Rajasthan High Court - Jaipur
Narendra Singh vs State Of Rajasthan on 23 July, 2009
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CRIMINAL REVISION PETITION NO. 470/2007 Narendra Singh vs. State of Rajasthan Date of Order: 23/07/2009 PRESENTS HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Reportable Mr. Pankaj Gupta, for the petitioner. Mr. Javed Choudhary, Public Prosecutor. By the Court: (Oral).
This revision petition has been filed against the order dated 08.05.2007 passed by the learned Additional Sessions Judge (Fast Track), No.2, Jaipur City, Jaipur, whereby he has framed charges against the petitioner for the offence under Section 306 IPC.
2. The brief facts giving rise to this case are that the brothers of the deceased, namely Ram Kumar Aswani and Naresh Kumar Aswani had made a complaint to Superintendent of Police, Jaipur City, Jaipur on 19.08.1991. It was averred in the complaint that their sister, namely Bharti Singh, was married to Narendra Singh, petitioner one year ago. Further, it was averred that in extremely abnormal circumstances, Smt. Bharti Singh was found hanging to the ceiling fan at about 12.00 in the night, on 10.08.1991. It was mentioned in the complaint that the efforts were being made to give the incident a colour of suicide, whereas there were circumstances, which shows that it was a deep conspiracy of murder. Thereafter, the complainants have given various circumstances in this regard. As for instance, it has been mentioned that the deceased Smt. Bharti was a brave and bold lady who had married with Narendra Singh against the wishes of her family members and in no circumstances, she would have committed suicide. The deceased had invited some persons for a meal on the next day i.e. 11.08.1991. She had prepared Mehandi, which shows that there was no reason or intention or prior preparation for committing suicide. It was also mentioned in the complaint that petitioner had married earlier also but had left his wife.
It was averred in the complaint that the petitioner was not a man of good character and he had relations with other girls. He is said to have been involved in a murder case earlier. He was the main accused in that case and the police had been searching him. A Muslim person, who was going on a bicycle was murdered in Mahesh Nagar and his deadbody was thrown on the railway track. But as the petitioner had contacts at the higher level he remained absconding from the office as well as residence and had also left his sister at Jaipur. Later on, the said criminal case was dropped on account of some recommendation. Apart from it, it was mentioned in the complaint that the petitioner was involved in Jaipur Communal Riots during which he had burnt down many shops and his leg was also got burnt.
It was also stated in the complaint that in the room, where the suicide is said to have been committed, there was only one folding bad and a small table. The deceased Smt. Bharti was pregnant of eight months and she was not in a condition to get herself hanged to the fan, which was at a height of 10 feet, even by climbing on the table. Further, it was mentioned in the complaint that although both, petitioner and deceased, were working in the High Court and getting good salaries, but they did not have much house hold articles and the entire money was being spent by the petitioner in consuming liquor. On the day of incident, also the petitioner was under intoxication. It has also been mentioned in the complaint that despite of hanging to the ceiling fan, eyes and tong of the deceased Smt. Bharti were not coming out. A note is said to have been written by Smt. Bharti, which was very short and torn from the top as well as bottom.
It is also mentioned in the complaint that the petitioner was always in need of money and he had been demanding the same from complainant family. Few months ago, a loan was taken in the name of sister of the complainants and her Luna vehicle was also got sold even then the petitioner did not have money to buy a scooter. He had taken money from the complainants on many occasions. Apart from it, the petitioner used to demand money through their sister. It was stated in the complaint that in the interest of justice and in view of the aforesaid circumstances, re-inquiry be got conducted by the specialist, as the case of murder of their sister was being given the colour of suicide by petitioner. Further, it was prayed in the complaint that a case of murder of Smt. Bharti Singh may be registered against the petitioner Narendra Singh.
3. On the aforesaid complaint, a First Information Report (No. 249/1991) was registered on 19.08.1991 at Ashok Nagar, Jaipur for the offences under Sections 498-A and 304-B (the letter 'IPC' had been written by way of over-typing on some figures). In the meanwhile, an inquiry under Section 174 Cr.P.C. was conducted by ACM-I, Jaipur which was also handed over to the police. It appears that thereafter, usual investigation was conducted by the police from 28.08.1991 onwards. A site plan was prepared and statements of witnesses were recorded under Section 161 Cr.P.C. The said statements at the top mentions that it was being recorded in FIR No. 249/1991, registered at Police Station Ashok Nagar, Jaipur on 19.08.1991 for the offence under Section 304-B IPC. On conclusion of the investigation, the police filed challan (145) on 30.10.1991 for the offence under Section 306 IPC. Subsequently, the matter came up for trial before the learned Additional Sessions Judge (Fast Track), No.2, Jaipur City, Jaipur who had then framed charge by the impugned order dated 08.05.2007. Hence, this revision petition has been filed by the accused petitioner seeking to challenge the order of charge passed by the learned trial court.
4. The learned counsel for the petitioner has submitted that the impugned order of charge is not sustainable in law as being contrary to the relevant provisions and material available on record. Further, he has submitted that the learned trial court has not properly considered the facts and circumstances of the case and also the statements of the witnesses. According to him there are three types of statements, namely that of friends, neighbours and the relatives. He has submitted that the charge had been framed against the petitioner, by the learned trial court, on the basis of surmises and conjectures. It has also been submitted that the deceased and the petitioner had cordial relations, it was a love marriage between them and that the deceased had left a suicide note. On the basis of the statements of the witnesses, the learned counsel for the petitioner has submitted that no offence under Sections 498-A and 306 IPC is made out against the petitioner. It is submitted that the petitioner has neither instigated nor abated the deceased to commit suicide. In support of his submissions, the learned counsel for the petitioner has placed reliance on the cases of Manish Kumar Sharma vs. State of Rajasthan, 1994 (1) RLR 94; Ramesh Chandra vs. State of Rajasthan, 1997 (1) RLR 651; Ramesh Kumar vs. State of Chhattisgarh, AIR 2001 SC 3837; Sanju @ Sanjay Singh Sengar vs. State of M.P., (2002) 5 SCC 371; Hans Raj vs. State of Haryana, (2004) 12 SCC 257; Netai Dutta vs. State of West Bengal, (2005) 2 SCC 659; Bhagwan Das vs. Kartar Singh & Ors., AIR 2007 SC 2045 and Sohan Raj Sharma vs. State of Haryana, AIR 2008 SC 2108.
5. On the other hand, the learned Public Prosecutor has submitted that the order of charge passed by the learned court below is very much in accordance with law and based on material on record. Further, he has submitted that the charges framed against the petitioner are just and proper. According to him, from the complaint and the evidence collected by the Investigation Agency, including the enquiry conducted under Section 174 Cr.P.C., there is ground for presuming that the accused has committee an offence. He has read before me the complaint and the statements of some of witnesses recorded by the Police. The learned Public Prosecutor has referred to other evidence on record collected by the Investigation Agency. He has submitted that the deceased was at the residence of accused petitioner and undisputedly, the incident has taken place at his house. Therefore, he has submitted that such circumstances also connect the chain which leads to grave suspicion on the petitioner. The learned Public Prosecutor having supported the order of charge, submitted that the learned court below has rightly exercised powers under Section 228 Cr.P.C. and has made a prayer that no interference in the same is called for by this Court. Consequently, the revision petition deserves to be dismissed.
6. Before considering the contentions raised by the counsels for the rival parties, it would be appropriate to refer the relevant provisions of law, its ambit and scope.
Chapter XVIII of the Code of Criminal Procedure provides for trial before Court of Sessions. Under Section 228 of the Code of Criminal Procedure charges are framed in Sessions trial. Section 228 reads as under:-
228. Framing of charge.-:(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) Is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
In other words, the learned Judge is of the opinion that there is ground for presuming that the accused has committed an offence, which is exclusively triable by it, he shall frame a charge in writing against the accused. Thereafter, the charge shall be read and explained to the accused and he shall be asked as to whether he pleads guilty of the offence charged or claims to be tried.
7. The Hon'ble Supreme Court has laid down the considerations to be applied by the Court at the time of framing of the charge. As early as in the year 1977, in the case of State of Bihar vs. Ramesh Singh, (1977) 4 SCC 39, the Hon'ble Supreme Court has laid down the tests and considerations to be applied by Court while appreciating Section 228 of the Code of Criminal Procedure. The Hon'ble Supreme Court, in para 4 and 5 of the said case, has held as under:-
4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. 'The Judge has to pass thereafter an order either under Section 227 or section 228 of the Code. If "the Judge consider that there is not. sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by Section 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
.........(b )is exclusively triable by the Court, he shall frame in writing a charge against the accused', as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or section 228 of the Code. At that stage the Court is not to 'see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the 260 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 not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not if the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if 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. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the, trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if, on the other hand, it is so at the initial stage of making an order under section 227 or section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under section 228 and not under section 227.
5. In Nirmaljit Singh Hoon v. The State of West Bengal and an- other(1)-Shelat, J. delivering the judgment on behalf of the majority for the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prakash Chandra Bose(2) where this Court was held to have laid down with reference to the similar provisions contained in sections 202 and 203 of the Code of Criminal Procedure, 1898 "that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused." Illustratively, Shelat J, further added "Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case."
8. In the case of Supdt. And Rememberance or Legal Affairs, West Bengal vs. Anil Kumar Bhunja & Ors., (1979) 4 SCC 274, Hon'ble Supreme Court had reiterated the provisions of law at the stage of framing of charge. In para 18, the Hon'ble Apex Court has held as follows:-
18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of the offence.
9. In the case of Stree Atyachar Virodhi Parishad vs. Dilip Nathumal Chorida & Anr., (1989) 1 SCC 715, the Hon'ble Supreme Court, in a case where newly married girl died, had laid down in para 14, 17, 18, 19 and 20 as under:-
14. These two decisions do not lay down different principles. Prafulla Kumar case has only reiterated what has been stated in Ramesh Singh case. In fact, sec. 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, he guilt or the innocence of the accused will be determined and not at the time of framing of charge. The Court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor it is necessary to delve deep into various aspects. All that the Court has to consider is whether the evidenciary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into.
17. It may not be out of place to mention that "dowry" which is a deep rooted social evil appears to be the cause of ever so many unfortunate death of young ladies. It is an offence brutal and barbaric. It is generally committed inside the house and more often with a circumstance to give an impression that it was a suicidal death. There will be all round attempt to cover up such offence by the family members rather than to expose it. The Government has come forward with legislations from time to time to protect women and to punish those who commit atrocities on them. In 1961 the Dowry Prohibition Act (Act 28 of 196 1) was passed prohibiting the taking or giving dowry. By the Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983) Chapter XX-A was introduced in the Penal Code with sec. 498-A creating a new offence of cruelty. It provides for punishment to husband or his relatives if they harass a woman with a view to coerce her to meet any unlawful demand for property. Section 174 of the Criminal Procedure Code was also amended to secure post-mortem in 568 case of suicide or death of a woman within seven years of her marriage. Section 113-A has been introduced in the Evidence Act, 1872 raising presumption of cruelty as defined under sec. 498-A IPC against the husband or his relatives if the wife commits suicide within a period of seven years from the date of her marriage. These provisions reflect the anxiety of the representatives of our people to deal firmly the menace of dowry deaths. Again, here are sweeping changes made in the Dowry Prohibition (Amendment) Act, 1984. A new offence called 'Dowry death' has been created by introducing sec. 304-B in the Penal Code. It raised presumption of culpability against the husband or relative hitherto unknown to our jurisprudence. It provides that where the death of a woman is caused by any bums or bodily injury or otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry, such death shall be called 'dowry death'. The section also provides hat such husband or relative shall be deemed to have caused her death and shall be punished with imprisonment for a minimum of seven years but which may extend to life imprisonment.
18. We are referring to these provisions not that they are attracted to the present case. It is only to emphasize that it is not enough if the legal order with sanction alone moves forward for protection of women and preservation of societal values. The criminal justice system must equally respond to the needs and notions of the society. The investigating agency must display a live concern and sharpen their wits. They must penetrate into every dark corner and collect all the evidence. The Court must also display greater sensitivity to criminality and avoid on all counts "soft justice".
19. In the instant case the trial court has considered every material on record in support of the charge framed. The trial court has also given reasons why a charge under sec.302 IPC is warranted against Dilip even though the police charge sheeted him under sec. 306 IPC. The High Court has gone on a tangent mainly relying on the dying declaration as if it has been conclusively proved to be the true and faithful version of the deceased. Apart from that, we are unable to compromise ourselves with the approach made and the opinion expressed by the High Court in respect of many of the matters.
20 We wish to add a word regarding interference by the High court against a charge framed by the Sessions Court. Section 227 which confers power to discharge an accused was designed to prevent harassment to an innocent person by the arduous trial or the ordeal of prosecution. How that intention is to be achieved is reasonably clear in the section itself. The power has been entrusted to the Sessions Judge who brings to bear his knowledge and experience in criminal trials. Besides, he has the assistance of counsel for the accused and Public Prosecutor. He is required to hear both sides before framing any charge against the accused or for discharging him. If the Sessions Judge after hearing the parties frames a charge and also makes an order in support thereof, the law must be allowed to take its own course. Self restraint on the part of the High Court should be the rule unless there is a glaring injustice stares the Court in the face. The opinion on any matter may differ depending upon the person who views it. There may be as many opinions on a particular matter as there are courts but it is no ground for the High Court to interdict the trial. It would be better for the High Court to allow the trial to proceed.
10. Subsequently, in the case of Satish Mehra vs. Delhi Administration & Anr., (1996) 9 SCC 766, the Hon'ble Apex Court, in para 9, had observed thus:-
9. Considerations which should weigh with the Sessions Court at this stage have been well designed by the Parliament through Section 227 of the Code of Criminal Procedure (for short 'the Code') which reads thus:
"227. Discharge.- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution there is not sufficient ground for proceeding accused and record his reasons for so doing."
Section 228 contemplates the stage after the case survives the stage envisaged in the former section. When the Court is of opinion that there is ground to presume that the accused has committed and offence the procedure laid down therein has to be adopted. When those two section are put juxtaposition with each other the test to be adopted becomes discernible: Is there sufficient ground for proceeding against the accused? It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is where there is "sufficient ground for proceeding".
11. In a later case of State of M.P. vs. S.B. Johari & Ors., (2000) 2 SCC 57, The Hon'ble Supreme Court, in para 4, laid down as under:-
...........It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof.
12. Further, in the case of Om Wati (Smt.) & Anr. vs. State, (2001) 4 SCC 333, the Hon'ble Supreme Court reiterated the principles by observing, in para 7 and 8, as follows:-
7. Section 227 of the Code provides that if upon consideration of record of the case and the documents submitted therewith, the Judge considered that there is no sufficient ground for proceeding against the accused, he shall discharge the accused for which he is required to record his reasons for so doing. No reasons are required to be recorded when the charges are framed against the accused persons...
8. At the stage of passing the order in terms of Section 227 of the Code, the Court has merely to peruse the evidence in order to find out whether or not there is a sufficient ground for proceeding against the accused. If upon consideration, the court is satisfied that a prima facie case is made out against the accused, the Judge must proceed to frame charge in terms of Section 228 of the Code. Only in a case where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the court can discharge the accused. The court is not required to enter into meticulous consideration of evidence and material placed before it at this stage...
13. In the case of State of A.P. vs. Golconda Linga Swamy & Anr., (2004) 6 SCC 522, the Hon'ble Supreme Court held, in para 10, as under:-
10.....At the time of framing the charge it can be decided whether prima facie case has been made out showing commission of an offence and involvement of the charged persons. At the stage also evidence cannot be gone into meticulously. It is immaterial whether the case is based on direct or circumstantial evidence. Charge can be framed, if there are materials showing possibility about the commission of the crime as against certainty.
14. In a later case of Onkar Nath Nath Mishra & Ors. vs. State (NCT of Delhi) & Anr., (2008) 2 SCC 561, the Hon'ble Apex Court, in para 11, had laid down as follows:-
11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.
15. Similarly, in the case of Sanghi Brothers (Indore) Private Ltd. vs. Sanjay Choudhary & Ors., (2008) 10 SCC 681, the Hon'ble Supreme Court, in para 13 and 14, had observed as under:-
13. After analysing the terminology used in the three pairs of sections it was held (in Antulay case) that despite the differences 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 a prima facie case is to be applied.
14. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed.
16. The other provisions relevant to the present case are Sections 304-B IPC, which reads as under:-
304B. Dowery death. (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death.
Further, the provision of Section 113-B of the Evidence Act, reads as under:-
113B. Presumption as to dowry death - When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.
17. The newly added offence of dowry death was elaborately considered by the Hon'ble Supreme court in the case of Soni Devrajbhai Babubhai vs. State of Gujarat & Ors., (1991) 4 SCC 298, wherein it had observed as follows:-
"9. It is clear from the above historical background that the offence of dowry death punishable under Section 304-B of the Indian Penal Code is a new offence insertedin the Indian Penal Code with effect from November 19, 1986 when Act 43 of 1986 came into force. The offence under Section 304-B is punishable with a minimum sentence of seven years which may extend to life imprisonment and is triable by Court of Session. The corresponding amendments made in the Code of Criminal Procedure and the Indian Evidence Act relate to the trial and proof of the offence. Section 498-A inserted in the Indian Penal Code by the Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983) is an offence triable by a Magistrate of the First Class and is punishable with imprisonment for a term which may extend to three years in addition to fine....."
Further, the Hon'ble Court had observed as under:-
".......The offence punishable under Section 304-B, known as dowry death, was a new provision in the Indian Penal Code providing for a more stringent offence than Section 498-A. Section 304-B is a substantive provision creating a new offence and not merely a provision effecting a change in procedure for trial of a pre-existing substantive offence."
While dealing with the contention raised before it, the Hon'ble Court laid down thus:-
"10.....The contention of learned counsel for the appellant that Section 304-B inserted in the Indian Penal Code does not create a new offence and contains merely a rule of evidence is untenable. The rule of evidence to prove the offence of dowry death is contained in Section 113-B of the Indian Evidence Act providing for presumption as to dowry death which was a simultaneous amendment made in the Indian Evidence Act for proving the offence of dowry death. The fact that the Indian Evidence Act was so amended simultaneously with the insertion of Section 304-B in the Indian Penal Code by the same Amendment Act is another pointer in this direction."
18. Again in the case of Hem Chand vs. State of Haryana, (1994) 6 SCC 727, the Apex Court, in para 7, had observed as follows:-
"A reading of Section 304-B IPC would show that when a question arises whether a person has committed the offence of dowry death of a woman what all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113-B of the Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death shall presume to have caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304-B IPC also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection With the death or not, he shall be presumed to have committed the dowry death provided the other requirements men-tioned above are satisfied."
19. Subsequently, in the case of Shamnsaheb M. Multtani vs. State of Karnataka, (2001) 2 SCC 577, a Larger Bench of the Hon'ble Supreme Court had considered the ingredients of the offence under Section 304-B and laid down as under:-
"27. The postulates needed to establish the said offenceare: (1) Death of a wife should have occurred otherwisethan under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading section 113B of the Evidence Act, as a part of the said offence, the position is this: If the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances the court shall presume that such person had caused dowry death."
"28. Under Section 4 of the Evidence Act whenever it is directed by this Act that the Court shall presume the fact it shall regard such fact as proved unless and until it is disproved. So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross- examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both."
20. In the case of Ram Badan Sharma vs. State of Bihar, (2006) SCC 115, the Hon'ble Supreme Court had traced the history and philoshphy behind the changes particularly brought out by the legislature, while considering Section 304-B IPC and Section 113-B of the Evidence Act, as follows:-
"This Court in Hira Lal & Others v. State (Govt. of NCT), Delhi (2003) 8 SCC 80 reiterated that Section 304-B IPC and Section 113-B of the Evidence Act were inserted with a view to combat the increasing menace of dowry deaths. Perhaps the Legislations are outcome of public opinion and a comprehensive 91st Report on "Dowry Deaths and Law Reform: Amending the Hindu Marriage Act, 1955, the Indian Penal Code, 1860 and the Indian Evidence Act, 1872" submitted on 10.8.1983 by the Law Commission of India. In the introductory chapter of the report, it is mentioned that the last few months have witnessed an alarming increase in the number of cases in which married women die in circumstances which, to say the least, are highly suspicious. In the popular mind, these deaths have come to be associated with dowry, which is why, in popular parlance, they have come to be called "dowry- deaths". Even after more than two decades of submitting the said report and enactments of new Legislations, unfortunately cases of dowry deaths are increasing. In the report, deep concern has been shown that once a serious crime is committed, detection is a difficult matter and still more difficult is successful prosecution of the offender. Crimes that lead to dowry deaths are almost invariably committed within the safe precincts of a residential house. The criminal is a member of the family; other members of the family are either guilty associates in crime, or silent but conniving witnesses to it. In any case, the shackles of the family are so strong that truth may not come out of the chains. There would be no other eye witnesses, except for members of the family. Perhaps to meet a situation of this kind, the Legislature enacted Section 304-B IPC and Section 113-B of the Evidence Act."
21. In a later case of Harjit Singh vs. State of Punjab, (2006) 1 SCC 463, the Apex Court had held that by the said provision, a legal fication has been created and it had laid down as under:-
"A legal fiction has been created in the said provision to the effect that in the event it is established that soon before the death, the deceased was subjected to cruelty or harassment by her husband or any of his relative; for or in connection with any demand of dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. The Parliament has also inserted Section 113 B of the Indian Evidence Act by Act No.43 of 1986 with effect from 1.5.1986 which reads as under :-
"113.B- Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death."
Explanation.- For the purposes of this section, "dowry death", shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860)."
22. Subsequently, in the case of Devi Lal vs. State of Rajasthan, (2007) 14 SCC 176, the Hon'ble Supreme Court had reiterated the ingredients of dowry death and observed thus:-
"20. The question, as to what are the ingredients of the provisions of Section 304B of the Indian Penal Code is no longer res integra. They are : (1) That the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal; (2) such death occurs within 7 years from the date of her marriage; (3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband; (4) such cruelty or harassment should be for or in connection with the demand of dowry; and (5) it is established that such cruelty and harassment was made soon before her death."
Further, the Hon'ble Court held as under:-
"21. In T. Aruntperunjothi v. State through SHO, Pondicherry [(2006) 9 SCC 467], this Court held :
"It is now well settled in view of a catena of decisions of this Court that what would constitute 'soon before her death' depends upon the facts and circumstances of each case."
23. While considering an important aspect of the offence of dowry death mainly cruelty, the Hon'ble Supreme Court, in the case of Sahebrao & Anr. vs. State of Maharashtra, (2006) 9 SCC 794, had observed as under:-
"13. It is then submitted by Shri Sudhanshu Choudhary, learned counsel for the appellants that the prosecution witnesses have only made general allegations against the accused and there are no specifications as to what kind of ill-treatment or trouble was meted out to the deceased which led her to commit suicide....."
"14. In Pawan Kumar and Others v. State of Haryana, (1998) 3 SCC 309, this Court observed:
"...cruelty or harassment need not be physical. Even mental torture in a given case would be a case of cruelty and harassment within the meaning of Sections 304-B and 498-A IPC. Explanation (a) to Section 498-A itself refers to both mental and physical cruelty. ...Again wilful conduct means, conduct wilfully done; this may be inferred by direct or indirect evidence which could be construed to be such. ... A girl dreams of great days ahead with hope and aspiration when entering into a marriage, and if from the very next day the husband starts taunting her for not bringing dowry and calling her ugly, there cannot be greater mental torture, harassment or cruelty for bride. "
"15. In Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619, this Court specifically mentioned:
"The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. "Cruelty" for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behavior may amount to cruelty and harassment in a given case."
"16. In Mohd. Hoshan and Another v. State of A.P., (2002) 7 SCC 414, it was pointed out that:
"The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty."
24. In the case of Ram Badan Sharma (supra), the Hon'ble Supreme Court had considered the aspect of death which occurred in unnatural circumstance and held thus:-
"44. In cases where it is proved that it was neither a natural death nor an accidental death, then the obvious conclusion has to be that it was an unnatural death, either homicidal or suicidal. But, even assuing that it is a case of suicide, even then it would be death which had occurred in unnatural circumstances. Even in such a case, Section 304-B IPC is attracted."
25. Similarly, in the case of Satvir Singh & Ors. vs. State of Punjab & Anr., (2001) 8 SCC 633, the Hon'ble Supreme Court had held that, "We are, therefore, unable to concur with the contention that if the dowry-related death is a case of suicide it would not fall within the purview of Section 304-B IPC at all."
While observing so, the Hon'ble Supreme Court relied on the case of Smt. Shanti & Anr. vs. State of Haryana, (1991) 1 SCC 371, wherein it had been laid down that:-
"4.....It lays down that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before the death of the woman she was subjected to cruelty or harassment by her husband or his relations for or in conncection with any demand for dowry, such death shall be called "dowry death" and the husband or relatives shall be deemed to have caused her death and shall be punishable with imprisonment for a minimum of seven years but which may extend to life imprisonment..."
"5....In the result it was an unnatural death; either homicidal or sucidal. But even assuming that it is a case of suicide even then it would be death which had occurred in unnatural circumstances. Even in such a case, Section 304-B is attracted and this position is not disputed. Therefore, the prosecution has established that the appellants have committed an offence punishable under Section 304-B beyond all reasonable doubt."
The other case relied upon by the Hon'ble Supreme Court was of a Larger Bench in the case of Kans Raj vs. State of Punjab & Ors., (2000) 5 SCC 207, in which the Hon'ble Supreme Court had observed, in para 19, as follows:-
"19...It is established that the death of Sunita Kumar by suicide had occurred within 7 years of her marriage and such death cannot be stated to have occurred in normal circumstances...."
26. In the case of Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681, the Apex Court, while dealing with the case of dowry death, observed thus:-
"13. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished."
"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 # quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."
"15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
Taking into consideration the circumstances in which such like of offences are mainly committed, the Hon'ble Supreme Court had held that:-
"21. In a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)]."
"22. .Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime."
27. Reverting to the facts of the present case, the undisputed facts are that the marriage had taken place one year ago from the day of incident. The deceased was having an advance pregnancy of eight months. The financial condition of the petitioner was very week, as revealed from the circumstances which was found on record in the evidence collected during the investigaton and he was always in need of money. He had been demanding money from the family of the complainant and had taken some money on earlier occassions. Prior to the incident, the deceased had invited some persons for meal on the next day and she was preparing herself for the same, by putting Mehndi, etc. There is no dispute about the fact that the incident had taken place in the house of the petitioner and the deadbody was found in it. From the condition of the deadbody, it did not appear to be a death by hanging, as for instance, the eyes and tong were found to be normal.
28. In so far as the submissions made by the counsel for the petitioner in respect of witnesses and their statements, I am of the view that the credibility and reliability of the same would be considered at the stage of trial. Even in cases of love marriages, it cannot be presumed that no dispute arises resulting in death of the wife or that matrimonial offences are not committed. Circumstance subsequent to the marriage are relevant to consider as to whether any offence has been committed or not. As regards the submissions made by the counsel for the petitioner that in the instant case, the alleged offence is not made out because there is no evidence with regard to abatement or instigation, suffice it to say that the offence of suicide in relation to dowry death or death of the wife in unnatural circumstances within seven years of marriage has, with the amendment in the Evidence Act, attained new dimensions and significance. As referred above, after amendment, in a case of suicide, a legal presumption is to be drawn. In respect of suicide note, looking to the circumstances and the manner in which it is said to have been scribed, by the deceased mentioning as Smt. Bharti Singh instead of putting the signature, are the aspects which can be more appropriately appreciated only when the evidence is produced during the course of trial.
29. Coming to the case law relied upon by the learned counsel for the petitioner, I am of the view that the said cases were considered and decided on the basis of particular fact situation of those cases. The facts of the instant case are totally different from those referred to by the learned counsel for the petitioner.
In the case of Ramesh Kumar (supra), the Hon'ble Supreme Court was considering an appeal against conviction awarded to the accused appellant, for the offences under Sections 306 and 498-A IPC and he was sentenced to seven years' rigorous imprisonment under Section 306 IPC and to two years' rigorous imprisonment under Section 498-A IPC. Likewise, in the case of Hans Raj (supra), the Hon'ble Supreme Court considered an appeal against the conviction and sentence awarded by the learned Additional Sessions Judge and affirmed by the High Court. So also in the case of Sohan Raj Sharma (supra), the challenge was made against the order of the High Court of Punjab and Haryana upholding the conviction and sentence awarded to the appellant. Therefore, like the present case, in none of the aforesaid cases the Apex Court was considering the question of framing of charge.
In Manish Kumar Sharma (supra), the High Court was considering a case where the deceased Smt. Kusum Devi was married to one Ram Kishore 20 years ago. The accused Manish Kumar was residing in the neighborhood of the family of the deceased and he was a young boy of 24 years of age. He was a frequent visitor to the house of Ram Kishore. In his absence, he used to take the deceased Smt. Kusum Devi alongwith him to Ram Niwas Garden and certain hotels. Kusum Devi and the accused petitioner were on terms of great familiarity. Kusum Devi had even borrowed a sum of Rs. 200/- from the accused petitioner. On the day of incident, the accused petitioner came to the roof of the house of deceased Smt. Kusum where she was taking meals with her son Anil and demanded his money and uttered some words. Soon thereafter, the deceased consumed some tablets of salphos and despite of making best efforts, she breathed her last in SMS hospital. The learned trial Court in fact situation of that case framed charges for the offence under Section 306 IPC and the High Court had set aside the order of charge holding that the learned trial Court was wrong in coming to the conclusion that a prima facie case was made out.
In the case of Ramesh Chandra (supra) the deceased Smt. Lila was married 8 years ago. In the facts and circumstances of the case the learned Sessions Judge discharged the accused Tamu Bai for the offence under Section 306 IPC and the High Court had come to the conclusion that no interference was required. Consequently, the Misc. Petition filed by Ramesh Chandra, the brother of deceased Lila was dismissed.
The Hon'ble Supreme Court in the case of Sanju @ Sanjay Singh Sengar (supra) had considered a case where the appellant was brother of Neelam Sengar, wife of deceased. The marriage between the sister of the appellant and the deceased had taken place in the year 1993. Soon after marriage, she was subjected to ill treatment by the deceased and the family members forced her to live separately along with her husband and children for about a year. Thereafter, she went to her parents' house and started living with her brother. The appellant had, on 25th July, 1998 visited the place of the parents of the deceased and pleaded with them that his sister should be rehabilitated in the matrimonial home and should not be physically ill-treated or harassed. It is also alleged that on that day, the appellant had also threatened the parents of the deceased that if they do not mend their behaviour towards his sister, he would be compelled to resort to filing a complaint under Section 498A IPC. This story was narrated to the deceased by his mother asking him to bring back his wife to avoid any police case against them. The deceased had gone to the house of the parents which was followed by a quarrel between them. Thereafter, the deceased returned alone and told his brothers and other persons that the appellant had threatened and abused him by using filthy words and on the next date i.e. 27th July, 1998, the deceased died. The Investigating Agency submitted the charge-sheet and a charge was framed on 2.7.2001 against the appellant for an offence under Section 306 IPC. In the circumstances of that case, an order of charge passed by the learned Additional Sessions Judge and that of the High Court was quashed and set aside.
In the case of Bhagwan Das (supra), the Hon'ble Supreme Court was considering an appeal against the order of the High Court as well as Sessions Court framing charge under Sections 306, 498A, 34 IPC. The deceased Shobha in that case, had committed suicide on 2nd March, 1992. In the fact-situation of that case, the Hon'ble Supreme Court held that mere harassment of wife by husband or in-laws due to differences per se does not attract Section 306 read with Section 107 IPC, if the wife commits suicide. Further, it held that if the suicide was due to demand of dowry soon before her death, then Section 304-B IPC may be attracted, whether it is a case of homicide or suicide.
In the case of Netai Dutta (supra), the broad facts of the case were that an employee of the company was transferred but he did not join and after remaining absent for two years, he had submitted the resignation expressing grievance against stagnation in pay and unsatisfactory working conditions. Subsequently, his dead body was found and on the basis of a suicide note recovered from the dead body, police registered a case against the appellant Netai Dutta. In the fact situation of that case, it was held that the proceedings under Section 306 IPC were without any factual foundation and leading towards sheer harassment to the accused without any fruitful result.
30. Therefore, it would be seen that the aforesaid case law relates to totally different facts and circumstances and some of them being considered after conclusion of trial and on an appeal against the conviction and sentence awarded to the accused. None of them have any similar factual foundation as in the present case. Therefore, it does not lend support to the accused petitioner in any manner.
31. In the light of the facts and circumstances of the present case, the settled principles of law in respect of framing of charge and unnatural death which occures within seven years of marriage, I am of the considerd opinion that the instant case requires reconsideration by the learned court below.
32. Consequently, the case is remitted to the learned trial court, after setting aside the order dated 08.05.2007, with the direction to consider the matter afresh at the stage of charge, in accordance with law.
Keeping in view the age of this case, it deserves priority of consideration by the learned trial court.
(RAGHUVENDRA S. RATHORE),J.
tikam/-Jr.P.