SHRAWAN SINGH AND OTHERS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This criminal revision petition has been preferred by the petitioners challenging the order dated 30.5.2011, passed by the Additional Sessions Judge, Sojat, District Pali in Sessions Case No. 07/2011, whereby he has framed charges against the petitioners for the offences under sections 498-A, 304-B and 323 I.P.C. and in the alternative under section 302 I.P.C.

(2.) Assailing the impugned order, learned Counsel for the petitioners submits that the petitioners have the grievance regarding framing of the charge under section 302 I.P.C. against them. Learned Counsel submits that the Trial Judge has framed the charge against the petitioners under section 302 I.P.C. as an alternative charge in view of the directions of the Hon'ble Apex Court given in Rajbir alias Raju and another v. State of Haryana, 2011 AIR(SC) 568 He submits that the Trial Judge has mechanically framed the charge under section 302 I.P.C. against the petitioners in this case without even adverting to the facts and circumstances of the case. He submits that the observations of the Hon'ble Supreme Court in the case of Rajbir's case were merely in the nature of obiter dicta and were passed looking to the peculiar facts and circumstances of that particular case. Reverting to the fact of the present case, learned Counsel submits that in the present case, it is the admitted case of the prosecution that deceased Smt. Chandu Kanwar committed suicide by hanging herself and on the post-mortem of her dead body being conducted, all the signs which were found on the dead body, disclosed that the cause of her death was asphyxia due to hanging. He also submits that no injury was found on the body of the deceased and, therefore, there was no justification for the Trial Judge to have framed the charge against the petitioners for the offence under section 302 I.P.C. as an alternative charge to the offence under section 304-B, I.P.C. Referring to the decision of the Hon'ble Apex Court in Rajbir's case , learned Counsel for the petitioners submits that in the said case, the facts of that case disclosed that the deceased therein was found to be suffering from five external injuries all over the thoracic region and the cause of death was found to be smothering and throttling subsequent to the assault and the Hon'ble Apex Court, after considering the post-mortem report of the deceased in that case, found that the deceased had been struck on the head repeatedly and thereafter she was throttled. Thus, the learned Counsel for the petitioners submits that essentially the facts of the case in Rajbir's case were illustrative of the fact that the death was homicidal and that too within a period of seven years and also accompanied with the demand of dowry, therefore, the Hon'ble Apex Court issued a direction that ordinarily a charge under section 302 I.P.C. should also be framed, as an alternative charge, to the charge under section 304-B, I.P.C. The Counsel for the petitioners submits that the word "ordinarily" mentioned in the judgment in Rajbir's case cannot be interpreted to be as a mandatory direction in each and every case irrespective of the facts of the particular case. Thus, he submits that since in the instant case the cause of death of Smt. Chandu Kanwar being suicidal and not homicidal, the direction of the Trial Judge for framing charge under section 302 I.P.C. as an alternative charge to section 304-B, I.P.C. cannot be said to be justified.

(3.) Per contra, learned Public Prosecutor has opposed the arguments of the learned Counsel for the petitioners and submits that the Trial Judge has rightly framed the charge under section 302 I.P.C. against the petitioners because the Hon'ble Supreme Court has issued a direction in the case of Rajbir that a charge under section 302 I.P.C. is essentially to be framed in a case of dowry death along with a charge under section 304- B. I.P.C.