@JUDGMENTTAG-ORDER
G.S. Sistani, J.
Crl. Rev. P. No. 192/2009 & Crl. M.A. No. 4107/2009 (STAY).
1. The present Revision Petition has been filed under Sections 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as, Cr.P.C..) against the order on framing of charge dated 17.01.2009 passed by learned Additional Sessions Judge, Karkardooma Court, Delhi, in Criminal case titled as ''State v. Akash Deep etc.'' FIR No. 86/2008 registered under Sections 498-A/306/34 of the Indian Penal Code, 1860 (hereinafter referred to as, IPC.) at Police Station Shahdara, Delhi.
2. The relevant facts for the disposal of the present revision petition are that a marriage between the petitioner and one Deepa was solemnized on 24.11.2007. Barely after nineteen (19) days of her marriage, Deepa committed suicide at her parental place. On 12.12.2007, a D.D. Entry was recorded at Police Station Shahdara, Delhi, regarding suicide/hanging by a girl, whereupon the police rushed at the spot and found dead body of a female, namely, Deepa Kapoor, having ligature marks on her neck. The body was lying in a room on the first floor of the house. The police did not find any case property/hanging material at the spot. Neither the same was produced by the family members of the deceased.
3. On the next day of incident i.e. 13.12.2007, statement of the father of the deceased was recorded by the SDM. In the statement, the father of the deceased did not make any allegation in respect of any demand of dowry, ill-treatment or harassment at the hands of the petitioner or his family members. Rather the father of the deceased had categorically stated that the deceased had no complaints from her in-laws as she was living happily with them and he had also specifically stated that he does not want any action against the petitioner and his family members on account of their being innocent.
4. On 27.03.2008, an FIR was registered on a subsequent complaint made by the father of the deceased wherein allegations were levelled against the petitioner and his family members upon finding a suicide note written by his daughter (deceased) narrating the harassment and ill-treatment meted out to her at the hands of the petitioner and his family members. The complainant categorically stated that earlier when he gave the statement to the SDM on 13.12.2007, he did not make any allegations against the petitioner and his family members as he did not find the suicide note.
5. Vide order dated 17.01.2009, learned trial court passed an order on charge whereby the sister of the petitioner was discharged and a charge u/s 498-A/306 of the IPC was framed against the petitioner. Aggrieved by the aforesaid order, the present revision petition has been filed.
6. Learned Counsel for the petitioner has strongly urged before this Court that no allegations were made against the petitioner and his family members in the first statement of the complainant dated 13.12.2007. In fact the complainant had given a complete clean chit to the petitioner and his family members and it had been categorically stated that there was no demand of dowry, ill- treatment or harassment at the hands of the petitioner or his family members. The father of the deceased had also stated that the deceased had no complaints from her in-laws and she was living happily with them. The father specifically stated that he did not want any action against the petitioner as they were innocent. Counsel for the petitioner further submits even otherwise, there is a gross delay in filing the FIR, which is based on a suicide note. It is stated that the suicide note was not in the handwriting of the deceased. The said suicide note was sent to the CFSL with the admitted writing of the deceased and on careful examination of the same, the forensic expert has opined that the alleged suicide note is not written under the hand of the deceased, and thus, it is only an attempt to falsely implicate the petitioner in this case. In the light of the CFSL report, it can be safely said that the suicide note produced by the father of the deceased is forged and a fabricated document and, thus, no reliance can be placed thereupon. In support of his submissions, learned Counsel for the petitioner relies upon Suraj Prakash v. State of Delhi reported at 2007 [1] JCC 354. Counsel further relies upon Sanjay @ Sanjay Singh Sengar v. State of Madhya Pradesh, reported at 2002 (2) RCR (Criminal) 687. Counsel for the petitioner also submits that no case is made out against the petitioner u/s 306 of the IPC as the ingredients of Section 107 (abetment) are not made out. There is nothing on record to show that there was any instigation or abetment on the part of the petitioner which led the deceased to commit suicide and moreover the deceased committed suicide at her parental home. Learned Counsel further submits that at the stage of framing the charge, the Court is to consider whether a strong suspicion is made out against the accused persons or not, and which is certainly not made out herein.
7. This petition has been opposed by learned Counsel for the State, primarily, on the ground that there is a strong prima facie case against the petitioner and there is every likelihood it would result in a conviction. Learned Counsel for the State submits that at the stage of framing of charge the Court is not to go into the evidence but may only sift the evidence and form a prima facie view of the matter. Counsel further submits that the CFSL report is only with respect to signatures on the suicide note. Further in the absence of admitted hand writing of the deceased, an opinion could not be formulated by the CFSL with regard to the handwriting in the note itself. Counsel also submits that as per the statement of the father of the deceased, the suicide note was in the handwriting of his daughter. The father of the deceased has also alleged that the accused had threatened the complainant in not making any complaint to the police. Counsel lastly submits that it has come on record that soon before the incident, the deceased had made a phone call to her husband. Counsel submits that all these factors are to be taken into consideration, at this stage.
8. I have heard learned Counsel for the parties and given my thoughtful consideration to the matter. The law with regard to framing of charge and the revisional jurisdiction of this Court is well-settled. In the case of
10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges u/s 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction u/s 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
9. Similar opinion was expressed in the case of
6. At the stage of framing charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused. Section 227 of the Code provides for the eventuality when the accused shall be discharged. If not discharged, the charge against the accused is required to be framed u/s 228. These two sections read as under:
Section 227 CrPC
227. Discharge.--If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
Section 228 CrPC
228. Framing of charge.--(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which--
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report;
(b) is exclusively triable by the court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under Clause (b) of Sub-section (1), the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
7. Similarly, in respect of warrant cases triable by Magistrates, instituted on a police report, Sections 239 and 240 of the Code are the relevant statutory provisions. Section 239 requires the Magistrate to consider the police report and the documents sent with it u/s 173. and, if necessary, examine the accused and after giving the accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, the accused is liable to be discharged by recording reasons thereof.
8. What is the meaning of the expression the record of the case. as used in Section 227 of the Code. Though the word case. is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to the Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit .the case. to the Court of Session and send to that court the record of the case. and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209. That is the plain meaning of Section 227 read with Section 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial.
9. Further, the scheme of the Code when examined in the light of the provisions of the old Code of 1898, makes the position more clear. In the old Code, there was no provision similar to Section 227. Section 227 was incorporated in the Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements. If the evidence even if fully accepted cannot show that the accused committed the offence, the accused deserves to be discharged. In the old Code, the procedure as contained in Sections 207 and 207-A was fairly lengthy. Section 207, inter alia, provided that the Magistrate, where the case is exclusively triable by a Court of Session in any proceedings instituted on a police report, shall follow the procedure specified in Section 207-A. u/s 207-A in any proceeding instituted on a police report the Magistrate was required to hold inquiry in terms provided under Sub-section (1), to take evidence as provided in Sub-section (4), the accused could cross-examine and the prosecution could re- examine the witnesses as provided in Sub-section (5), discharge the accused if in the opinion of the Magistrate the evidence and documents disclosed no grounds for committing him for trial, as provided in Sub-section (6) and to commit the accused for trial after framing of charge as provided in Sub-section (7), summon the witnesses of the accused to appear before the court to which he has been committed as provided in Sub-section (11) and send the record of the inquiry and any weapon or other thing which is to be produced in evidence, to the Court of Session as provided in Sub-section (14). The aforesaid Sections 207 and 207-A have been omitted from the Code and a new Section 209 enacted on the recommendation of the Law Commission contained in its 41st Report. It was realised that the commitment inquiry under the old Code was resulting in inordinate delay and served no useful purpose. That inquiry has, therefore, been dispensed with in the Code with the object of expeditious disposal of cases. Instead of the committal Magistrate framing the charge, it is now to be framed by the Court of Session u/s 228 in case the accused is not discharged u/s 227. This change brought out in the Code is also required to be kept in view while determining the question. Under the Code, the evidence can be taken only after framing of charge.
10. Now, let us examine the decisions which have a bearing on the point in issue.
11. In
12. In
13. In
14. In
15. In
16. All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be a well-settled proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau v. P. Suryaprakasam 1999 SCC (Cri) 373 where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to u/s 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that.
(emphasis supplied)
10. Thus it is settled position of law that at the time of framing of charge, the Court is not supposed to look into the evidence of the case in detail and is only to consider whether there is a strong suspicion against the accused on the basis of the material that comes before it. The court has the power to sift the evidence for the limited purpose of finding out, whether or not a prima facie case is made out against the accused. However, the Court is not supposed to delve deeply into the merits of the matter and start a roving expedition into the evidence that is brought forth it, as if conducting a trial. Further there is no one fixed definition that may be ascribed to the term prima facie'' nor can the term .strong suspicion. have a singular meaning. While coming to the conclusion of a strong prima facie case or strong suspicion, the Court shall have to decide each case on the basis of its own independent facts and circumstances.
11. At the time of framing charges against the accused (petitioner herein), the learned trial court observed in the impugned order dated 17.01.2009 that, ''[s]o long as the accused Akashdeep is concerned, since he was the husband of the deceased and all the material allegations made by the father of the deceased and her family members and recovery of suicide note prima facie indicates a strong suspicion for framing of charge for the offence u/s 498/306 IPC against accused Akashdeep. Accordingly, charge for the offence u/s 498/306 IPC is framed against the accused Akashdeep to which he does not plead guilty and claims trial.
12. A Court exercising revisional jurisdiction cannot go into intricate details as regards the merits of a matter and may interfere only when there is any illegality or material irregularity or impropriety in the order passed by the lower court and further, a revisional court cannot sit as a court of appeal and reappraise the merits of the case. Thus, this Court is to examine, whether the trial Court carefully applied the law with regard to framing of charge to the facts of this case and if there is any infirmity in the impugned order or not.
13. Coming back to the facts of this case, it is seen that, it is not in dispute that as per the first statement which was made by the father of the deceased, he had categorically stated that no demand of dowry had been made. He had also stated that his daughter was happily married and was not ill-treated by the petitioner or his family members. The father of the deceased stated, we have no troubles/grievance from anyone. No demand of dowry or complaint were made to us by the husband of Deepa or his family members. My daughter Deepa never complained to us against her husband, mother-in-law and brother-in-law. She was living happily at her matrimonial home.'' As per the prosecution, it is the discovery of the suicide note which led to his approaching the police once again and making a second statement. In the second statement, it has been stated by the complainant (father of the deceased) that his daughter committed suicide after nineteen (19) days of the marriage. His daughter had come from the matrimonial home on 11.12.2007 and since then she was upset, however, she could not apprise him of the true situation. The father of the deceased further goes on to state that earlier he did not find the suicide note of his daughter. A bare reading of the second statement made by the complainant would show that the deceased had not disclosed to her father of any ill-treatment or demand of dowry from her husband or in-laws. Reading of the second statement would also show that it is a discovery of the suicide note which prompted the complainant to lodge the FIR.
14. The learned trial Court has charged the petitioner herein u/s 498-A/306, IPC. Section 306, IPC reads as under: .Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine..
15. Since the very essential of Section 306, IPC is abetment, it would be relevant to reproduce Section 107, IPC as under:
107. Abetment of a thing.-- A person abets the doing of a thing, who
First. - Instigates any person to do that thing; or
Secondly. - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly. - Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.- A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
16. Further in the judgment pronounced in the case of
9. In
My mother-in-law and husband and sister-in-law (husband�s elder brother�s wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning.
10. This Court, considering the definition of .abetment. u/s 107 IPC, found that the charge and conviction of the appellant for an offence u/s 306 is not sustainable merely on the allegation of harassment of the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.
11. In
A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty..
12. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25-7-1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased to go and die.. For this, courts relied on a statement of Shashi Bhushan, brother of the deceased, made u/s 161 CrPC when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded u/s 161 CrPC is annexed as Annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him to go and die.. Even if we accept the prosecution story that the appellant did tell the deceased to go and die., that itself does not constitute the ingredient of instigation.. The word .instigate. denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion. Secondly, the alleged abusive words, said to have been told to the deceased were on 25-7-1998 ensued by a quarrel. The deceased was found hanging on 27-7-1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25-7-1998 drove the deceased to commit suicide. Suicide by the deceased on 27-7-1998 is not proximate to the abusive language uttered by the appellant on 25-7-1998. The fact that the deceased committed suicide on 27-7-1998 would itself clearly point out that it is not the direct result of the quarrel taken place on 25-7-1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below.
14. A plain reading of the suicide note would clearly show that the deceased was in great stress and depressed. One plausible reason could be that the deceased was without any work or avocation and at the same time indulged in drinking as revealed from the statement of the wife Smt Neelam Sengar. He was a frustrated man. Reading of the suicide note will clearly suggest that such a note is not the handiwork of a man with a sound mind and sense. Smt Neelam Sengar, wife of the deceased, made a statement u/s 161 CrPC before the investigation officer. She stated that the deceased always indulged in drinking wine and was not doing any work. She also stated that on 26-7-1998 her husband came to them in an inebriated condition and was abusing her and other members of the family. The prosecution story, if believed, shows that the quarrel between the deceased and the appellant had taken place on 25-7- 1998 and if the deceased came back to the house again on 26-7-1998, it cannot be said that the suicide by the deceased was the direct result of the quarrel that had taken place on 25-7-1998. Viewed from the aforesaid circumstances independently, we are clearly of the view that the ingredients of abetment. are totally absent in the instant case for an offence u/s 306 IPC. It is in the statement of the wife that the deceased always remained in a drunken condition. It is common knowledge that excessive drinking leads one to debauchery. It clearly appeared, therefore, that the deceased was a victim of his own conduct unconnected with the quarrel that had ensued on 25-7- 1998 where the appellant is stated to have used abusive language. Taking the totality of materials on record and facts and circumstances of the case into consideration, it will lead to the irresistible conclusion that it is the deceased and he alone, and none else, is responsible for his death.
17. The learned trial Court has framed charges against the petitioner based on the statement made by the father of the deceased and other family members of the deceased, and the alleged suicide note written by the deceased. Since the father of the deceased had in his first statement, given a clean chit to the husband and in-laws of the deceased, the second statement made by the father of the deceased was based on the alleged recovery of the suicide note written by the deceased; the entire case of the prosecution comes to hinge on this very suicide note. As per the suicide note, the deceased had stated:" ...These persons say something and do something. These persons were found to be cruel. My mother-in-law is very bad. She always scolds me. I am very much upset here...Sd/-''. It is noteworthy that the very suicide note which has given rise to the filing of the FIR, is itself not signed by the deceased. The signatures made on the suicide note, were sent for examination to the Central Forensic Science Laboratory (CFSL). As per the report of the CFSL, ''all the documents were carefully and thoroughly examined with scientific instruments such as Stereo Microscope, Video Spectral Comparator-IV, Docucentre and VSC 2000/HR etc. under different lighting condition''. It was opined that:
The person who wrote red enclosed admitted signatures stamped and marked A1 to A11 did not write the red enclosed signature similarly stamped and marked Q1, for the following reasons:
Divergences are observed between questioned signature marked Q1 on one hand and standard signatures marked A1 to A11 on the other hand in the execution of various characters and parts of characters such as � movement in the execution of �D� nature and location of vertical stroke of �D� and manner of combining subsequent character �u� inn continuation of the curved stroke, nature and direction of the finish of �u� as observed in Q1 found different in standard; manner of execution of �p� and formation of terminal character �a� in continuation of the upper body part, nature and left ward tendency of the stroke and formation of underscoring in continuation of the stroke as observed in questioned found different in standards.
The aforesaid divergences are fundamental in nature and are beyond the range of natural variations and intended disguise and when considered collectively they lead me to the above said opinion.
18. Thus the very document (suicide note), on which the prosecution wishes to rely, has not bear the signature of the deceased. Even otherwise also, in my considered opinion, the learned trial court failed to apply the law per Sanju (supra) to the facts of this case and committed an error in reading the suicide note as ingredients of Section 306 of the IPC are not met. The contents of the alleged suicide note written by the deceased does show any kind of abetment from the side of the husband. There are no specific allegations against the petitioner that may suggest any kind of instigation at his hands. Reading of the suicide note itself does not disclose that the ingredients of Section 306, IPC have been met. I also find force in the contention of the counsel for the petitioner that on similar charges framed against the sister-in-law of the deceased, the trial Court has found that no case is made out. As noted above, it is trite law that at the stage of framing of charge, the Court is not to delve deeply into the evidence brought forth it, but the same does not mean that the Court should ignore gaping holes apparent on the face of record, in the case of the prosecution. In these circumstances, I find that the trial Court did not appreciate the facts of case in the right prospective and came to an adverse finding that a prima facie case and a strong suspicion is made out against the petitioner. The order dated 17.01.2009 shows non-application of the law in the right perspective and the reasoning given by the learned ASJ at the time of framing of charge, does not stand the scrutiny of this Court.
19. Having gone through the order dated 17.01.2009, passed by the learned ASJ and for the reasons aforestated, I find there to be a glaring error in the said order. Accordingly, the present revision petition is allowed. The order on framing of charge dated 17.01.2009 passed by learned Additional Sessions Judge, Karkardooma Court, Delhi, in Criminal case titled as ''State v. Akash Deep etc.'', FIR No. 86/2008 registered under Sections 498-A/306/34 of the IPC, Police Station Shahdara, Delhi, is set aside.
20. Petition and Crl. M.A. No. 41207/2009 stand disposed of.
