A charge under Section 304B IPC cannot substitute for a murder charge under Section 302 IPC; the main charge must reflect the evidence available.

JUDGMENT

Raj Beer Singh, J.

This application under Section 482 CrPC has been preferred against the order dated 5.6.2024, passed by learned Session Judge, Rampur in S. T. No. 297 of 2022 (State v. Narendra Pal and others), under Sections-498-A, 304- B IPC and Sections-3/4 of D. P. Act, Police Station-Khajuria, District-Rampur, whereby it was directed that alternative charge under Section 302/34 IPC be also framed against the accused / applicants.

2. Heard learned counsel for the applicants and learned AGA for the State and perused the record.

3. Perusal of record shows that the applicants / accused are facing trial in the aforesaid case. On 28.11.2022 the trial Court framed charges against them for offence under Sections 498-A, 304-B IPC and Sections-3 / 4 of D. P. Act. It appears that during trial the public prosecutor has moved an application stating that in post-mortem report, cause of death of deceased has been shown asphyxia as a result of ante-mortem throttling and the autopsy surgeon has already been examined during trial as PW 5 and thus, charge under Section 302/34 IPC be also framed against accused-applicants in alternative to the aforesaid charges. It appears that said application was allowed by the trial Court vide order dated 5.6.2024 and it was directed that alternative charge under Section 302/34 IPC be also framed against accused persons.

4. The main contention of learned counsel for the applicants is that in such matter charge under Section 302 IPC can not be framed in alternative to charge of Section 304B IPC and thus, impugned order is against law and therefore, liable to be set aside. In support of his contention, learned counsel has placed reliance upon following case laws:-

i. Jasvinder Saini v. State (Govt. of NCT of Delhi) (2013) 7 SCC 256

ii. (2001) 2 SCC 577 Shamnsaheb M. Multtani v. State of Karnataka

iii. State of Andhra Pradesh v. Cheemalapati Ganeswara Rao AIR 1963 SC 1850

iv. P. Kartikalakshmi v. Sri. Ganesh (2017) 3 SCC 347

v. Kalicharan v. State of UP (2023) 2 SCC 583; and

vi. Ram Varma v. State AIR 1956 All 466

5. Learned AGA submits that as the cause of death of death has been shown due to ante-mortem throttling, thus, the death of deceased is homicidal in nature and therefore, there is no illegality or perversity in framing charge under Section 302/34 in alternative to the charge under Section 304B IPC.

6. I have considered the rival submissions and perused the record.

7. The moot question involved in this matter is whether in aforesaid facts and circumstances during trial charge under Section 302/34 IPC can be framed as an alternative to the charge of Section 304B IPC. In Case of Jasvinder Saini (supra), Hon'ble Apex Court in paras 14 and 15 has held as under:-

"14. 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 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.

15. 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 f