Orissa High Court
Afr Dillip Kumar Agarwal @ vs State Of Odisha And Others on 31 January, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 12 of 2022
An application under section 397 of the Code of Criminal Procedure,
1973 challenging the order dated 18.11.2021 passed by Additional
Sessions Judge, Rairangpur in S.T. No. 17 of 2018.
---------------
AFR Dillip Kumar Agarwal @
Agarwalla ...... Petitioner
-Versus-
State of Odisha and others ..... Opp. Parties
Advocate(s) appeared in this case :-
_______________________________________________________
For Petitioner : M/s. Kishore Kumar Mishra,
B.R. Behera, N.A. Kulraj & A. Baral,
Advocates
For Opp. Parties : Mr. S.K. Mishra,
Addl. Standing Counsel
[for O.P. No.1]
Mr. B.N. Mohapatra, Advocate
[for O.Ps. No.2 to 5]
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
st
31 January, 2022
SASHIKANTA MISHRA, J.
The present revision is directed against the order dated
18.11.2021 passed by learned Additional Sessions Judge, Rairangpur
in S.T. Case No. 17 of 2018, whereby, the petition filed by the
petitioner- informant for alteration of charge under Section 216 of
Cr.P.C. was rejected.
2. Sans unnecessary details, the facts of the case are that
the petitioner lodged an FIR on 13.01.2018 before the Rairangpur
Town Police Station alleging that his daughter, who was given in
marriage to opposite party no.3 on 28.04.2015, was subjected to
constant physical and mental cruelty by him and the other accused
persons, who are her in-laws. It was further alleged that the opposite
party no.2, who is the father-in-law, used to commit rape on his
daughter-in-law and when she tried to complain, her husband
questioned the paternity of their six months' old son and also
threatened to kill the child. The victim thereafter narrated the
incident to her brother and sister-in-law over phone as well as by
sending messages on whatsapp. On 12.01.2018, the petitioner
received a phone call from opposite party no.2 that his daughter had
been admitted to the hospital with 90% burn injuries. On the next
day, i.e. on 13.01.2018, at about 11.20 p.m. the victim succumbed to
her injuries. In the meantime on 13.01.2018 at about 5 a.m., the
petitioner-informant lodged the FIR which came to be registered as
Rairangpur Town P.S. Case No.6 of 2018 corresponding to G.R.
Case No. 21 of 2018 of the Court of learned S.D.J.M., Rairangpur
for the offences under Sections 498-
A/307/376(2)(f)/376(2)(n)/506/201/34 IPC. After completion of
investigation, police submitted charge sheet against the father-in-law
(opposite party no.2) under Sections 498-
A/307/376(2)(n)/506/201/34 IPC and against other accused persons
under Sections 498-A/306/201/34 IPC. Learned S.D.J.M.,
Rairangpur vide order dated 17.03.2018 however took cognizance of
the offences under Sections 498-A/302/376(2)(f)(n)201/34 of IPC
against the father-in-law (opposite party no.2) and under Sections
498-A/302/201/34 IPC against the other accused persons.
Challenging such order of cognizance, the accused persons
approached this Court by filing CRLMC No. 329 of 2019 and
CRLMC No. 367 of 2019, both of which were dismissed vide
common order passed by this Court on 13.10.2020. Subsequently,
the case was committed to the Court of Addl. Sessions Judge,
Rairangpur for trial being numbered as S.T. Case No. 17 of 2018.
Considering the materials on record, the learned Addl. Sessions
Judge framed charge under Sections 498-A/ 376(2)(f)(n)/306/201/34
of IPC against the father-in-law (opposite party no.2), under Sections
498-A/306/201/34 of IPC against the husband (opposite party no.3)
and under Sections 306/201/34 of IPC against the other accused
persons. In other words, no charge under Section 302 of IPC was
framed despite cognizance being taken of the said offence. The
petitioner-informant having been permitted to appear in the case
through his counsel, challenged the order framing charge in
CRLREV No.235/2021 before this Court, which was disposed of
vide order dated 09.08.2021 by passing the following order:
"1. This matter is taken up through Hybrid mode.
2. Heard learned counsel for the petitioner.
3. The petitioner, who is the informant in this case, has
challenged the order 8.3.2021 passed by the learned
Addl. Sessions Judge, Rairangpur in S.T. No.17 of 2018
not to frame the charge under Section 302 IPC against
the accused persons and discharge them from the said
offence though the cognizance of the said offence has
been taken.
4. Since the court has jurisdiction to alter the charge at
any stage of the proceeding and during the course of
trial, if any evidence is brought to the notice of the trial
court indicating the fact that prima facie materials are
there under Section 302 IPC, liberty is given to the
petitioner to bring to the notice of the trial court at that
very moment for alteration of charge and in that event,
the trial court shall decide the same in its own merit
than without being influenced by any of the
observations made but by the evidence on the record in
the interlocutory proceeding, this Court disposes of the
Criminal Revision of the petitioner.
5. Urgent certified copy of this order be granted on
proper application."
Pursuant to such order of this Court, the petitioner filed an
application under Section 216 of Cr.P.C. in the court below on
08.11.2021 with a prayer to add charge under Section 302 of IPC
against the accused persons. Said petition was rejected vide order
dated 18.11.2021, which is impugned in the present revision.
3. Heard Mr. Kishore Kumar Mishra, learned counsel for
the petitioner-informant, Mr. S.K. Mishra, learned Addl. Standing
Counsel for the State and Mr. B.N. Mohapatra, learned counsel
appearing for opposite parties no. 2 to 5.
4. Referring to the petition filed by the informant under
Section 216 of Cr.P.C., which is enclosed as Annexure-6 to the
Revision Petition, Mr. Kishore Kumar Mishra has contended that the
so called dying declaration recorded by the I.O., which purportedly
suggests a case of suicide by the deceased, is not at all free from
doubts and moreover the same contradicts the I.O.'s own
endorsement made in the inquest report regarding cause of death. It
is further contended that the father (P.W.-30) and mother (P.W.-27)
of the victim have categorically deposed that when they had met
their daughter while she was undergoing treatment at Jamshedpur
Hospital, she had clearly stated that her father-in-law had been
raping her and since she shared such messages with her brother and
sister-in-law, the accused persons after coming to know of the same
set her on fire with an intention to kill her. According to Mr. Kishore
Kumar Mishra, the uncontroverted testimony of the father and
mother of the deceased as above, prima facie gives rise to grave
suspicion regarding commission of the offence of murder and not
suicide as claimed by the I.O.. It is therefore, contended by Mr.
Mishra that this much is sufficient to add charge under Section 302
of IPC but learned court below made a roving enquiry and tried to
determine the probative value of the evidence thereby, prejudging
the trial itself. It is also contended by Mr. Mishra that the detailed
observations made by learned court below with regard to
maintainability or otherwise of the electronic evidence are entirely
unwarranted, premature and seriously prejudices the case of the
prosecution.
5. Mr. Sangram Keshari Mishra, learned Addl. Standing
Counsel fairly submits that even at the time of addition or alteration
of charge as envisaged under Section 216 of Cr.P.C., the Court is not
required to examine the probative value of the evidence adduced
before it, but only to determine whether there are materials prima
facie to presume the commission of the offence in question. Having
submitted so, it is nevertheless contended by Mr. Mishra that the I.O.
cannot be expected to be partial to any party and in the instant case,
there are adequate materials on record to show that the I.O. had acted
with due promptitude and diligence in securing the electronic
evidence suggesting commission of suicide by the deceased.
6. Mr. B.N. Mohapatra has supported the impugned order
by submitting that learned court below has discussed the pros and
cons of the case in detail duly considering the rival contentions put
forth by the parties and therefore, the impugned order cannot be
faulted with in any manner whatsoever. It is further submitted that
apart from the evidence of the father and mother there is nothing on
record to even remotely suggest that the offence under Section 302
was committed by the accused persons and on the contrary, there is
foolproof evidence that the deceased had poured kerosene and set
herself on fire. It is also contended by Mr. Mohapatra that the
evidence of the father and mother of the deceased being on the face
of it not believable, learned Court below has rightly rejected the
same and therefore, no interference whatsoever is warranted.
7. Before adverting to the facts of the case, a brief
discussion on the relevant position of law would be apposite. There
is no dispute that the charge can be altered at any stage of the
proceeding as provided under Section 216 of Cr.P.C. This Court in
CRLREV No. 325 of 2021 as per the order quoted hereinbefore,
granted liberty to the petitioner-informant to move the trial Court for
alteration of the charge specifically directing the Court below to
decide the same basing on the 'evidence on record'.
'Evidence on record' in the present context, obviously
means consideration of the evidence on its face value to see whether
a prima facie case is made out or not and not to determine the
probative value thereof as is done to finally decide whether the
accused is guilty or not.
8. In the case of Hasanbhai Valibhai Qureshi vs. State of
Gujarat, reported in (2004) 5 SCC 347, the Hon'ble Supreme Court
held that if during trial the trial court on 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, and there can be no legal bar
to appropriately act as the exigencies of the case warrant or
necessitate. Therefore, it is clear that the Court can exercise the
power of addition or modification of charges under Section 216 of
Cr.P.C., only when there exists some material before it, which has
some connection or link with the charges sought to be amended,
added or modified.
9. Examined in the light of the above legal propositions,
this Court finds that the point to be decided in this case hinges
around the question as to whether the deceased committed suicide or
was murdered by the accused persons. The prosecution has led
evidence in the form of the I.O. (P.W.-46) that at the time of initial
treatment of the deceased at SDH, Rairangpur on the date of
occurrence, i.e., on 22.01.2018 she stated before her that she poured
kerosene over her body and set fire in order to commit suicide but
did not disclose the cause of suicide or from which source she
procured kerosene. The prosecution has also examined the father and
mother of the deceased as already stated, both of whom testified that
when they went to meet the victim while she was being treated at the
Hospital in Jamshedpur, she stated before them of being raped by her
father-in-law and that as she intimated the matter through Whatsapp
to her brother and sister-in-law, the accused persons after coming to
know about the same, collectively set fire to her. Thus, on the face of
it, there are two views as regards the cause of death of the deceased.
Though it has been argued at length by learned counsel for the
petitioner that the I.O's testimony cannot be accepted because of
non-compliance of the provision under Section 65-B of the Indian
Evidence Act as also due to the fact that there is an unexplained
delay of about six months in sending the purported statement
recorded by the I.O. on her mobile phone to the SFSL, this Court is
of the view that it is a matter to be considered by the trial Court at
the appropriate stage as any observation made by this Court may
amount to influencing the decision of the trial Court. This Court
therefore considers it just and proper to make only a prima facie
assessment of the evidence on record to see whether a case for
alteration/addition of charge is made out or not.
10. As already stated hereinbefore, the father and mother of
the victim have clearly deposed that the accused persons collectively
set fire to her with an intention to kill her. Significantly, these highly
relevant statements have not been taken in contradiction during
cross-examination by the defence. Further, in the FIR lodged at 5.00
a.m. on 13.01.2018, the informant has clearly alleged that his
daughter revealed before him and his wife at TMH, Jamshedpur that
as she had communicated about the misdemeanours of her in-laws
through whatsapp messages, they had attempted to kill her by
pouring kerosene and setting her on fire. The whatsapp messages
referred to by the witnesses have also been seized by Police and the
concerned seizure list has been admitted into evidence. In the inquest
report, copy of which has been enclosed as Annexure-9 to the
Revision Petition, the I.O. has stated as follows:
"The cause of death of deceased appears as reported
by the complt. as due to pouring of kerosene and
setting of fire."
The inquest was held on 14.01.2018 in between 1 p.m. to 2.05 pm.
So if the deceased had stated before the I.O. on the date of
occurrence itself i.e. on 12.01.2018 at S.D.H., Rairangpur that she
had poured kerosene and set herself on fire, it is not understood as to
why the I.O. did not mention the same under the column of the
inquest report meant for recording his opinion as to cause of death
and instead chose to mention the cause as reported by the
complainant. So taking a broad view of the evidence already on
record as discussed above, the existence of at least materials to
presume that the accused persons had committed murder of the
deceased cannot simply be ignored. Of course this Court would
hasten to add that the above observation may not be treated as a
finding of guilt against the accused persons because the same would
entirely depend upon appreciation of the probative value of such
evidence by the trial Court after conclusion of the trial.
11. In this context, reference to a recent decision of the
Apex Court rendered in the case of Dr. Nallapareddy Sridhar Reddy
vs. The State of Andhra Pradesh and others reported in (2020) 12
SCC 467 would be in order. In the said case, the Apex Court have
held as under"
"22. The appellant has relied upon a two-Judge Bench
decision of this Court in Onkar Nath Mishra v. State (NCT
of Delhi) (2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] to
substantiate the point that the ingredients of Sections 406
and 420 IPC have not been established. This Court while
dealing with the nature of evaluation by a court at the
stage of framing of charge, held thus :
"11. It is trite that at the stage of framing of
charge the court is required to evaluate the
material and documents on record with a
view to finding out if the facts emerging
therefrom, taken at their face value, disclosed
the existence of all the ingredients
constituting the alleged offence. At that stage,
the court is not expected to go deep into the
probative value of the material on
record. What needs to be considered is
whether there is a ground for presuming that
the offence has been committed and not a
ground for convicting the accused has been
made out. At that stage, even strong
suspicion founded on material which leads
the court to form a presumptive opinion as to
the existence of the factual ingredients
constituting the offence alleged would justify
the framing of charge against the accused in
respect of the commission of that offence."
(emphasis supplied)
25. The veracity of the depositions made by the witnesses
is a question of trial and need not be determined at the
time of framing of charge. Appreciation of evidence on
merit is to be done by the court only after the charges have
been framed and the trial has commenced. However, for
the purpose of framing of charge the court needs to prima
facie determine that there exists sufficient material for the
commencement of trial. The High Court has relied upon
the materials on record and concluded that the ingredients
of the offences under Sections 406 and 420 IPC are
attracted. The High Court has spelt out the reasons that
have necessitated the addition of the charge and hence, the
impugned order does not warrant any interference."
12. Coming to the impugned order, this Court is constrained
to observe that learned Court below has dealt with the matter from
an entirely different approach and has also delved deep into the
evidence, to determine its probative value, which was absolutely not
required and has ended up making certain observations which may
amount to prejudging the trial itself. In particular, the observations
made by learned Court below to test the veracity of the evidence of
the father and mother of the deceased (P.Ws. 30 and 27) are entirely
unwarranted and unnecessary. Similarly, the observations with
regard to admissibility of the electronic evidence to conclusively
hold that there has not been any manipulation of the videograph of
the statements of the deceased also amounts to prejudging the trial.
In fact, the learned Court below has even gone to the extent of
holding that "there is nothing to disbelieve the oral evidence of the
I.O. that the deceased had given an oral dying declaration before her
stating therein that she has poured kerosene and then set her fire to
herself in order to commit suicide". Similarly, learned Court below
after making a detailed dissection of the evidence of P.Ws. 27 and 30
has observed -"therefore, in view of the discussions made above,
prima facie it has to be held that evidence of both P.W. 27 and
P.W.30 are not believable to add charge under Section 302/34 of
IPC". All these observations were entirely unwarranted and not
required to be made while dealing with the application under Section
216 of Cr.P.C.
13. It is stated at the cost of repetition that the only thing the
Court should have looked into is the existence or otherwise of
evidence to draw a presumptive opinion regarding commission of
the offence under Section 302 IPC without undertaking an exercise
to determine the veracity of the evidence of the I.O. and P.Ws.27 and
30. The same is required to determine whether the accused persons
are guilty of the alleged offence or not but not at the stage of
addition/alteration of charge. At this stage, the only thing required to
be seen by the Court is if the materials on record have a direct link or
nexus with the ingredients of the alleged offence. On the contrary, it
is seen that learned court below did not assess the evidence of P.Ws.
27 and 30 in the proper perspective having regard to the fact that
they had made identical allegation at the earliest possible
opportunity, that is, in the FIR. Further, the fact of seizure of the
whatsapp messages as also the endorsement of the I.O. in the inquest
report also ought to have been considered by learned Court below.
14. For the forgoing reasons therefore, this Court finds that
the reasoning adopted by the learned Court below is erroneous and
hence, not acceptable. As has already discussed hereinbefore, the
evidence on record is sufficient to form a presumptive opinion
regarding commission of the offence under Section 302 of IPC
against the accused persons and therefore, in the considered view of
this Court, addition of the charge under the said offence is
warranted.
15. In the result, the impugned order is set aside. Learned
Court below is directed to add charge under Section 302 of IPC. It is
needless to mention that in doing so, learned Court below shall adopt
such procedure as is envisaged under Section 216 of Cr.P.C. before
proceeding further. It is made clear that any observation made in this
order shall not influence the trial Court while finally deciding the
case.
As the restrictions due to resurgence of Covid-19
situation are continuing, learned counsel for the parties may utilize a
printout of the order available in the High Court's website, at par
with certified copy, subject to attestation by the concerned advocate,
in the manner prescribed vide Court's Notice No. 4587, dated 25th
March, 2020, modified by Notice No. 4798, dated 15th April, 2021,
and Court's Office Order circulated vide Memo Nos. 514 and 515
dated 7th January, 2022.
..........................
Sashikanta Mishra,
Orissa High Court, Cuttack, Judge
The 31st January, 2022/ A.K. Rana
