# Rajkumar & Ors v. State Of U.P

- **Citation:** (2016) 7 ILRA 1031
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-11
- **Bench:** Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajkumar-ors-v-state-of-u-p-44031
- **Pages:** 6

## Headnote

At the stage of framing of charge under Sections 227/228 Cr.P.C., the Court is only required to examine
whether there exists a prima facie case or strong suspicion against the accused; meticulous appreciation of
evidence is impermissible. Where death of a married woman occurs within seven years of marriage under
unnatural circumstances and material collected during investigation discloses allegations of dowry demand
and cruelty, framing of charge under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act is justified.

Alternative charge under Section 302/34 IPC can be framed in light of the direction issued in Rajbir @ Raju
v. State of Haryana, subject to clarification in Jasvinder Saini v. State (NCT of Delhi), that such
direction is not to be followed mechanically but depends upon the evidence available at the stage of framing
charge.

Where the case is at initial stage and no finding has been recorded that there is absence of material for
charge under Section 302 IPC, framing of alternative charge cannot be said to be illegal or mechanical.
Application under Section 482 Cr.P.C. seeking quashing of order framing charges - Dismissed.

Case Law Discussed:
State of Bihar v. Ramesh Singh, AIR 1977 SC 2018
Sachin Saxena @ Lucky v. State of U.P., 2008 (62) ACC 454
Rajbir @ Raju v. State of Haryana, 2010 (71) ACC 920
Jasvinder Saini v. State (NCT of Delhi), 2013 (83) ACC 132

## Text

7 All. Rajkumar & Ors. Vs State Of U.P.
1031
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2016

BEFORE

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Application U/S 482 No.- 16365 Of 2016

Rajkumar & Ors. ...Applicants
Versus
State Of U.P. ...Opposite Party

Counsel for the Applicants:
Vishesh Kumar

Counsel for the Opposite Party:
G.A.

Headnote:
Para 13 to 22
At the stage of framing of charge under Sections 227/228 Cr.P.C., the Court is only required to examine
whether there exists a prima facie case or strong suspicion against the accused; meticulous appreciation of
evidence is impermissible. Where death of a married woman occurs within seven years of marriage under
unnatural circumstances and material collected during investigation discloses allegations of dowry demand
and cruelty, framing of charge under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act is justified.

Alternative charge under Section 302/34 IPC can be framed in light of the direction issued in Rajbir @ Raju
v. State of Haryana, subject to clarification in Jasvinder Saini v. State (NCT of Delhi), that such
direction is not to be followed mechanically but depends upon the evidence available at the stage of framing
charge.

Where the case is at initial stage and no finding has been recorded that there is absence of material for
charge under Section 302 IPC, framing of alternative charge cannot be said to be illegal or mechanical.
Application under Section 482 Cr.P.C. seeking quashing of order framing charges - Dismissed.

Case Law Discussed:
State of Bihar v. Ramesh Singh, AIR 1977 SC 2018
Sachin Saxena @ Lucky v. State of U.P., 2008 (62) ACC 454
Rajbir @ Raju v. State of Haryana, 2010 (71) ACC 920
Jasvinder Saini v. State (NCT of Delhi), 2013 (83) ACC 132

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

1. The applicants by means of this application under Section 482 Cr.P.C., have invoked the
inherent jurisdiction of this Court with prayer to quash the order dated 31.8.2015 passed by
Additional Sessions Judge, Court No. 3, Jaunpur in Session Trial No. 359 of 2011 (State Vs.
1032 INDIAN LAW REPORTS ALLAHABAD SERIES

Rajkumar and others) whereby the learned trial court has framed charges under Sections 498A,
304B I.P.C. and 3/4 of D.P. Act alongwith alternative charge under Section 302/34 I.P.C. against
the applicants.

2. Heard learned counsel for the applicants and learned A.G.A. for the State. Perused the
records.

3. Learned counsel for the applicants has submitted that the death of the deceased was mere
an accident. When she was pouring kerosene oil in the burning lamp, her 'Saari' suddenly caught
fire and she received severe burn injuries on her body. She was immediately admitted to the
hospital on 8.4.2011 by her father-in-law (applicant no. 3). She remained admitted in the hospital
for about one month and a total cost of Rs. 1,36,600/-, incurred in her treatment, was borne by the
applicants but unfortunately on 9.5.2011 she succumbed to her injuries. It is further submitted that
during the aforesaid period of one month when she was remained admitted in the hospital, the
police did not record her statement. The father and other relatives of the deceased were
immediately informed about the accident and they reached the hospital on 10.4.2011 where the
father of the deceased also donated blood to his daughter. It is further submitted that considering all
these facts and circumstances the police submitted charge-sheet against the applicants under
Sections 498A, 304B I.P.C. and 3/4 of D.P. Act. The applicants were enlarged on bail by this
Court.

4. The applicants moved an application under Section 227 Cr.P.C. for their discharge under
the aforesaid sections but the learned trial judge vide order dated 14.8.2015 rejected their discharge
application and vide impugned order dated 31.8.2015 framed charges against the applicant not only
under Sections 498A, 304B I.P.C. and 3/4 of D.P. Act but also framed alternative charge under
Section 302/34 I.P.C.

5. The submission of learned counsel for the applicants is that the trial court without
considering the facts and circumstances has arbitrarily rejected the application of discharge and
framed additional charge under Section 302/34 I.P.C. only in obedience of the direction/circular
issued by Hon'ble Apex Court in the case of Rajbir @ Raju and another V. State of Haryana;
2010 (71) ACC 920. Learned counsel has submitted that from the perusal of the entire record it is
evident that there is no iota of evidence about culpable homicide amounting to murder punishable
under Section 302 of I.P.C. There is neither any direct nor any circumstantial evidence to
primafacie support the charge under Section 302/34 I.P.C. However, the trial court, acting
mechanically has framed the additional charge under Section 302/34 I.P.C. simply in compliance of
the direction issued by Hon'ble Apex court.

6. Learned counsel for the applicant has placed reliance on the law laid down in the case of
Jasvinder Saini and others Vs. State (Govt. of N.C.T. Of Delhi); 2013 (83) ACC 132.
7 All. Rajkumar & Ors. Vs State Of U.P.
1033
7. Per contra learned A.G.A. has opposed the application by contending that the instant
application is without any force and the judgment of Jasvinder Saini (supra) cited by the applicants
has no application to the present case, the facts and situation of the two being entirely different.

8. Considered the submissions.

9. In a catena of judgments the Hon'ble Apex Court has laid down the law that at the initial
stage of framing charge even if there is a strong suspicion which leads the court to think that there
is ground for assuming 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. In State of Bihar Vs.
Ramesh Singh; AIR 1977 SC 2018 the Hon'ble Apex Court has held as under:-

"The standard of test and judgment which is to be finally applied before recording a
finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of
deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to
see whether there is sufficient ground for conviction of the accused or whether the trial is sure to
end in his conviction."

10. In Sachin Saxena @ Lucky Vs. State of U.P. ; 2008 (62) ACC 454 a coordinate
bench of this Court has held as under:

"14. At the stage of framing a charge neither the defence case nor a meticulous
examination of the evidence is needed and it has only to be seen by the Court whether there is
sufficient material to proceed with the trial against the accused. Even if the material collected by
the police during investigation casts a strong suspicion of the complicity of an accused, that is
sufficient for framing the charge."

11. The police has submitted charge-sheet against the applicants under Sections 498-A,
304-B I.P.C. and 3/4 of D.P. Act after concluding the investigation. In the F.I.R. itself, lodged by
the father of the deceased, it has been alleged that the daughter of the informant was married to
applicant no. 2-Balraj on 3.6.2010 as per the Hindu rites and rituals. Soon after the marriage, the
husband and the in laws started making demand of a Hero Honda motorcycle and 50,000/- cash. On
non fulfillment of the same they attempted to kill his daughter by putting her to flames on 8.4.2011
and thereafter they admitted her in Jeevan Joyti Hospital where she succumbed to her injuries on
9.5.2011. In the inquest and the post-mortem reports the cause of death is shown as burn injuries.
The witnesses have stated about the culpability of the applicants during their interrogation under
Section 161 Cr.P.C. hence the police submitted charge-sheet against the applicants. At the time of
framing of charge the prosecution produced all these evidence collected during investigation
alongwith the entire case diary before the trial judge, who, taking into consideration, framed
charges under Sections 498-A, 304-B I.P.C. and 3/4 of D.P. Act.
1034 INDIAN LAW REPORTS ALLAHABAD SERIES

12. There appears no illegality in framing of charges, in so far as the aforesaid sections are
concerned as there was sufficient primafacie evidence which is required at the stage of framing of
charge against the accused.

13. In so far as the alternative charge under Section 302/34I.P.c. is concerned, in Rajbir @
Raju's case (supra) the Hon'ble Apex court directed all the trial courts in India to ordinarily add
section 302 I.P.C. to the charge of Section 304-B I.P.C. so that the death sentence can be imposed
in such heinous and barbaric crime against woman. The copy of the aforesaid judgment of Hon'ble
Supreme Court was sent to the Registrar Generals of all the High Courts with direction to circulate
it to all the trial courts. Therefore, if the learned trial court in the present case, in compliance of the
order of Hon'ble Apex Court, framed alternative charge under Section 302/34 I.P.C. no illegality
was done by it as the compliance of the orders of the Hon'ble Apex Court is mandatory not only for
the trial courts but also for the High Courts.

14. Placing reliance on Jasvinder Saini's case (supra), the learned counsel for the
applicants has submitted that the Apex Court in the aforesaid case has clarified the law as laid
down by its earlier bench in Rajbir's case (supra).

15. The Apex Court in Jasvinder Saini's case has held as under :-

"the aforesaid direction in Rajbir's case was not meant to be followed mechanically
and without due regard to the nature of the evidence available in the case. All that this court meant
to say was that in a case where a charge alleging dowry death is framed, a charge under Section
302 I.P.C. can also be framed if the evidence otherwise permits."

16. According to the Hon'ble Apex Court the question whether it is murder punishable
under Section 302 I.P.C. or a dowry death punishable under Section 304-B I.P.C. depends upon the
facts, situation and the evidence in the case. If there is evidence whether direct or circumstantial, to
primafacie support the charge under Section 302 of I.P.C., the trial court indeed and ought to frame
the charge of murder punishable under Section 302 of I.P.C.

17. Testing the facts of the instant case on the anvil of the law laid down by the Apex Court
in Jasvinder Saini's case, it clearly appears that the facts of instant case are entirely
distinguishable from Jasvinder Saini's case. In Jasvinder Saini's case charge-sheet was filed
under Section 498-A, 304-B and 406 readwith 34 I.P.C. against four accused persons and later on a
supplementary charge-sheet followed, implicating 4 more accused persons under Section 302 I.P.C.
The case was committed to the sessions and the Sessions Judge, who heard the matter for framing
of the charges, came to the conclusion by recording a clear finding that there was no evidence or
material to justify the framing of charge under Section 302 of I.P.C. Charges were accordingly
framed under Sections 498-A and 304-B readwith 34 I.P.C. The trial proceeded and the prosecution
examined as many as 18 witnesses. Meanwhile, the judgment of Rajbir's case (supra) was passed
by the Apex Court whereby directing all the trial courts of India to add Section 302 I.P.C. as an
alternative charge in every case punishable under Section 304-B IP.C. It was in the above
7 All. Rajkumar & Ors. Vs State Of U.P.
1035
background that the trial court had to frame the alternative charge under Section 302 of I.P.C. at
such belated stage, only in compliance of the order of Hon'ble Apex Court. The accused persons
challenged that order before the High Court but the High Court also dismissed their claim finding
itself to be duty bound to comply with the direction of Hon'ble Supreme Court. The accused
persons approached the Supreme Court against the order of this Court and the Apex Court held that
the directions issued in Rajbir's case were not meant to be followed mechanically without due
regard to the nature of evidence available in the case. The Apex Court in Jasvinder Saini's case
held that the evidence assembled during the course of investigation and presented to the trial court
was not sufficient to call for framing of charge under Section 302 of I.P.C.

18. Under the aforesaid facts and circumstances when as many as 18 witnesses have
already been examined and there was also a clear finding earlier recorded by the trial court that
there was no evidence or material on record to justify the framing of charge under Section 302
I.P.C. that the Supreme Court held that Rajbir's case was not meant to be followed mechanically.

19. So far as the facts of the instant case are concerned it shows that it is pending at the
initial stage, no prosecution witness has been examined as yet. There is no earlier finding of learned
trial judge to such effect that primafacie there is no evidence to support the charge of Section 302
of I.P.C. The primafacie evidence available on record shows that the deceased has met an untimely
death within 7 years of her marriage under unnatural circumstances. No doubt her father-in-law had
got her admitted to the hospital and her husband had also sustained burn injuries in the same
occurrence but whether the incident was accidental, suicidal or homicidal, this can not be
ascertained at this very initial stage, without availability of evidence, to be led by both the parties
during trial. If the applicants were found innocent they may be acquitted. Neither any view can be
expressed by this court with regard to their culpability nor about their innocence. The trial judge in
its wisdom and after finding a primafacie case and also in compliance of the direction issued by the
Apex Court in Rajvir's case, has framed alternative charge under Section 302/34 I.P.C. against the
applicants. Hence it cannot be said that the trial court has acted illegally or mechanically.

20. Every criminal case stands on its independent footing and its decision depends on its
peculiar facts and circumstances. The Apex Court in Jasvinder Saini's case has already held that it
depends upon its own facts, situation and evidence of the case whether to frame additional
alternative charge under Section 302 of I.P.C. or not.

21. In every case under Section 304-B of I.P.C. death of a young bribe is involved, who
had to leave this world in her prime years. In every such case the death occurs within the four
corners of her matrimonial home. In order to convict a person under Section 304-B, the prosecution
has to prove the existence of some essential ingredients, one of such being "that she was subjected
to cruelty in connection with dowry demand soon before her death."

22. It is very difficult to prove an incident taking place inside the four corners of a house.
Though by a deeming provision, the legislature has shifted this burden on the accused, but the
initial burden to prove the existence of all the essential ingredients of section 304-B is always on
1036 INDIAN LAW REPORTS ALLAHABAD SERIES

the prosecution. In absence of alternative charge under Section 302 I.P.C., some times it happens
that despite unnatural death of a young bride inside their house, all the accused go scot free only for
the reason that the prosecution fails to lead any evidence regarding her maltreatment "soon before
her death". As a result, even a case where "death" is involved, ends in acquittal merely due to lack
of evidence regarding an essential ingredients of Section 304-B I.P.C.

23. It is for this reason also, that framing of an alternative charge under Section 302 of
I.P.C. alongwith charge under Section 304-B of I.P.C. is necessary at the initial stage.

24. In view of the above discussion, the application under Section 482 Cr.P.C. appears to
be without any force and it is liable to be dismissed.

25. The application under Section 482 Cr.P.C. is accordingly dismissed.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.07.2016

BEFORE

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Application U/S 482 No.- 16789 Of 2016

Ritesh Singh @ Lav Kush Singh & Anr. ...Applicants
Versus
State Of U.P. & Ors. ...Opposite Parties

Counsel for Applicants:
Sri Arvind Srivastava, Sri Raj Kumar Singh

Counsel for Opposite Parties:
Government Advocate

Criminal Procedure -- Section 482 Cr.P.C. -- Quashing of Investigation -- Scope of Interference at
Investigation Stage -- Applicants sought quashing of investigation and all consequential proceedings in
Case Crime No. 3 of 2016 under Sections 147, 148, 149, 352 and 307 I.P.C. on the ground that they had not
formed any unlawful assembly, injuries were simple and concocted in collusion with the medical officer, and
no charge-sheet had been submitted despite investigation pending since January 2016 -- Held: ordinarily a
court cannot direct the investigating agency to carry out investigation in a particular manner and can interfere
with the functioning of investigating agency only in exceptional cases -- the court and judicial process should
not interfere at the stage of investigation save in exceptional cases where non-interference would result in
miscarriage of justice -- no such exceptional case is made out on the facts -- investigation ongoing; no ground
to quash or stay investigation. (Paras 1-3)

Criminal Procedure -- Section 482 Cr.P.C. -- Investigation -- Time Bound Completion -- Section
167 Cr.P.C. -- Statutory Bail -- Applicants submitted that the investigation has been pending for more than