HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 109 / 2018
Anil Bishnoi S/o Shri Lekh Ram, Aged About 21 Years, By caste
Bishnoi, R/o Heerani Dhani, Jetpura Kalla, P.S. Degana, District
Nagour.

—-Petitioner
Versus

1. State of Rajasthan Through Public Prosecutor

2. Sarvan Kumar S/o Shri Bagda Ram, By caste Bishnoi, R/o
Village Andolav, Tehsil Khinvsar, District Nagaur.

—-Respondents
__
For Petitioner(s) : Mr. B.L. Bishnoi
For Respondent(s) : Mr. O.P. Rathi, Public Prosecutor.
For Complainant(s): Mr. M.R. Suthar.

__
HON’BLE MR. JUSTICE P.K. LOHRA
Order
16/04/2018

Accused-petitioner has preferred this revision petition under

Section 397 read with Section 401 Cr.P.C. to assail order dated

19th of December 2017, passed by Addl. Sessions Judge, Merta

(for short, ‘learned trial Court’), framing charge against him for

offence under Section 304-B IPC and alternatively under Section

302 IPC.

Succinctly stated, facts of the case are that second

respondent complainant lodged an FIR that his daughter entered

into matrimony with the petitioner on 23 rd of March 2015 and at

the time of marriage requisite Streedhan was given by him to his

daughter. Castigating the petitioner for subjecting his daughter
(2 of 7)
[CRLR-109/2018]

to cruelty or harassment for or in connection with any demand for

dowry, complainant has also stated in the report with clarity and

precision that she died in mysterious circumstances on 24 th of

September 2015 at matrimonial home. Investigation in the

matter commenced and eventually accused-petitioner was charge-

sheeted for offence under Section 498A and 304-B IPC. In due

course of time, Addl. Chief Magistrate, Degana committed the

case to learned trial Court. The learned trial Court heard

arguments before framing charges and by the impugned order

found prima facie material for framing charge against the

petitioner for offence under Section 498-A and 304-B IPC. The

learned trial Court has also framed an alternative charge against

the petitioner for offence under Section 302 IPC by simply

referring to a judgment of Supreme Court in case of Rajbir @ Raju

and Anr. vs. State of Haryana [(2010) 15 SCC 116].

It is argued by learned counsel for the petitioner that prima

facie there was no material available on record to frame charge

under Section 302 IPC against the petitioner. It is also argued

that the learned trial Court, while framing alternative charge

under Section 302 IPC has not at all cared to examine prima facie

case against the petitioner. It is also submitted by learned

counsel that from the impugned order prima facie satisfaction of

the learned trial Court on the strength of material showing

possibility about commission of crime is not borne out and the

alternative charge under Section 302 IPC is framed mechanically

by relying on aforesaid judgment of the Supreme Court.

(3 of 7)
[CRLR-109/2018]

Per contra, learned Public Prosecutor and the learned counsel

for the complainant have opposed the revision petition in unison.

It is argued by learned Public Prosecutor that the learned trial

Court has framed alternative charge under Section 302 IPC by

relying on the judgment of the Supreme Court and therefore no

interference is warranted. Learned counsel for the complainant

has also urged that framing alternative charge under Section 302

IPC in the given circumstances cannot be faulted.

I have bestowed my consideration to the arguments

advanced at Bar and perused the materials available on record.

From the material, it is borne out that wife of the petitioner

died when their matrimony was in infancy inasmuch as within six

months of marriage. It is also clear from the autopsy report of

deceased that it was an unnatural death, may be due to poisoning

or drowning. The FSL report in this behalf is clear and

unequivocal giving negative tests for metallic poisons, methyl

alcohol, cyanide, alkaloids, barbiturates, tranquilizers and

insecticides. Be that as it may, the fact remains that being an

unnatural death within 7 years of matrimony, prima facie, learned

trial Court has rightly decided to frame charge against the

petitioner under Section 304-B IPC. However, while adverting to

the alternate charge under Section 302 IPC, it may be observed

that no cogent reasons are forthcoming from the impugned order

and the learned trial Court has simply exercised its discretion
(4 of 7)
[CRLR-109/2018]

mechanically by relying on the judgment of Supreme Court in

Rajbir (supra). As a matter of fact, the learned trial Court has not

at all cared to discuss the material available on record for

recording its prima facie satisfaction to frame alternative charge

under Section 302 IPC. The directions issued in Rajbir (supra) are

not general and sweeping directions, and therefore, Court cannot

shirk from its obligation to examine material available on record.

The Court has simply observed as under:

“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.”

In a subsequent judgment, Supreme Court, in case of

Jasvinder Saini Ors. Vs. State (Govt. of NCT of Delhi) [(2013) 7

SCC 256], clarified the position and observed that the directions

issued in Rajbir’s case (supra) are not to be adhered to

mechanically without adverting to evidence adduced in the case.

The Court held:

“A reading of the order which the trial Court
subsequently passed on 23rd February 2011 directing
addition of a charge under Section 302 IPC makes it
abundantly clear that the addition was not based on
any error or omission whether inadvertent or
otherwise in the matter of framing charges against
the accused. Even the Respondents did not plead that
the omission of a charge under Section 302 IPC was
on account of any inadvertent or other error or
omission on the part of the trial Court. The order
passed by the trial Court, on the contrary directed
addition of the charge under Section 302 IPC entirely
in obedience to the direction issued by this Court in
Rajbir’s case (supra). Such being the position when
the order passed by the trial Court was challenged
before the High Court the only question that fell for
determination was whether the addition of a charge
under Section 302 IPC was justified on the basis of
the direction issued by this Court in Rajbir’s case
(5 of 7)
[CRLR-109/2018]

(supra). The High Court has no doubt adverted to that
aspect and found itself to be duty bound to comply
with the direction in the same measure as the trial
Court. Having said so, it has gone a step further to
suggest that the autopsy surgeon’s report was prima
facie evidence to show that the offence was homicidal
in nature. The High Court has by doing so provided an
additional reason to justify the framing of a charge
under Section 302 IPC.

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
(6 of 7)
[CRLR-109/2018]

orders rather than lending support to it in the manner
done by the High Court.

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.”

The same view is further reiterated by Supreme Court in

case of Vijay Pal Singh Ors. Vs. State of Uttarakhand [(2014) 15

SCC 163], while making distinction between both the offences.

In view of foregoing discussion, the impugned order to the

extent the learned trial Court has framed alternative charge

against the petitioner under Section 302 IPC cannot be

sustained and the order to that extent is hereby annulled. The

matter is remanded back to learned trial Court for hearing
(7 of 7)
[CRLR-109/2018]

arguments on charge afresh for passing appropriate order

strictly in accordance with law.

Revision petition stands disposed of accordingly.

(P.K. LOHRA)J.