INDU JAIN v.

STATE OF MADHYA PRADESH & ORS. (Criminal Appeal No. 1683 of 2008 and Ors)

OCTOBER 23, 2008 [Altamas Kabir and Markandey Katju, JJ.]

The Judgment of the Court was delivered by

ALTAMAS KABIR,  J.  1.  This  Special  Leave Petition and four other Special Leave Petitions have been filed against the judgment and order of the Madhya Pradesh High Court dated 11th September, 2006,  whereby the  order  of  the  Sessions  Judge,  Bhopal,  framing charges  against  the  accused  under  Section  304  Part  II  I.P.C.  in Sessions Trial No. 212 of 2005 was set aside and directions were given to frame charge only under Section 323/34 I.P.C. As all  the Special  Leave Petitions  arise  out  of  the common judgment  of  the High Court, the same are being heard together. Leave is accordingly granted in all the five Special Leave Petitions (Crl.) Nos. 6010 and 5473 of 2006, filed by Mrs. Indu Jain, No. 2132 of 2007 filed by the State of Madhya Pradesh, No. 2584 and 2588 of 2007 filed by the accused.

2.  In  order  to  appreciate  the  different  stands  taken  by  the different appellants in the matter, some relevant facts are reproduced hereinbelow which will have a bearing on the final decision in these appeals.

3.  On  14th July,  2004,  officers  of  the  Special  Police Establishment (Lokayukta), Bhopal, headed by Shri B.P. Singh and Shri  Mokham Singh  Nain,  who are  the  appellants  in  the  appeals arising out of S.L.P. (Crl) No. 2584 and 2588 of 2007 and accused in the complaint  filed by Ms.  Indu Jain,  the appellant  in  the appeals arising out of S.L.P. (Crl.) Nos. 6010 of 5473 of 2006, set a trap for one Shri R.K. Jain, Deputy Commissioner, Commercial Tax, Bhopal, and arrested him for  taking a bribe of  Rs.2,000/-  from one of  Mr. Chhajed, Tax Consultant, at 5.30 p.m. On 15th July, 2004, prior to 9 a.m. Shri Jain was found unconscious in the bathroom of the office of the Lokayukta, Bhopal, and was taken to Hamidiya Hospital, Bhopal,

for treatment. The records of the hospital show that when Shri Jain was brought to the hospital at 9 a.m. on 15th July, 2004, his body had neither any pulse nor respiration and recordable blood pressure and even heart sounds were absent. Though resuscitation measures were undertaken, including cardiac pulmonary resuscitation (C.P.R.), there was little response and Shri Jain was declared dead at 1.30 p.m. on the same day.

4.  The Post  Mortem examination of  the deceased,  which was conducted on 15th July, 2004, itself, at about 4 p.m. revealed certain injuries on the body, which included broken ribs,  but the cause of death was shown to be on account of asphyxia within six hours of the post mortem examination.  

5. On completion of investigation, the investigating agency filed a charge-sheet before the trial court on 12th May, 2004, and on 15th July, 2005, the learned Sessions Judge framed charges against the five  accused  persons,  namely,  B.P.  Singh,  Mokham  Singh  Nain, Badri Nihale, Ramashish and Silvanus Tirki under Section 304 Part-II I.P.C., but dropped the charge under Section 330 I.P.C.

6. Aggrieved by the framing of charge under Section 304 Part II I.P.C., accused Mokham Singh Nain filed Criminal Revision No. 1203 of  2005,  while  the  other  four  accused  filed  Criminal  Revision  No. 1204 of 2005, before the Madhya Pradesh High Court at Jabalpur. On the  other  hand,  on account  of  the  dropping of  charges  under Section  330  I.P.C.  Mrs.  Indu  Jain,  widow  of  the  deceased,  filed Criminal Revision No. 1114 of 2005. All  the revisional applications were heard together by the High Court which by its order dated 11th September,  2006,  set  aside  the  charge  framed  by  the  learned Sessions Judge and directed that charge could only be framed under Section 323/34 I.P.C.

7. As mentioned hereinbefore, these five appeals have been filed against the said judgment and order of the High Court.

8. Appearing in these appeals on behalf of Mrs. Indu Jain, the widow of the deceased, Mr. P.S. Patwalia,  learned Senior counsel submitted  that  the  order  of  the  Madhya  Pradesh  High  Court impugned  in  these  appeals,  was  quite  clearly  against  the  Police Report  submitted  under  Section  173(2)  of  the  Code  of  Criminal Procedure.  It  was  submitted  that  from  the  arrest  memo  of  the

deceased in connection with Crime No. 97 of 2004 it would be very clear  that  accused  B.P.  Singh  while  arresting  the  deceased recovered two inhalers from his person, but allowed the deceased to retain them as he was suffering from Asthma. However, during his overnight custody in the office of the Lokayukta, Bhopal, he was kept in a room, which was wholly unsuitable to a person suffering from asthma.

9. Over the condition of the deceased while in the custody of the Special  Police  Establishment  (Lokayukta)  who  had  arrested  and detained him in the office of the Lokayukta on 14th July, 2004, and his discovery in an unconscious condition in the morning of 15th July, 2004, a report was lodged by the Station House Officer of Kohefiza Police Station on the basis whereof a First Information Report under Section 330 I.P.C. was registered. In addition to the above, a written report was also made by Shri Akhilesh Jain, brother of the deceased to Kohefiza Police Station in which it was alleged that the accused persons  had  arrested  the  deceased  and  had  taken  him  to  an unknown  destination  from  where  he  was  brought  to  Hamidiya Hospital  in  a  serious  condition,  and,  ultimately,  succumbed to  his injuries.  It  was alleged that  the accused persons had tortured  the deceased on account of which he had died.

10. Mr. Patwalia submitted that once R.K. Jain was declared to be dead, as part of the investigation into the offence complained of, Shri O.P. Dixit, the Senior Scientist of the mobile unit of the District Police Force, made a physical inspection of the room in the office of the Lokayukta where the accused had kept the deceased in custody before  his  death  and  submitted  a  report  of  his  inspection.  In  his report Shri Dixit categorically mentioned the fact that the condition of the room was not at all suitable for detaining a person suffering from a  respiratory  disease  such  as  asthma,  in  custody.  He  plainly indicated  that  the  room in  question  was completely  unsuitable  for such  a  patient  as  it  was  filled  with  dust  and  cobwebs  and  the deceased  was  treated  unhumanly  and  against  the  principles  of ethical human conduct. Shri Dixit also observed from the report of the Forensic Science Laboratory, that it is evident that the conduct of the accused  was  one  of  gross  negligence  and  misdemeanor.  It  was further observed that for a person who was suffering from asthma, the deceased ought not to have been left alone inside the unhygienic room and at least someone, such as a family member or a friend,

should  have  been  allowed  to  remain  present  with  him.  Shri  Dixit recommended appropriate action to be taken against the accused for dereliction  of  duty,  which was duly supported  by the report  of  the Forensic Science Laboratory.  

11 Mr. Patwalia submitted that having regard to the fact that the accused  persons  were  police  officers  belonging  to  the  Special Establishment of the Lokayukta and also having regard to the nature of the offence, the investigation of the case was handed over from the local police to the Criminal Investigation Department (CID) and upon completion of the investigation a charge-sheet was submitted before  the  trial  court  on  12th May,  2005,  and,  as  mentioned hereinbefore,  on  perusal  of  the  material  on  record,  the  learned Sessions Judge on 15h July, 2005, framed charges against all the five accused under Section 304 Part II IPC but dropped the charge under Section 330 IPC.

12.  Mr.  Patwalia submitted  that  when the materials  on record clearly  indicated that  R.K.  Jain had died because of  deliberate  ill- treatment  and negligence at  the  hands of  the appellants,  while  in their custody, the High Court had erred in coming to the conclusion that the said materials did not disclose an offence under Section 330 IPC. Mr. Patwalia submitted that apart from the evidence of physical torture  of  the  deceased,  which  would  be  supported  by  the  post- mortem report, the opinion of Dr. Satpathi, who conducted the post- mortem examination  is  that  R.K.  Jain’s  death  was  on  account  of asphyxia, namely, oxygen hunger on account of choking. According to Mr. Patwalia the cause of death fitted in with the report submitted by Mr. Dixit on the basis of which the First Information Report came to be recorded.  

13. Mr. Patwalia urged that in spite of the evidence available at the stage of framing charge, the High Court turned a blind eye to the physical  condition  of  the  deceased  and  the  indifferent  manner  in which  he  was  treated  and  kept  in  custody  in  the  office  of  the Lokayukta in conditions which triggered the asthmatic attack which ultimately led to the death of R.K. Jain in custody. Mr. Patwalia urged that although sufficient material was available before the High Court for  framing  charge  under  Section  304  Part  II  IPC,  along  with  the charge  under  Section  330  IPC,  the  High  Court  quite  erroneously dropped the charge under Section 304 Part II and also Section 330 IPC and observed that only a charge under Section 323/34 IPC had

been established under the aforesaid report. Mr. Patwalia submitted that the order of the High court impugned in the appeal was liable to be set aside with a direction to the trial court to consider afresh the framing of charges under Sections 304 Part II  and 330 IPC, along with the charge under Section 323/34 IPC.

14.  As  far  as  the  other  appeal  filed  by  Ms.  Indu  Jain  is concerned,  the arguments made in this  appeal  will  also cover the points raised in the said appeal.

15.  In  the  appeal  filed  by  the  State  of  Madhya Pradesh,  Ms. Vibha Dutta Makhija, learned counsel, contended that this was not only a case for framing of charge under Sections 323 with Section 34 thereof,  but  this  is  fit  a  case  where  charges  ought  to  have been framed against the accused under Sections 302 and 330 IPC as well. Repeating the manner in which the deceased R.K. Jain had been arrested  and  thereafter  kept  in  custody  of  the  Special  Police Establishment  attached  to  the  Lokayukta  office,  Ms.  Makhija reiterated  the  findings  of  Mr.  Dixit  which  pointed  to  the  direct involvement  of  all  the  accused  persons  in  the  commission  of  the offence.

16. According to Ms. Makhija the bare facts of the incident which occurred with the arrest of R.K. Jain on 14th July, 2004, establish the fact  that  Shri  Jain died while in  the custody of  the Special  Police Establishment and it was yet to be proved on evidence as to how R.K. Jain died on account of asphyxia when he was detained in the office of the Lokayukta. Ms. Makhija also pointed out that when the deceased had been brought to the Hamidiya Hospital in Bhopal at 9 a.m.  on  15th July,  2004,  his  body  did  not  record  any  pulse  or respiration or blood pressure and there was no heart sound either. Ms. Makhija submitted that although he remained in such condition till  he was declared to be dead at 1.30 p.m.,  there was almost no response  from  R.K.  Jain  even  after  being  administered  cardiac pulmonary resuscitation. He continued to remain in such condition till he was formally declared to be dead. Ms. Makhija submitted that by keeping the deceased, who suffered from respiratory problems, in a closed  room without  windows which was clearly  uninhabited  for  a long  time  on  account  of  the  dust  and  cobwebs  collected  therein which triggered an asthmatic attack which led to R.K. Jain’s death, a clear case of an offence under Sections 302 and 330 IPC had been made out against the appellants.  Counsel’s submissions were fully

supported by the report, which showed six injuries on the person of the deceased. Injury No.1 was a contusion on the scalp. Injury Nos. 2 and 3 were lacerations on the lip and mouth.  Injury Nos.  4 and 5 were broken ribs, while injury No.6 was a laceration on the neck of the deceased.  

17.  Ms.  Makhija  contended  that  this  being  a  clear  case  of custodial  death  on  account  of  the  treatment  meted  out  to  the deceased  by  detaining  him  in  wholly  unhygienic  conditions completely unfit for a patient of asthma, both the trial court as well as the High Court erred in not framing charge against the appellant and the other accused persons under Section 330 IPC. The matter was further  confounded  by  the  order  of  the  High  Court  quashing  the charge against the accused persons under Section 304 Part II IPC.

18.  On  legal  submissions,  Ms.  Makhija  submitted  that  the opinion  of  the  doctor  at  the  time  of  framing  charges  cannot  be conclusive and the same would have to be considered at  its  face value during the trial itself. Ms. Makhija submitted that at the stage of framing  charge,  the  Court  is  not  required  to  go  into  a  detailed examination of the material filed by the Investigating agency under Section 173 Cr.P.C. At the said stage, the Court, on perusal of the materials before it, is only required to find out whether a prima-facie case  is  made  out  to  proceed  against  the  accused.  Ms.  Makhija submitted  that  it  is  settled  law  that  the  High  Court  should  not ordinarily  interfere  with  the  framing  of  charges  by  the  trial  court, unless some glaring injustice is noticed.  

19. Ms. Makhija referred to the decision of this Court in Om Wati (Smt.)  and  Anr.  Vs.  State,  [2001  (4)  SCC 333]  in  support  of  her aforesaid submissions. She also referred to the decision of this Court in State of Maharashtra vs. Salman Salim Khan, [2004 (1) SCC 525] wherein this Court cautioned the trial court as well as the High Court regarding arriving at a decision as to the sufficiency or otherwise of the  material  to  frame  charge,  as  the  prosecution  case  gets  pre- empted to  that  extent  since during the course  of  trial,  even if  the Magistrate comes to a different conclusion, it may not be possible for him to pass orders accordingly. The learned Judges observed that there was limitation to the inherent power of the High Court under Section 482 Cr.P.C. and though it is open to the High Court to quash charges framed by the trial  Court the same could not be done by weighing the correctness or sufficiency of the evidence. It was further

observed by this  Court  that  it  is  only at  the stage of  trial  that  the truthfulness,  sufficiency  and  acceptability  of  the  evidence,  can  be adjudged.

20.  Ms.  Makhija  lastly  referred  to  the  three-Judge  Bench decision of this Court in State of Orissa vs. Debendra Nath Padhi, [2005 (1) SCC 568] in which the question decided differently in the case of Satish Mehra vs. Delhi Administration, [1996 (9) SCC 766] was referred to. In Satish Mehra’s case, a two Judge Bench of this Court had decided that at the stage of framing of charge,  the trial Judge was competent to look into the material produced on behalf of defence  at  the  time  of  framing  of  charge  in  order  to  come  to  a decision as to whether it was at all necessary to frame charges on the material  produced on behalf  of  the prosecution as well  as the defence. Answering the reference in the negative, the three-Judge Bench overruled the view expressed in Satish Mehra’s case and held that at the said stage of framing charge, the Court was only required to look  into the material  produced on behalf  of  the prosecution in deciding whether a particular case was fit to go to trial.

21. Ms. Makhija,  while questioning the decision of the learned Sessions Judge to drop charges against the accused persons under Section 330 IPC, submitted that neither the Sessions Court nor the High Court even thought of framing charge under Section 302 IPC against the accused persons.

22. Appearing for the accused in the appeal filed by Indu Jain, who are also the appellants in the appeals arising out of SLP(C) No. 2584 and 2588 of  2007,  Mr.  K.T.S.  Tulsi,  learned senior  counsel, submitted  that  the  order  of  the  High  Court  did  not  call  for  any interference since the charge-sheet does not disclose the ingredients of  the  charge framed against  the  accused  persons  under Section 323/34 IPC. Mr. Tulsi submitted that there is no direct evidence that the accused persons had ever assaulted the deceased and the First Information  Report  shows  that  R.K.  Jain  died  due  to  asphyxia. Referring  to  the statement  of  Dr.  Satpathi  who had examined the deceased, and was also one of the doctors who conducted the Post Mortem examination Mr. Tulsi submitted that the broken ribs and the laceration marks on both sides of the lower lips were the result of attempts made in the Hospital  to resuscitate the deceased.  It  was submitted  that  the  opinion  of  the  Medical  Experts  and  the  Post- Mortem  Report  established  that  R.K.  Jain  died  on  account  of

asphyxia and that he had obstructive lung disease which block the airways and his death was, therefore, natural and not on account of any violence while in custody.

23.  Mr.  Tulsi  submitted  that  apart  from  the  above,  Dr.  V.K. Sharma, Professor and Head of the Department of Medicine, Gandhi Medical College, Bhopal, whose opinion was sought for by the CID, Police Head Quarters, Bhopal had indicated that the fracture of the ribs could have been caused while external cardiac massage or CPR was being administered to R.K. Jain in an attempt to revive him. Dr. Sharma also stated that the fracture of ribs can also be caused while external  cardiac  massage,  with  artificial  respiration  and  chest compression,  was being undertaken. He also opined in his Report that a severe attack of asthma could result in the condition in which R.K.Jain was found and such attack could have been triggered by heavy mental tension, dust, cobwebs cold weather or the presence of allergens in the atmosphere and pollution.

24. Mr. Tulsi submitted that in view of the circumstances in which R.K. Jain was arrested and thereafter kept detained in the office of the Lokayukta,  the constable  who formed part  of  the raiding party had  been  suspended  for  dereliction  of  duty  but  was  ultimately reinstated, as in the preliminary inquiry the charge of negligence and dereliction  of  duty  was  held  not  to  have  been  proved.  Mr.  Tulsi referred to the Judgment and order passed by the learned Sessions Judge on 28h July, 2005, while deciding the question as to whether there was sufficient ground for framing charge against them under Section  330,  323/34  and  304(2)  Indian  Penal  Code.  Referring  to paragraph  14 of  the  order,  Mr.  Tulsi  pointed  out  that  the  learned Sessions Judge had himself held that it could not be definitely said that  no  cause  of  death  had  been  indicated  in  the  Post-mortem Report. In fact, on behalf of the Investigating Authorities, a letter was written on 16th July, 2004 to the Director, Gandhi Medical College, Bhopal, asking for information as to whether nature of the injuries on deceased R.K.Jain were simple or grievous in nature or whether in ordinary circumstances, the death of the deceased could have been on account of injuries found on the deceased.  The most  pertinent question that was asked was as to what was the cause of death. In the reply sent by Dr. Satpathi, Director of the Medical Legal Unit of the Hospital, it was mentioned that the injuries found on the body of the  deceased  were  simple  in  nature  which  were  not  sufficient  to cause death. It was stated that death was due to asphyxia. In fact, in

the said letter, Dr. Satpathi by way of a footnote indicated that injury Nos. 2,3,4 and 5 on the lips and ribs on both sides of the body had been caused in the Hospital during treatment and it had no relation with the death of R.K. Jain.

25. In support of his aforesaid submission, Mr. Tulsi referred to the well-known Bhopal Gas Tragedy case, namely, Keshub Mahindra vs. State of M.P., [1996 (6) SCC 129], in which while considering the provisions of Section 299 and 304 Part II IPC, it was observed that the accused must have done an act  which caused the death of a person with the knowledge that by such act he would likely to cause death.  While  considering  the  width  of  the  powers  that  could  be exercised by the High Court under Section 482 Cr.P.C. in relation to Sections 227 and 228 thereof, it was held that at the stage of framing of charge the Court had no jurisdiction to go into the merits of the allegations, which could be gone into at the time of the trial, but at the same time before any charge could be framed under Section 304 Part II, the materials on record must at least prima-facie show that the accused is guilty of culpable homicide and that the act which had caused the death of  the victim had been caused at  least  with the knowledge that such act was likely to cause death.  

26.  Mr.  Tulsi  submitted  that  though  there  was  no  definite conclusion as to the manner in which R.K. Jain had died, at least it was  established  that  he  died  due  to  asphyxia  which  is  the consequence of respiratory breathing problems which the deceased suffered from and had nothing to do with an offence under Section 323 IPC under which provision charge had been framed against the accused persons.

27. Mr. S.K. Gambhir, learned senior advocate appearing for the respondent Nos. 5 and 6, while adopting the submissions made by Mr. Tulsi, added that from the sheet of Progress and Treatment given by the Hospital it will be revealed that R.K. Jain was brought to the Hospital at 9 a.m. in a comatose condition and that cardio respiratory resuscitation  was  started  immediately  and  cardiac  activity  was regained after 15 or 20 minutes. It was pointed out that the Progress and  Treatment  Given  sheet  also  indicated  that  as  part  of  the resuscitation  attempts  an  endotracheal  intubation  was  done,  after which the deceased was placed on a mechanical ventilator at about 10.15 a.m. However, inspite of the attempts made to revive R.K.Jain, he  ultimately  died  because  of  choking  of  breath  caused  by

respiratory breathing failure.  Mr. Gambhir submitted that there was no material  on  record  to  indicate  that  R.K.  Jain  died a  homicidal death so as to attract the provisions of Section 304 IPC. In short, Mr. Gambhir  submitted  that  there  was no material  before  the  learned Trial Judge for framing charge under Section 323/34 IPC against the respondent nos. 4, 5 and 6.

28. Relying on the decision of this Court in the case of Kewal Krishan vs.  Suraj  Bhan & Anr.,  [AIR 1980 SC 1780]  Mr.  Gambhir claimed  that  Section  227  of  the  Code  was  meant  to  prevent prolonged  harassment  to  an  accused  and  if  the  Judge  was  not convinced that  there was sufficient  ground to  proceed against  the accused, he was required to discharge the accused and to record his reasons for doing so. In the said decision it was observed that at the stage of framing of charge, the Magistrate was not required to weigh the evidence as if he was the trial court. He was only required to see whether the complaint  made out a prima facie case triable by the Court of Session, which would be sufficient for issuing process to the accused and committing them for trial to the Court of Session.  

29. Mr. Gambhir concluded his submissions by urging that in the absence  of  any reliable  material  regarding the  involvement  of  the respondent Nos. 4, 5 and 6 in respect of the charge under Section 323/34 IPC, the charge framed against the respondents was liable to be quashed.

30.  We  have  carefully  considered  the  submissions  made  on behalf of the respective parties, having particular regard to the fact that  R.K.Jain  had died while  in  the custody of  the  Officers  of  the Special  Police Establishment (Lokayakuta),  Bhopal,  in the office of the Lokayukta, Bhopal.  

31. It has been sufficiently established that the deceased was a patient of asthma which could cause asphyxia which was ultimately said  to  be  the  cause  of  R.K.  Jain’s  death.  It  is  also  clear  that notwithstanding his serious respiratory problem, the deceased was kept in a windowless room which was full of dust and cobwebs which are known allergens for triggering an asthma attack, which can be fatal, as in this case. The injuries found on the body of the deceased may have been caused during attempts at resuscitation, but all the said circumstances can only be considered during a proper trial and not on the basis of surmises at the time of framing charge where on the strength of the charge sheet only a prima facie satisfaction about

the commission of an offence has to be arrived at by the trial court. Therefore, while rejecting the submissions made by Mr. Tulsi and Mr. Gambhir  that  there  were  no  materials  on  record  to  frame charge against  the  accused  persons  even under Section  323/34 IPC,  we cannot but observe that on a prima facie view of the matter, there is ground to proceed against the accused persons even under Section 304 Part II IPC. On that score, we are inclined to agree both with Mr. Patwalia and Ms. Makhija that the High Court had erred in quashing the charge framed against the accused persons under Section 304 Part II and observing that in view of the materials on record only a charge  under  Section  323  could  be  brought  against  the  accused persons.  

32.  Although,  Ms.  Makhija  has  strenuously  urged that  charge under Section 302 IPC should also have been framed against  the accused persons, we are not inclined to accept the same as at this stage  there  is  little  to  establish  an  intention  on  the  part  of  the accused to willfully cause the death of R.K. Jain.

33. As has been observed in Kewal Krishan’s case (supra), at the stage of framing of charge, the Court is not required to go into the details of the investigation but to only arrive at a prima facie finding on the materials  made available as to  whether a charge could be sustained as recommended in the charge sheet. The same view has been subsequently reiterated in Devendra Padhi’s case (Supra) and in the case of Bharat Parikh vs. Union of India, [2008 (1) Scale page 86] wherein the holding of a mini trial at the time of framing of charge has been deprecated.

34. This brings us to the next question as to whether the Trial court as well as the High court was justified in dropping the charge under Section 330 IPC since R.K. Jain’s death took place while he was in custody. The important question is whether a prima facie case can be said to have been made out for a charge to be framed under Section 330 IPC. Since the cause of death has been shown to be asphyxia  on  account  of  detention  of  the  deceased  in  unhygienic conditions despite his respiratory problems and the injuries to the ribs and mouth of the deceased could possibly have been caused by the attempts  made  by  the  doctor  at  the  Hospital  to  resuscitate  the deceased,  who  had  been  brought  to  the  Hospital  in  a  comatose condition,  with  the body showing no signs  of  pulse,  respiration  or blood pressure, prima facie a case is made out for framing of charge

under  Section  330  IPC.  The  sheet  showing  the  progress  and treatment of the accused on arrival at the Hospital, also corroborates the  same  and  it  also  mentions  the  fact  that  cardiac  pulmonary resuscitation was immediately started and the patient  was also put on  mechanical  ventilator  as  part  of  the  attempts  at  resuscitation. Apart  from  indicating  that  the  patient  had  died  of  asphyxia,  the medical  opinion  does  not  give  any reason  for  such  asphyxia and even  in  reply  to  the  queries  made  on  behalf  of  the  investigating authorities the reply received from Dr. Satpathi, as to the cause of death, was that it had occurred due to asphyxia, but as to how it had occurred was under investigation.

35. In this regard,  the materials submitted by the Investigating Authority in its Final Report under Section 173 Cr.P.C. does establish the fact that the deceased had been kept in a room which was highly unsuitable for a person suffering from respiratory problems. In fact, as was indicated by Shri O.P. Dixit, the Senior Scientist of the Mobile Unit of the District Police Force the condition of the room where the deceased had been detained was completely unsuitable for a patient of asthma as it was filled with dust and cobwebs which was sufficient to  trigger  an  asthmatic  attack  which  could  have caused  asphyxia which ultimately led to R.K. Jain’s death.

36. We are, therefore, convinced that the appeals filed by Indu Jain and that filed by the State of Madhya Pradesh must be allowed in part. We, accordingly, allow the same and set aside the order of the High Court impugned in these appeals. While restoring the order of the learned Sessions Judge framing charge against the accused persons under Section 304 Part II IPC, we also direct that charges also  be  framed  against  the  accused  persons  under  Section  330 Indian Penal Code.

37. The three appeals filed by Ms. Indu Jain and the State of Madhya Pradesh are allowed to the aforesaid extent.  

38. As far as the appeals arising out of SLP (Crl.) Nos. 2584 and 2588 of 2007 filed by the accused are concerned, the same are dismissed.