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Judgment
In the instant three petitions filed under Section 561-A Cr. P.C, the petitioners seek quashing of common impugned order dated 08th April, 2017,
passed by the Additional Sessions Judge, Kathua, wherein the Additional Sessions Judge, Kathua has refused to frame charge under Section 302 RPC
against the accused persons in case titled, “StateVs. Rohit Singh and ors.†and has framed charges under section 304-B/498-A RPC in FIR NO.
27/2016 of P/S Hiranagar, Kathua. Two petitions have been filed by accused persons for quashing of charges and one petition has been filed by
complainant for altering the charges from 304-B RPC to 302 RPC.
CRMC No.325/2017
The grievance projected by the petitioner/Narinder Singh accused, the brother of accused Rohit Singh (husband of deceased), in the instant petition
is that the marriage of the elder brother of the petitioner, namely, Rohit Singh was solemnized with one-Radha Sharma on 07th March, 2014 at
Hiranagar according to Hindu rites and ceremonies. The marriage was love marriage. At the time of the marriage, the elder brother of the petitioner,
namely, Rohit Singh was serving in Indian Army. The said Radha Sharma left the matrimonial house on 15th February, 2015 and started living in her
parental home at Hiranagar. The brother of the petitioner made various efforts for restitution of conjugal rights, but said Radha Sharma refused to
cohabit with Rohit Singh. The peaceful atmosphere of the house was damaged because of their matrimonial disputes. Consequent thereupon, the
father of the petitioner got annoyed and in order to maintain the peaceful atmosphere of the house, he executed a Deed of Disinheritance (Annexure-
C) dated 11th June, 2015 at Kathua, whereby he disinherited his son, i.e., Rohit Singh and the said deceased from his all movable and immovable
property. Since then the petitioner along with his parents have been residing separately from the deceased Radha Sharma and Rohit Singh at their
village Londi, Tehsil Hiranagar, District Kathua.
It is stated in the instant petition that as per the prosecution case, on 18th March, 2016 at about 11:30 P.M, the grandfather of the deceased-Radha
Sharma lodged a report with police that the victim has committed suicide by hanging herself in her in-lawâ€s house situated at Ward No. 13,
Hiranagar, Kathua. It has also come in the statement of the prosecution witnesses that the dead body of Radha Sharma was recovered from the
house of the accused persons, but the accused persons were residing in another house and not in the house, where the dead body was recovered. It is
the admitted case of the prosecution that the deceased was living separately from the accused persons since long; therefore, there is no proximity
between the demand of dowry and cause of death of the deceased. The evidence assembled against the petitioner did not disclose the commission of
any offence. There is no material evidence available in the record to show that the petitioner/accused No.3 was being benefitted from the demand of
dowry, if any, made by the accused No.1. The petitioner/accused No.3 was only 17 years old at the time of the said marriage and he was nothing to
do with the demand of dowry. The deceased left the matrimonial house in February, 2015. Besides this, the father of the petitioner executed the
aforesaid deed of disinheritance, by which he has disinherited the deceased and her husband.
It is further submitted in the instant petition that the petitioner, by dint of his hard work, got selected in Indian Army and presently undergoing
training at JAKLI Training Centre, Srinagar. In order to harass the petitioner, the father of the deceased filed one complaint before the Commanding
Officer (C.O), JAKLI, Training Centre, Srinagar, so that the petitioner be restrained from undergoing training. During the time of investigation, the
prosecution has collected various letters, written by the deceased-Radha Sharma in her own writing communicated to the Commanding Officer of her
husband, in which she had specifically mentioned the names of the persons, who were harassing her and demanding dowry. In para-29 in one of the
letters (Annexure-G), she had mentioned the names of the persons, who used to harass her, but the name of the petitioner is nowhere mentioned in
that letter. Thus, it is a clear case that the petitioner was falsely implicated in the case only because he is the brother of the deceasedâ€s husband and
in order to take vengeance, the parents of the deceased involved him also. Material does not show any involvement of the petitioner in the offence, for
which he has been charged with. Thus, the charges framed against the petitioner, by the trial Court are liable to be quashed. In view of the aforesaid
factual backdrop, the petitioner has approached this Court by way of instant petition.
CRMC No. 607/2017
This petition has been filed by three accused namely Rohit Singh (husband of deceased), Neena Kumari (mother-inlaw) and one Kudeep Singh for
quashing of charges framed against them under section 304-B/498-A RPC. The factual matrix of the instant case is that the marriage of the petitioner
No.1, namely, Rohit Singh was solemnized with one-Radha Sharma on 07th March, 2014 at Hiranagar according to Hindu rites and ceremonies. At
the time of the marriage, Rohit Singh was serving in Indian Army. The said Radha Sharma left the matrimonial house on 15th February, 2015 because
of the matrimonial disputes between them and started living in her parental home at Hiranagar. The petitioner No. 1 made various efforts for
restitution of conjugal rights, but said Radha Sharma refused to cohabit with him. Since, 15th Feb., 2015, the deceased-Radha Sharma had been
residing with her parents in her parental house and thereafter, the deceased-Radha Sharma never resided with the petitioners.
It is stated in the instant petition that as per the prosecution case, on 18.03.2016 at about 11:30 P.M, the grandfather of the deceased-Radha
Sharma lodged a report with police that the victim has committed suicide by hanging herself in her in-lawâ€s house situated at Ward No. 13,
Hiranagar, Kathua. It has also come in the statement of the prosecution witnesses that the dead body of Radha Sharma was recovered from the
house of the accused persons, but the accused persons were residing in another house and not in the house, where the dead body was recovered. It is
the admitted case of the prosecution that the deceased was living separately from the accused persons since long, therefore, there is no proximity
between the demand of dowry and cause of death of the deceased. The evidence assembled against the petitioners did not disclose the commission of
any offence. There is no material evidence available in the record to show that the petitioner/accused No.4 was being benefitted from the demand of
dowry, if any, made by the accused No.1. The deceased left the matrimonial house on 15th February, 2015 and thereafter, never lived together with
the petitioners. Petitioner No.3, namely, Kuldeep Singh, who is the real uncle (Chacha) of petitioner No.1 had been residing separately at his village
with his own family including his wife and children much before the above said marriage of the deceased-Radha Sharma. There was no occasion
when the petitioner No.3 lived with the deceased-Radha Sharma at her matrimonial house and he has nothing to do with the demand of dowry. The
deceased left the matrimonial house in February, 2015. Besides this, the father of the petitioner executed the aforesaid deed of disinheritance, by
which he has disinherited the deceased and her husband. So, in such situation, there is no proximity between the demand of dowry and cause of death.
It is further stated in the instant petition that the petitioners were falsely implicated in the case only because they are the relatives of the deceased
and in order to take vengeance, the parents of the deceased involved the petitioner also. Material does not show any involvement of the petitioners in
offence, for which they have been charged with. Thus, charges framed by the trial Court against the petitioners are liable to be quashed. In view of
the aforesaid factual backdrop, the petitioners have approached this Court by way of instant petition.
CRMC No. 281/2017
The grievance projected by the petitioner/ complainant in the instant petition is that the her daughter, i.e., deceased (Radha Sharma) got married to
one Rohit Singh S/o Malkeet Singh, resident of Ward No. 13 Hiranagar. The said Radha Sharma was found dead at the residence of her in-laws and
the proceedings under Section 175 Cr. P.C were initiated by the Hiranagar Police. Consequent upon the statement of eye witnesses, an FIR bearing
No. 27/2016 was lodged by the Police Station, Hiranagar against the accused persons, i.e. Rohit Singh and rest of his family members. The Hiranagar
Police initiated the investigation and consequently filed charge-sheet under Sections 304B/306/498 RPC against the accused persons. The family
members of the deceased Radha Sharma were not satisfied at all with the manner and mode of the investigation done by the Investigating Officer of
the case. Consequently, numbers of RTI applications and representations, appended as Annexure-A to the writ petition, were made to IGP, Jammu
Zone, SSP Kathua etc.
It is further stated in the instant petition that in spite of all the efforts and testimony of the eye witnesses present, the I.O. of the case did not
incorporate Section 302 RPC against the accused persons despite the fact that ample material was available to incorporate Section 302 RPC against
the accused persons. The statement recorded by the police, post-mortem report and other substantial evidence available on the file are sufficient to
satisfy the inclusion of Section 302 RPC against the accused persons. The letters written by the deceased Radha Sharma to the officers and superiors
of her husband are sufficient to reveal the grotesque fact about how the deceased was subjugated to rape and how her pictures in compromising
position were captured by the accused-Rohit Singh. The letters also reveal the fact that she was subjected to physical relation when she was just
about 12-13 years old by the accusedRohit Singh. The letters also justify that she was pressurized to undergo marriage ceremony and was blackmailed
& threatened that otherwise her nude pictures will be exposed on the internet and social media. The said Rohit Singh has filed a Divorce Petition,
which reveals that the said Rohit Singh was bitterly humiliated and exposed before his superior army officials by the letters sent by the deceased-
Radha Sharma.
Learned counsel for the petitioner/complainant has placed reliance upon the judgments of Honâ€ble Supreme Court in cases titled, “(i)
“Rajbir alias Raju & anr. Vs. State of Haryana, reported in 2011 AIR (SC) 568†and (ii) “Jasvinder Saini and others. Vs. State, reported in
2014 AIR (SC) 841â€. He states that after filing of the chargesheet, the argument of the Public Prosecutor was to include the offence 302 RPC in the
charge-sheet and the order dated 08th April, 2017 specifically revolves around the aforesaid two judgments.The Trial Court has relied upon Jasvinder
Singhâ€s judgment for not charge-sheeting the accused persons under Section 302 RPC. But even in Jasvinder Singhâ€s judgment, the Honâ€ble
Supreme Court states that even in dowry death, the charge under 302 RPC can be framed, if there is evidence/material available on record. The
plethora of material available on the file does justify inclusion of Section 302 RPC against all the accused persons. The material available on record to
justify inclusion of Section 302 RPC against the accused. The post-mortem report, which is appended as Annexure-B to the writ petitionshows that
there were abrasion over little and ring fingers on the dorsal aspect of right hand, which as per medical jurisprudence is a definite sign of struggle. The
pattern of ligature mark: starting from right mandibular region covering the whole anterior of neck below chin and extending upto left nape of neck
back side along with the colour of ligature mark being dark violet colour and hyoidbone and hyoid cartilage being intact, but Haemorrhages and
ecchymosis present are the glaring aspects, which are present when a person is strangulated.
Heard counsel for parties and gone through the trial court file.
From the perusal of file, the facts emerging are that on 18.3.2016 an oral complaint was lodged by one Thoru Ram grandfather of the deceased
Radha Sharma stating that his granddaughter was married to accused Rohit Singh since two years ago; she has died by hanging with “Dupata†in
her husbandâ€s house; her dead body was lying in house; no persons from her in-laws was present in the house; she has died in suspicion
circumstances. This report was entered in daily register vide report no.27 dated 18.3.2016. Proceeding under section 174 Cr.P.C. was commenced.
The police at the first instance started inquest proceedings in terms of Section 174 Cr.P.C and during inquest proceedings the dead body of the
deceased Radha Sharma was seized, post mortem was conducted and the statement of witnesses came to be recorded and inquest proceedings
resulted into the registration of FIR. Statement of the prosecution witnesses in terms of Section 164-A Cr.P.C. also came to be recorded. The
prosecution witnesses have stated that the marriage of the petitioner and accused No.1 was solemnized about two years back from the date of her
death which occurred under mysterious circumstances. The body of the deceased stand recovered from the house of accused persons. The death had
occurred under mysterious circumstances within two years of marriage of accused No.1 with deceased. It has also come in the statement of
prosecution witnesses that dead body of Radha Sharma was recovered from the house of accused persons but the accused persons were residing in
another house and not in the house from where dead body was recovered. It has also come in the statement of prosecution witnesses that the relation
between the parties remained cordial for a period of 6/7 months after marriage but thereafter, the accused persons started demanding dowry. The
accused No.1 with the aid and abetment of accused No.2 to 4 was demanding dowry in the shape of plot and other articles from deceased which
resulted in mental torture to her and disturbance in her married life and dragged into matrimonial litigation for not fulfilling demand of dowry. Unable to
bear torture and harassment due to demand of dowry and conduct of accused person she ended her life as her dead body was found hanging with a
dupata in the house of accused persons.
After completion of investigation, challan was produced and court after hearing the PP and counsel for accused passed a detail order framing the
charges under section 304-B / 498-A RPC against all the accused persons vide impugned order on 08.04.2017.
Counsel for accused persons, who have been charge sheeted, has reiterated all grounds taken in memo of petitions; similarly counsel for
complainant has reiterated the grounds taken in the memo of petition.
I have given my thoughtful consideration to whole aspects of matter and law on the point. The relevant laws, for quashing of charge/s and framing
of charge, delivered by Apex Court reads as under:-
 In AIR 2014 SC 1106 in case titled Umesh Kumar v State of Andhra Pradesh, it held as under:-
Code of criminal procedure â€"section 482 â€"instead of considering prima facie case-High court appreciating and weighing the materials on record
â€"concluding that charge sheet could not have been filed against accused and further ,no charges could have been framed â€"virtually acting as an
appellant court â€"approach illegal and erroneous.
A Constitution Bench of this Court reiterated a similar view inCBI & Ors. v. Keshub Mahindraetc., AIR 2011 SC 2037 observing that when the
charges are framed, the court makes an endorsement till that stage. So charges are framed on the materials produced by the prosecution for framing
the charges ―at that stageǁ. Such indication is necessary otherwise the provisions containedinSections216,323,386,397,399,401etc.Cr.P .C., would be
rendered nugatory and denuded a competent court of the powers under those provisions.
The court cannot be restrained from exercising its powers either underSection 323orSection 216Cr.P.C.ǁ In 2015 (3) CRIMES (SC) 89 in case titled
The State rep. by the Inspector of Police Vs. Mariya Anton Vijay, it is held as under:-
“The question as to how, in what manner and to what extent, the inherent powers of the High Court under section 482 of the Code are exercised
for quashing the registration of FIR/final report/charge sheet/complaint etc. are no more res integra and settled by several decisions of this Court.
 One leading case on this question is Bhajan Lal’s case (supra) and the other is S.B.Johari’s case (supra) apart from many others.
 So far as the case of Bhajan Lal (supra) is concerned, following proposition of law is laid down:
“102. In the backdrop of the interpretation of the various relevant provisionsof the Codeunder Chapter XIV and of the principles of law enunciated
by this Court in a series of decisions relating to the exercise of the extraordinary power underArticle 226or the inherent powers underSection 482of
the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could
be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down
any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of
cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence,
justifying an investigation by police officers underSection 156(1)of the Code except under an order of a Magistrate within the purview ofSection
155(2)of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated
underSection 155(2)of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisionsof the Codeor the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or where there is a specific provision inthe Codeor the concerned Act, providing
efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and
personal grudge.
We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary
jurisdiction on the court to act according to its whim or caprice.â€
 As far as S.B. Johari (Supra) case is concerned, following proposition of law is laid down:
“4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it
appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the
conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the court has to
prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and
arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is
made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce
to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot
show that the accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial.In Niranjan
Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya, (1990) 4 SCC
76, after considering the provisions ofSections 227and228CrPC, the Court posed a question, whether at the stage of framing the charge, the trial court
should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the
charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the [pic]offence with which the accused
could be charged. The court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability
thereof. The Court referred to earlier decisions inState of Bihar v. Ramesh Singh, (1977) 4 SCC 39,Union of India v. Prafulla Kumar Samal,(1979) 3
SCC 4 andSupdt. &Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja,(1979) 4 SCC 274 and held thus: (SCC p. 85, para 7) “From the
above discussion it seems well settled that at theSections 227-228stage the court is required to evaluate the material and documents on record with a
view to finding out if the facts emerging there from 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 cannot be expected even at the initial stage to accept all that the prosecution
states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.†(emphasis supplied)
5…………………………………………………………..
13.In our view the aforesaid exercise of appreciating the materials produced by the prosecution at the stage of framing of the charge is wholly
unjustified. The entire approach of the High Court appears to be as if the Court was deciding the case as to whether the accused are guilty or
not………………..â€
Keeping the aforementioned principles of law in mind and applying the same to the facts of the case in hand, I am of considered opinion that
Sessions Judge, while framing charge under section 269 of Cr.P.C. is obliged to scan the evidence collected during investigation for limited purpose for
satisfying himself as to whether there are sufficient grounds to presume that accused has committed offence as is alleged. For the purpose of framing
of charge, therefore, the Judge has to consider judicially whether on consideration of the materials on record, it can be said that the accused has been
reasonably connected with the offence alleged to have been committed and that on the basis of said materials there is a reasonable probability of
accused being found guilty of the offence as alleged. If the answer is in affirmative, the judge will be at liberty to presume “that the accused has
committed an offenceâ€. Charge is first notice to the accused of an accusation made against him. It should be conveyed to him in sufficient clearness
and certainty as to what the prosecution intends to prove and with which case the accused is to meet.
Section 4(c) of Code of Criminal Procedure defines a “charge†includes any head of charge when the charge contains more heads than one.
As per Law a charge may be a precise formulation of a specific accusation made against a person of offence alleged to have been committed by him.
The main purpose of framing charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of accusation that the
accused is called upon to meet in the course of trial.
At the time of framing charge, the Court has to prima facie consider whether there is sufficient ground to proceed against the accused and Court
is not required to appreciate whether the material produced is sufficient or not for convicting the accused.
From bare perusal of file and order of trial court with regard to framing of charge, I find that court below has carefully scanned the evidence
collected by investigating agency during investigation. He has considered all the arguments of counsel for parties.
Section 304-B RPC reads as under:-
―[304B. Dowry death.â€
(1)Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of
her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for,
or in connection with, any demand for dowry, such death shall be called ―dowry deathǁ, and such husband or relative shall be deemed to have caused
her death. Explanation.â€"For the purpose of this subsection, ―dowryǁ shall have the same meaning as in section 2 of the Dowry Prohibition Act,
1961 (28 of 1961). (2)Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but
which may extend to imprisonment for life.]
This section defines and punishes dowry death. The first subsection which defines the offence states that where a womanâ€s death is caused by
either any burns or bodily injury or occurs under such circumstances which are not normal within a period of seven years from the date she was
married and the prosecution proves beyond reasonable doubt that soon before she died either her husband or any of his relatives had subjected her to
cruelty or harassment either for or in connection with any dowry demand, such a death is a “dowry deathâ€, and her death shall be deemed to have
been caused by such husband or relative. The second sub-section which prescribes punishment for this offence says that whoever commits this
offence shall be punished with imprisonment for a term not less than seven years but which may be extended up to imprisonment for life. The section
requires that a woman must have died within seven years of her marriage and she must have died of bums or bodily injury or otherwise than under
normal circumstances. It must also be established that soon before her death her husband or any relative of her husband had subjected her to cruelty
or harassment for or in connection with any demand for dowry.
The death in present case has taken place otherwise than under normal circumstances within two years of marriage at her in-laws house; there is
also evidence that all accused were demanding dowry in the shape of plot and other articles from deceased which resulted in mental torture leading to
suicide; dead body was found hanging with dupata; all the accused persons were seen by witnesses coming and leaving the house where dead body
was found. The post-mortem report of deceased also suggests that deceased died due to asphyxia due to hanging, ligature mark around the neck has
been found. These are certain incriminating circumstances, which trial court finds, immediately before death for framing of charges against the
accused u/s 304-B RPC. From going through the evidence on record, there is perceptible nexus between the death of the deceased and harassment
and cruelty on her by accused persons. There is sufficient evidence to show that deceased was subjected to cruelty soon before committing of suicide
by hanging.
Counsel for petitioners/accused, who have sought quashing of charges, during the course of argument, has brought certain facts as narrated by
prosecution witnesses, thereby stating that there is no evidence against the petitioners; he has also argued that incriminating facts spoken by
prosecution witnesses against, are real relatives of deceased. I have considered these aspects of the matter; in dowry death case, the parents, brother
and sister of deceased are best witnesses to narrate the facts of demand of dowry; the statements of relative witnesses cannot be discarded at initial
stage of framing of charges on the ground that they are related to deceased; further detail appreciation of evidence cannot be done at the stage of
framing of charges.From bare perusal of order of court below and evidence on record, it is evident that there is enough material collected by
investigation agency, which lead trial court to frame the charges under section 304B/498-A RPC against accused.
In view of above, I do not find any infirmity of law and facts in order of trial Court framing charges against accused/petitioners under section 304-
B/498-A RPC.
So far as argument of counsel for complainant is concerned that, additional offence under section 302 RPC would have been added along with
304-B RPC against accused, that argument is not tenable at this stage. Because, for framing of additional charge under section 302RPC, there should
be some sufficient material, which in the present case, is missing. The argument of counsel for petitioner/complainant that ligature mark starting from
right mandibular region covering the whole anterior of neck below chin and extending upto left nape of neck back side along with the colour of ligature
mark being dark violet colour and Haemorrhages and Ecchymosis were present, so there was a clear case of murder by strangulation. This argument
does not hold good at this stage, because post-mortem report is not a substantial piece of evidence; it requires detail appreciation during trial. The laws
cited by counsel for petitioner/complainant has already been taken note of by court below in its right perspective. Further it is settled law that charges
can be modified/amended at any stage of the trial.
Resultantly, these three petitions are dismissed.