Bombay High Court: Sandeep K. Shinde, J., explained as to when a charge in the alternative can be framed against an accused and when it is not permissible to do so.
Mehnaz (Deceased) was a 15-year-old girl and her mother had expired when she was 4 months old. Deceased was brought up by her maternal uncle, Yusuf. Salim was the brother of deceased’s maternal uncle. Applicant 1 wife of Yusuf and applicant 2 wife of Salim.
One day, on hearing commotion from the house of the applicants, neighbours rushed to the spot and found the deceased lying in an unconscious state. On enquiry, the inmates of the house informed that the deceased fell in the bathroom and became unconscious. Later the hospital declared her dead before admission.
Prosecution case was, accused used to ill-treat and harass the deceased and in furtherance of criminal conspiracy, the deceased was done to death by strangulation, and they caused the disappearance of evidence.
Analysis, Law and Decision
In the instant case, the trial Judge framed the charge under Section 302 IPC and in alternative under Section 306 IPC.
High Court stated that framing of charge under Section 302 and in alternative under Section 306 is not permissible inasmuch as when there is doubt as to facts, Section 221 of CrPC has no application.
In the Supreme Court decision of Prasoon Gupta v. State of U.P., 2010 SCC OnLine All 1887, Supreme Court held that the question framing of charge in alternative can arise, when there is no doubt about the facts, which can be proved but doubt is as to what offence will be constituted on those facts.
It is not permissible in law, to frame a charge for accused having abetted the suicide and a charge in alternative of murder, as it shows doubt as to facts. The offence under Sections 306 and 302 are diametrically opposed to each other.
In the instant matter, Court noted from the autopsy report that the deceased died by ligature strangulation of the neck.
Bench stated that,
I have no reason to disbelieve surgeons’ opinion at least in these proceedings, which rules out the case of hanging and suicide.
Adding to the above, it was noted that the applicants (accused) on being medically examined had injuries in nature of scratch and linear on the person of applicant 1 whereas 11 simple injuries in the nature of bruises were found on the person of applicant 2.
Bench expressed that evidence of witness, apparently neither suggests nor leads to infer that deceased had attempted to commit suicide and suffered a suicidal death, and the medical evidence validates the prosecution case under Section 302 IPC.
In Court’s opinion, there was sufficient evidence to frame charges against the applicants under Section 302 IPC.
Thus, the order to the extent framing the charge alternatively under Section 306 of IPC against the accused 1 and 2 is quashed and set aside. Only to this extent, the application was allowed. [Sabirabano Yusuf Sayyad v. State of Maharashtra, Criminal Application (APL) No. 125 of 2020, decided on 24-11-2021]
Advocates before the Court:
Mr. Rizwan Marchant a/w Mr. Faisal F. Shaikh i/by Mr. Rizwan Marchant and Associates, Advocate for Applicants.
Mr. Y.M. Nakhawa, APP for State.
Mr. Ravindra Wani, P.S.I., Antop Hill Police Station.