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Thursday, July 18, 2013

offences punishable under Sections 498A, 304-B, 406 and 34 of IPC= whether the trial Court was justified in framing a charge under Section 302 of the IPC against the appellants and whether the High Court was justified in affirming that order of the trial Court and dismissing the writ petition filed by the writ petitioners against the same. where this Court has recognized the principle that in cases where the trial Court upon a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced, is satisfied that any addition or alteration of the charge is necessary, it is free to do so. In any such fresh exercise which the trial Court may undertake, it shall remain uninfluenced by the observations made by the High Court on merits of the case including those touching the probative value of the autopsy surgeon’s opinion. In the result, we allow this appeal, set aside the order passed by the High Court and that passed by the trial Court framing the charge under Section 302 IPC and remit the matter back to the trial Court for a fresh order keeping in view the observations made above. No costs.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40504
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 819 OF 2013
(Arising out of S.L.P (Crl.) No.8738 of 2011)
Jasvinder Saini & Ors. …Appellants
Versus
State (Govt. of NCT of Delhi) …Respondent
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. The short question that falls for consideration in this
appeal by special leave is
whether the trial Court was
justified in framing a charge under Section 302 of the IPC
1Page 2
against the appellants and whether the High Court was
justified in affirming that order of the trial Court and
dismissing the writ petition filed by the writ petitioners
against the same. 
The question arises in the following
background.
3. FIR No. 765/2007 was registered against the appellants
alleging commission of offences punishable under Sections
498A, 304-B, 406 and 34 of IPC in connection with the
demise in unnatural circumstances of Ms. Chandni wife of
appellant No.1-Mr. Jasvinder Saini. The case was registered
on a complaint filed Ajay Gautam, father of the deceased.
The matter was investigated and a charge sheet filed before
the Jurisdictional Magistrate alleging commission of offences
mentioned above against the appellants 1 to 4. A
supplementary charge sheet followed in which appellants 5
to 8 were also implicated in the case to which Section 302
was also added by the Investigating Officer.
4. The case was soon committed to the Sessions and
assigned to the Additional Sessions Judge, Rohini, Delhi,
who heard the matter for framing of charges and came to
the conclusion that there was no evidence or material on
2Page 3
record to justify framing of a charge under Section 302 IPC.
Charges were accordingly framed against the appellants
under Sections 498A, 304B read with Section 34 IPC.
5. At the trial the prosecution had examined as many as
eighteen witnesses, when a two-Judges Bench of this Court
passed an order on 22nd November 2010 in Rajibir @ Raju
& Anr. v. State of Haryana AIR 2011 SC 568 by which
this Court directed all trial Courts in India to add Section
302 in every case alleging commission of an offence
punishable under Section 304B of the IPC. This direction, it
appears, came because the Court felt strongly about the
commission of heinous and barbaric crimes against women
in the country.
6. In Rajbir’s case (supra) the appellant had been
convicted under Section 304-B IPC and sentenced to
imprisonment for life by the trial Court apart from offences
under other sections. The High Court had, however, reduced
the sentence to ten years rigorous imprisonment in so far as
Rajbir was concerned and to two years rigorous
imprisonment in the case of his mother Appellant No.2 in
3Page 4
that case. This Court on a prima facie basis felt that the
reduction in the sentence was not justified. Relying upon an
earlier decision rendered in Satya Narayan Tiwari @ Jolly
& Anr. v. State of U.P. (2010) 13 SCC 689, Criminal
Appeal No.1168 of 2005 decided on 28th October, 2010 this
Court issued notice to Rajbir to show cause why his sentence
be not enhanced to life imprisonment as awarded by the trial
Court.
7. It was in the above background, that this Court in para
11 of the interim order passed by it directed all the trial
Courts in India to ordinarily add Section 302 to the charge
under Section 304B “so that death sentences could be
imposed in such heinous and barbaric crimes against
women.” Para 11 may be extracted at this stage:
“We further direct all trial Courts in India to
ordinarily add Section 302 to the charge of Section
304B, so that death sentences can be imposed in
such heinous and barbaric crimes against women.”
8. In the case at hand the trial Court noticed the above
direction and considering itself duty bound to abide by the
same added a charge under Section 302 IPC to the one
4Page 5
already framed against the appellant. While doing so, the
trial Court simply placed reliance upon Section 216 of
Cr.P.C. which empowers the Court to add or alter the charge
at any stage and the direction of this Court in Rajbir’s case
(supra). This is evident from the following passage from the
order passed by the trial Court:
“… I have considered the submissions made
before me. It is settled law that charges can be
modified/amended at any stage of the
proceedings and even if at the initial stage the
Court is of the view that there is no material for
framing the charge under Section 302 IPC. The
same can be added/altered at any later stage
(Section 216 Cr.P.C.) which cannot be termed as
a review of the earlier order. Even otherwise, the
directions of the Hon’ble Apex Court in the case of
Rajbir @ Raju & Anr. Vs. State of Haryana in
Special Leave Petition bearing No. 9507/2010
decided on 22-11-2010 duly circulated vide No.
33760-69/DHC/Gaz/G-X/SCJ/2010 dated 3-12-
2010, specific directions have been issued to all
the subordinate Courts in India to ordinarily add
Section 302 IPC to the charge under Section 304B
IPC.
Therefore, this being the background,
charge under Section 302 IPC is being framed in
alternative against the accused persons against
whom charge under Section 304 B IPC had been
framed. The accused pleaded not guilty and
claimed trial.”
9. Aggrieved by the above direction, the appellant
preferred Writ Petition (Crl.) No.413 of 2011 before the High
5Page 6
Court of Delhi which failed and was dismissed by the High
Court in terms of the order impugned in the present appeal.
Placing reliance upon Section 216 of Cr.P.C. the High Court
observed that appearance of additional evidence at the trial
was not essential for framing of an additional charge or
altering a charge already framed though it may be one of
the grounds to do so. The High Court apart from placing
reliance upon the order passed by this Court in Rajbir’s case
(supra) held that a perusal of the Autopsy Surgeon’s Report
provided prima facie evidence to the effect that the death of
the deceased “could be homicidal” in nature and that the
earlier order passed by the trial Court holding that no case
for offence under Section 302 IPC was made out did not
constitute any impediment for the trial Court to take a
different view at a later stage. The present appeal assails
the correctness of the above orders.
10. Section 216 of the Code of Criminal Procedure deals
with alteration or addition of any charge and empowers the
Court to do so at any time before the judgment is
pronounced. The section runs as follows:
6Page 7
“216. Court may alter charge –
(1) Any Court may alter or add to any charge at any
time before judgment is pronounced.
(2) Every such alteration or addition shall be read
and explained to the accused.
(3) If the alteration or addition to a charge is such
that proceeding immediately with the trial is not
likely, in the opinion of the Court, to prejudice the
accused in his defense or the prosecutor in the
conduct of the case, the Court may, in its discretion,
after such alteration or addition has been made,
proceed with the trial as if the altered or added
charge had been the original charge.
(4) If the alteration or addition is such that
proceeding immediately with the trial is likely, in the
opinion of the Court, to prejudice the accused or the
prosecutor as aforesaid, the Court may either direct
a new trial or adjourn the trial for such period as
may be necessary.
(5) If the offence stated in the altered or added
charge is one for the prosecution of which previous
sanction is necessary, the case shall not be
proceeded with until such sanction is obtained,
unless sanction has been already obtained for a
prosecution on the same facts as those on which the
altered or added charge is founded.”
11. A plain reading of the above would show that the
Court’s power to alter or add any charge is unrestrained
provided such addition and/or alteration is made before the
judgment is pronounced. Sub-sections (2) to (5) of Section
216 deal with the procedure to be followed once the Court
decides to alter or add any charge. Section 217 of the Code
7Page 8
deals with the recall of witnesses when the charge is altered
or added by the Court after commencement of the trial.
There can in the light of the above be no doubt about the
competence of the Court to add or alter a charge at any time
before the judgment. The circumstances in which such
addition or alteration may be made are not, however,
stipulated in Section 216. It is all the same trite that the
question of any such addition or alternation would generally
arise either because the Court finds the charge already
framed to be defective for any reason or because such
addition is considered necessary after the commencement of
the trial having regard to the evidence that may come
before the Court. In the case at hand the evidence
assembled in the course of the investigation and presented
to the trial Court was not found sufficient to call for framing
a charge under Section 302 IPC. The trial Court recorded a
specific finding to that effect in its order dated 18th March
2009 while framing charges against the appellants before
us. The trial Court said:
“The two witnesses Kiran Devi and Smt.
Dharam Kaur were at the spot when the deceased
fell down from the second floor and did not notice
8Page 9
anyone on the roof of the house. Thus there is no
material for framing of charge Under Section 302
IPC against the accused persons. However, there
are specific allegations of dowry demand and torture
in the statement given by Sh. Ajay Gautam to the
SDM and as also in the statements given by his wife
Manisha Gautam and his son Vishal Gautam. The
deceased had died under unnatural circumstances.
Her death took place at her matrimonial home within
seven years of her marriage. There is a presumption
Under Section 113-B of the Indian Evidence Act of
dowry death. Hence on the basis of material on
record, I am of the view that prima facie offence
Under Section 498A/304B/34 IPC is made out
against all the accused persons.”
12. A reading of the order which the trial Court
subsequently passed on 23rd February 2011 directing
addition of a charge under Section 302 IPC makes it
abundantly clear that the addition was not based on any
error or omission whether inadvertent or otherwise in the
matter of framing charges against the accused. Even the
respondents did not plead that the omission of a charge
under Section 302 IPC was on account of any inadvertent or
other error or omission on the part of the trial Court. The
order passed by the trial Court, on the contrary directed
addition of the charge under Section 302 IPC entirely in
obedience to the direction issued by this Court in Rajbir’s
case (supra). Such being the position when the order passed
9Page 10
by the trial Court was challenged before the High Court the
only question that fell for determination was whether the
addition of a charge under Section 302 IPC was justified on
the basis of the direction issued by this Court in Rajbir’s
case (supra). The High Court has no doubt adverted to that
aspect and found itself to be duty bound to comply with the
direction in the same measure as the trial Court. Having
said so, it has gone a step further to suggest that the
autopsy surgeon’s report was prima facie evidence to show
that the offence was homicidal in nature. The High Court
has by doing so provided an additional reason to justify the
framing of a charge under Section 302 IPC.
13. Be that as it may the common thread running through
both the orders is that this Court had in Rajbir’s case
(supra) directed the addition of a charge under Section 302
IPC to every case in which the accused are charged with
Section 304-B. That was not, in our opinion, the true
purport of the order passed by this Court. The direction 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
10Page 11
charge alleging dowry death is framed, a charge under
Section 302 can also be framed if the evidence otherwise
permits. No other meaning could be deduced from the order
of this Court. It is common ground that a charge under
Section 304B IPC is not a substitute for a charge of murder
punishable under Section 302. As in the case of murder in
every case under Section 304B also there is a death
involved. The question whether it is murder punishable
under Section 302 IPC or a dowry death punishable under
Section 304B IPC depends upon the fact situation and the
evidence in the case. If there is evidence whether direct or
circumstantial to prima facie support a charge under Section
302 IPC the trial Court can and indeed ought to frame a
charge of murder punishable under Section 302 IPC, which
would then be the main charge and not an alternative
charge as is erroneously assumed in some quarters. If the
main charge of murder is not proved against the accused at
the trial, the Court can look into the evidence to determine
whether the alternative charge of dowry death punishable
under Section 304B is established.
The ingredients
constituting the two offences are different, thereby
11Page 12
demanding appreciation of evidence from the perspective
relevant to such ingredients.
The trial Court in that view of
the matter acted mechanically for it framed an additional
charge under Section 302 IPC without adverting to the
evidence adduced in the case and simply on the basis of the
direction issued in Rajbir’s case (supra).
The High Court no
doubt made a half hearted attempt to justify the framing of
the charge independent of the directions in Rajbir’s case
(supra), but it would have been more appropriate to remit
the matter back to the trial Court for fresh orders rather
than lending support to it in the manner done by the High
Court.
14. In the light of what we have said above, the order
passed by the trial Court and so also that passed by the
High Court are clearly untenable and shall have to be set
aside.
That would not, however, prevent the trial Court from
re-examining the question of framing a charge under Section
302 IPC against the appellant and passing an appropriate
order if upon a prima facie appraisal of the evidence
adduced before it, the trial Court comes to the conclusion
that there is any room for doing so.
The trial Court would in
12Page 13
that regard keep in view the decision of this Court in
Hasanbhai Valibhai Qureshi v. State of Gujarat and
Ors. (2004) 5 SCC 347
where this Court has recognized
the principle that in cases where the trial Court upon a
consideration of broad probabilities of the case based upon
total effect of the evidence and documents produced, is
satisfied that any addition or alteration of the charge is
necessary, it is free to do so. 
Reference may also be made
to the decisions of this Court in Ishwarchand Amichand
Govadia and Ors. v. State of Maharashtra and Anr.
(2006) 10 SCC 322 and the decision of the Calcutta High
Court in Rajendra Singh Sethia v. State and Ors. 1989
Cri.L.J. 255 and that delivered by the Allahabad High Court
in Shiv Nandan and Ors. v. State of U.P. 2005 Cri. L.J
3047 which too are to the same effect.
 In any such fresh
exercise which the trial Court may undertake, it shall remain
uninfluenced by the observations made by the High Court on
merits of the case including those touching the probative
value of the autopsy surgeon’s opinion.
13Page 14
15. In the result, we allow this appeal, set aside the order
passed by the High Court and that passed by the trial Court
framing the charge under Section 302 IPC and remit the
matter back to the trial Court for a fresh order keeping in
view the observations made above. No costs. 
……………………...…………………...…J.
(T.S. THAKUR)
……………………...…………………...
…J.
(RANJANA PRAKASH DESAI)
New Delhi
July 2, 2013
14

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