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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH

[1] S.B. Criminal Revision Petition No.1312/2012

Mohd. Rafique Versus State of Rajasthan

[2] S.B. Criminal Revision Petition No.1237/2012

Shokat Panwar Versus State of Raj. & Anr.

DATE OF ORDER : 22/01/2013

HON'BLE MR.JUSTICE M.N. BHANDARI

Mr. Arvind Kumar Gupta, for accused-petitioner

Mr. Laxman Meena, P.P., for State

Mr. Pankaj Gupta

]

Mr. Sheetanshu Sharma for

] for respondent-complainant

Mr. Swadeep Singh Hora

]

***

By this petition, a challenge is made to the order

framing of charges for offence under Sections 498-A, 304-

B alternatively 306, 406 IPC.

Learned Counsel for accused-petitioner submits that

a case for framing charges u/s.304-B is not made out. The

trial court committed illegality while holding that only prima

facie case is to be looked into at the stage of framing of

charges. It was in ignorance of law laid down by Hon'ble

Apex Court and by this court that charges should be

framed for offence having possibility of conviction prima

facie. The court below thus ignored settled law while

framing charges and looked into only prima facie case. It is

even in ignorance of required ingredients of Section 304-B

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IPC. A case u/s.304-B IPC is made out if the requirements

are satisfied, which is to be after considering even

Explanation of Section 304-B of IPC where reference of

Section 2 of Dowry of Prohibition Act (in short “the Act”) is

given.

Referring to two suicidal notes and other documents,

learned Counsel submits that no allegation for demand of

dowry exists. The definition of “Dowry” under Section 2 of

the Act is also referred to indicate that there has to be

agreement between the parties at the time of marriage and

pursuant to it, demand of dowry. The material produced

along with charge sheet does not confirm requirement of

aforesaid provision. It is apart from the fact that there is no

cruelty or harassment soon before the death. The trial

court mechanically framed charges for offence u/s.304-B

IPC. The court even ignored the statements of witnesses

favourable to the accused-petitioner. In view of the above,

the petitioner should have been discharged for offence

u/s.304-B IPC. The same is position for offence u/s.406

IPC. The trial court framed charges ignoring that stridhan

was returned to the complainant party thus offence u/s.406

was not made out, yet framed. In the same manner,

offence u/s.498-A IPC was not made out.

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Learned Counsel further argued that charge u/s.304-

B and alternative Section 306 was framed ignoring the

material evidence available on record. If evidence collected

by the prosecution is taken note of coupled with cause of

death, no charge against petitioner is made out,

accordingly, petitioner should be discharged by setting

aside the impugned order.

Learned Counsel for non-petitioner-complainant

opposing revision petition filed by the accused, Mohd.

Rafique and pressing his own revision petition, submits

that charge against accused has rightly been framed for

offence u/ss.498-A, 406 & 304-B IPC, alternatively 306

IPC. The charges should have been framed further u/s.302

IPC. It is looking to the material available on record. The

court failed to take into consideration supplementary

charge sheet filed by prosecution for offence u/s.201 IPC.

The court failed to consider that many pages of diary were

found either unavailable or in torn condition. It was apart

from missing of memory card of I-pod and tampering of

handy cam apart from tampering suicidal note. In view of

tampering of evidence, a case u/s.201 is made out apart

from 302. The material evidence to show cruelty and

harassment by petitioner-accused was dis-appeared by

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them. The I-pod however shows picture and statement of

the deceased showing cruelty and torture by the accused.

She received many injuries almost 20 days prior to the

occurrence