation given by the Apex Court.

In Union of India (UOI) and Another Vs. Arulmozhi Iniarasu and Others, the Hon''ble Supreme Court has ruled that the Court should not place reliance on decisions without discussing as to how fact situation of case before it fits in with fact situation of decision on which reliance is placed. Hence, the disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of difference between conclusions in two cases.

Section 300 IPC deals with the definition of Murder and the ingredients needed to constitute offence of murder, reads as follows:

Murder: Except in the cases hereinafter excepted, culpable homicide is murder, if the act, by which the death is caused is done with the intention of causing death, or -

Secondly - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or

Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or

Fourthly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

As per the facts of Rajbir @ Raju and Another Vs. State of Haryana, the accused husband was found guilty of murdering his pregnant wife for demanding cash amount barely six months after their marriage. The deceased died at her matrimonial home. It was borne, out from the injuries in evidence by Doctor that the deceased head was repeatedly struck and she was also throttled and it was a barbaric and brutal murder. However, charges were framed only u/s 304(B) IPC, without charge u/s 302 IPC. On the aforesaid circumstances, the Supreme Court has directed all the trial courts in India to ordinarily add Section 302 IPC to the charge to Section 304(B) IPC, so that the death sentence could be imposed in such heinous and barbaric crimes against women. The term to ordinarily add Section 302 IPC has vital importance to decide whether Section 302 IPC has to be added in a case u/s 304(B) IPC, If there is any prima facie material available to attract the offence u/s 302 IPC, the Court has to add the said Section, in addition to Section 304(B) IPC, when the deceased died in a suspicious circumstance, within 7 years after her marriage.

In the instant case, admittedly, the deceased, Thavamari had come out of the matrimonial home due to the dowry harassment. Even as per the complaint given by the defacto-complainant, after taking supper, she was sleeping with the members of her parental home, including her brother, the defacto-complainant. When she was raising alarming voice at about 6 a.m., the defacto-complainant could see her with burn injuries and according to him, it was self-immolation, the petitioners/accused were not found at the scene of occurrence and they were available only in the matrimonial home of the deceased.

In the aforesaid circumstances, the alleged averments in the complaint given by the defacto-complainant could not attract Section 302 IPC and charges could not be framed against the petitioners/accused u/s 302 IPC. As there is no prima facie case to frame additional charge u/s 302 IPC, in addition to the charge framed u/s 304(B) IPC, I am of the view that the Sessions Court had properly made over the case to the Assistant Sessions Judge, to dispose the case, according to law and after framing charges u/s 304(B) IPC and other sections, the learned Assistant Sessions Judge had re-transmitted the case to the Sessions Court with an erroneous understanding of the scope of the decision rendered in Rajbir @ Raju and Another Vs. State of Haryana, Hence, to meet the ends of justice, I find it just and reasonable to allow this criminal original petition. In the result, this Criminal Original Petition is allowed and the learned Sessions Judge is directed to send back the case bundle to the learned Assistant Sessions Judge, Sivagangai and the Assistant Sessions Judge, Sivagangai is directed to proceed with the case, according to law and dispose the same, uninfluenced by, the findings, if any by this Court, after providing reasonable opportunity to both sides, as early as possible. Consequently, connected miscellaneous petitions are closed.