Bhavana Kumari v. Apartment, Jhunjhun Mahal

First Information Report or in the case diary to show that the petitioner was any way demanding the dowry or harassing the victim soon before her death and another point that has been raised, the material on record does not show a case of strong suspicion so much so that of grave suspicion, the court below has wrongly refused to discharge the petitioner.

4. From the record it appears that the First Information Report was lodged on the Fardbeyan of one Ashok Kumar Srivastava, father of the victim girl. In the Fardbeyan it has been alleged that the daughter of the informant, namely, Shambhavi was married to Kumar Amit, one of the accused, son of Binod Kumar Sinha, on 28th November, 2005 according to Hindu rites. After the marriage they were living a happy life but the situation turned sour after 20th November, 2008 as the informant had married the second daughter in which substantial amount of gift was given which caused heart burning to Kumar Amit. After that marriage the husband, namely, Kumar Amit started torturing his daughter for dowry which was informed by her but the informant was of view that after some time the matter would subside, both would resume warm relationship, but situation did not improve rather day by day behaviour of Kumar Amit Patna High Court Cr.Misc. No.3097 of 2011 (9) 3 had gone from bad to worst. It has further been stated, in course of time, his daughter was blessed with a girl child. In the night of 7.10.2009 at 2 P.M. Kumar Amit came to the apartment of the informant which is situated at arms length asked him and other family members to come immediately. It has further been alleged that soon thereafter, the informant and his another daughter, namely, Shruti went to the apartment where they found the body of the victim was lying in charred state in the bathroom. There was smell of Kerosene oil in the bathroom, her tongue was licking outside and bleeding was oozing out. It has further been alleged that on looking to the dead body of the victim informant gathered opinion, the victim was killed by Kumar Amit with the assistance of his sister Bhabhna by strangulation later on the victim was burnt with the help of Kerosene oil. A case was registered as Gardanibagh P.S. Case No.177 of 2009 for offence under section 304(B)/34 of the Indian Penal Code.

5. After investigation the police submitted charge-sheet against Kumar Amit and Bhabhna under the aforesaid section. The court below accepted the final form and case was committed to the court of sessions for trial. An Patna High Court Cr.Misc. No.3097 of 2011 (9) 4 application under section 227 of the Code of Criminal Procedure (hereinafter referred to as „the Code‟) was filed by the petitioner where the ground has been raised that there was/is no allegation by any of the witness that accused- petitioner had ever demanded any dowry, subjected any cruelty to the deceased whereas informant in his subsequent statement had accepted that the present petitioner had actively participated in arranging marriage of Sambhavi with her brother Kumar Amit. It has further been alleged that the deceased had committed suicide due to differences between the husband and wife and on mere suspicion the petitioner cannot be dragged as an accused in the present case.

6. Learned counsel for the petitioner submits that there is no material to suggest strong suspicion/grave suspicion against the petitioner and the court below has wrongly refused to discharge the petitioner. In support of his contention he has relied on two judgments in the case of P. Vijayan Vs. State of Kerala and another, reported in (2010) 2 SCC 398 on the point that at the stage of Section 227 of the Code the court was required to sift the evidence in order to find out whether or not there are sufficient materials for Patna High Court Cr.Misc. No.3097 of 2011 (9) 5 proceeding against the accused persons or whether the materials available on record constitute the case of strong suspicion/grave suspicion against the petitioner. Another judgment that has been cited by the learned counsel for the petitioner is in the case of Kaliyaperumal and another Vs. State of Tamil Nadu, reported in 2004 SCC (Cri) 1417 on the point that there is no material to show that the petitioner had ever demanded any dowry so much so, soon before her death for constitution of offence under section 304(B) of the Indian Penal Code as it requires, there should be material to show that the petitioner had demanded dowry from the victim soon before her death.

7. Learned counsel for opposite party no.2 has submitted that the court below has not committed any error as it is admitted fact that on the day of incident the petitioner was very much there in the same house along with his brother Kumar Amit and the victim Shambhavi had died in the midst of night and as such it itself shows the incident of murder of the victim cannot be affected without presence and active assistance of the present petitioner. So much so the court below in exercise of power under Section 216 of the Code, can alter the charge at any stage even before the Patna High Court Cr.Misc. No.3097 of 2011 (9) 6 judgment and the police examined large number of persons including the present petitioner and the police was not satisfied with the answer given by her to the query of police.

8. Learned counsel for opposite party has also pointed out that the informant in the case diary has also stated that the relation of victim with the present petitioner was not in a good condition which itself shows that the petitioner had actively participated in the commission of the alleged offence.

9. In this case the court has to test as to whether the court has rightly exercised the power as provided under Section 227 of the Code as the court below has refused to discharge the present petitioner who happens to be sister of the main accused husband of the victim. For coming to the right conclusion it will be necessary to examine the parameter of Section 227 of the Code where the power has been conferred by the legislature to deal with the cases relating to discharge which is as follows: “227. Discharge.- If upon consideration of the record of the case and the documents submitted therewith and after hearing the submission 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.” Patna High Court Cr.Misc. No.3097 of 2011 (9) 7

10. It is known principle of law if two views are possible and one of them gives rise to the suspicion only but not grave suspicion the Trial Judge is empowered to discharge the accused. At this stage the court is not required to see the end result of the trial. It is also known principle of law that the Judge who is dealing with the discharge application is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind for coming to the right conclusion. In assessing this fact, the court is not required to see pros and cons of the matter or weighing and balancing the evidence and probabilities which is really the function of the court after the trial starts.

11. At the stage of Section 227 of the code the court has merely to sift the evidence in order to find to find out whether or not there is sufficient material for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are strong suspicious circumstances against the accuse so as to frame a charge against him. The strong suspicion against the accused, Patna High Court Cr.Misc. No.3097 of 2011 (9) 8 cannot take the place of proof of the guilt at the stage of the trial, but at the stage of framing of charge strong suspicion indicating involvement of person will be good ground for rejection of discharge of petition. At the initial stage, presumption of the guilt of the accused but it will not be the sense of law while governing the trial of the criminal case. In the case of State of Bihar V. Ramesh Singh, reported in (1977) 4 SCC 39 in paragraph 4 the Hon‟ble Supreme Court has delineated the parameter for the purposes of coming to the conclusion of grave suspicion. The court has held that strong suspicion is sufficient for framing of the charge against the accused persons. In the case of Union of India Vs. Prafulla Kumar Samal, reported in (1979) 3 SCC 4 the Hon‟ble Suprme Court has set the guideline for proper exercise of power under section 227 of the Code which are as follows: “(1) That the Judge while considering the question of framing the charges under Section 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.” Patna High Court Cr.Misc. No.3097 of 2011 (9) 9

12. The Hon‟ble Supreme Court in the case of Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj Bijjaya, reported (1990) SCC 76 has held that the court while making enquiry must necessarily be limited to deciding if the facts emerging from the records and documents constitute the offence to which the accused is charged. At the stage of framing of charge the court may sift the evidence for that limited purpose but is not required to marshal the evidence with a view to separating the grain from the chaff which is to be done at the trial stage. The court has also taken a view that strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The court has reiterated the same view that the court will not be mere a post office to frame charge at the behest of the prosecution but has to exercise his judicial mind to the facts of the case in order to determine materials are sufficient for trial.

13. In the case of Soma Chakravarty V. State, reported in (2007) SCC 403 the Hon‟ble Supreme Court Patna High Court Cr.Misc. No.3097 of 2011 (9) 10 has held that the settled legal position, if on the basis of material on record the court could form an opinion that the accused might have committed the offence it can frame the charge though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the stage of framing of the charges the probative value of the material on record cannot be gone into and the material brought on record by the prosecution has to be accepted as true. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. The Hon‟ble Supreme Court has reiterated the aforesaid view in the case of P. Vijayan V. State of Kerala and another, reported in (2010) 2 SCC 398.

14. A conspectus of foregoing discussions, principles emerges, if from the material on record the case of grave suspicion is made out, in that circumstances the petitioner will have to stand the trial but in a case of mere suspicion the court will discharge the petitioner. While considering the discharge application the probative value of the material on record is not required to be gone into as the same has Patna High Court Cr.Misc. No.3097 of 2011 (9) 11 to be seen at the time of trial. The court is also not required to separating the grain from the chaff but for the purposes of discharge the court is required to sift the evidence for the limited purpose.

15. In the present case the petitioner being sister-in- law has been made accused under section 304B of the Indian Penal Code along with her brother. Learned counsel for the petitioner has argued that there is no material on record to show that soon before the death there was no any demand of dowry, so much so, from the case diary it does not show that the petitioner had any time tortured or demanded any dowry in connection with the victim lady. In the aforesaid situation, for the purpose of discharge this Court has to examine the merit in a case of 304B of the Indian Penal code whether a case of strong suspicion is made out against the petitioner in order to continue the trial against her. From the fact one thing is very clear, in the night of death of the victim, in the house only the petitioner and her brother were present. The lady was found dead under unnatural suspicious condition in bathroom. It is also clear that the victim lady had died due to burn injury. The Police Patna High Court Cr.Misc. No.3097 of 2011 (9) 12 Officer who investigated the case was not satisfied with the explanation of the petitioner, so much so, that the father has also shown finger to the petitioner making an allegation that the petitioner was also involved in the ghastly act of commission of crime against her daughter. At this stage the court has to see strong suspicion. As the petitioner was there in the house, the lady had died out of burn injury onus lies to accused person to explain the circumstance for the cause of death. The police is not satisfied with the answer of the petitioner as well as the father of the victim girl was showing finger at petitioner also raised strong suspicion against the petitioner in commission of the offence. As provided under the Code, the court below has power to alter the charge at any stage may be before the judgment. It is always depend on the nature and quality of evidence brought during the trial. So far the point that no case is made out under section 304B/34 of the Indian Penal Code is concerned, the court below has rightly found materials for framing charge in view of the fact the court has power to add, amend and alter the charge as victim was found dead most suspicious circumstance which strong Patna High Court Cr.Misc. No.3097 of 2011 (9) 13 suspicion/grave suspicion against the petitioner.

16. In this view of the matter, this court does not find any error in the impugned order. Accordingly this application is dismissed. Vinay/- (Shivaji Pandey, J)