State of Harya vs NIDHI GUPTA

Order

15.05.2024 (s) …..Petitioner(s) (s) …..Respondent(s) CORAM: Present:- HON’BLE MS. JUSTICE NID NIDHI GUPTA Mr.Tarunveer Vashist, Adv for the petitioner. Advocate Mr. Ranvir Singh Arya, Add Addl. AG Haryana. ***** ta, J. Nidhi Gupta, J CRM-7166-202 2023 This is an application un under Section 482 Cr.P.C. for placing on re record copy of statement of Ra 61 f Rajiv Kumar under Section 161 Cr.P.C. as Ann Annexure P3. After going through the on, the contents of the application, which is supp supported by affidavit of the appl applicant/petitioner, the same is allowed subjec bject to all just exceptions and Ann Annexure P3 is taken on record. CRM-20367- 2023 This is an application un under Section 482 Cr.P.C. for placing on rec record suicide note of the deceased ased as Annexure P4. After going through the on, the contents of the application, which is supp supported by affidavit of the appl applicant/petitioner, the same is allowed subjec bject to all just exceptions and Ann Annexure P4 is taken on record. SUNENA 2024.05.16 16:24 I attest to the accuracy and authenticity of this document MAIN CASE 13 Prayer the presen esent petition filed by complainant/f nt/father of the deceased is fo for setting aside order dated

17.03.2022 p 2 passed by learned Additional , nal Sessions Judge, Faridabad, whereby the p the petitioner’s application dated 0 ed 02.04.2021 (Annexure P1), for framing of a f additional charge under Secti ection 216 Cr.P.C. against the accused/respo espondent No.2 herein, has been di n dismissed.

Learned counsel for the pe e petitioner inter alia submits that the brief factu actual background of the present c nt case is that marriage between the deceased sed daughter of the petitioner and o.2 and the accused/respondent No.2 was solemniz mnized on 02.10.2017. On 11.07 1.07.2019, father-in-law of the deceased had had lodged a complaint at Faridab idabad Police Station alleging that the deceased sed had left her matrimonial home m, me in Faridabad at around 3 pm, requesting the g the concerned officials to find her her whereabouts. The petitioner also lodged a d a complaint bearing No.99-5PII PII at the Faridabad Police Station on 13.07.2019 019 alleging thereby that on 11.07 1.07.2019 at around 5 pm, he had received a ph phone call from the father-in-law law of the deceased wherein he had informed med the petitioner that the decea er, eceased was missing. Thereafter, when the pe petitioner had gone to his daug daughter’s matrimonial home in Faridabad on on 12.07.2019, he discovered tha that his daughter had died and that her body ody was found near Sonepat Railwa ailway Station. On the basis of the above said co d complaint filed by the petitioner, ner, the police had conducted an investigation ion and filed a final report on 07. 07.12.2020, wherein an offence under Section ction 306 read with Section 34 34 IPC was made out against SUNENA 2024.05.16 16:24 I attest to the accuracy and authenticity of this document 13 respondent N t No.2 and father-in-law of the d e deceased. It is submitted that subsequently ntly, trial commenced, during wh which the petitioner filed the present applic pplication under Section 216 Cr.P.C r.P.C dated 02.04.2021 (Annexure P1), to add alt d alternative charge under Section 3 ion 302 IPC or 304-B IPC, as death of the decease eased was within two years of mar marriage. However, the same has been dismisse issed by the learned Additional Se al Sessions Judge, Faridabad, vide impugned ord order dated 17.03.2022.

3. Learned counsel for the the petitioner contends that in passing the im e impugned order, the learned trial trial Court has failed to appreciate the above said said facts and has thus, failed to ex exercise its judicial discretion in accordance w e with settled rules of law. It is sub submitted that the petitioner has made specific cific allegations of mental torture in re inflicted upon the deceased by the accused p ed persons. The said allegations ns had also been made by the petitioner in h in his statement under Section 16 n 161 Cr.P.C. before the police to show the com complicity of the accused in the dea death of the deceased.

4. Learned counsel states tha s that the accused had shown the petitioner a p a photo of the dead body of th f the deceased. It is vehemently contended th that the police report is silent o nt on the fact as to how did the accused obtain btain the photo of the dead body of y of the deceased, and this clearly shows that the t the accused had some involvemen ment in the unfortunate death of the deceased. sed. It is further submitted that wh when the petitioner and accused were leaving f ing for Sonepat, the police officer a cer accompanying them sat in the car of the acc accused. Also, they were keeping ing a distance from the vehicle in which the pet petitioner was travelling. This crea creates an impression of bias on SUNENA 2024.05.16 16:24 I attest to the accuracy and authenticity of this document the part of t of the police and shows that the the police and the accused are 13 working hand and in glove with a view to screen een the accused from punishment for his acts.

5. It is further submitted tha hat when the petitioner and the accused were ere going to Sonepat to receive th ed, e the dead body of the deceased, the petitione ioner and accused were in sepa eparate cars. The accused was deliberately dr ly driving slowly with a view to be o be out of sight from the petitioner who was trav travelling in a different car. When hen the petitioner inquired as to why the accus ccused was keeping a distance from from the petitioner's car, accused said that he ha e had stopped to refuel. Later, in tr in transit, when the petitioner did not see the ca e car of the accused, the petitioner oner called the accused to inquire about his wh whereabouts to which the accus ccused replied that his car had developed som some fault and that he had left f eft for his home as it was getting late. It is cont contended that it is a fundamental ntal aspect of human nature that when someth ething bad has happened to someo meone whom one values, he will not shirk from from his responsibility and will do ll do all that is necessary. In the present facts, cts, the mala fide intention of the a the accused is clearly visible as he went back to k to his home instead of checking His king upon his deceased wife. His conduct betra etrays his malice. Moreover, the pol police report nowhere shows the receipt of the the petrol which the accused had had purchased nor the receipt for the taxi he hir hired to take him back.

6. Learned counsel further a er argues that the offence under Section 306 i 06 is punishable with up to 10 10 years of imprisonment. The punishment a nt actually awarded may be as le s less as one day. However, the SUNENA 2024.05.16 16:24 I attest to the accuracy and authenticity of this document offence under nder Section 304B is punishable w f 7 le with a minimum sentence of 7 years and max maximum till life imprisonment. Fo t. For whatever reason, the police 13 have failed to d to implicate the accused for an 4B r an offence under Section 304B despite a spec specific allegation of torture made b ed. de by the father of the deceased. The learned t trial Court failed to appreciate the e a e the facts of the case and frame a charge for Sec Section 304B.

7. It is contended that as per per Section 113-B of the Evidence Act, if a woma oman dies within 7 years of her ma marriage and it is shown that she was subjected cted to cruelty in connection to de demand for dowry, a rebuttable presumption o n of law as to commission of dow dowry death of the woman by the husband arise arises. Since Section 304-B doe doesn't envisage a pigeon-hole approach in ca in categorizing the death, the death eath can be accidental, homicidal or suicidal. Th l. The post-mortem report says tha that accident as a cause of death can't be ruled uled out. The court is bound to pr o presume it and no question of judicial discret scretion arises. The marriage betwe tween accused and deceased was solemnised on d on 02.10.2017 while the death o th of the deceased took place on

11.07.2019. H

9. Hence, the death took place with within 7 years of marriage and the present petiti etition fulfils the essentials of Sec ly, Section 304-B. It is accordingly, prayed that th ide. at the impugned order be set aside.

9. No other argument is made ade on behalf of the petitioner. I have heard learned cou counsel for the petitioner and perused the ca e case file in great detail. SUNENA 2024.05.16 16:24 I attest to the accuracy and authenticity of this document

10. Perusal of record of the c he case shows that the marriage 13 between the a the accused and the deceased was was a love marriage based on the mutual conse nsent of both. Solely for this re reason, the allegations of the petitioner tha that the deceased was subjected - cted to torture by the accused- husband appe ppear improbable, especially in the the absence of any corroborative factors. A dau daughter was born out of the wed wedlock of respondent No.2 and the deceased. d. It is also pertinent to note tha e that the deceased was an Army Officer workin rking as Captain - Nursing Officer i . cer in Military Hospital, Jalandhar. As such, she w he was well placed in life, both profe rofessionally and personally.

11. As per the record the dece , deceased had committed suicide, apparently by y by flinging herself under an onco oncoming train and the cause of death was hem hemorrhage and shock due to injur injuries which are ante mortem.

12. Although it has been vehe vehemently and repeatedly urged on behalf of th of the petitioner that the deceased ed, ased was tortured by the accused, however, this this Court has failed to find eve even a smidgen of evidence to remotely indic indicate anything to this effect. Eve Even the Suicide note (Annexure R2) left by the the deceased does not suggest any e t any torturous act/conduct of the accused. The s he said suicide note reads as under der:- “My greetings to everyon eryone. I wish there should be happiness in everyone’s life ’s life. After my death, take care of Ridhi. I am sure that she w she will not miss me and I am no longer needed here. That’s hat’s why I am going to end my life, I got a lot of live from rom everyone, it was just my luck and timing that this happen ppened to me, God bless you all.”. SUNENA 2024.05.16 16:24 I attest to the accuracy and authenticity of this document

13. The FSL report (Annexure ure R1) affirms that the aforesaid 13 suicide note w te was written in handwriting of the f the deceased. In the said suicide there is not ev t even whisper of an allegation of a of any dowry demand, torture or any other kind kind of conflict between the accuse cused and the deceased. There is nothing stated ated in the said suicide note which hich can be construed as remotely acrimonious b us between them. It is admitted on d on record that even during the two years of of marriage, no complaint of any any kind was made either by the deceased or b or by the petitioner/complainant ant that the deceased was being troubled by th y the accused. In view of these fac ld. facts, it is my opinion that the ld. Trial court cor correctly exercised its discretionary nary power.

14. Learned counsel for the p e petitioner has tried to impress this Court that that the deceased had committed s ted suicide due to torture inflicted upon her by t by the accused. However, even the 21 the application dated 02.04.2021 (Annexure P1) P1) filed by the petitioner seeking king alteration of charge does not indicate any su ny such ground. All that has been sta stated therein is as under:- “…1. That the above bove noted case is pending before this Honble court and the sa he same is fixed for 05-05-2021.

2. That in the above n ove noted case applicant wants to put up the file for moving a ing an application for alteration of charge U/S 216 CRPC.

3. That matter is of s of urgent nature and delay may cause prejudice to the prose prosecution. It is therefore praye rayed that application to put up the file may be allowed in th in the interest of justice.”. SUNENA 2024.05.16 16:24 I attest to the accuracy and authenticity of this document

15. From the above, it is cle s clear that even no reasons or 13 grounds were ere cited by the petitioner for se In r seeking alteration of charge. In fact, the abov bove said application does not eve even mention that charge should be altered to to one under section 304-B IPC. In l of . In this circumstance, dismissal of the said applic pplication is not incorrect.

16. In view of the above facts facts, I am in agreement with the reasoning of t of the learned Court below contain tained in Para 8 of the impugned order, which r ich reads as follows:- “8. It is admitted th d that deceased was working as Captain as Nursing Of Officer tal, in Military Hospital, Jalandhar. It is also adm admitted that her parents were residing at Hoshiarpur, whi 40 , which is at a distance of about 40 kilometers. It is also adm admitted that even as per the statement of complainant ant recorded by the police during the investigation, that she she used to pay the salary to the complainant. From the date date of marriage and till date, no complaint whatsoever ha r has been made against the accused. Child was born a IT orn at Ashok Nursing Home, NIT No.3, Faridabad. The main t is ain grudge of the complainant is that the accused being husb husband did not come to Sonepat Railway Station, even afte after he came to know that his wife committed suicide, wh e, which create a doubt about his integrity and the suicide n ide note was recovered from the GRP. It is admitted that cha ed. t charge has already been framed. There is no evidence on r on record, whereby the existing charge could be altered. In d. In case, the complainant is not satisfied with the charge, rge, he can approach the Hon'ble High Court. Further, if the f the complainant is not satisfied with the investigation, he s he should have moved before the SUNENA 2024.05.16 16:24 I attest to the accuracy and authenticity of this document 13 llaga Magistrate when the the challan was filed or he could approach the Hon'ble High High Court under Section 482 of Cr.P.C. for re-investigation tion of the case, but after framing of charge, the court ha t has no jurisdiction to direct further investigation, as n as no such material come on record for doing so. Moreov oreover, one of the witness namely Mahesh Chand Aggarwa rwal has been given up and complainant has not been been examined so far. Thus, no ground is made out to alt o alter or add the charge under Section 302 or 304B of IPC f IPC, as there is no allegation of demand of dowry. Rathe ather, it has come that salary amount was paid by the de us, he deceased to her parents. Thus, there is no substance in the in the application and the same is hereby dismissed.”

17. Now moving from the fact factual to the legal conspectus of the present c nt case, at this juncture it will ill be apposite to refer to the judgment in in case of “P. Kartikalakshmi Vs. Vs. Sri Ganesh & Another” Law Finder Doc ID c ID # 846132, wherein the Hon’bl n’ble Supreme Court has ruled as under:- SUNENA 2024.05.16 16:24 I attest to the accuracy and authenticity of this document “Criminal Procedure Code, de, 1973, Section 216 - Alteration of charges - Power of invo .C., invocation of Section 216 Cr.P.C., 1973 is exclusively confin onfined with Court as enabling provision for purpose of a of alteration or addition of any charge at any time before p - fore pronouncement of judgment - No party, neither de facto facto complainant nor accused or for that matter prosecution ution has any vested right to seek any addition or alteration tion of charge, because it is not provided under Section 216 216 Cr.P.C, 1973- If such a course to be adopted by parties is ies is allowed, then it will be well impossible for Crim Criminal Court to conclude 13 proceedings and concept cept of speedy trial will get jeopardized - Whole procee oceeding, initiated at by appellant unmaintainable.”

18. Even otherwise, the issue ssue is no longer res integra that the power to r to alter the charge is vested in the the Court itself. This is contained in the provisio vision itself. Section 216 Cr.P.C., rea reads as follows: - "(1) Any Court may a ay alter or add to any charge at before judgment pronounced. (2) Every such alteration o ion or addition shall be read and explained accused. (3) If the alteration or add addition to a charge is such that proceeding immediately wi ly with the trial is not likely, in the opinion of the Court, to to prejudice the accused in his defence or the prosecutor i tor in the conduct of the case, the Court may, in its discreti cretion, after such alteration or addition has been made, p de, proceed with the trial as if the altered or added charge h ge had been the original charge. (4) If the alteration or add r addition is such that proceeding immediately with the trial trial is likely, in the opinion of the Court, to prejudice the ac e accused or the prosecutor as aforesaid, the Court may may either direct a new trial or adjourn the trial for such uch period as may be necessary. (5) If the offence stated in t d in the altered or added charge is one for the prosecution o on of which previous sanction is necessary, the case shall hall not be proceeded with until such sanction is obtained ined, unless sanction had been already obtained for a pros prosecution on the same facts as those on which the altered red or added charge is founded."

19. A bare reading of the abov t it bove provision would show that it is only the Co e Court that is empowered to alter alter charges at any stage of trial SUNENA 2024.05.16 16:24 I attest to the accuracy and authenticity of this document before the de e delivery of judgment. This view iew has been expounded by the Hon'ble Supre upreme Courtin the above-referre ferred case of P. Kartikalakshmi 13 (Supra) holdin lding that there is no right to any p ny party to seek for a subtraction or addition of n of charges by filing any miscellane llaneous application as a matter of right. Relevant vant paras 6 to 9 of the said judgme gment are as follows: - “6. Having heard learned rned counsel for the respective parties, we find force in the n the submission of learned senior counsel for respondent no 73 t no.1. Section 216 Cr.P.C., 1973 empowers the Court to alt o alter or add any charge at any time before the judgment ent is pronounced. It is now well settled that the power vest vested in the Court is exclusive to the Court and there is no r no right in any party to seek for such addition or alteration s a tion by filing any application as a matter of right. It may be be that if there was an omission in the framing of the cha e charge and if it comes to the knowledge of the Court try r is rt trying the offence, the power is always vested he Court, as provided under Section 216 Cr.P.C., 1973 973 to either alter or add the charge and that such pow power is available with the Court at any time before the jud judgment is pronounced. It is an enabling provision for the the Court to exercise its power under certain contingencies ncies which comes to its notice or brought to its notice. In suc n such a situation if it comes to the knowledge of the Court th rt that a necessity has arisen for the charge to be altered o s red or added, it may do so on its own and no order need be p d be passed for that purpose. After such alteration or additio dition when the final decision is rendered, it will be open fo n for the parties to work out their remedies in accordance wit e with law. SUNENA 2024.05.16 16:24 I attest to the accuracy and authenticity of this document 13

7. We were taken throug hrough Sections 221 & 222 of the Cr.P.C. in this context. In th In the light of the facts involved in this case, we are only conce .C., oncerned with Section 216 Cr.P.C., 1973 We, therefore, do n do not propose to examine the implications of the other pr nd. er provisions to the case on hand. We wish to confine oursel rselves to the invocation of Section 216 and rest with that. In th . In the light of our conclusion that the power of invocation o on of Section 216 Cr.P.C., 1973 is exclusively confined with with the Court as an enabling provision for the purpose o se of alteration or addition of any charge at any time bef before pronouncement of the judgment, we make it cle t clear that no party, neither de facto complainant nor the a the accused or for that matter the prosecution has any vested sted right to seek any addition or alteration of charge, beca because it is not provided under Section 216 Cr.P.C., 1973 If 73 If such a course to be adopted by the parties is allowed owed, then it will be well nigh impossible for the Crimi Criminal Court to conclude proceedings and the conc concept of speedy trial will get jeopardized.

8. In such circumstances, w es, when the application preferred by the appellant itself bef f before the Trial Court was not maintainable, it was not in ot incumbent upon the Trial Court to pass an order unde 73 under Section 216 Cr.P.C., 1973 Therefore, there was no qu o question of the said order being revisable under Section ion 397 Cr.P.C., 1973 The whole proceeding, initiated at th nt, at the instance of the appellant, was not maintainable. Inasm Inasmuch as the legal issue had to be necessarily set right, we t, we are obliged to clarify the law as is available under Sect ction 216 Cr.P.C., 1973 To that extent having clarified the d the legal position, we make it clear that the whole procee oceedings initiated at the instance SUNENA 2024.05.16 16:24 I attest to the accuracy and authenticity of this document 13 of the appellant was th s thoroughly misconceived and vitiated in law and ought n ght not to have been entertained by the Trial Court. As right rightly pointed out by the learned senior counsel for respo espondent no.1, such a course adopted by the appellant a lant and entertained by the Court below has unnecessarily pr ily provided scope for protraction of the proceedings which which ought not to have been allowed by the Court below elow.”

20. In view of the above noted oted undisputed factual and legal position, I find find no ground is made out to inte er. interfere in the impugned order. Present petitio tition accordingly stands dismissed ssed.

21. Pending application(s) if an if any also stand(s) disposed of.

15.05.2024 Sunena (Nidhi Gupta) Judge Whether Whether her speaking/reasoned her reportable Yes/No Yes/No SUNENA 2024.05.16 16:24 I attest to the accuracy and authenticity of this document