Judgment:
Cr.R.No.887/2012 14.3.2013 Shri Sayed Zahiruddin, counsel for the applicant.
Shri Ajay Tamrakar, Panel Lawyer for the respondent no.1/State.
Shri Deepak Singh, counsel for the respondent no.2.
As prayed heard learned counsel for the parties finally.
The applicant has challenged the order dated 2.5.2012 passed by the learned Sessions judge, Harda in ST No.29/2011 whereby the application under Section 216 of Cr.P.C filed by the prosecution was dismissed.
The prosecution's case in short is that the deceased Sunita died due to burn injuries.
Various witnesses have stated that she told them that she sustained burn injuries due to buRs.of stove and the witnesses saw the respondent no.2 was trying to extinguish the fire.
However, there is no regular dying declaration of the deceased and she expired.
Thereafter, the various articles were sent to the Forensic Science Laboratory and matter was referred to the Director, Medico Legal Institute, Gandhi Medical College, Bhopal.
In the report given by the Director, Medico Legal Institute, Bhopal dated 6.10.2010, it was found that it was a case of murder because the Forensic Science Laboratory had found that stove sent to that laboratory was found dried.
It was not used at all in the incident and therefore, the entire story of an accident goes away.
After considering the documents of the prosecution, the learned Sessions Judge has framed the charges of offences punishable under Section 498-A and 306 of I.P.C vide order dated 8.3.2011.
The prosecution has moved an application under Section 216 of the Cr.P.C that the charge of offence punishable under Section 302 of I.P.C may be appended but, the learned Sessions Judge has dismissed the application on the pretext that he has no power to review and therefore, after passing the order dated 8.3.2012 he cannot enhance the charges because the application was dependent upon a document which was already on record.
After considering the submissions made by learned counsel for the parties, it appears that the respondent no.2 was the person who was with the deceased at the time of the incident.
It is apparent that the deceased had stated to the witnesses that she sustained the burn injuries due to an accident and therefore, no charge of offence punishable under Section 306 of I.P.C could be appended because it was not established that the death of the deceased Sunita was suicidal.
On the contrary the report of the Director, Medico Legal Institute, Bhopal is alarming.
It is apparent that the respondent no.2 was the person who was with the deceased.
It was found that the story of buRs.of a stove is not correct because no kerosene oil was found in that stove and therefore, when it was not used at all for cooking then there was no possibility of its bursting.
Under such circumstances, chain of circumstantial evidence is complete and it appears that Sunita was killed by the applicant.
He set her on fire.
Under such circumstances, the charge under Section 302 of I.P.C may be constituted.
The learned Sessions Judge felt a hurdle in framing the charge under Section 302 of I.P.C because he had already passed an order of framing of the charges and therefore, it would be appropriate that the order which is hurdle in passing a judicious order may be removed.
Consequently, the revision filed by the applicant is hereby allowed.
The order dated 2.5.2012 as well as the order dated 8.3.2011 are hereby set aside.
The trial Court is directed to hear both the parties and framed the charges again according to the law.
Copy of the order be sent to the trial Court for information and compliance.
C.C as per rules.
(N.K.Gupta) Judge bina