Judgment:
R.K. Patra, J.
1. The petitioner is the accused in S. T. No. 32 of 1995 under Sections 498A, 304B and 306, IPC and Section 4 of the Dowry Prohibition Act on the file of the Assistant Sessions Judge, Balasore. He made a prayer before the learned trial Judge to discharge him under Section 227 of the Code of Criminal Procedure (in short 'the Code'). The said prayer having been refused by the impugned order dated 13-1-1995 ha has filed this application under Section 401 read with Section 482 of the Code.
2. Facts:
The petitioner had married Bijayalaxmi (hereinafter referred to as 'the deceased') on 28-8-1985. The deceased sustained burn injuries on 28-4-1892 at Jaleswar and succumbed to those injuries on 8-5-1992 at S C. B. Medical College and Hospital, Cuttack. Following the death, the opp. party No. 2 being the father of the deceased filed FIR on 20-5-1992 at Jaleswar Police Station alleging dowry death. The allegations made in the FIR are as follows :
The petitioner who was working as arc Assistant Jailor married the deceased on 29-6-1985. At the time of marriage a sum of Rs. 10,000/- was given to him as per the demand by way of dowry. After some months of marriage, when the informant heard that torture was being meted out to the deceased by her mother-in-law and sister-in-law, he brought her to his house at Bhubaneswar and she (deceased) remained with her, parents for about six months. After contacting the petitioner, the informant took his daughter, and left her again with him. One day, the petitioner came to his house and stated that he had not been presented with the scooter as par the demand made earlier and unless the demand was fulfilled, the would leave his daughter in his house. On being contested, the father of the petitioner told the informant that if he would give Rs. 5,000/-, the matter could be solved. Accordingly, he gave Rs. 5,000/- to the father of the petitioner. After two months, the petitioner again came and demanded the scooter. But he was informed that his father had already taken Rs. 5,000/- for the purpose. At this the petitioner got infuriated and told the informant that he must give the Scooter as per the demand made earlier. The informant with difficulty arranged Rs. 12,000/- and paid the same to the petitioner. On 19-8-1986 the deceased gave birth to a female child but neither the petitioner nor any of his family members came to see the deceased as well as the newly born child. After some months, the petitioner came and took the deceased to Balasore where he was serving. She was again subjected to torture and was told to bring a coloured television and a refrigerator. The informant after knowing this, told the petitioner that he had to wait for some time because he had no money for the purpose of purchasing television and refrigerator. Thereafter, the petitioner was transferred to Padmapur N. A. C. as Executive Officer where he fell in love with one girl and he started torturing the deceased. Thereafter, the petitioner was transferred to Banpur and later to Jaleswar where he decided to marry one Binapani Dutta, Principal of Jaleswar Woman's College. On account of the petitioner's involvement with Binapani there was estrangement between the petitioner and the deceased. In February, 1992 the petitioner came to Bhubaneswar and ho was given a Video-Con television and cash of Rs. 8,000/- towards the price of a refrigerator. The deceased was being mentally tortured by the petitioner. She could not further tolerate any torture on her and ultimately committed suicide by burning herself.
On the basis of the FIR, police took up investigation. On its completion, the police having found prima facie case, filed charge-sheet and the petitioner has been sent up for trial in the Court of the Assistant Sessions Judge, Balasore.
3. Shri Rao, learned counsel for the petitioner contended that there is no material available for framing charge against the petitioner inasmuch as the dying declaration would show that the deceased caught fire accidentally while she was lighting the stove for preparing tea. It was submitted by him that the dying declaration totally exonerated the petitioner and as such, there is no basis for framing charge. Shri Jena, learned counsel appearing for the opp. party. No. 2 contended that the dying declaration was manufactured document and there are other grounds available on record for presuming that the petitioner committed the crime.
4. It is now well-settled that the standard of test and judgment which is to be finally applied before recording a finding of guilt or otherwise 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. If there is strong suspicion which leads the Court to think that there is ground for presuming 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. (See AIR 1977 SC 2018 (State of Bihar v. Ramesh Singh).
5. What should be the test and duty of the Court while considering the question of framing of charge under Section 227 of the Code have been indicated by the Supreme Court in Union of India v. Prafulla Kumar Samal, AIR 1979 SC 366. The Court after noticing the case of State of Bihar v. Ramesh Singh (supra) has culled the following principles :
'(1) That the Judge while considering the question of framing the charge under Section 227 of the Code has the undoubted-power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully Justified in framing a charge and proceeding with the trial,
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to say down a rule of universal application. By and large however if two views are equally possible and the Judge Is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused,
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely so a Post-Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the ease and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.'
6. The Supreme Court in Supdt. and Remembrance of Legal Affairs, West Bengal v. Anil Kumar Bhanja : AIR 1980 SC 52 has held that if from the materials on record, inference of strong suspicion can be drawn, they would be sufficient for framing charge against the accused in respect of the commission of the offence.
7. Let me now apply the principles mentioned above to the facts and circumstances of the case in order to find out whether the learned trial Judge was justified in refusing to discharge the petitioner. It is true that the dying declaration does not implicate the petitioner in any manner, but there are other materials which cannot be lost sight of. The FIR lodged by the father of the deceased unfolds the story of dowry demand and the torture meted out to the deceased. Statement of certain persons recorded under Section 161, Cr PC reveal that everything was not well with the spouse. The deceased was upset because the petitioner had licentious affairs with some other ladies. I may note here that the post mortem report shows that the deceased had sustained 75 percent of burn injuries. From the aforesaid circumstances, inference of strong suspicion can legitimately be drawn and as such, framing of charge against the petitioner cannot be held to be illegal. I may hasten to add here that observation made by me in this order in respect of the materials available on record was simply to find out whether the learned trial Judge was justified in framing the charge.
8. For the reasons mentioned above, I do not find any illegality committed by the learned trial Judge in framing the charge against the petitioner. I therefore, do not find any merit in this revision which is accordingly dismissed.