Giani Ram v. State of Haryana & Ors.

ORDER Crl. Misc. No.40867 of 2010 The present application is for placing on record Annexures Crl. Misc.is allowed and Annexures P-4 to P-7 are placed P-4 to P-7. on record. Crl. Revision No. 1955 of 2010 This revision petition has been filed by petitioner Giani Ram against order dated 13.5.2010 passed by Sessions Judge, Rohtak vide which an application filed by him under Section 216 Cr.P.C. for framing an alternative charge under Sections 302/34 IPC against respondents No. 2 and 3 has been dismissed. Learned counsel for the petitioner contends that the learned trial Court has wrongly dismissed the application filed under Section 216 Cr.P.C. for framing an alternative charge under Sections 302/34 IPC against respondents. No. 2 to 3 whereas as per post- Crl. Revision No. 1955 of 2010 [2] mortem report as well as statement of PW-4 Dr.Sushma Jain, there was a ligature mark around the neck and neck was constricted and cause of death was due to injury on the neck besides three other injures on other parts of the body of the deceased which constitute an offence under Section 302 IPC. As per statement of PW-9 Giani Ram coupled with statement of PW-4 Dr.Sushma Jain and PW-12 ASI Om Parkash, prima facie a case under Section 302 / 34 IPC was made out. Medical evidence also corroborates that it was not a case of suicide. Even as per statement of Investigating Officer PW-12 ASI Om Parkash, no one was present at the place of occurrence except the dead body. Learned counsel for the petitioner also submits that admittedly Asha died an unnatural death while she was in her matrimonial house and injuries on her person could not be self inflicted and no explanation has come from the defence, hence the presumption of murder can be raised in the circumstances brought on the record. I have heard the arguments of learned counsel for the petitioner and have also gone through the impugned order. In this case, marriage of deceased Asha was solemnized with Tarun Dahiya respondent No.2 in the year 2007 as per Hindu rites and ceremonies and a daughter was born out of the said wedlock. As per case of the complainant, Asha died on

16.1.2008 and statement was made to the police by the father of the deceased. It was mentioned in the complaint that sufficient dowry articles were given at the time of marriage. In-laws of the deceased Crl. Revision No. 1955 of 2010 [3] were not satisfied with the dowry given at the time of marriage and they used to mal-treat, harass and treat Asha with cruelty for or in connection with demand of dowry. The matter was also settled on many occasions but still demand was there. Case was registered against Tarun Dahiya (husband), Durga Dass and Smt. Mahenderwati (parents-in-law) and Ms.Renu (sister-in-law) of the deceased vide FIR No. 11 dated 16.1.2008 under Section 304-B IPC at Police Station, Urban Estate, Rohtak. After investigation of the case, Smt. Mahenderwati and Ms.Renu were placed in column No.2 and final police report under Section 173 Cr.P.C. was submitted against Tarun (husband) and Durga Dass (father-in-law).

Statements of witnesses including PW-4 Dr. Sushma Jain, PW-5 Head Constable, Surender Singh were recorded. Thereafter an application for additional evidence under Section 311 Cr.P.C. was filed, which was allowed. On examiantion of PW-4 Dr.Sushma Jain, an application for framing of additional charge under Section 302 read with Section 34 IPC was moved on behalf of the prosecution which was dismissed on 17th September, 2009. The present petition has been filed against summoning order dated 17.9.2009 on the grounds as mentioned above. A detailed order has been passed by both the courts and reasoning has also been given. A detailed investigation was conducted and accused Mahenderwati and Renu were found innocent by the prosecution. Charge under Sections 498-A and 304- B IPC has been framed. Crl. Revision No. 1955 of 2010 [4] Admittedly, charge can be altered or additional charge can be framed as per Section 216 Cr.P.C. but there must be some prima facie case to frame the charge under Section 302 IPC. Accused Durga Dass also filed Crl.

Revision No.1966 of 2008 for quashing of the charge framed against him which was dismissed as withdrawn by the High Court vide order dated 24.8.2008.The present application has been filed after long time just to delay the trial as no fresh material is available on the record to frame additional charge under Section 302 read with Section 34 IPC against the accused at this stage. The present petitioner also filed Crl. Revision No. 2771 of 2009 before this Court against the order dated 17.9.2009 passed by Sessions Judge, Rohtak vide which an application for framing additional charge under Section 302 read with Section 34 IPC has been dismissed and this Court vide order dated 20.4.2010 dismissed the petition with the following observation: “ There was no fresh material before the trial Court to frame additional charge under Section 302 read with Section 34 IPC as charge under Sections 498-A/304-B IPC had already been framed on the basis of statement of the doctor, post mortem report and evidence of FSL. There was no fresh material available for alteration of the charge.

The judgment cited by the learned counsel for the petitioner is also not applicable on the facts of the present case as there was no doubt in the mind of the Crl. Revision No. 1955 of 2010 [5] trial Court as a clear-cut finding has been given that prima facie a case under Section 304-B and 498-A IPC was made out on the basis of evidence available on record and no offence was made out under Section 302 read with Section 34 IPC and this evidence was already available with the trial Court while framing charge under Sections 498-A and 304-B IPC. There is no merit in the contentions raised by the learned counsel fore the petitioner and the same is dismissed.” Even at this stage, no ground has been made out by the learned counsel for the petitioner for framing of additional charge under Sections 302/34 IPC as the earlier Revision petition on the same ground has already been dismissed on 20.4.2010. Learned counsel for the petitioner has not been able to point out any new additional ground at this stage. The petition being devoid of any merit is dismissed. (DAYA CHAUDHARY) JUDGE August 11, 2010. raghav