Avinash Singh vs State Of U.P. And Another
2025 Latest Caselaw 4767 ALL

Allahabad High Court

Avinash Singh vs State Of U.P. And Another on 7 February, 2025

Author: Alok Mathur

Bench: Alok Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:17943
 
Court No. - 37 
 
Case :- APPLICATION U/S 482 No. - 1654 of 2021
 

 
Applicant :- Avinash Singh
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- A.C.Srivastava,Ravitendra Pratap Singh Chandel
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Alok Mathur,J.
 

1. Heard Sri A.C. Srivastava, learned counsel for petitioner as well as learned A.G.A. for respondents.

2. As the issue raised by the applicant is a pure question of law, this Court is proceedings to decide the case finally at the admission stage itself.

3. It has been submitted by learned counsel for applicant that a F.I.R. has been lodged by father of the victim stating that he had got her daughter Seema married with applicant in the year 2016 and has further alleged that his daughter was not happy with the said marriage because the applicant was regularly demand of dowry and also a car and because the demand could not be fulfilled he has killed his daughter on 27/28.06.2018 and accordingly the first information report was lodged on 28.06.2018.

4. During investigation, the case of death could not be ascertained and therefore the visra was preserved and the report of chemical examination determine the death due to organoclorocide. The charge-sheet was filed before the trial court and the matter was committed to the court of sessions on 24.02.2018 and charges were framed on 13.12.2019.

5. The grievance of the petitioner in the present application is with regard to framing of charges which according to the applicant were framed under Section 498A, 304B I.P.C. and 3/4 of D.P. Act and also an alternative charge under Section 302 I.P.C. was also framed by means of the impugned order.

6. Learned counsel for applicant has vehemently submitted that the trial court has committed manifest error inasmuch as the charge under Section 302 I.P.C. has been framed as an alternative charge. He submits that the charge under Section 302 and 304B of I.P.C. are separate and distinct inasmuch as the burden of proof for proving the said charge is concerned. He submits that it rest upon prosecution to produce evidence in regard to culpability of the accused while proving the charges under Section 302 I.P.C. which is distinct from charge under Section 304B I.P.C. where the onus lies upon the accused to prove his innocence.

7. Accordingly, he submits that a charge under Section 302 cannot be framed as an alternative charge but in case there was sufficient evidence produced before the trial court and relying upon the material evidence during investigation, it was open for the trial court to have framed the charges under Section 302 I.P.C. and an alternative charge under Section 304B of the I.P.C. and not vice versa. He further submits that this aspect of the matter has been duly considered by Hon'ble the Supreme Court in the case of Jasvinder Saini and others Vs. State (Government of NCT of Delhi), (2013) 7 SCC 256.

8. He submits that in similar set of circumstances where trial court had framed charges under Section 304B against the accused and also under Section 302 I.P.C. as an alternative charge, the Hon'ble Supreme Court had interfered in the said matter and stated that 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, but charge under sectoin 302 I.P.C. cannot be framed as alternative charge.

9. It has been further noticed that if the ingredients constituting the two offenses are different, thereby demanding appreciation of evidence form the perspective relevant to such ingredients and accordingly it held that the trial court in that view of the matter acted mechanically for it framed an additional charge under Sections 302 I.P.C. without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir Vs. State of Haryana, (2010) 15 SCC 116. For the sake of reliance paragraph No. 15 which is quoted hereinbelow:-

"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 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."

10. It has further been submitted that the said judgment in the case of Jasvinder Saini (Supra) is good law and has been relied by this Court in a bunch of appeal leading being Criminal Appeal No. 1667/2021 (Rammilan Bunkar Vs. State of U.P.), accordingly he submits that the charge as farmed by the trial court requires interference which deserves to be set aside and the petition may be allowed.

11. Learned A.G.A. on the other hand has opposed the petition. He has submitted that even if the arguments of the applicant are accepted the trial court has sufficient powers under Sections 216 of the Cr.P.C. to alter the charges at any stage during course of the trial. He further submits that in case during trial, it is open for the trial court to look into any alternative charges for which evidence may have been adduced during course of trial and the trial can proceed after alternation of the charge and accordingly submits the the purpose as stated by the petitioner in the present case no interference is required by this Court at this stage and prays for dismissal of the petition.

12. I have heard learned counsel for rival contentions and perused the record.

13. There is no dispute with regard to factual aspect of the matter and the only issue which has engaged this Court in the present case under Section 482 of Cr.P.C. is with regard to the question as to whether an alternative charge under Section 302 I.P.C. can be framed with Section 304B I.P.C. as a main charge.

14. This Court has also considered the judgment of the Supreme Court in the case of Jasvinder Saini (Supra). In the said case, the facts were also similar where the main charge was framed under Section 304B I.P.C. with Section 302 I.P.C. being as an alternative charge, the Court therein had also considered the provision of Section 216 of Cr.P.C. pertaining to alteration of the charge and also considered the fact that the Court has power to alter or add any charge is unrestrain provided such an addition or alteration is made before the judgment is pronounced.

15. It further proceeded to specifically consider the issue which is engaging the attention of this Court in paragraph No. 15 of the said judgment and categorically finding was returned with regard to the issue that the alternative charge under Section 302 I.P.C. cannot be framed where the main charge is under Section 304B I.P.C. This Court finds that the facts of present case are squarely covered by the findings of the Supreme Court in the case of Jasvinder Saini (Supra) and accordingly there is no reason to defer with the findings recorded in the judgment therein.

16. This Court finds that the said law has been followed by this Court in Criminal Appeal No. 1667/2021 (Rammilan Bunkar Vs. State of U.P.) where reliance has been placed in the case of Jasvinder Saini (Supra) and also relied upon the judgmenbt in the case of Vijay Pal Singh Vs. and others Vs. State of Uttrakhand, (2014) 15 SCC 163.

17. In light of the above, the case is allowed. The impugned charges dated 13.12.2019 are set aside. The matter is remitted to the trial court to frame fresh charges in light of the directions of the Supreme Court as discussed hereinabove.

18. Let the said exercise be conducted expeditiously, say, within a period of six weeks from the date a certified copy of this order is produced before it and proceed to conduct and conclude the trial in accordance with the directions hereinabove.

(Alok Mathur, J.)

Order Date :- 7.2.2025/Ravi/-