HARBANS LAL NANDA Vs. STATE OF J&K

JUDGEMENT

(1.) THIS revision is directed against the order dated 24.9,94, passed by the learned Sessions Judge, Jammu, whereby respondent No.2 herein was discharged for the commission of an offence under section 302 R.P.C. The factual matrix of the case is that Smt Anita Puri was married to respondent No.2 about three years ago. At the time of marriage, the deceased Smt. Anita Puri had been working as Assistant Librarian on adhoc basis in the Jammu University but subsequently lost her job when the real incumbent joined the duty. It is alleged that respondent No. 2 and his family members are greedy persons and they could not bearup the loss of service. The marital relations got strained and the spouse was constantly at logger heads. Respondent No.2 started making demands for money, fn order to placate his feelings, the petitioner herein who is his father -in -law initially started giving rupees three thousands per month but subsequently the payments were reduced at rupees two thousand per month. Because of financial constrains, this practice had to be discontinued in the year 1993. The rosy prospect of the marriage made heavy weather of itself when respondent No. 2 started cherishing the feelings that deceased{Smt. Anita Puri) was a financial burden for him. He had the obsession of ameliorating his financial position by making a life partner who was an earning hand and getting rid of the company of the deceased. He was oftenly found in one of his tantrums when she was being abused and rebuked. Once the deceased took refuge in the protective umbrella of her father (petitioner herein) for forty days. At that time, respondent No. 2 out -wardly remorsed his own cruel and foolish behaviour and begged remission. The petitioner fell a prey to this machiavellian game and sent the deceased with him. On 11.5.94, at about 12 A.M., father of respondent No. 2 came to the house of the petitioner and broke the news that deceased had died a natural death on account of heart failure. The petitioner, his wife Smt. Santosh Nanda and his brother Bansi lal reached the house of respondent No. 2 and saw the deceaseds body lying on the bed and there was a legature mark of her neck. They smelt a rat in the cause of death and started raising hue and cry. The police reached the spot and dead body was sent for postmortem which was performed on 27.5.94 wherein it is stated that death had occured due to asphyxia as a result of strangulation. On the receipt of this report on 27.5.1994, case was registered in the Police Station, Bakshi Nagar, Jammu under F.I.R. No. 130/ 94 for the commission of offence under section 302 R.P.C. The investigation was carried and final report was submitted before the Chief Judicial Magistrate, Jammu, who committed the case to the learned Sessions Judge, Jammu who vide his impugned order discharged respondent No. 2 for the commission of offence under Sec, 302 RPC but charged him under section 306 read with section 498 -A R.P.C. Aggrieved by this order, the petitioner filed the revision petition and has challenged the same on the following grounds: -

(2.) MR . M.A. Goni, the teamed Counsel during his arguments has reiterated the grounds of revision and contended that there was sufficient evidence to frame the charge under section 302 R.P.C. In support of his contention, he has cited the cases of Stree Atyachar Virodhi Parishad Vs. Dalip nathamal and another (matrinonial Law Reporter 1989 268);0 Ganesh Lal Vs. State of Maharashtra (Matrimonial Law Reporter 1993 236); Prabhu Dayal and others Vs State of Maharashtra(matermonial Law Reporter 1993 271) and State Vs Padam Singh(KLJ 1987 213).

(3.) MR . J.P. Singh, the learned console for respondent No. 2 has contended that petitioner herein is a person without interest and cannot file the revision petition. He is a prosecution witness and has the only interest to black -mail respondent No.2. The alleged occurrence took place on 11.5.1994 whereas, the statement of the petitioner under Section 161 Cr. P. C. was recorded on 28.5.94. In support of his contention, he has cited the case of Thakur Ram and others Vs. State of Bihar (AIR 1966 SC 9"11). He has also contended, that this court or the Sessions Judge can direct "further enquiry into any complaint under section 436 Cr. P. C." but while exercising the power under section 435 Cr. P. C. or section 439 Cr. P. C. only the order can be set -aside and no direction can be given to make further enquiry or even charge cannot be framed. In case, during trial the evidence for homicidal act comes, the trail court can alter the charge under section 227 Cr. P. C. On facts, he has contended that Amar Nath Bhat, PW had seen respondent No.2 at about 10 A.M. while shaving his beard in his verandah and it thus cannot be said that he was last seen with the deceased at 9 A.M. The site plan shows that the door was broken and thereafter entry was made inside. This entry of the site plan gets corroboration from the testimony of Amar Nath PW who has deposed that the child was crying inside the closed room and respondent No.2 while doing shaeving had knocked at the door but the same was not opened in his presence. Injury No.1 on the post -mortem report establishes a case of hanging and there cannot be two alternate charge i.e. one of murder and the other that of suicide. That respondent No.2 rightly has been charged under section 306 R.P.C. read with section 498 -A R.P.C.