Page 1

        REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   819         OF 2013 (Arising out of S.L.P (Crl.) No.8738 of 2011)

Jasvinder Saini & Ors. …Appellants

Versus

State (Govt. of NCT of Delhi) …Respondent

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. The short question that falls for consideration in this  

appeal  by  special  leave  is  whether  the  trial  Court  was  

justified in framing a charge under Section 302 of the IPC  

1

Page 2

against  the  appellants  and  whether  the  High  Court  was  

justified  in  affirming  that  order  of  the  trial  Court  and  

dismissing  the  writ  petition  filed  by  the  writ  petitioners  

against  the  same.   The  question  arises  in  the  following  

background.

3. FIR No. 765/2007 was registered against the appellants  

alleging commission of offences punishable under Sections  

498A,  304-B,  406  and  34  of  IPC  in  connection  with  the  

demise in unnatural circumstances of Ms. Chandni wife of  

appellant No.1-Mr. Jasvinder Saini. The case was registered  

on a complaint filed Ajay Gautam, father of the deceased.  

The matter was investigated and a charge sheet filed before  

the Jurisdictional Magistrate alleging commission of offences  

mentioned  above  against  the  appellants  1  to  4.  A  

supplementary charge sheet followed in which appellants 5  

to 8 were also implicated in the case to which Section 302  

was also added by the Investigating Officer.   

4. The  case  was  soon  committed  to  the  Sessions  and  

assigned  to  the  Additional  Sessions  Judge,  Rohini,  Delhi,  

who heard the matter for framing of charges and came to  

the conclusion that there was no evidence or material  on  

2

Page 3

record to justify framing of a charge under Section 302 IPC.  

Charges  were  accordingly  framed  against  the  appellants  

under Sections 498A, 304B read with Section 34 IPC.   

5. At the trial the prosecution had examined as many as  

eighteen witnesses, when a two-Judges Bench of this Court  

passed an order on 22nd November 2010 in Rajibir @ Raju  

& Anr. v. State of Haryana AIR 2011 SC 568 by which  

this Court directed all trial Courts in India to add Section  

302  in  every  case  alleging  commission  of  an  offence  

punishable under Section 304B of the IPC. This direction, it  

appears,  came because the Court felt  strongly about the  

commission of heinous and barbaric crimes against women  

in the country.   

6. In  Rajbir’s case  (supra)  the  appellant  had  been  

convicted  under  Section  304-B  IPC  and  sentenced  to  

imprisonment for life by the trial Court apart from offences  

under other sections. The High Court had, however, reduced  

the sentence to ten years rigorous imprisonment in so far as  

Rajbir  was  concerned  and  to  two  years  rigorous  

imprisonment in the case of his mother Appellant No.2 in  

3

Page 4

that case.  This Court on a  prima facie basis felt that the  

reduction in the sentence was not justified. Relying upon an  

earlier decision rendered in Satya Narayan Tiwari @ Jolly  

& Anr.  v.  State of  U.P.  (2010) 13 SCC 689, Criminal  

Appeal No.1168 of 2005 decided on 28th October, 2010 this  

Court issued notice to Rajbir to show cause why his sentence  

be not enhanced to life imprisonment as awarded by the trial  

Court.   

7. It was in the above background, that this Court in para  

11 of the interim order  passed by it  directed all  the trial  

Courts in India to ordinarily add Section 302 to the charge  

under  Section  304B   “so  that  death  sentences  could  be  

imposed  in  such  heinous  and  barbaric  crimes  against  

women.” Para 11 may be extracted at this stage:

“We further direct all  trial  Courts in India to   ordinarily add Section 302 to the charge of Section   304B,  so that death sentences can be imposed in   such heinous and barbaric crimes against women.”  

8. In the case at hand the trial Court noticed the above  

direction and considering itself duty bound to abide by the  

same added  a  charge  under  Section  302 IPC to  the  one  

4

Page 5

already framed against the appellant.  While doing so, the  

trial  Court  simply  placed  reliance  upon  Section  216  of  

Cr.P.C. which empowers the Court to add or alter the charge  

at any stage and the direction of this Court in Rajbir’s case  

(supra).  This is evident from the following passage from the  

order passed by the trial Court:   

“… I have considered the submissions made  before me.  It is settled law that charges can be   modified/amended  at  any  stage  of  the   proceedings  and even if  at  the initial  stage the  Court is of the view that there is no material for   framing the charge under Section 302 IPC.  The  same  can  be  added/altered  at  any  later  stage  (Section 216 Cr.P.C.) which cannot be termed as   a review of the earlier order.  Even otherwise, the  directions of the Hon’ble Apex Court in the case of   Rajbir  @  Raju  &  Anr.  Vs.  State  of  Haryana  in  Special  Leave  Petition  bearing  No.  9507/2010   decided on 22-11-2010 duly  circulated vide No.   33760-69/DHC/Gaz/G-X/SCJ/2010  dated  3-12- 2010, specific directions have been issued to all   the subordinate Courts in India to ordinarily add  Section 302 IPC to the charge under Section 304B  IPC.

Therefore,  this  being  the  background,   charge under Section 302 IPC is being framed in   alternative  against  the  accused  persons  against   whom charge under Section 304 B IPC had been  framed.   The  accused  pleaded  not  guilty  and   claimed trial.”

9. Aggrieved  by  the  above  direction,  the  appellant  

preferred Writ Petition (Crl.) No.413 of 2011 before the High  

5

Page 6

Court of Delhi which failed and was dismissed by the High  

Court in terms of the order impugned in the present appeal.  

Placing reliance upon Section 216 of Cr.P.C. the High Court  

observed that appearance of additional evidence at the trial  

was  not  essential  for  framing  of  an  additional  charge  or  

altering a charge already framed though it may be one of  

the grounds to do so.  The High Court apart from placing  

reliance upon the order passed by this Court in Rajbir’s case  

(supra) held that a perusal of the Autopsy Surgeon’s Report  

provided prima facie evidence to the effect that the death of  

the deceased “could be homicidal”  in nature and that the  

earlier order passed by the trial Court holding that no case  

for  offence under  Section 302 IPC was made out did  not  

constitute  any  impediment  for  the  trial  Court  to  take  a  

different view at a later stage. The present appeal assails  

the correctness of the above orders.  

10. Section 216 of the Code of Criminal  Procedure deals  

with alteration or addition of any charge and empowers the  

Court  to  do  so  at  any  time  before  the  judgment  is  

pronounced.  The section runs as follows:

6

Page 7

“216.  Court may alter charge –

(1) Any Court may alter or add to any charge at any   time before judgment is pronounced.

(2) Every such alteration or addition shall  be read   and explained to the accused.

(3) If the alteration or addition to a charge is such   that  proceeding  immediately  with  the  trial  is  not   likely, in the opinion of the Court, to prejudice the   accused  in  his  defense  or  the  prosecutor  in  the   conduct of the case, the Court may, in its discretion,   after  such  alteration  or  addition  has  been  made,   proceed  with  the  trial  as  if  the  altered  or  added  charge had been the original charge.

(4)  If  the  alteration  or  addition  is  such  that   proceeding immediately with the trial is likely, in the   opinion of the Court, to prejudice the accused or the   prosecutor as aforesaid, the Court may either direct   a new trial  or adjourn the trial  for such period as   may be necessary.

(5)  If  the  offence  stated  in  the  altered  or  added   charge is one for the prosecution of which previous   sanction  is  necessary,  the  case  shall  not  be  proceeded  with  until  such  sanction  is  obtained,   unless  sanction  has  been  already  obtained  for  a   prosecution on the same facts as those on which the   altered or added charge is founded.”

11. A  plain  reading  of  the  above  would  show  that  the  

Court’s  power  to  alter  or  add any  charge  is  unrestrained  

provided such addition and/or alteration is made before the  

judgment is pronounced.  Sub-sections (2) to (5) of Section  

216 deal with the procedure to be followed once the Court  

decides to alter or add any charge. Section 217 of the Code  

7

Page 8

deals with the recall of witnesses when the charge is altered  

or  added  by  the  Court  after  commencement  of  the  trial.  

There can in the light of the above be no doubt about the  

competence of the Court to add or alter a charge at any time  

before  the  judgment.  The  circumstances  in  which  such  

addition  or  alteration  may  be  made  are  not,  however,  

stipulated in Section 216.  It is all the same trite that the  

question of any such addition or alternation would generally  

arise  either  because  the  Court  finds  the  charge  already  

framed  to  be  defective  for  any  reason  or  because  such  

addition is considered necessary after the commencement of  

the  trial  having  regard  to  the  evidence  that  may  come  

before  the  Court.  In  the  case  at  hand  the  evidence  

assembled in the course of the investigation and presented  

to the trial Court was not found sufficient to call for framing  

a charge under Section 302 IPC.  The trial Court recorded a  

specific finding to that effect in its order dated 18th March  

2009 while  framing charges against  the appellants  before  

us.  The trial Court said:

“The  two  witnesses  Kiran  Devi  and  Smt.  Dharam Kaur were at the spot when the deceased   fell down from the second floor and did not notice   

8

Page 9

anyone on the roof of the house. Thus there is no   material  for  framing  of  charge  Under  Section  302  IPC against  the accused persons.   However,  there  are specific allegations of dowry demand and torture   in the statement given by Sh. Ajay Gautam to the   SDM and as also in the statements given by his wife   Manisha  Gautam and  his  son  Vishal  Gautam.  The   deceased had died under  unnatural  circumstances.   Her death took place at her matrimonial home within   seven years of her marriage.  There is a presumption  Under Section 113-B of the Indian Evidence Act of   dowry  death.   Hence  on  the  basis  of  material  on  record,  I  am of  the  view that  prima facie  offence   Under  Section  498A/304B/34  IPC  is  made  out   against all the accused persons.”        

12. A  reading  of  the  order  which  the  trial  Court  

subsequently  passed  on  23rd February  2011  directing  

addition  of  a  charge  under  Section  302  IPC  makes  it  

abundantly  clear  that  the addition  was not  based on any  

error or omission whether inadvertent or otherwise in the  

matter  of  framing charges  against  the  accused.  Even the  

respondents  did  not  plead  that  the  omission  of  a  charge  

under Section 302 IPC was on account of any inadvertent or  

other error or omission on the part of the trial Court.  The  

order  passed by the  trial  Court,  on  the  contrary  directed  

addition  of  the  charge  under  Section  302  IPC  entirely  in  

obedience to the direction issued by this Court in  Rajbir’s  

case (supra). Such being the position when the order passed  

9

Page 10

by the trial Court was challenged before the High Court the  

only question  that  fell  for  determination  was whether  the  

addition of a charge under Section 302 IPC was justified on  

the basis of the direction issued by this Court in  Rajbir’s  

case (supra).  The High Court has no doubt adverted to that  

aspect and found itself to be duty bound to comply with the  

direction in the same measure as the trial Court.  Having  

said  so,  it  has  gone  a  step  further  to  suggest  that  the  

autopsy surgeon’s report was prima facie evidence to show  

that the offence was homicidal in nature.  The High Court  

has by doing so provided an additional reason to justify the  

framing of a charge under Section 302 IPC.  

13. 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  

10

Page 11

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.   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 frame a  

charge of murder punishable under Section 302 IPC, which  

would  then  be  the  main  charge  and  not  an  alternative  

charge as is erroneously assumed in some quarters.  If the  

main charge of murder is not proved against the accused at  

the trial, the Court can look into the evidence to determine  

whether the alternative charge of dowry death punishable  

under  Section  304B  is  established.  The  ingredients  

constituting  the  two  offences  are  different,  thereby  

11

Page 12

demanding  appreciation  of  evidence  from the  perspective  

relevant to such ingredients. The trial Court in that view of  

the matter  acted mechanically  for  it  framed an additional  

charge  under  Section  302  IPC  without  adverting  to  the  

evidence adduced in the case and simply on the basis of the  

direction issued in Rajbir’s case (supra).  The High Court no  

doubt made a half hearted attempt to justify the framing of  

the charge independent of the directions in  Rajbir’s case  

(supra), but it would have been more appropriate to remit  

the matter back to the trial  Court for  fresh orders rather  

than lending support to it in the manner done by the High  

Court.

14. In  the  light  of  what  we have  said  above,  the  order  

passed by the trial  Court and so also that passed by the  

High Court are clearly untenable and shall  have to be set  

aside. That would not, however, prevent the trial Court from  

re-examining the question of framing a charge under Section  

302 IPC against the appellant  and passing an appropriate  

order  if  upon  a  prima  facie appraisal  of  the  evidence  

adduced before it, the trial Court comes to the conclusion  

that there is any room for doing so. The trial Court would in  

12

Page 13

that  regard  keep  in  view  the  decision  of  this  Court  in  

Hasanbhai  Valibhai  Qureshi  v.  State  of  Gujarat  and   

Ors. (2004) 5 SCC 347 where this Court has recognized  

the  principle  that  in  cases  where  the  trial  Court  upon  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. Reference may also be made  

to the decisions of this Court in  Ishwarchand Amichand  

Govadia  and  Ors.  v.  State  of  Maharashtra  and  Anr.   

(2006) 10 SCC 322 and the decision of the Calcutta High  

Court in Rajendra Singh Sethia v. State and Ors. 1989  

Cri.L.J. 255 and that delivered by the Allahabad High Court  

in Shiv Nandan and Ors. v. State of U.P. 2005 Cri. L.J   

3047 which too are to the same effect.  In any such fresh  

exercise which the trial Court may undertake, it shall remain  

uninfluenced by the observations made by the High Court on  

merits  of  the case including those touching the probative  

value of the autopsy surgeon’s opinion.

13

Page 14

15. In the result, we allow this appeal, set aside the order  

passed by the High Court and that passed by the trial Court  

framing the charge under  Section 302 IPC and remit  the  

matter back to the trial Court for a fresh order keeping in  

view the observations made above.  No costs.  

……………………...…………………...…J. (T.S. THAKUR)

……………………...…………………... …J.

(RANJANA PRAKASH DESAI) New Delhi July 2, 2013

14