IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 965 of 2012 1. Zaved Akhtar, S/o Menhaz Ansari 2. Minhaz Ansari, S/o Late Kamruddin Mian, Both R/o Village-Sakhia, P.O-Oriya, P.S.-Muffasil, Dist.-Hazaribagh …… Petitioners Versus The State of Jharkhand …… Opposite Party With Cr. Revision No. 963 of 2013 Sabiran Bibi, W/o Menhaz Ansari, R/o Village-Sakhia, P.O-Oriya, P.S.-Muffasil, Dist.-Hazaribagh …… Petitioners Versus The State of Jharkhand …… Opposite Party --------- CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA --------- For the Petitioners : Mr. Hemant Kr. Shikarwar, Advocate (in both cases) For the Informant : Mr. Mohit Prakash (in both cases) For the State : Mr. Ravi Prakash (in Cr. Rev. No. 965/2012) Mr. Amresh Kumar, (in Cr. Rev. No.963/2013) --------- 15/Dated:
13. 10/2015 These revision applications are directed against the order dated 03.10.2012 and 10.09.2013, passed in S.T. No. 278 of 2010 arising out of Sadar (Muffasil) P.S. Case No. 802 of 2009 corresponding to G.R. No. 4694 of 2009, whereby the application under Section 227 of Cr.P.C for discharge was rejected.
2. Learned counsel for the petitioners has submitted that the learned Additional Sessions Judge has failed to appreciate that under Section 227 Cr.P.C materials collected during police investigation is to be considered. That the independent witnesses have categorically stated that the petitioner- Zaved Akhtar, the husband of the deceased, had gone to the registry office at the time of the occurrence. That none of the witnesses have stated about the demand of dowry except the informant. Learned counsel for the petitioners, while relying on the decision in the case of Dilawar Balu Kurane Vrs. State of Maharashtra reported in (2002) 2 SCC135 has urged that the Hon'ble Supreme Court has held that under Section 227, the judge has to sift and weigh the evidence for the limited purpose of finding out whether a prima facie case has been made out and where two views are equally possible and evidence gives rise to some suspicion but not grave suspicion, the accused should be discharged. That there is evidence on record that the petitioner-Minhaz Ansari, the father-in- law of the deceased was not present at the time of the occurrence, rather he was attending his office. It is submitted that in the case of Satish Mehra Vrs. Delhi Adminstration and Another reported in (1996) 9 SCC766 it has been held that the object to provide an opportunity of hearing to the accused and to produce the materials at the stage of Section 227 Cr.P.C, is to enable the court to decide whether it is necessary to proceed to conduct the -2- trial and if the court is fairly certain that there is no prospect of the case ending in conviction, the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. Learned counsel for the petitioners has referred to the news published in Hindi edition of Hindustan newspaper dated 25.11.2009, and submitted that it has been reported that the dead body lying in the hospital's morgue are preyed upon by the rodents . That the court below has failed to appreciate whether the injuries on the deceased was postmortem or antemortem in nature. The said injuries were caused by the nibbling of the rats. On the above grounds, learned counsel has submitted that there is no material on record to make out a prima facie case against the petitioners under Section 304-B of the I.P.C read with 34 of the I.P.C. It is submitted that just because the deceased died an unnatural death within seven years of marriage presumption can not be drawn that the death was due to dowry demand, as is evident that even the family members, i.e., the brother and sister, have not made any allegations regarding the demand of dowry and independent witnesses have categorically stated that the deceased had committed suicide by consuming poison. That there is no allegation that the petitioners had abetted the deceased to commit suicide. Learned counsel for the petitioners has submitted that in the absence of any materials on record to make out a prima facie case for the offence under Section 304B of the I.P.C, the petitioners deserve to be discharged of the offences.
3. On the other hand, learned counsel for the State assisted by the learned counsel for the informant has contended that it is admitted that the deceased died an unnatural death within seven years of marriage. The informant had specifically stated about the demand of dowry. That under Section 304-B of the I.P.C read with Section 113(b) of the Evidence Act, presumption can be drawn that the deceased died a dowry death. It is argued that the onus lies on the accused, under Section 106 of the Evidence Act to rebutt the presumption of dowry death and the evidence on record establishes a prima facie case under Sections 304B/34 of the I.P.C. Learned A.P.P. assisted by the learned counsel for the informant have relied on the decision reported in the case of Ashish Chadha Vrs. Smt. Asha Kumari & Anr. reported in 2012 Cri.L.J773and contended that in the exercise of revisional jurisdiction, the court cannot appraise the evidence by entering into merits and forming an opinion that there is no prima face case made out. It is contended that the Hon'ble Supreme Court has held that it is the trial court which has to decide whether evidence on record is sufficient to make out a prima facie case against the accused so as to frame charges against him. The trial Court cannot conduct a roving and fishing -3- inquiry into evidence. Reliance has also been placed on the decision reported in (2010) 3 SCC (Cri) 1371, and it is argued that in the said case the Hon'ble Apex Court has held that at the stage of framing of charge under Section 228 or while considering discharge petition under Section 227, it is not for the Magistrate or the Judge concerned to analyse all the materials including pros and cons, reliability or acceptability, thereof. That it is at the trial, that the judge concerned has to appreciate evidentiary value, credibility or otherwise of the material on record and the veracity of various documents. It is urged that in the case of Ashish Chadha (Supra) the witnesses had not whispered a word about involvement of the appellant despite this it was held that it cannot be presumed that there is no case to proceed against appellants and framing of charges by the trial judge was held to be not bad in law or abuse of process of law or without any materials on record.
4. Heard. Perused the impugned order. Sections 227 Cr.P.C envisages that the court is required to form an opinion on the basis of the materials collected during investigation and if it is satisfied that there is no material on record it shall discharge the accused. It is well settled that at the stage of framing of charge the evidence is not to be meticulously weighed and sifted as required during the trial. On perusal of the impugned order it is explicit that the trial Court has considered the inquest report wherein it is mentioned that four lacerated wounds were found on the body of the deceased and some of the wounds were bone deep. It is not disputed that the deceased died within seven years of the marriage in unnatural circumstances allegedly due to poisoning. The informant has alleged about demand of dowry by the petitioners.
5. The plea of alibi raised by the defence cannot be looked into at the stage for framing of charge. The newspaper report relied on by the counsel for the petitioner has no evidentiary value at this stage. Learned counsel for the informant has produced photographs of the deceased which is a subject matter to be considered when evidence is led during trial and not at this stage.
6. It is abundantly clear that the trial court has considered and discussed the materials on record and applied its judicial mind in forming an opinion that a prima facie case is made out under Section 304B and 34 of the I.P.C against the petitioners for putting them on trial. The defence of the petitioners/accused can be appreciated only when the evidence is led during trial and not at this stage.
7. Thus, in view of the discussion made above and in the attending facts and circumstances, there is no illegality or impropriety in the impugned order meriting any interference by this court.
8. In the result the revision is hereby dismissed. (Amitav K. Gupta, J.) Satayendra/