Rajendra Kumar Jain S/o Chogmal vs The State of M.P.

The applicants are aggrieved by framing of charges by the Second Additional Sessions Judge, Dabra in Sessions Trial No.428/2011, for commission of offence punishable under Section 302 read with Section 34 and Section 498-A of Indian Penal Code, 1860 (IPC), which is the subject matter of challenge in the instant revision application.

The facts giving rise to the instant case are that a merg intimation was recorded by the police on 1.9.2009 at the report of the brother of deceased Sunita, who was married to the applicant No.3-Manoj Sharma. According to merg intimation, reason for death was drowning. However, the circumstances under which drowning has taken place, the same render it suspicious and, therefore, an enquiry into the circumstances leading to drowning was necessary. After enquiry, the police having found incriminating evidence, which was pointed against the present applicants, registered an FIR bearing Crime No. 452/2009 at Police Station Dabra on 20.9.2009 and after completion of the investigation the police submitted

a charge sheet and the trial Court framed charges under Section 302 read with Section 34 and Section 498-A of IPC. It is this order which is challenged on the ground that the material submitted by the police is hypothetical and it is a wild and unsubstantiated allegation. It is also a ground that there is no ocular evidence or circumstantial evidence to insinuate the applicants. Further submissions of learned counsel for the applicants is that, ''last seen'' evidence is not a substantive piece of evidence based upon which the conviction can be made. With respect to the charge under Section 498-A of IPC, the submission of the applicant is that the same can only be saddled on the complaint of the wife which is absent in the present case and the medical report does not indicate any injury on the body of the deceased, which may give an impression that the deceased was treated with cruelty. Therefore, the impugned order deserves to be set aside.

To the contrary, learned counsel for the respondent supported the impugned order and prayed for dismissal of the revision application being without merits.

I have considered the rival submissions of the parties and I am of the opinion that the contentions canvassed by the applicants deserve to be repelled. The first contention is that, merely on the basis of ''last seen'' evidence the conviction cannot be made and, therefore, the applicants be discharged at this stage only. In this regard, observation of Hon''ble Supreme Court in the case of Nizam and another vs. State of Rajasthan, (2016) 1 SCC 550, is relevant, which is as under:- "15. Elaborating the principle of "last seen alive" in State of Rajasthan vs. Kashi Ram,

(2006) 12 SCC 254, this Court held as under:-

"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad 218)" The above judgment was relied upon and reiterated in Kirti Pal vs. State of West Bengal, (2015) 5 Scale 319."

The reproduced portion clearly makes it clear that the ''last seen'' evidence may not be enough for conviction, however, it does shift the onus on the accused to offer explanation as to the circumstances alleged against him and disclosure of the fact as to when he parted the company of the deceased. In view thereof, it

is clear that at the stage of framing of charges, this Court cannot devolve into this aspect of the matter and record a finding as to the guilt or innocence of the applicant as the sole prerogative in this regard lies with the trial Court.

The other contention regarding the charge under Section 498-A of IPC is again misconceived as the statement of witness Ramgopal Dubey and Laxmi Narayan Dubey recorded under Section 161 CrPC clearly implicates the applicants for cruelty.

In view of the aforesaid discussion, this Court is exempted from dwelling further into the merits of the case as the same may have an influence upon the trial Court. Taking this view of the matter, the revision application is hereby dismissed.