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Rajasthan High Court – Jodhpur

Rohit vs State Of Rajasthan (2024:Rj-Jd:12871) on 15 March, 2024

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

[2024:RJ-JD:12871]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 76/2024

Rohit S/o Shri Sitaram Acharya, Aged About 26 Years, R/o Gulab
Sagar, Bachcho Ki Gali, Jodhpur, P.s. Sadar Kotwali, Jodhpur,
Dist. Jodhpur City.
—-Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Dinesh S/o Shri Madanlal Acharya, R/o Khinvsar, P.s.
Khinvsar, Dist. Nagaur.
—-Respondents

For Petitioner(s) : Mr. K.L. Thakur
For Respondent(s) : Mr. Mukesh Trivedi, PP
Mr. Kishan Singh Chouhan

HON’BLE MR. JUSTICE MANOJ KUMAR GARG

Order

15/03/2024

Instant criminal revision petition has been filed by the

petitioner against the order dated 17.11.2023 passed by the

learned Additional Sessions Judge No.2, Nagaur in Sessions Case

No. 71/2022 whereby, the trial court has framed charges against

the petitioner for offences under Section 304B 498A IPC.

Brief facts of the case are that on 27.08.2020, respondent

complainant submitted a written report before the SHO, P.S.

Khinvsar, District Nagaur to the effect that marriage of his sister

Kiran was solemnized with Rohit as per Hindu rites on 29.01.2020.

At the time of marriage, sufficient dowry was given to the family

members of the groom but they were not contended with the

dowry and therefore, started harassing his sister demanding more

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dowry. It was stated that 11.08.2020, she was turned out from

her matrimonial home when she was 4-5 months pregnant. On

account of the harassment, his sister committed suicide by

hanging on 27.08.2020.

On this report, the police started investigation and after due

investigation, the police filed challan against the present petitioner

for offence under Sections 304B, 498A IPC. Thereafter, the case

was committed before the learned Additional Sessions Judge No.1,

Nagaur, where arguments on charge were heard and after hearing

the arguments, learned trial court framed charges against the

petitioners for aforesaid offences.

Learned counsel for the petitioner submits that the trial court

has committed an error of law in framing charges for offences

under Section 498A and 304B IPC inasmuch as, according to the

chargesheet submitted by the police, the deceased was in

relatinoship with a boy named Deepak and she used to talk to

him. The husband found about the relationship and asked the

deceased not to talk to the boy. However, the deceased continued

to talk to him and wanted to marry said Deepak. The petitioner

informed the family members of deceased who took her to

parental home but the deceased was adamant to marry Deepak.

Since the deceased was 4-5 months pregnant, she decided to

commit suicide, therefore, it cannot be said that the petitioner

instigated the deceased to commit suicide. It is argued that there

is neither any specific allegation with regard to demand of dowry

nor any specific role has been assigned to the petitioner to attract

the penal provisions of offence under Sections 498A and 304 B

IPC as only omnibus allegations have been levelled against him.

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Thus, the trial court has not properly looked into the matter and

therefore, the order passed by the learned trial court is liable to

be set aside.

Per contra, learned Public Prosecutor argued that on perusal

of statement of witnesses, a clear case of demand of dowry and

harassment is made out against the petitioner and due to the

harassment, the deceased committed suicide. It is further argued

that the deceased wife died just after seven months of marriage,

therefore, the revision petition may kindly be dismissed.

I have considered the rival arguments and perused the

material available on record including the challan papers.

From the perusal of the challan papers, it is evident that the

complainant Dinesh who is brother of deceased as well as Madan

lal, father of deceased and Smt. Kanchan, mother of deceased and

other witnesses have categorically mention that after marriage,

the accused used to harass the deceased demanding dowry and

fixed deposit in the sum of Rs. 5 lacs instead of Rs 1 lac. The

petitioner had also snatched her mobile and did not allow her to

talk to parents. Since the death of the wife occurred within seven

years of her marriage and she had been subjected to harassment

by petitioner, therefore, the Court may presume that he had

caused the dowry death.

Hon’ble Supreme Court in the case of Major Singh and

another Vs. State of Punjab reported in (2015) 5 SCC 201 while

considering the question with regard to conviction under Section

304-B IPC has held as under :-

“10. To sustain the conviction under Section 304B IPC,
the following essential ingredients are to be

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established:-

(i) The death of a woman should be caused by burns
or bodily injury or otherwise than under a ‘normal
circumstance’ (ii) such a death should have
occurred within seven years of her marriage;

(iii) she must have been subjected to cruelty or
harassment by her husband or any relative of her
husband;

(iv) such cruelty or harassment should be for or in
connection with demand of dowry ; and

(v) such cruelty or harassment is shown to have been
meted out to the woman soon before her death.

11. If any death is caused in connection with dowry
demand, Section 113B of the Evidence Act also comes
into play. Both these Sections 304B IPC and Section
113B of the Evidence Act were inserted by the Dowry
Prohibition (Amendment) Act 43 of 1986 with a view to
combat the increasing menace of dowry deaths.
Section 113B reads as follows:-

“113B: Presumption as to dowry death.- When the
question is whether a person has committed the dowry
death of a woman and it is shown that soon before her
death such woman has been subjected by such person
to cruelty or harassment for, or in connection with, any
demand for dowry, the Court shall presume that such
person had caused the dowry death. Explanation.- For
the purposes of this Section, ‘dowry death’ shall have
the same meaning as in Section 304B, of the Indian
Penal Code (45 of 1860).”

It is imperative to note that both these sections set out
a common point of reference for establishing guilt of
the accused person under Section 304B, which is “the
woman must have been ‘soon before her death’
subjected to cruelty or harassment ‘for or in connection
with the demand of dowry'”.

Hon’ble Supreme Court in yet another case of Maya

Devi Ors Vs. State of Haryana reported in AIR2016SC125

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has held as under :-

“21. Section 304B Indian Penal Code does not
categorise death as homicidal or suicidal or accidental.
This is because death caused by burns can, in a given
case, be homicidal or suicidal or accidental. Similarly,
death caused by bodily injury can, in a given case, be
homicidal or suicidal or accidental. Finally, any death
occurring “otherwise than under normal circumstances”
can, in a given case, be homicidal or suicidal or
accidental. Therefore, if all the other ingredients of
Section 304B Indian Penal Code are fulfilled, any death
(homicidal or suicidal or accidental) whether caused by
burns or by bodily injury or occurring otherwise than
under normal circumstances shall, as per the legislative
mandate, be called a “dowry death” and the woman’s
husband or his relative “shall be deemed to have
caused her death”. The section clearly specifies what
constitutes the offence of dowry death and also
identifies the single offender or multiple offenders who
has or have caused the dowry death.

…

The presumption Under Section 113B of the Act is
mandatory may be contrasted with Section 113A of the
Act which was introduced contemporaneously. Section
113A of the Act, dealing with abetment of suicide, uses
the expression “may presume”. This being the position,
a two-stage process is required to be followed in
respect of an offence punishable Under Section 304-B
Indian Penal Code: it is necessary to first ascertain
whether the ingredients of the Section have been made
out against the accused; if the ingredients are made
out, then the accused is deemed to have caused the
death of the woman but is entitled to rebut the

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statutory presumption of having caused a dowry death.
From the evidence on record, we are of the opinion
that in the present case Kavita died an unnatural death
by committing suicide as she was subjected to cruelty/
harassment by her husband and in-laws in connection
with the demand for dowry which started from the time
of her marriage and continued till she committed
suicide. Thus, the provisions of Sections 304B and
498A of the Indian Penal Code will be fully attracted.

In the light of the above discussion, we are of the
opinion that Kavita@Kusum suffered death at her
matrimonial home, otherwise than under normal
circumstances, within seven years of her marriage, and
the case squarely falls within the ambit of dowry death.
In the present case, from the evidence of the Doctor
(DW-2), PW-3 and PW-4, we find that the harassment
of the deceased was with a view to coerce her to
convince her parents to meet the demands for dowry.”

Recently, Hon’ble Apex Court in the case of ‘State of

Rajasthan Vs. Fatehkaran Mehdu reported in AIR 2017 SC

796 while discussing the scope of interference and exercise

of jurisdiction under Section 397 Cr.P.C has held as under :-

“26. The scope of interference and exercise of
jurisdiction Under Section 397 of Code of Criminal
Procedure has been time and again explained by this
Court. Further, the scope of interference Under Section
397 Code of Criminal Procedure at a stage, when
charge had been framed, is also well settled. At the
stage of framing of a charge, the court is concerned
not with the proof of the allegation rather it has to
focus on the material and form an opinion whether
there is strong suspicion that the Accused has
committed an offence, which if put to trial, could prove

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his guilt. The framing of charge is not a stage, at which
stage final test of guilt is to be applied. Thus, to hold
that at the stage of framing the charge, the court
should form an opinion that the Accused is certainly
guilty of committing an offence, is to hold something
which is neither permissible nor is in consonance with
scheme of Code of Criminal Procedure.

27. Now, reverting to the limit of the scope of
jurisdiction Under Section 397 Code of Criminal
Procedure, which vests the court with the power to call
for and examine the records of an inferior court for the
purposes of satisfying itself as to the legality and
regularity of any proceedings or order made in a case.
The object of this provision is to set right a patent
defect or an error of jurisdiction or law or the
perversity which has crept in the proceeding.

28. It is useful to refer to judgment of this Court in
Amit Kapoor v. (sic) Ramesh Chander and Anr. :

(2012) 9 SCC 460, where scope of Section 397 Code of
Criminal Procedure have been succinctly considered
and explained. Para 12 and 13 are as follows:

12. Section 397 of the Code vests the court
with the power to call for and examine the
records of an inferior court for the purposes of
satisfying itself as to the legality and regularity of
any proceedings or order made in a case. The
object of this provision is to set right a patent
defect or an error of jurisdiction or law. There has
to be a well-founded error and it may not be
appropriate for the court to scrutinize the orders,
which upon the face of it bears a token of careful

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consideration and appear to be in accordance with
law. If one looks into the various judgments of
this Court, it emerges that the revisional
jurisdiction can be invoked where the decisions
under challenge are grossly erroneous, there is no
compliance with the provisions of law, the finding
recorded is based on no evidence, material
evidence is ignored or judicial discretion is
exercised arbitrarily or perversely. These are not
exhaustive classes, but are merely indicative.

Each case would have to be determined on its
own merits.

13. Another well-accepted norm is that the
revisional jurisdiction of the higher court is a very
limited one and cannot be exercised in a routine
manner. One of the inbuilt restrictions is that it
should not be against an interim or interlocutory
order. The Court has to keep in mind that the
exercise of revisional jurisdiction itself should not
lead to injustice ex facie. Where the Court is
dealing with the question as to whether the
charge has been framed properly and in
accordance with law in a given case, it may be
reluctant to interfere in exercise of its revisional
jurisdiction unless the case substantially falls
within the categories aforestated. Even framing of
charge is a much advanced stage in the
proceedings under the Code of Criminal
Procedure.

29. The Court in para 27 has recorded its
conclusion and laid down principles to be
considered for exercise of jurisdiction Under
Section 397 particularly in context of quashing of
charge framed Under Section 228 Code of

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Criminal Procedure Para 27, 27(1), (2), (3), (9),
(13) are extracted as follows:

27. Having discussed the scope of
jurisdiction under these two provisions, i.e.,
Section 397 and Section 482 of the Code
and the fine line of jurisdictional distinction,
now it will be appropriate for us to enlist the
principles with reference to which the courts
should exercise such jurisdiction. However,
it is not only difficult but is inherently
impossible to state with precision such
principles. At best and upon objective
analysis of various judgments of this Court,
we are able to cull out some of the principles
to be considered for proper exercise of
jurisdiction, particularly, with regard to
quashing of charge either in exercise of
jurisdiction Under Section 397 or Section
482 of the Code or together, as the case
may be:

27.1) Though there are no limits of the
powers of the Court Under Section 482 of
the Code but the more the power, the more
due care and caution is to be exercised in
invoking these powers. The power of
quashing criminal proceedings, particularly,
the charge framed in terms of Section 228
of the Code should be exercised very
sparingly and with circumspection and that
too in the rarest of rare cases.

27.2) The Court should apply the test as to
whether the uncontroverted allegations as
made from the record of the case and the

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documents submitted therewith prima facie
establish the offence or not. If the
allegations are so patently absurd and
inherently improbable that no prudent
person can ever reach such a conclusion and
where the basic ingredients of a criminal
offence are not satisfied then the Court may
interfere.

27.3) The High Court should not unduly
interfere. No meticulous examination of the
evidence is needed for considering whether
the case would end in conviction or not at
the stage of framing of charge or quashing
of charge.

27.9) Another very significant caution that
the courts have to observe is that it cannot
examine the facts, evidence and materials
on record to determine whether there is
sufficient material on the basis of which the
case would end in a conviction; the Court is
concerned primarily with the allegations
taken as a whole whether they will
constitute an offence and, if so, is it an
abuse of the process of court leading to
injustice.

27.13) Quashing of a charge is an exception
to the Rule of continuous prosecution.

Where the offence is even broadly satisfied,
the Court should be more inclined to permit
continuation of prosecution rather than its
quashing at that initial stage. The Court is
not expected to marshal the records with a
view to decide admissibility and reliability of
the documents or records but is an opinion

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formed prima facie.

30. Applying the above tests, we are of the considered
opinion that High Court erred in quashing the charges
framed by the order dated 05.05.2009. In result, both
the appeals are allowed. The order of the High Court is
set aside and the order dated 05.05.2009 is restored.
The learned Special Judge may proceed with the trial in
accordance with the law expeditiously.”

In the present case, the learned trial Court has

recorded cogent reasons for framing charges and it is settled

law that at the stage of framing of charge the court is

required to evaluate the material and documents on record

with a view of finding out if the facts emerging therefrom,

taken at their face value, disclosed the existence of all the

ingredients constituting the alleged offence. At this stage,

the court is not expected to go deep into the probative value

of the record. What needs to be considered is whether there

is a ground for presuming that the offence has been

committed or not. At this stage, even strong suspicion

founded on material which leads the court to form a

presumptive opinion as to the existence of the factual

ingredients constituting the offence alleged, would justify the

framing of the charge against the accused in respect of the

commission of that offence.

In view of above, this Court is of the opinion that trial

court has not committed any error in framing charge for

offence under Section 498A and 304B IPC.

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The revision thus being bereft of any force, is hereby

rejected.

(MANOJ KUMAR GARG),J
174-BJSH/-

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