K.S. Lodha, J.
1. This revision Under Section 397 and 401 Cr.P.C. has been directed against the order of the learned Sessions Judge, Jodhpur, dated 15-4-83 by which charges under various provisions of the Indian Penal Code have been framed against the accused petitioners with a prayer that the charges may be quashed.
2. The prosecution story briefly stated is that the accused Ashok, his father Kanmal, his sister Lalita and the other members of the family, were dissatisfied with the dowery brought by the deceased Smt. Hansa wife of Ashok and were, therefore, illtreating and torturing her to compel her to bring some more money and ornaments from her father. This resulted in Hansa's falling ill. She was got treated at the various dispensaries and hospital and was then taken to her brother's place. It was suspected that she may have been a victim of slow poisoning. Hansa is said to have been complaining against her-in-laws about the illtreatment meted out to her and had also written letters to her father in this respect. While Hansa was at her brother's house and was not still well, the accused persons are said to have insisted upon sending her back to their house and on her joining her duty (she was employed in Commercial Taxes Department), early. This was resisted by her brother Kailash Chand. Then on 24-4-81 Hansa was called by her-in-laws on the pretex that they wanted to go to Nakodaji and wanted her to accompany them there. However, they actually did not go to Nakodaji. The prosecution story further is that in the night between 27th and 28th April 1981. Hansa was burnt by the accused persons in pursuance of a conspiracy between them and Amrit Raj, brother of Kamal. On hearing Hansa's cries people collected and then she was taken to the hospital by Kamal and Lalita in a auto rickshaw driven by Ganpatlal Chauhan. Accused Asbok is said to have stayed back at home at that time. It is also alleged that Ashok had also received burnt injuries on his hands and other parts of the body. On the way to the hospital, Hansa is said to have stated eq>s tyk rks fn;k gS vc dgkW ys tk jgs gks A. On this Lalita is said to have placed her hand on her mouth in order to stop her from Saying anything further. It is also alleged that Kamal had also asked Hansa to say that she got burnt while lighting the stove. On Hansa's reaching the Mahatma Gandhi Hospital, the doctor on duty is said to have informed the police as it was a medicolegal case, on which the SHO, Mahamandir, Shri Harendra Singh reached the hospital and is alleged to have recorded Hansa's dying declaration in which she is alleged to have stayed that she accidentally got burnt while lighting the stove for heating water in order to take some medicine. This dying declaration is said to have been taken in the presence of Hansa's brother Kailash Chand and got signed by him though now Kailash is disputing the document on the ground that he was forced to sign this without being allowed to read it. Hansa succumbed to her burn injuries on 29-4-8 at about 5.30 P.M. Her brother Kailash Chand then made a report at the Police Station, Mahamandir alleging that it was not a case of accident but was a case of murder under a conspiracy between the accused persons is order to get rid of Hansa so as to enable Ashok to marry again.
3. Then investigations started initially by the SHO, Mahaminder, who reported that no case of murder was made out against any of the accused persons. Later investigations was also carried out by Padam Kala, Assistant Superintendent of Police and then by Shri Hari Singh, Deputy Superintendent of Police, CID, who were also of the same view How ever, investigations were again made by the Superintendent of Police, Special Investigation Branch (according to the accuser's learned counsel at the intervention of the Inspector General of Police at the instance of the complainant). As a result of this investigation, challan was filed against the accused persons and one Amrit Raj. After hearing the Public Prosecutor and the learned Counsel for the accused persons, the learned Sessions Judge, Jodhpur, discharged Amrit Raj but framed charges Under Section 302, 302/120 Band 201 IPC against Ashok and Under Section 302/120B and 201 IPC against Ksnmal and Lalita. It is in these circumstances that the accused persons have come up revision before this Court.
4. I have heard the learned counsel for the petitioners and the learned Public Prosecutor and have gone through the record.
5. The learned Counsel for the accused has contended that the prosecution story is wholly unbelievable. The prosecution witnesses have changed their statements from time to time before the different investigating authorities and the first three investigating officers found that no case of murder was made out, that Smt. Hansa herself had stated in her dying declaration that she accidently got burnt and she did not accuse any of her in laws or husband for this. Railash Chand himself who latter lodged the FIR signs this declaration. It was also contended that Hansa's letter also, if at all believable, would only show that some ill treatment was meted out to her but these letters do not prove any conspiracy to murder her. He further contended that the learned Sessions Judge should have weighed and sifted the evidence in order to find out whether there was any prima facie case against the accused persons. He should not have framed charges in a mechanical manner. Reliance in this connection was upon Union of India v. Prafulla Kumar Samal 1979 S.C.C. Cri. 609, Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja 1979 S.C.C. Cri. 1038, Chandrapal Singh v. Maharaja Singh 1982 Cr. L.R. S.C. 126, Kamal Kishore v. Slate of Rajasthan 1981 Cr L.R. Raj. 132, and Ram Singh v. State of Rajasthan 1981 Cr. L.R. Raj, 143. On the other hand the learned Public Prosecutor has supported the order of the learned Sessions Judge framing the charges as aforesaid.
6. I have given my careful consideration to the contentions raised by the learned Counsel for the petitioners. The guide-lines how the Court is to proceed Under Section 227 of the Criminal Procedure Code, have been laid down by their Lordships of the Supreme Court in Union of India's case (supra). They are as under:
(1) That the Judge while considering the question of framing 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 prime facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) 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 large 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.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a Senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the total effect of the evident qualities and the documents produced before the Court, any basic infirmities appearing in the case and so on. This how ever does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
7, While arriving at the guidelines, reference was made also to an earlier decision of the Hon'ble Supreme Court reported in State of Bihar v. Ramesh Singh : 1977CriLJ1606 . It will be useful to refer to some of the some important observations of their Lordship in State of Bihar s case (supra). After referring to the provisions of Sections 227 and 228, their Lordships observe as under:
Reading two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Not is any weight to be attached to the probable defense of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if provided, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion that leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused that is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases. In Frame where the accused is presumed to be gaily unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if is challenged in cross examination or rebutted by the defense evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.
It is worthwhile to state here that that case also was a case of alleged murder by burning. Their Lordships observed as under.
The fact that Taradevi died an unnatural death and there were burn injuries on her person does not seem to be in doubt or dispute. The question to be decided at the trial would be whether the respondent, as is the prosecution case, had murdered her & set fire to her body or whether she committed suicide by herself setting fire to it This undoubtedly is a serious matter for decision at the trial.
After referring to certain circumstances of the case, they further observed as under
The case will largely, rather, wholly depend upon the circumstantial evidence. A stricter proof will have to be applied for judgment the guilt of the accused with reference to the various circumstantial evidence against him. But at this stage the Additional. Sessions Judge was not right when he said....' It appears that there is neither direct evidence nor any circumstantial evidence in connect the accused with the al egad murder of Tara Devi' He also ought not to have referred to the varying opinion of the Circle Inspector and the Superintendent of Police, Motihari as to the submission of charg sheet against the respondent.
It may at once be stated that the present case is very similar to the above case before the Hon'ble Supreme Court and from the facts stated above, there does appear circumstantial evidence against the accused persons. This evidence could not have been meticulously examined by the learned Sessions Judge at this stage and when he found that there was evidence at least to give rise to a grave suspicion of the complicity of the accused persons in the alleged offence, he was justified in framing charges Under Section 302 and 120 IPC. The fact that the witnesses had been changing their statements from time to time or that Hansa did not implicate the accused persons in her dying declaration, could not be of much importance at this this stage because the veracity of this evidence can only be judged at the trial. The witnesses have given there explanation for changing their statements and the dying declaration of Hansa has not only been disputed by Kailash Chand, who is said to be a signatory to this statement but also on the basis of some other circumstances, namely, that this declaration was not taken in the presence of any doctor or with the permission of the doctor on duty. So far as the quest on of conspiracy goes, the convent of the accused persons before at the time and after the incident, is sought to be proved and those circumstances are also to be properly weighed and examined only at the stage of trial and not at this stage. The authorities relied upon by the harried counsel for the petitioners are not of much avail in the facts and circumstances of this case so far as the charges Under Section 302 and 120 IPC are concerned. In Union of India's case (supra), it was found by their Lordships that there was no evidence whatsoever of the meeting of the minds of the two accused persons so far as the charge of conspiracy Under Section 120 was concerned and therefore, the lower Court was not at all justified in framing the charge. Such is not the case here because as already stated above, the prosecution relics upon circumstantial evidence to prove the conspiracy. In Supdt. And Remembrancer of Legal Affairs, West Segal's case (supra) reference was made to State of Bihar's case (supra) and the order of discharge was set aside. In Kamal Kishore's case (supra), the learned Single Judge of this Court had found that there was absolutely no evidence to connect the accused persons, the petitioners before him with the alleged, crime, and, therefore, the charges were quashed. In Ram Singh's case (supra) the case depended on a solitary witness and even on a cursory examination of the evidence of that witness, it was found that that evidence was worthless and no court could ever possibly place any reliance upon it and in these circumstances the charge framed on the basis of that evidence, was quashed. In the circumstances of the present case, therefore, these authorities obviously cannot apply.
9. So far as the offence Under Section 201 IPC against the accused persons is concerned, it may at once be stated that Section 201 IPC rotates to the destroying or making to disappear material, that is, tangible evidence and does not relate to the withholding of oral evidence or tampering with witnesses. The learned Sessions Judge has not pointed out as to what material evidence was made to disappear by the accused persons nor the learned Public Prosecutor or the counsel far the complainant has been able to bring to my notice as to what material evidence was made to disappear by the accused person with the intent of shielding the accused. In these circumstances the charge Under Section 201 IPC against the accused persons does not appear to be founded on any evidence direct or circumstantial. This charge, therefore, cannot be sustained.
10. The learned Counsel for the petitioners that the two charges one Under Section 302 and the other Under Section 302/120 IPC framed against the accused Ashok are inconsistent with each order and, therefore, one of them deserves to be quashed also contended it. I do not find substance in this contention. There is no inconsistency in the two charges but they appear to be in the alternative although this has not specifically been stated either in the order of the learned Sessions Judge or in the charge - sheet itself. Such alternative charges for the principal liability and vicarious liability either with aid of Section 34, or Section 149, or Section 120 IPC as the case may be, can always be framed.
11. For the reasons stated above, this revision is partly accepted, the charge Under Section 201 IPC framed against the accused petitioners is quashed. However, it may be made clear that if the prosecution is able to prima facie show from the material on record that the accused persons Or any of them had made any material and tangible evidence to disappear or destroyed with the intent of shielding the accused or any of them, the learned Sessions Judge would be free to re-frame such a charge. The revision in other respects is rejected.