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Surendra Singh vs State on 26 April, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 454 / 2017
Surendra Singh S/o Sh. Ajeet Singh, By Caste Rajput, Resident of
Hirani, P.S. Kuchaman, District Nagaur (Raj.)

—-Petitioner
Versus
State of Rajasthan through Public Prosecutor

—-Respondent
__
For Petitioner : Vineet Jain with Mr. K.S. Lodha
For Respondent-State : Mr. L.R. Upadhyay, Public Prosecutor.
__
HON’BLE MR. JUSTICE P.K. LOHRA
Order
26/04/2017

Feeling aggrieved by order dated 16th of March 2017, passed

by Addl. Sessions Judge, Parbatsar, District Nagaur (for short,

‘learned trial Court’) in Sessions Case No.42/2013, framing charge

against petitioner for offence under Sections 498A, 406 and 304B

of IPC and in the alternative under Sections 302 and 120B of IPC

and Section 4/6 of the Dowry Prohibition Act, this revision petition

is laid under Section 397/401 Cr.P.C.

Apposite facts, for the purpose of this revision petition are

that on 21st of May 2013, Shanker Singh lodged an FIR, at Police

Station Kuchaman City, District Nagaur, alleging therein that his

sister Ms. Bala Kanwar was married to Surendra Singh on 1 st of

July 2009. The FIR further unfurls that at the time of nuptials,

sufficient dowry was given by the parents of bride but not to the
(2 of 8)
[CRLR-454/2017]

satisfaction of her in-laws and therefore soon after marriage Ms.

Bala Kanwar was subjected to harassment and cruelty with

unlawful demand of property or valuable security. It is also

alleged in the FIR that petitioner, his mother and other relatives

assaulted Ms. Bala Kanwar on many occasions for not fulfilling

their demand of dowry and despite sincere endeavour and

mediation of wellwishers ill-treatment of Ms. Bala Kanwar

continued unabatedly. The report further discloses that on 20 th of

May 2013, at about 2 PM, accused Om Kanwar and Chiku Kanwar

set ablaze Ms. Bala Kanwar by pouring kerosene on her and on

seeing this horrifying incident neighbours came to her rescue and

brought her to hospital at Kuchaman City. Later on, she was

referred to Ajmer and from Ajmer to Jaipur. As per the first

informant, when he reached Ajmer, he met his sister and

thereupon she disclosed the entire incident to him. This

information prompted the complainant to lodge FIR, which was

initially registered for offence under Section 307 IPC, however,

subsequent to the death of Ms. Bala Kanwar, offence under

Sections 304-B and 302 IPC were added.

The police, after investigation, submitted chargesheet in the

matter against petitioner, his mother Om Kanwar and sister Chiku

Kanwar. In due course of time, the case was committed to

Sessions Court under Section 209 Cr.P.C. and presently trial is

pending before learned trial Court. The learned trial Court, after

examining the evidence and other materials available on record,

framed charge for offence under Sections 498A, 406 and 304B IPC
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[CRLR-454/2017]

and in the alternative under Section 302, 120B IPC and Section

4/6 of the Dowry Prohibition Act.

Mr. Vineet Jain, learned counsel for the petitioner, has

contended that impugned order is per se contrary to law and facts

and as such cannot be sustained. It is argued by learned counsel

that at the time of alleged incident petitioner was not present at

the scene of occurrence as he was on duty, therefore, charge

under Section 302 304B IPC is not sustainable against him.

Learned counsel has also placed reliance on dying declaration of

Ms. Bala Kanwar and urged that in the dying declaration when no

specific imputation is made against the petitioner, besides charge

under Section 302 and 304B IPC, charge under Section 120B IPC

is also not sustainable. Mr. Jain, has placed reliance on a

decision of Supreme Court rendered in Jasvinder Saini Ors. Vs.

State (Govt. of NCT of Delhi): (2013) 7 SCC 256.

Per contra, learned Public Prosecutor has stoutly defended

the impugned order and has urged that heinous offences against

women is a cause of grave concern and taking note of this vital

fact, learned trial Court has framed charge against petitioner in

adherence of the verdict of Apex Court, which is not liable to be

interfered with. Learned Public Prosecutor has further submitted

that in the wake of serious allegations against petitioner for

assaulting Ms. Bala Kanwar with demand of dowry and

perpetrating cruelty on her, which finally led to her unnatural

death, is prima facie sufficient to inflict the charge of criminal
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[CRLR-454/2017]

conspiracy against petitioner under Section 120-B IPC.

I have heard learned counsel for the petitioner as well as

learned Public Prosecutor and also perused the impugned order

and other materials available on record.

Incidents of bride burning are slur on a civilized society. In

the present era, though the Country has progressed and literacy

level is also in ascending order, but menace of barbaric and

heinous crimes against women have reached to its pinnacle.

Setting at fire a lady by pouring kerosene on her is a crime of high

magnitude and gravity, which is to be viewed with pragmatic

approach to thwart attempts of disruption in entire social fabric.

Therefore, while dealing with such social evils, the attending

circumstances of a particular case cannot be overlooked at the

time of framing charge. Mere absence of petitioner at the scene

of occurrence cannot absolve him of his role in commission of

offence as one of the alleged conspirators. In view of the fact

that there are allegations against him of perpetrating cruelty on

the deceased continuously for demand of dowry, it is rather

difficult to comprehend that he was unconnected with the incident.

There remains no quarrel that Ms. Bala Kanwar has not laid her

life due to natural death but in fact it was a case of unnatural

death under mysterious circumstances at her in-laws’ house.

Thus, in that background, the learned trial Court has framed

alternative charge under Section 302 IPC against petitioner and

others by relying on the judgment of Supreme Court in Rajbir alias
(5 of 8)
[CRLR-454/2017]

Raju Anr. Vs. State of Haryana [(2010) 15 SCC 116], wherein in

similar circumstances, Supreme Court issued following directions:

“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.

Copy of this order be sent to Registrar
Generals/Registrars of all High Courts, which will
circulate it to all trial Courts.

In Ashok Kumar Vs. State of Rajasthan [(1991) 1 SCC 166],

Supreme Court has laid down that motive for a murder may or

may not be but in dowry deaths it is inherent and hence what is

required of Courts to examine is as to who translated it into action

as motive for it is not individual but of family.

In case of Hemchand Vs. State of Haryana [(1994) 6 SCC

727], Supreme Court, while examining rigor of Section 113B of

the Evidence Act, observed that when a question is whether a

person has committed a 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. The Court has further held that

proof of direct connection of the accused with her death is not

essential. The absence of direct connection of the accused with

death has to be taken into consideration in balancing the sentence

to be awarded to the accused.

(6 of 8)
[CRLR-454/2017]

Supreme Court, in Sohan Lal alias Sohan Singh Ors. Vs.

State of Punjab (AIR 2003 SC 4466), while considering the

requirements envisaged under sub-sec.(4) of Section 211 Cr.P.C.

for framing charge, observed that an accused cannot be convicted

for a charge which was not framed against him. The Court held:

“Section 211 of the Code of Criminal Procedure
requires that the charge against the accused be
precisely stated. Sub-section(4) of Section 211 of the
Code of Criminal Procedure specifically requires that
the law and section of the law against which the
offence is said to have been committed shall be
mentioned in the charge. The learned counsel for the
respondent State, relying on Section 464 of the Code of
Criminal Procedure, urged that failure to specify
Section 109 in Charge Sheet against Sohan Lal was a
mere irregularity which would not vitiate the trial
without proof of prejudice to the accused. We cannot
agree. The learned counsel for the accused is fully
justified in his submission that failure to frame a charge
with regard to the substantive offence of
Section 109 IPC has certainly prejudiced the accused in
the trial Court. The accused Sohan Lal @ Sohan
Singh was called upon to face trial only for the charge
under Section 304B IPC Neither a charge under
Section 302 IPC nor under Section 109 IPC, was leveled
against him in the Charge Sheet. In the absence of a
charge being framed against the accused Sohan
Lal under Section 302 or 109 IPC, it would certainly
cause prejudice to him, if he is convicted under either
for these Offences at the end of the trial. In our view, it
was not permissible for the trial court to convict the
first accused Sohan Lal for the offence under
Section 302 read with Section 109 IPC. His conviction
under Section 302 read with Section 109 IPC is,
therefore, illegal and is liable to be set aside. The High
Court erred in upholding the conviction of Sohan Lal @
Sohan Singh under Section 302 read with
Section 109 of the IPC and dismissing his appeal.

Therefore, the learned trial Court, while considering the ratio

decidendi of Rajbir’s case (supra), has rightly framed alternative

charge under Sections 302 and 120B IPC. In Jasvinder Saini

Ors. (supra), on which the learned counsel for the petitioner has

placed reliance, Supreme Court has held:

(7 of 8)
[CRLR-454/2017]

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

Supreme Court, in that judgment has not taken a view different

from its earlier verdict in Rajbir @ Raju Anr. (supra) but has

simply deprecated the approach of trial Court in mechanically

applying the ratio of that judgment while framing additional

charge under Section 302 IPC against the accused. The fact

situation in this case is quite different, inasmuch as, in the instant

case, trial Court framed charges under Sections 302, 120B IPC

and Section 4/6 of the Dowry Prohibition Act. The cause of

unnatural death of deceased Ms. Bala Kanwar can be unfurled

during trial depending on evidence tendered by prosecution and

the learned trial Court has taken utmost care in framing

alternative charge in adherence of sub-sec.(4) of Section 211 IPC.

(8 of 8)
[CRLR-454/2017]

In view thereof, I am unable to find any manifest error of law or

fact, in the order impugned, warranting interference in exercise of

revisional jurisdiction.

The upshot of above discussion is that I record my

satisfaction about correctness, legality and propriety of the

impugned order and consequently petition fails and the same is

hereby dismissed.

(P.K. LOHRA)J.

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