IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : INDIAN PENAL CODE

Reserved on: 16th July, 2013
Pronounced on: 25th July, 2013
CRL.REV.P. 305/2013
ARUNA CHADHA
..... Petitioner
Through: Mr. U.U. Lalit, Senior Advocate with Ms. Meghna Sankhla,
Adv. for A-1.
Mr. Kapil Sankhla, Adv. with Mr. Rajiv Sirohi, Adv.
versus
STATE OF DELHI
..... Respondent
Through: Mr. Sidharth Luthra, Addl. Solicitor General with Mr. Mukul
Gupta, Senior Advocate & Mr. Rajesh Mahajan, ASC for the State, Mr. P.K.
Dubey, Adv.,
Mr. Aditya Singla Adv.,
Mr. Shiv Pande, Adv.,
Mr. Rajat Agnihotri, Advocate
Mr. Nitin Saluja, Adv.,
Ms. Nidhi Makhija, Advocate
Insp. Dinesh Kumar, IO
Mr. Kunwarjeet Singh, Advocate for the Complainant.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. This petition under Sections 397/399/401 read with Section 482 of the
Code of Criminal Procedure (the Code) has been filed by the Petitioner for
setting aside of the order dated 10.05.2013 passed by the learned Additional
Sessions Judge (ASJ) whereby the charge for various offences was ordered
to be framed against the Petitioner Aruna Chadha (AC) and the co-accused
Gopal Goyal Kanda (GGK).

2. The deceased X (name withheld) committed suicide on the night

intervening 4-5th August, 2012 at the residence, i.e. Flat No.4-C, Block
No.1, Pocket B, Ashok Vihar, Phase-III, Delhi. She left two suicide notes
purported to be dated 04.08.2012 and 04.05.2012 (two dates may have been
put down by mistake) wherein she held the Petitioner and the co-accused
responsible for compelling her to take the extreme step to end her life. For
the sake of convenience it will be apposite to extract these two suicide notes
hereunder:Ist suicide note
Im ending myself today because Im shattered inside. My trust has been
broken and I am being cheated. Two people responsible for my death is
Aruna Chadha and Gopal Goyal Kanda. Both of them have broken my trust
and misused me for their own benefits. They have ruined my life and now
they are trying to sabotage my family members. My family is very innocent.
Aruna and Gopal Goyal are liars, cheaters and crook. They can hurt and
ruin anyone for their own purpose. I have forgiven them number of times but
it was my biggest mistake. Gopal Goyal before also did hurt me and my
family but we still forgave him but he again misused our innocence and
trust. He is a cheat, and a fraud man. These two should be punished for
their wrong deed and malicious intentions towards me and my family. They
have made my life abnormal. I love my mom, dad and my bai.
Sd/- (Geetika Sharma)
4.8.2012
2nd suicide note
Gopal Goyal is a fraud. He always keep his bad intentions towards girls. He
is a man of no shame and no guilt. He always takes advantage of others. He
has illegal relationship with a woman named Ankitaand a girl child also
with her. Still he keep on hitting on girls. He is a shameless and worst man
I have ever seen in my life. In the name of relationship, trust, God he cheats
people and harasses. He always lies. He lies to his family, kids, people
around, everyone. Now this time Aruna is also helping him to hurt me,
harass me, sabotage my family. She use to act as my well wisher but
eventually she has shown her true colors. For the sake of her job she can
stoop down to any level. My biggest mistake was I trusted them, which is
now costing my life. I will never ever forgive them. They are the one who
have separated me today from my mom, dad and bai. I hate dem, these two.
Sd/- (Geetika Sharma)
4.5.2012

3. The suicide notes led to the registration of the case FIR No.178/2012 at
Police Station Bharat Nagar. During the course of investigation the police
inspected the spot and examined various witnesses including Anuradha
Sharma Xs mother (now deceased), Dinesh Sharma (her father), Ankit
Sharma (her brother) and various employees of MDLR Airlines Private
Limited (MDLR) where X was employed since October, 2006. The family
members of X informed the investigating officer (IO) regarding various acts
committed by the Petitioner and the co-accused GGK in harassing the
deceased in various ways and putting pressure upon her.
4. The prosecution collected evidence to show that whenever X left MDLR
she was compelled to rejoin the company. The family of the deceased
(Anuradha Sharma (Xs mother) the complainant, now deceased, Dinesh
Sharma her father and Ankit Sharma, her brother) informed the IO that X
left MDLR for good and proceeded to Dubai to join Emirates Airlines
(Emirates) where she had been selected. She (the deceased) was harassed for
issuance of the No Objection Certificate (NOC) needed to join Emirates.
After various attempts, she was issued NOCs. The Petitioner and the coaccused got issued a forged NOC dated 22.05.2010 purported to be signed
by Mr. Rajeev Prashar, Senior Vice President of MDLR so as to put
obstacles in the deceaseds employment with Emirates, by showing the NOC
to have been forged by the deceased, if she was successful in joining the
same.
5. The prosecution alleges that X joined Emirates on 29.06.2010. Coaccused GGK started pressurizing the deceased to return to India and to join
MDLR. The present Petitioner also helped the co-accused in putting pressure
on the deceased to leave Emirates. It is the prosecution case that co-accused
GGK visited Dubai twice so as to compel X to come back. In his second
visit, GGK was accompanied by the Petitioner AC. GGK adopted various
means to meet X in spite of her refusal to meet him. The prosecution
alleges that since X did not agree to leave Emirates and return to MDLR,
the Petitioner and GGK employed one Chanshivroop Singh (CSS). The
present Petitioner and co-accused GGK sent said CSS to Dubai with a
complaint to Emirates that the NOC dated 22.05.2010 submitted by X to
Emirates was not genuine. During the investigation, CSS in his statement
under Section 164 Cr.P.C. recorded by the Metropolitan Magistrate (MM)
informed that the Petitioner AC had given him instructions as to what was to
be done by him in Dubai in connection with putting pressure on X and
getting her to leave Emirates. The Petitioner arranged for the visa, tickets

and all other documents required for his visit to Dubai. CSS also informed
the MM that he used to update Petitioner AC regarding all developments
which took place in Dubai during his visit there.
6. It is the case of the prosecution that co-accused GGK sent an email to
CSS along with a copy of the complaint, addressed to the SHO, Police
Station City, Gurgaon. CSS gave the copy of the complaint to Mr. Shirish
Thorat of Emirates which led to an inquiry being conducted against the
deceased. During the course of investigation the police collected the record
of inquiry conducted by Emirates. On account of the tactics adopted by coaccused GGK who was assisted by Petitioner AC Emirates asked X to
resign and leave the company (Emirates) and to obtain fresh NOC.
7. X resigned from Emirates and returned to India but she did not join
MDLR. According to the prosecution co-accused GGK through his
employee CSS managed to send a fake email to the deceased from a fake
email account created by CSS in the name of Sheikh Basir Al Bhoram,
Director, Emirates Group, Dubai which stated that proceedings will be
undertaken in Dubai for her extradition. A fake letter purported to be
written to Mr. Sanjeev Verma, Counsel General of India was also attached
with the fake email sent to the deceased.
8. On account of the pressure put by co-accused GGK in conspiracy with
Petitioner, X had to rejoin MDLR as Director on 13.01.2011. The
prosecution alleges that X again resigned from MDLR on 22.12.2011 and
handed over the charge to Petitioner AC and one Ms. Khusboo Sharma on
24.12.2011. In spite of her resignation from the company she was
repeatedly called to the MDLRs office.
9. After resigning from MDLR X joined MBA. It is alleged that the coaccused GGK again pressurized X to join MDLR and also stated that he
will sponsor her MBA programme. The prosecution alleges that the process
of admission in the MBA programme was facilitated by the present
Petitioner. The Petitioner used to call X on behalf of co-accused GGK and
asked her to attend MDLRs office daily after her classes.
10. The prosecution alleges that on 03.08.2012 Petitioner AC called the
deceaseds mother and compelled her to send X to MDLR office for
signing some documents. After receiving this call Anuradha Sharma on
04.08.2012 spoke to GGK who also compelled her to send X to MDLRs

office and if she (X) did not come he (GGK) will lodge an FIR against her.
It is alleged that GGK made serious allegations against Xs character to her
mother.
11. According to the prosecution on Xs complaint a case of theft had been
registered against Ankita Singh and Nupur Mehta who were very close to
GGK. On 03.08.2012 while X was at the Mumbai Airport for her flight to
Delhi she (X) was instructed to speak to an Advocate of MDLR, who had
given a message earlier to Xs brother wanting to speak to her, and she was
pressurized by him to withdraw the earlier said theft case. On account of her
conversation with Mr. Ankit Aluwalia, the Advocate of MDLR, X became
very tense. She missed her flight to Delhi and was able to return to Delhi
only on the next day, that is, on 04.08.2012.
12. The prosecution says that when X arrived at Delhi she noticed a
number of calls on her mothers mobile received from co-accused GGK and
Petitioner AC She insisted to her mother to disclose the details of the
conversation. On account of the incident which took place at Mumbai
Airport and on account of the receipt of these calls on her mothers mobile
from GGK and AC, X got very distressed. On the fateful night intervening
4-5th August, 2012 X spoke to her brother Ankit Sharma at 1:16 A.M. and
informed him that she was very disturbed because of GGK and ACs
behaviour.
13. On 05.08.2012 Anuradha Sharma got up at 7:00 A.M. and knocked at
the door of Xs room as it was bolted from inside. The door was not opened
for a sufficiently long time so Anuradha Sharma and her husband reached
the window of Xs room and noticed that X had hanged herself on the
ceiling fan with the help of her Chunni. The complainant and her husband
went inside the room through the window and took X down. X was
found dead. The complainant informed the police whereupon DD No.8-A
was recorded in Police Station Bharat Nagar. Inspector Dinesh Kumar
reached the spot and recorded statement of the complainant Anuradha
Sharma. The complainant leveled serious allegations of harassment meted to
the deceased at the hands of the co-accused GGK and Petitioner AC. Two
suicide notes were recovered from a spiral notebook lying on the left side of
Xs bed wherein also X held the Petitioner and co-accused GGK
responsible for her suicide. On the statement of the complainant Inspector
Dinesh Kumar, made an endorsement for registration of a case under Section
306/34 of the Indian Penal Code (IPC).

14. The charge for the offences punishable under Sections 120-B IPC, under
Sections 466/471/120-B IPC, Sections 468/469/120-B IPC and Sections
306/120-B IPC was ordered to be framed against the Petitioner and coaccused GKK. A further charge for the offence punishable under Sections
376 and 377 IPC was framed against co-accused GGK. The Petitioner was
charged for abetment of the offence of rape and carnal intercourse against
the order of nature under Section 376 read with Section 109 IPC and under
Section 377 read with Section 109 IPC.
15. It may be noted that although the police did not prefer to prosecute the
co-accused under Sections 376 and 377 IPC and the Petitioner for abetment
of these offences, the learned ASJ referred to the postmortem report which
indicated that X was habituated to vaginal and anal penetration, the learned
ASJ took exception to the role of the investigating agency in not carrying out
a proper investigation into the aspect of Xs sexual exploitation by coaccused GGK. He referred to and took assistance from the statement of Dr.
Vishaka Munjal who had allegedly been approached by the deceased in
company of the present Petitioner on 09.03.2012 as she had an early
pregnancy which she wanted to abort. The Trial Court also took assistance
from the supplementary disclosure statement dated 10.08.2012 purported to
be made by the Petitioner wherein she had stated about illicit relationship
between co-accused GGK and X. She also disclosed that as a result of said
relationship the deceased had multiple pregnancies and she (the deceased)
had undergone medical termination of such pregnancies.
16. I have heard Mr. U.U. Lalit, learned senior counsel for the Petitioner,
Mr. Siddharth Luthra, learned ASG and Mr. Mukul Gupta, learned senior
counsel for the State and have perused the record.
17. Mr. U.U. Lalit, learned senior counsel urges that the learned ASJ erred in
framing charges against the Petitioner in as much as prosecution had not
collected any material to presume (as envisaged under Section 228 IPC) that
the accused, that is the Petitioner herein had committed any offence.
Relying on Sajjan Kumar v. Central Bureau of Investigation (2010) 9 SCC
368; Dilawar Balu Kurane v. State of Maharashtra (2002) 2 SCC 135; and
Union of India v. Prafulla Kumar Samal & Anr. (1979) 3 SCC 4; the learned
senior counsel urges that the material collected by the prosecution simply
raised a suspicion against the Petitioner. He contends that it is well settled
that if two views are equally possible, the Sessions Judge is bound to

discharge the accused as in the circumstances the charge has to be treated as

groundless.
18. The learned senior counsel urges that at the stage of framing of the
charge the material collected by the prosecution is not to be meticulously
examined nor the Sessions Judge is expected to make any roving inquiry.
He is expected to see probative value of the material collected and to apply
his judicial mind to find out whether the commission of the offence by the
accused is probable.
19. The learned senior counsel argues that although the learned ASJ referred
to the earlier stated reports in Sajjan Kumar (supra), Dilawar Balu Kurane
(supra) and Prafulla Kumar Samal (supra) but failed to apply the test laid
down therein and thus erred in framing the charge against the Petitioner.
20. Elaborating his arguments, Mr. U.U. Lalit urges that the offence with
which the Petitioner has been charged can be broadly divided in three
categories, that is, (i) the offence of forgery under Sections 468/469/471 IPC
and Section 66 of the Information Technology Act, 2000 read with Section
120-B IPC, (ii) the offence of abetment to suicide under Section 306 IPC
and (iii) the offence of abetment to rape and abetment to carnal intercourse
against the order of nature under Sections 376/109 IPC and 377/109 IPC.
21. Mr. U.U. Lalit contends that the learned ASJ culled out the
circumstances (a) to (y) in Para 73 of the impugned order and opined that the
circumstances by itself may not be sufficient to impel the deceased to end
her life. The learned senior counsel argues that the learned ASJ opined that
there was sufficient material to indicate that the deceased was sexually
exploited by the co-accused GGK. Although, the Petitioner being a lady
cannot commit an offence under Sections 376/377 IPC but according to the
learned ASJ, she (the Petitioner) facilitated and abetted the commission of
the offence by the co-accused and thus she was charged under Section
376/109 IPC and 377/109 IPC. The learned senior counsel contends that
once the offence punishable under Sections 376/109 and 377/109 IPC are
taken out which he would demonstrate, the material collected by the
prosecution in the estimation of the learned ASJ fell short of the offence of
abetment to suicide.
22. The learned senior counsel urges that the offence relating to forgery is
not made out in as much as the deceased herself was aware that the NOC

dated 22.05.2011, which she used to get employment in Emirates, was not
signed by Mr. Rajeev Prashar. Thus, the prosecution cannot be permitted to
contend that the NOC was forged by the co-accused or for that matter the
present Petitioner. The learned senior counsel states that the learned ASJ
himself opined that the blank affidavits alleged to be recovered from the coaccused have been found to be of no consequence in view of Sheonandan
Paswan v. State of Bihar 1987 (1) SCC 288, as the same was not used for
any purpose by the co-accused. Thus, the charges for the forgery must fail.
23. Learned senior counsel urges that CSSs statement under Section 164
Cr.P.C. alleging various acts of harassment and forgery purported to have
been committed by CSS at GGKs behalf cannot be relied upon by the Court
even for framing charges as statement of a witness who is in the nature of an
accomplice is not a substantive piece of evidence and can be used only for
the purpose of corroboration. In support of his contention, the learned senior
counsel places reliance on Hari Charan Kurmi Jogia Hajam v State of Bihar
(1964) 6 SCR 623 and Kashmira Singh v. State of Madhya Pradesh 1952
SCR 526.
24. On the other hand, Mr. Siddharth Luthra, learned ASG for the State
argues that the learned ASJ was fully justified in framing charges not only
under sections 120-B IPC, sections 466/471/120-B IPC, sections
468/469/120-B IPC and sections 306/120-B IPC but also under sections
376/109 IPC and 377/109 IPC in spite of the fact that in the charge sheet the
commission of the offence under sections 376/109 and 377/109 IPC was not
specifically stated.
25. Relying on a three Judge Bench decision in State of Maharashtra & Ors.
v. Som nath Thapa & Ors., (1996) 4 SCC 659, another three Judge Bench
decision in State of Orissa v. Debendra Nath Padhi AIR 2005 SC 359, and
the latest judgment in State of Madhya Pradesh v. Sheetla Sahai & Ors.,
2009 (8) SCC 617 he urges that at the time of framing of the charge as
envisaged under Section 228 of the Code, the Sessions Judge is expected to
take a tentative view of the matter on the basis of material produced by the
prosecution. The learned ASG urges that if on the basis of material on
record, the Court could come to the conclusion that commission of the
offence is probable consequence, the Court will be justified in framing the
charge against the accused. Mr. Sidharth Luthra contends that at the stage of
framing of the charge the Court is not to see whether there is sufficient
ground for conviction of the accused or whether the trial is sure to end in his

conviction, at the initial stage of framing of charge even strong suspicion

will be sufficient to frame charge and to proceed further with the trial.
26. Mr. Luthra contends that the learned ASJ ought not to have gone into a
detailed discussion while ordering framing of the charge against the
petitioner as probity of evidence cannot be judged at the stage of framing of
the charge. He argues that it is a matter of satisfaction of the judicial
conscience on the basis of the material placed before the court whether there
are grounds for presuming that the accused had committed an offence. It is
contended that there is sufficient material produced by the prosecution to
uphold the charge as framed by the learned ASJ. From the two suicide notes
and the evidence collected by the investigating agency it was borne out that
the deceased was subjected to consistent course of harassment and mental
torture by the Petitioner and co-accused GGK, resulting in her taking the
extreme step of ending her life. He urges that the circumstances (a) to (y) as
culled out in Para 73 of the impugned order, particularly, circumstances (p),
(s), (t), (u), (v), (w), (x) and (y) and the two suicide notes were sufficient to
frame the charge under Section 306 IPC de hors the charge of sexual
exploitation.
27. Mr. Luthra strenuously urges that the statement of a witness (CSS) in the
nature of an accomplice is admissible in evidence, but the value to be
attached to it has to been seen only at the final stage. Reliance is placed on
Chandran @ Manichan @ Maniyan & Ors. v. State of Kerala (2011) 2 SCC
(Cri.) 551. CSS in his statement under Section 164 of the Code not only
stated about the Petitioners and co-accused GGKs role in causing
harassment to deceased but also informed about the acts of forgery
committed by him at their behest for the same.
28. It is argued that although there was no direct evidence with regard to
commission of offence under Sections 376/377 IPC by co-accused GGK and
its abetment by the present Petitioner yet, on the basis of the postmortem
report, Dr. Vishaka Munjals statement under Section 161 of the Code and
the supplementary disclosure statement of the Petitioner, the Court was
justified in framing the charge under Sections 376/109 and Sections 377/109
IPC against the Petitioner and putting the burden on the Petitioner to prove
the facts, especially those within her knowledge as provided under Section
106 of the Evidence Act.

29. Mr. Sidharth Luthra contends that the investigating agency made all
efforts to unearth the truth by eliciting the evidence from all the sources
whatever were available, that is, Xs family and her former colleagues in
MDLR, yet even if there was any defect in the investigation, the same will
not enure for benefit of the accused.
30. The Supreme Court considered the reports in Dilawar Balu Kurane
(supra), Prafulla Kumar Samal (supra) and its various other previous
decisions in Sajjan Kumar (supra). Paras 17 to 19 of the report in Sajjan
Kumar are extracted hereunder:17. In Prafulla Kumar Samal (1979) 3 SCC 4 the scope of Section 227
CrPC was considered. After adverting to various decisions, this Court has
enumerated the following principles:
(1) That the Judge while considering the question of framing the 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 prima
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 case, the total effect of the evidence
and the documents produced before the court, any basic infirmities
appearing in the case and so on. This however 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.

18. In Dilawar Balu Kurane (2002) 2 SCC 135, the principles enunciated
in Prafulla Kumar Samal have been reiterated and it was held:
12. Now the next question is whether a prima facie case has been made out
against the appellant. In exercising powers under Section 227 of the Code of
Criminal Procedure, the settled position of law is that the Judge while
considering the question of framing the charges under the said section has
the undoubted power to sift and weigh the evidence for the limited purpose
of finding out whether or not a prima facie case against the accused has been
made out; 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;
by and large 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 justified to
discharge the accused, and in exercising jurisdiction under Section 227 of
the Code of Criminal Procedure, the Judge cannot act merely as a post office
or a mouthpiece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence and the documents
produced before the court but should not make a roving enquiry into the pros
and cons of the matter and weigh the evidence as if he was conducting a trial
(see Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC
(Cri) 609] ).
*
*
*
14. We have perused the records and we agree with the above views
expressed by the High Court. We find that in the alleged trap no police
agency was involved; the FIR was lodged after seven days; no incriminating
articles were found in the possession of the accused and statements of
witnesses were recorded by the police after ten months of the occurrence.
We are, therefore, of the opinion that not to speak of grave suspicion against
the accused, in fact the prosecution has not been able to throw any suspicion.
We, therefore, hold that no prima facie case was made against the
appellant.
19. It is clear that at the initial stage, if there is a strong suspicion which
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 which is to be drawn at the initial stage is only for
the purpose of deciding prima facie whether the court should proceed with
the trial or not. If the evidence which the prosecution proposes to adduce

proves the guilt of the accused even if fully accepted before it is challenged
in cross-examination or rebutted by the defence evidence, if any, cannot
show that the accused committed the offence, then there will be no sufficient
ground for proceeding with the trial.
31. In Som Nath Thapa (supra) relied upon by the learned ASG for the State
a three Judge Bench of the Supreme Court referred to a Constitution Bench
decision in R.S. Nayak v. A.R. Antulay, 1986 (2) SCC 716 and examined
the meaning of the word presume in Blacks Law Dictionary, etc. and
opined that if on the basis of material on record the court thinks that the
commission of offence by the accused is a probable consequence it can
frame the charge though for conviction the conclusion is required to be that
the accused has actually committed the offence. Paras 30 to 32 of the report
reads as under:30. In Antulay case Bhagwati, C.J., opined, after noting the difference in
the language of the three pairs of sections, that despite the difference there is
no scope for doubt that at the stage at which the court is required to consider
the question of framing of charge, the test of prima facie case has to be
applied. According to Shri Jethmalani, a prima facie case can be said to have
been made out when the evidence, unless rebutted, would make the accused
liable to conviction. In our view, a better and clearer statement of law would
be that if there is ground for presuming that the accused has committed the
offence, a court can justifiably say that a prima facie case against him exists,
and so, frame a charge against him for committing that offence.
31. Let us note the meaning of the word presume. In Black's Law
Dictionary it has been defined to mean to believe or accept
upon probable evidence. (emphasis ours). In Shorter Oxford English
Dictionary it has been mentioned that in law presume means to take as
proved until evidence to the contrary is forthcoming, Stroud's Legal
Dictionary has quoted in this context a certain judgment according to which
A presumption is a probable consequence drawn from facts (either certain,
or proved by direct testimony) as to the truth of a fact alleged. (emphasis
supplied). In Law Lexiconby P. Ramanath Aiyer the same quotation finds
place at p. 1007 of 1987 Edn.
32. The aforesaid shows that if on the basis of materials on record, a court
could come to the conclusion that commission of the offence is a probable
consequence, a case for framing of charge exists. To put it differently, if the
court were to think that the accused might have committed the offence it can

frame the charge, though for conviction the conclusion is required to be that
the accused has committed the offence. It is apparent that at the stage of
framing of a charge, probative value of the materials on record cannot be
gone into; the materials brought on record by the prosecution has to be
accepted as true at that stage.
32. In Praveen Pradhan (supra) relied upon by the learned ASG after
referring to the various earlier decisions in Chitresh Kumar Chopra (supra);
and Ramesh Kumar (supra) it was opined that a tentative view would evoke
the presumption referred to under Section 228 of the Code.
33. Thus, on the basis of the judgments relied upon by the parties and noting
the language used in Sections 227 and 228 of the Code it can very well be
stated that if on the basis of material placed before the Court the commission
of offence appears to be probable, the Court shall be duty bound to frame the
charge against the accused. To put it differently, if two views are possible
and there is strong suspicion against the accused again the Court would be
justified in framing the charge. As against this, if there is only a mere
suspicion and two views are possible, the Court on the basis of mere
suspicion should not proceed to frame the charge against an accused and
should in the circumstances discharge him without making him undergo the
ordeal of the trial.
OFFENCE UNDER SECTIONS 376/109 & SECTIONS 377/109 IPC
34. It is frankly conceded by the learned ASG that there is no direct evidence
of commission of rape or unnatural offence by co-accused GGK or its
abetment by the Petitioner. The learned ASG challenges the observation of
the trial court whereby the learned ASJ observed that the investigation
carried out by the investigating agency was tainted or that the investigating
agency intentionally did not go into the aspect of sexual exploitation of the
deceased by the accused persons. It is argued that the investigating agency
in its quest for truth examined various employees of MDLR as also the
family members of the deceased X yet no direct evidence with regard to
the sexual exploitation was available. He states that in this case no direct
evidence was possible, except the disclosure of any incident relating to the
offence by the deceased to any co-employee or to the family members. But
none of the witnesses examined during investigation came forward with any
such disclosure. Albeit, the learned ASG urges that in view of the statement
under Section 161 of the Code of Dr. Vishaka Munjal, the postmortem

report and the supplementary disclosure statement of the Petitioner dated

10.08.2012 recorded by the IO it can be inferred that deceased X was being
subjected to sexual exploitation and thus, the Trial Court was justified in
framing the charge under Sections 376/109 and 377/109 IPC.
35. On the other hand, Mr. U.U. Lalit learned senior counsel urges that even
if the material collected by the prosecution and as relied upon by the learned
ASJ is taken on its face value still it cannot be inferred that any offence
under Sections 376/377 IPC was committed by co-accused GGK and thus
there could not be any question of abetment of these offences by the present
Petitioner. In her statement under Section 161 of the Code Dr. Vishaka
Munjal informed the IO that deceased X visited her clinic with Petitioner
AC on 09.03.2012, X informed her about her early pregnancy and that
she wanted to get it terminated by pills as she was unmarried. In her
statement, Dr. Vishaka Munjal informed the IO that she gave abortion pills
to the deceased with which she (the deceased) aborted successfully.
According to Dr. Vishaka Munjal deceased X visited her again alone on
14.05.2012 for a routine check-up. She last visited her alone on 19.06.2012
for a routine check-up.
36. Relying on the statement of Dr. Vishaka Munjal, the learned senior
counsel argues that through Dr. Vishaka Munjals statement what can be
inferred is that the Petitioner simply accompanied the deceased to her own
(ACs) gynecologist as a help to her. On the next two subsequent visits the
deceased visited the doctor alone (without ACs company) and thus there
was nothing to indicate from Dr. Vishaka Munjals statement that she (the
Petitioner) had abetted the commission of any offence under Sections 376
and Section 377 IPC.
37. Referring to the observations in the post mortem report, e.g.,
Vaginal Orifice: Remnants of hymen present as tags of epithelialisation at
the rim of vaginal orifice, signs of old hymen rupture with healing. Recent
mucosal excoriatins with reddened base in an area of 0.3 cm x 0.4 cm were
present at the vaginal introitus..
Anal orifice: The anal orifice appears dilated and patulous with
keratinisation of the mucosal wall beyond the anal verge. A healing mucosal
tear sized about 0.6 cm x 0.4 cm with areas showing grayish white fibrosis
admixed with area of reddening were present at the posterior part of anal
orifice..

The findings suggest that the deceased was habituated to vaginal and anal
penetration.
the learned senior counsel contends that it nowhere points out the role of the
co-accused GGK in the commission of these offences or its abetment by the
Petitioner.
38. Referring to the early pregnancy (of five weeks) noticed on 09.03.2012
by Dr. Vishaka Munjal, the learned senior counsel urges that admittedly the
deceased was not in GGKs employment since December 2011 till May,
2012. Thus, the pregnancy if any, on 09.03.2012, could not have been on
account of any illicit sexual intercourse by GGK or its abetment by the
Petitioner.
39. Relying on the Privy Council decision in Pulukiri Kottaya v. Emperor &
Ors. AIR (34) 1947 PC 67 the learned senior counsel urges that the
disclosure statement made by the Petitioner was totally inadmissible and
cannot be looked into at all for any purpose being a statement made to the
police, as under Section 27 of Evidence Act only that portion of the
confessional statement is admissible which relates to any fact discovered in
consequences of the information received from a person accused of any
offence. Since there was no discovery of any fact, the learned senior counsel
argues that the ASJ erred in taking aid of the disclosure statement.
40. Apart from the supplementary disclosure statement of the Petitioner
AC there is nothing to indicate that co-accused GGK had illicit relations
with X or that she had multiple pregnancies. In the absence of discovery
of any fact in pursuance of the disclosure statement, the same is clearly
inadmissible in evidence and has to be kept out of consideration. The
statement of Dr. Vishaka Munjal nowhere leads to the conclusion that the
pregnancy carried by the deceased was due to any illicit relationship with
co-accused GGK particularly when she was not even in employment of
MDLR during the period of expected pregnancy. All the more, there is not
even a shred of evidence to indicate that co-accused GGK committed sexual
intercourse with deceased X or had carnal intercourse against the order of
nature with her or that the same was against her (the deceased) will or
without her consent or that the Petitioner facilitated in any act of rape or
unnatural offence alleged to have been committed by GGK. Similarly, what
could only be inferred from the postmortem report was that the deceased
was habituated to vaginal and anal penetration, but there was nothing to
indicate that it was co-accused GGK who was responsible for the same and
that the Petitioner had abetted the alleged vaginal and anal penetration

against the deceaseds will and without her consent. It is apparent that the
learned ASJ unjustly admitted into evidence the confessional statement
made by the Petitioner and illegally put the burden to prove the same on the
co-accused and the Petitioner which is not permissible. The learned ASJ fell
into gross error in framing the charge under Sections 376/377 against the coaccused GGK which cannot be sustained. Since no charge against coaccused under these Sections could have been framed, the Petitioner could
not have been guilty of abetting these offences.
OFFENCE OF FORGERY
41. There is no dispute about the proposition of law which is well settled and
as laid down in Kashmira Singh (supra) and Hari Charan Kurmi Jogia
Hajam (supra) that confession of co-accused can be used only as a
corroborative evidence. But, at the time of framing of the charge, the court
is not go into the probative value of the evidence adduced. Once the
evidence of a witness who is in the nature of an accomplice is considered
admissible in evidence, the Trial Court was justified in relying on the same.
CSS in his statement under Section 164 of the Code gave a detailed account
of creating a fake email account and sending a fake email to the deceased at
the behest of the Petitioner and the co-accused. The prosecution collected
evidence with regard to forgery of the NOC dated 22.05.2010 purported to
be signed by Mr. Rajeev Prashar (employee of MDLR) in order to use the
same to put pressure on the deceased. Although, Mr. U.U. Lalit referred to
the statement of the deceased purported to have been given by her in the
enquiry conducted by Emirates yet this will be in the realm of considering
the probative value of the respective statements which cannot be done at the
stage of framing of the charge. Thus, statement of Mr. Rajeev Prashar to the
effect that the NOC dated 22.05.2010 was not signed by him and the
prosecution case that this certificate was given with the forged signature of
Mr. Rajeev Prashar at the behest of the accused in order to put pressure on
the deceased in case he needs to recall her back from Dubai, cannot be
brushed aside. The Trial Court was, therefore, justified in framing the charge
for the offences punishable under Sections 468/469/471 IPC and Section 66
of the Information Technology Act, 2000 read with Section 120-B IPC.
ABETMENT TO SUICIDE

42. I have already observed above and the law is well settled that even where
two views are possible and there is strong suspicion against the accused the
Court will be justified in framing the charge against an accused.
43. I have gone through the circumstances (a) to (y) culled out in Para 73 of
the impugned order, particularly circumstances (p), (s), (t), (u), (v), (w), (x)
and (y).
44. It is urged by the learned senior counsel for the petitioner that the present
Petitioner was not in MDLRs employment for the period from 30.08.2008
to 09.07.2010. Thus, the acts allegedly done by the co-accused GGK cannot
be said to have been abetted by the present Petitioner. The learned senior
counsel urges that since the suicide in the instant case is not by a married
woman and the husband of such woman or any relative of her husband is not
an accused the presumption envisaged under Section 113-A of the Evidence
Act is not attracted. The learned senior counsel urges that the acts attributed
to the Petitioner by no stretch of imagination can be said to have instigated,
urged or goaded the deceased to take the extreme step of taking her own life.
There is no live link or proximity in the acts attributed to the Petitioner and
the deceaseds death and thus the Petitioner cannot be said to have abetted
the suicide allegedly committed by the deceased. In support of his
contention, the learned senior counsel relies on the report of the Supreme
Court in Madan Mohan Singh v. State of Gujarat & Anr. (2010) 8 SCC 628,
particularly Paras 12 and 13 which are extracted hereunder:12. In order to bring out an offence under Section 306 IPC specific
abetment as contemplated by Section 107 IPC on the part of the accused
with an intention to bring about the suicide of the person concerned as a
result of that abetment is required. The intention of the accused to aid or to
instigate or to abet the deceased to commit suicide is a must for this
particular offence under Section 306 IPC. We are of the clear opinion that
there is no question of there being any material for offence under Section
306 IPC either in the FIR or in the so-called suicide note.
13. It is absurd to even think that a superior officer like the appellant would
intend to bring about suicide of his driver and, therefore, abet the offence. In
fact, there is no nexus between the so-called suicide (if at all it is one for
which also there is no material on record) and any of the alleged acts on the
part of the appellant. There is no proximity either. In the prosecution under
Section 306 IPC, much more material is required. The courts have to be
extremely careful as the main person is not available for cross-examination
by the appellant-accused. Unless, therefore, there is specific allegation and

material of definite nature (not imaginary or inferential one), it would be

hazardous to ask the appellant-accused to face the trial. A criminal trial is
not exactly a pleasant experience. The person like the appellant in the
present case who is serving in a responsible post would certainly suffer great
prejudice, were he to face prosecution on absurd allegations of irrelevant
nature. In the similar circumstances, as reported in Netai Dutta v. State of
W.B. (2005) 2 SCC 659, this Court had quashed the proceedings initiated
against the accused.
45. On the other hand, Mr. Sidharth Luthra learned ASG contends that the
two suicide notes coupled with the circumstances culled out by the learned
ASJ in the impugned order sufficiently establish that the deceased was being
consistently harassed by the Petitioner and the co-accused making the
deceaseds life so miserable that she was left with no choice except to
commit suicide. The Petitioner and the co-accused GGK would be prima
facie liable for the same and thus, the impugned order so far as it orders
framing of the charge under Section 306 IPC has to be sustained. The
learned ASG referred to a recent judgment of the Supreme Court in Amit
Kapoor v. Ramesh Chander & Anr. (2012) 9 SCC 460, in which the report
of Chitresh Kumar Chopra (supra) was considered, and also Praveen
Pradhan (supra).
46. In Madan Mohan Singh (supra) one Deepakbhai Krishnalal Joshi was
serving as a driver in the Microwave Project Department of Ahmedabad
Bharat Sanchar Nigam Ltd. He had undergone a bypass heart surgery in the
year 2002 and he was asked by the doctor to avoid lifting heavy weights.
Said Deepakbhai Krishnalal Joshi was working as a driver of a Tata Sumo
car provided to the Petitioner Madan Mohan Singh who was working as
DET in the project. Deceased Deepakbhai Krishnalal Joshi committed
sucide and her widow Harshida Ben raised an accusing finger towards the
Petitioner. She had informed the IO that even after Madan Mohan Singh
was transferred out of the project he (Madan Mohan Singh) went on
continuously using the services of her husband. She stated that in the year
2007 said Madan Mohan Singh came back to Microwave Project as DET
and had got angry with the deceased on the matter of not keeping the keys of
the vehicle on the table. She further stated that said Madan Mohan Singh had
allegedly threatened her husband of suspending him. He had also rebuked
her husband that if he did not listen to him, he would create difficulties for
him. Deceased Deepakbhai Krishnalal Joshi left for his duty on 21.02.2008
not to return back in the evening. His absence was reported to the police on

22.02.2008 and 23.02.2008. Ultimately, Harshida Ben came to know that

her husbands dead body was lying in vehicle No.GJ 1G 3472 at Kiran Park.
It was in these circumstances that the Supreme Court observed that there
was no intention on the part of accused to aid or to instigate or to abet the
deceased to commit suicide. Para 13 of the report is extracted hereunder:13. It is absurd to even think that a superior officer like the appellant would
intend to bring about suicide of his driver and, therefore, abet the offence. In
fact, there is no nexus between the so-called suicide (if at all it is one for
which also there is no material on record) and any of the alleged acts on the
part of the appellant. There is no proximity either. In the prosecution under
Section 306 IPC, much more material is required. The courts have to be
extremely careful as the main person is not available for cross-examination
by the appellant-accused. Unless, therefore, there is specific allegation and
material of definite nature (not imaginary or inferential one), it would be
hazardous to ask the appellant-accused to face the trial. A criminal trial is
not exactly a pleasant experience. The person like the appellant in the
present case who is serving in a responsible post would certainly suffer great
prejudice, were he to face prosecution on absurd allegations of irrelevant
nature. In the similar circumstances, as reported in Netai Dutta v. State of
W.B. (2005) 2 SCC 659, this Court had quashed the proceedings initiated
against the accused.
47. In the instant case, in the two suicide notes the deceased clearly held the
Petitioner and co-accused GGK responsible for her death. She wrote down
that both of them had ruined her life and were now trying to sabotage his
family. In the suicide note X stated that her family is innocent and the
Petitioner and the co-accused are liars and crooks. The deceased further
added that co-accused GGK is a fraud, he cheats and harasses people in the
name of relationship and trust. She had also stated that Petitioner AC is
also helping him to hurt her and that she could stoop very low for the sake of
her job. It is not only these two suicide notes but there is consistent course
of harassment by the co-accused and Petitioner as stated in the various
circumstances (a) to (y) narrated by the learned ASJ in his impugned order,
including the visits made by Petitioner and co-accused to Dubai to pressurize
her to quit her job with Emirates and to return to India to join MDLR; the
Petitioner and co-accused used CSS to create false documents and used these
to pressurize her to leave the job with Emirates; forcing her to resign from
her job in Emirates by creating fake documents; they pressurized the
deceased through Ankit Ahluwalia (Advocate of MDLR) on 03.08.2012 to
withdraw the theft case against Ankita Singh and Nupur Mehta (who were

close associates of GGK); the Petitioner had a telephonic conversation with

Xs mother on 03.08.2012 so as to compel X to come to the office of
MDLR to sign some documents; the Petitioner in her telephonic
conversation with Xs mother also leveled allegations against deceaseds
character; and the telephonic conversation between GGK and X on
04.08.2012 where he again leveled allegations against her character and
supported what had been said by the Petitioner to Xs mother. The fact that
the Petitioner was not in employment of the co-accused for some time is not
relevant as there is immigration record to show that even during that period
the Petitioner and co-accused GGK travelled abroad together.
48. This evidence, in view of the judgment of the Supreme Court in Amit
Kapoor (supra), Praveen Pradhan (supra) and Chitresh Kumar Chopra
(supra) was sufficient to form an opinion at this stage that the Petitioner
abetted the commission of suicide by the deceased. A charge for the offence
punishable under Section 306 IPC was, therefore, made out against the
Petitioner even without the allegations of abetment of rape or sexual
exploitation.
49. The circumstances relied upon by the prosecution and the evidence
collected also show conspiracy to commit these offences by the accused
persons.
50. In view of the foregoing discussion, the petition is partly allowed to the
extent that the framing of the charge for the offence punishable under
Section 376/109 and Section 377/109 IPC is set aside.
51. The Petition is allowed in above terms. The Trial Court record be
returned back through special messenger along with a copy of the order.

Sd/(G.P. MITTAL)
JUDGE
JULY 25, 2013