Rajasthan High Court - Jodhpur

Vijai Kumar vs State Of Rajasthan on 28 March, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 49/2019

1. Vijai Kumar S/o Shri Pusa Ram, Aged About 56 Years, By Caste Jat, Resident Of Ward No. 14, Bohron-Ka-Bas, Parbatsar, District Nagaur. (Jeth/elder Brother-In-Law)

2. Ashwani Kumar S/o Shri Pusa Ram, Aged About 39 Years, By Caste Jat, Resident Of Ward No. 14, Bohron-Ka-Bas, Parbatsar, District Nagaur. (Devar/elder Brother-In-Law)

3. Pawan Kumar S/o Shri Pusa Ram, Aged About 43 Years, By Caste Jat, Resident Of Ward No. 14, Bohron-Ka-Bas, Parbatsar, District Nagaur. (Devar/elder Brother-In-Law)

----Petitioners Versus

1. State Of Rajasthan, Through Pp

2. Nanu Ram S/o Shri Gopal Ram, By Caste Jat, Resident Of Nimbadi, P.s. Parbatsar, District Nagaur.

                                                                   ----Respondents


For Petitioner(s)           :     Mr. Suresh Kumbhat
For Respondent(s)           :     Mr. Mukesh Trivedi, P.P.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

28/03/2022

1. In the wake of instant surge in COVID - 19 cases and spread

of its highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in the Court, for the safety

of all concerned.

2. This criminal revision petition under Section 397 read with

Section 401 Cr.P.C. has been preferred claiming the following

reliefs:

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"a) the impugned Order dated 15.12.2018 framing the charges against the petitioners be quashed and set aside in the interest of justice; and

(b) any consequential and/or other order(s) may be passed in favour of Petitioners, which the Hon'ble Court deems fit in the interest of justice."

3. Learned counsel for the petitioners submits that vide the

impugned order passed by the learned court below, charges were

framed against the petitioners for the offences under Sections

498A and 302/34 I.P.C.

4. Learned counsel for the petitioners further submits that the

F.S.L. report, which was generated in relation, amongst others,

the viscera of the deceased victim, liquid vomited by her and her

clothes, upon the same being sent for examination to ascertain

whether the death of the victim occurred due to ingestion of

poison, or not. And that, despite a negative F.S.L. report, the

learned Court below framed charges against the petitioners, in

clear violation of the directions of this Hon'ble Court.

5. Learned counsel for the petitioners also submits that the

two issues, which fall for consideration before this Court are

(i) whether the learned Court below was justified in passing the

impugned order, whereby certain charges were framed against the

petitioners, and; (ii) whether the said order suffers from any legal

infirmity, on the count that the case at hand was remanded back

twice by this Hon'ble Court vide order dated 01.04.2013 passed in

S.B. Criminal Revision Petition No.928/2012 (while referring to the

earlier order passed by this Hon'ble Court on 03.08.2011 passed

in S.B. Criminal Revision Petition No.442/1999), with a crystal

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clear direction to consider the case afresh and pass a reasoned

order on the question of framing of charges after providing

appropriate opportunity of hearing to the concerned parties.

Learned counsel also submits that vide the aforesaid order dated

03.08.2011, the matter was remanded back to the learned trial

court concerned with a specific observation and direction that the

learned trial court shall consider the question of framing of

charges against the petitioners afresh after taking into account the

effect of the FSL report.

6. Learned counsel for the petitioners further submits that the

learned court below, has not taken into consideration the relevant

evidence placed on record before it; such adjudication did not give

due weightage to the F.S.L. report and the testimony of Dr.

Pradeep Sharma, the Medical Officer concerned.

7. Learned counsel for the petitioners placed reliance on the

following judgments:-

7.1 Union of India Vs. Prafulla Kumar 1979 Cr.L.J. 154

wherein the Hon'ble Apex Court held as under:-

"That the Judge while considering the question of framing the charges 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.

The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and largo 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.

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7.2    Kaushal Singh and Ors. Vs. State of Bihar 1998 (1) BLJ

52 (Patna H.C.) wherein the Hon'ble Division Bench observed as

under:-

"From the aforesaid evidences of the prosecution witnesses it appears that the prosecution has failed to prove its case beyond all shadow of reasonable doubt and failed to produce any cogent evidence on the point that the deceased Sulekha Devi died due to poisoning. From the facts stated above, it is clear that there is no eye-witnesses of the occurrence. Moreover, the witnesses examined have also not stated from whom they heard about the occurrence. It also appears that the informant did not go to the Police Station for lodging the information but it is not clear how the Police reached the place of occurrence, and where about of the accused persons at the time. Admittedly, the father and brothers of the deceased (P.W. 2, P.W. 1 and P.W. 3) reside at a distant place. But no neighbour who could throw light on the occurrence have been examined. There P.Ws. have also not stated from whom they learnt about the occurrence. No person in this connection have also been examined.

The learned Counsel appearing on behalf of the appellant submitted that admittedly no viscera examination report was received, till the Police submitted charge-sheet. The learned Counsel for the appellants referred in a decision of the Supreme Court in Bhupendra Nath Prasad v. The State of Bihar reported in MANU/SC/0066/1993 : 1992 (2) PLJR 45 (SC) and submitted that in the aforesaid case also viscera examination report was not received. The Apex Court In the above case held that in a criminal case the cause of death has to be ascertained conclusively. As already noted the postmortem report does not in any manner establish the same. It was further observed that the viscera was preserved for chemical examination but the report was not submitted. The Doctor who conducted the post-mortem examination did not express any opinion of the exact cause of death, thence, it was concluded that the accused was found not guilty and his conviction and sentence was set aside. The learned Counsel submits that in the present case also viscera was preserved

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for chemical examination but no report was received. Placing reliance on the aforesaid decision of the Supreme Court in this case also, the learned Counsel for the appellants submitted that the fact that the deceased died due to poisoning has not been properly established. The prosecution has also failed to produce any satisfactory evidence either oral or documentary to establish the tract that the accused persons committed murder of the deceased by administering poison.

It is very unfortunate that in this case not only the investigation has not been conducted in a proper manner but the trial has equally been conducted unsatisfactorily. All the witnesses as mentioned in the charge-sheet have also not been examined specially the neighboured who were the most important persons to say about any cruelty inflicted on the deceased or not."

7.3 Vimla Devi and Ors. vs. State of U.P. and Ors. 2007 (1)

Crimes 618 (All.) wherein the Hon'ble Allahabad High Court held

as under:-

"According to the post-mortem report the doctors could not ascertain the cause of death. hence, viscera was preserved. She further submitted that according to viscera report no poison was found in the viscera. She submitted that in this way it is a clear cut case of natural death and so no offence under Section 304B, I.P.C. was made out. I agree with this contention. When no mark of any injury was found on the dead body and it was also not a case of poisoning, death of Suman Devi shall be considered to be a case of natural death, though it had taken place within the period of seven years from the date of her marriage and there is evidence to this effect also in the case diary that she was being subjected to cruelty in connection with demand of dowry, but since her death was natural, no case under Section 304B, I.P.C. is made out against the accused persons and the application under Section 482, Cr. P.C. deserves to be allowed to the extent of deletion of the charge under Section 304B, I.P.C."

                                            (6 of 12)                [CRLR-49/2019]


7.4    Harishchandra Prasad Mani and Ors. Vs. State of

Jharkhand and Ors. (2007) 15 SCC 494, relevant portion of

which reads as under:-

" The complainant has alleged that Rajnish Kumar was killed by poisoning, but there is no iota of material that any poison was administered to Rajnish Kumar. There is nothing in the medical evidence showing that the dead body of Rajnish Kumar had any poisoning in it. It appears that Rajnish Kumar had vomited in the hospital when he was admitted, but the Police did not take any sample of the vomit for sending it to some laboratory for chemical analysis where it could have been established whether he had been given any poison. It appears to us that cognizance has been taken on pure conjectures and surmises.

In the present case, there is not even an iota of material indicating the guilt of the accused persons. It is true that at the stage of taking cognizance adequacy of evidence will not be seen by the Court, but there has to be at least some material implicating the accused, and cognizance cannot be taken merely on the basis of suspicion as it appears to have been done in the present case. To take a contrary view would only lead to harassment of people."

7.5 Atul Gupta Vs. State 2019 (2) RLW 1560 (Raj.) wherein

a Coordinate Bench of this Hon'ble Court observed as under:-

" ...only an apprehension is reflected that accused Atul Gupta and his father and mother have administered some poisonous/ obnoxious substance to Anjali on account of which she died. No cogent evidence has come out in their statements that when and in what manner, such poisonous substance was administered to Anjali.

But the son and daughter of deceased namely Shubhra and Mohak, who were present in the house where the death of Anjali took place, even they have not deposed about any incriminating evidence against the accused to have

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administered any obnoxious/poisonous substance to Anjali. They have not even stated about the instigation of accused to their mother to have consumed such substance. On the contrary, they have narrated that no quarrel took place between these parents prior to death of Anjali."

7.6 Aehsan Mohd. @ Amir Khan Vs. State of Rajasthan and

Anr. S.B. Criminal Revision No. 60/2018 (Raj.) wherein a

Coordinate Bench of this Hon'ble Court observed as under:-

"In the present case, from a bare perusal of the impugned order, it is apparently clear that the learned trial Court has not at all cared to examine the material available on record including the site-plan and variance in allegations of FIR, police statements of the prosecutrix and her statements recorded under Section 164 Cr.P.C. while framing charge for offences under Section 457 and 376/511 IPC. I am at loss to say that there is no whisper in the impugned order showing satisfaction of the learned trial Court about strong suspicion against the accused petitioner for commission of these offences. Moreover, vis-a-vis these offences, learned trial Court has not made any endeavour for considering the record in the light of Section 227 Cr.P.C. with intent to merely shift the evidence so as to find out whether or not there is sufficient ground for proceeding against the accused-petitioner."

7.7 Bhagirath and Ors. Vs. State 1999 Cr. L.R. [Raj.] 105 :

99 (1) RCC 502, relevant portion of which reads as under:

"3---- llqjky okyksa us mls Hkkstuk esa tgj nsdj ekj fn;k gSA bl fjiksVZ ds i'pkr~ vuqla/kku izkjEHk fd;k x;k gSA nsodh dk 'ko ijh{k.k esfMdy cksMZ ds }kjk fd;k x;kA esfMdy cksMZ dh jk; ds vuqlkj e`R;q dk dkj.k lkal izfØ;k ds vo:) gksus ls ne ?kqVus ds dkj.k gksuk crk;k x;k gS tIr 'kqnk foljk oxSgjk dks jlk;fud ijh{k.k gsrq fof/k foKku iz;ksx'kkyk Hkstk x;kA tgj gksuk ugha ik;k x;kA ----- ogka ij tgj [kkus ds dksbZ vykekr ugha feys vkSj mYVh oxSgjk gksuk ugha ik;k x;k ysfdu vuqla/kku ls ;g Kkr gqvk fd loZizFke nsodh dh rfc;r fcxM+us ij mls

(8 of 12) [CRLR-49/2019]

dVkfj;k vLirky ys tk;k x;k FkkA MkWDVj dVkfj;ka ds c;ku esa ;g rF; vk;k gS fd nsodh dks ysdj muds ikl vk;s FksA ----

4---- vfHk;ksxh o dqN xokgksa us ;g dgus dk iz;kl fd;k gS fd nsodh dks tgj fn;k x;k Fkk ysfdu bl ckr dh iqf"V vuqla/kku ls ugha gqbZ gSA vfHk;ksxh dh f'kdk;r ij bl izdj.k dk iqu% vf/kdkfj;ksa ds }kjk cny&cny dj vuqla/kku fd;k x;k ysfdu leLr rF;ksa ds vk/kkj ij ;g lkekU; e`R;q ekuh x;h vkSj vfUre fjiksVZ nh xbZA "

8. On the other hand, learned Public Prosecutor submits that

the learned court below had passed the impugned order, while

taking into consideration the relevant eye-witness testimony and

in accordance with judicial precedent laid down by the Hon'ble

Apex Court; moreover, the learned court below, has framed the

charges, for which no in-depth inquiry of the evidences is

required.

9. Heard learned counsel for the parties and, perused the

record of the case and the judgments cited at the Bar.

10. This Court, at the outset, takes note of the fact that the case

at hand was remanded back twice, by this Hon'ble Court to the

learned Court below. The first instance being, vide order dated

03.08.2011, whereby this Court, in S.B. Criminal Revision Petition

No.442/1999, directed the learned court below to decide the

matter afresh after considering the effect of the F.S.L. report. And

then again, this Hon'ble Court, vide order dated 01.04.2013, in

S.B. Criminal Revision Petition No.928/2012 remanded the matter

back to the learned Court below, with an observation that the

learned court below has not given any consideration whatsoever

to the effect of the viscera report, and that the case requires

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passing of a reasoned order afresh, as mentioned hereinabove.

Vide the said order dated 01.04.2013, this Hon'ble Court also

observed that due compliance of the earlier order dated

03.08.2011 was also not made.

11. It is clear that on both counts, the sole reason for remanding

the matter back to the learned Court below was the non-

consideration of the F.S.L. report of the deceased victim, which

shows that she did not die from ingestion of poison, and that the

learned court below pass did not pass the earlier orders of framing

of charges, while taking into due consideration the said F.S.L.

report.

12. However, the order impugned in the present revision petition

has taken into due consideration the F.S.L. report of the deceased

victim, and thus, the same is a speaking and detailed order in

regard to framing of charges against the accused-petitioners.

13. This Court observes that the impugned order was passed

after analyzing a catena of case laws, on role of the Court at the

stage framing of charge, the underlying ratio decidendi of which

outlines that during the stage of framing of charge, the Court is

not required to go into a fishing and roving inquiry, and may frame

charges on sufficient grounds for proceeding against the accused

person(s), only on the basis of the documents and evidences

brought before the Court by the police.

14. This Court further observes that the learned Court below,

vide the impugned order, has also recorded reasons for proceeding

to frame charges against the accused-petitioners, after taking into

consideration the F.S.L. report, which states that after a chemical

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examination of the deceased victim, tests for metallic poisons,

ethyl and methyl alcohol, cyan alkaloids, barbiturates,

tranquilizers and insecticides, were negative.

15. The learned Court below has rightly appreciated and placed

ocular/oral evidence at a higher pedestal than the medical

evidence. In doing so, it derived strength from the case laws

rendered in Akilan Vs. State 2016 SCC OnLine Mad 25476,

Arjun Naik Vs. State of Orissa, 2002 Cri. LJ 2785 and

Darbara Singh Vs. State of Punjab, AIR 2013 SC 840; the

underlying principle in each being that if the medical and oral /

ocular evidence is contradictory or conflicting with each other, only

the oral / ocular evidence will prevail. Moreover, in Darbara

Singh (supra) the Hon'ble Apex Court held that unless the oral

evidence is totally irreconcilable with the medical evidence, the

oral evidence would have primacy.

16. This Court is also conscious of the decision laid down by the

Hon'ble Apex Court in Pruthviraj Jayantibhai Vanol Vs. Dinesh

Dayabhai Vala and Ors. (Criminal Appeal No. 177 of 2014

decided on 26.07.2021), wherein the following was observed:

"Ocular evidence is considered the best evidence unless there are reasons to doubt it. It is only in a case where there is a gross contradiction between medical evidence and oral evidence, and the medical evidence makes the ocular evidence improbable and rules out all possibility of ocular evidence being true, the ocular evidence may be disbelieved."

17. Furthermore, this Court, in light of the above made

observations, finds that owing to the peculiar facts and

circumstances in the present case, where there is substantial

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ocular and oral evidence, especially the testimony of the

deceased victim's sister, is sufficient to overlook the medical

evidence in the form of the F.S.L. report.

18. Moreover, the trial before the learned Court below, is

only at the stage of framing of charges, wherein charges may

be framed while proceeding on the basis of sufficient grounds,

against the accused persons and even on the basis of a strong

suspicion by the Court.