Delhi District Court
State vs Jai Kishan Datwani on 29 June, 2020
IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE-04
EAST : KARKARDOOMA COURTS: DELHI
Crl. Rev. No. 104/2019
State
.....Petitioner
Versus
Jai Kishan Datwani,
S/ Sh. Vasdev Datwani,
R/o 178, Bank Enclave,
Delhi-110092.
..........Respondent
Date of Institution : 07.05.2019
Date of reserving Judgment : 24.01.2020
Date of pronouncement : 29.06.2020
Appearances
For the petitioner : Sh. Ajit Kumar Srivastava,
Addl.P.P. for the State.
For the respondent : Sh. Hitender Nahata, Adv.,
JUDGMENT:
The present revision petition under Section 397 read with section 399 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') has been filed against the order dated 27.03.2019 (for short 'the impugned order') passed by the learned Metropolitan Cr. Rev. No. 104/2019 Page no. 1/11 Magistrate(East), Karkardooma court, Delhi, in the case titled as 'State v. Jai Kishan Datwani', bearing FIR No. 1009/2011, u/s 498A IPC of PS Shakarpur, whereby respondent/accused was discharged qua commission of the offence punishable u/s 498A IPC. A certified copy of the impugned order was filed alongwith the petition.
2. After filing of the revision petition, notice was issued to the respondent/accused. Respondent/accused appeared with counsel and filed a written reply to the revision petition.
3. TCR was summoned. I have heard the arguments of both sides and perused the record.
4. As per the petition, above-mentioned FIR was got registered on 26.12.2011, at PS Shakarpur, u/s 498A IPC on the complaint of Laxman Kataria s/o Tulsi Dass, who is father of Disha(since deceased). It is stated that the impugned order has been passed by the learned Trial Court without considering contradictions in two postmortem reports of deceased Disha i.e. one report dated 20.07.2011 given by medical board of three doctors headed by Dr. Sreenivas M. and another subsequent opinion report dated 23.03.2016 given by Dr. Sreenivas M. qua injuries on the body of the deceased. Further, learned Trial Court failed to appreciate the postmortem report/subsequent opinion properly in complete Cr. Rev. No. 104/2019 Page no. 2/11 aspect and injuries on the dead body of the deceased has to be explained by the accused u/s 106 Indian Evidence Act as only accused had the special knowledge as to how the deceased had suffered injuries particularly injuries no. 2 to 5 mentioned in the postmortem report dated 20.07.2011 because deceased was in her matrimonial home at the time of her death. Further, learned Trial Court wrongly discarded the statement of complainant dated 23.09.2011 only on the ground that complainant had not made any allegation against the respondent/accused in his earlier complaint/statement. Learned Trial Court failed to appreciate the explanation (a) of Section 498-A IPC which talks about cruelty in respect of willful conduct on the part of the respondent/accused, and for this conduct unexplained injuries sustained by deceased are material one.
5. Lastly, it is stated that learned Trial Court has committed illegality by discharging respondent/accused in the present case and as such impugned order is liable to be set aside.
6. Ld. Counsel for the respondent/accused in his reply has submitted that the present revision petition deserves to be dismissed as there is no evidence that deceased was subjected to cruelty before her death and even as per medical history of the deceased, it was shown that she was regularly getting medical assistance since her pregnancy i.e. 20.12.2010. Further, at no point of time, deceased had any complaint against the Cr. Rev. No. 104/2019 Page no. 3/11 respondent/accused or his family members and as such she had not lodged any complaint against them during her lifetime. Even, the complainant and his wife had not made any allegations against the respondent/accused or his family members, in their first statements given to the SDM on 18.07.2011. Further, the complainant in his false and fabricated hand-written complaint dated 23.09.2011 had levelled several allegations of harassment of deceased (his daughter) by her husband (respondent/accused) and in-laws but the same allegations are also general in nature. Learned Trial Court keeping in view all the documents/evidence has rightly passed the order by discharging the respondent/accused in the instant case FIR and there is no illegality in the impugned order. Hence, present revision petition is liable to be dismissed.
7. Prosecution case in brief is that on 18.07.2011 a PCR call was made regarding death of Disha due to wrong injection given by the doctors in Life Line Hospital, Priyadarshani Vihar, and on the basis of same DD No. 27A was recorded. IO/SI Rishikesh Meena reached at the said hospital, where Vasudev Datwani informed that his daughter-in-law Disha Datwani, aged about 29 years, visited hospital for checkup as she was seven months pregnant and she died immediately after doctor administered her an injection. He alleged that deceased died due to negligence of the doctor. Since deceased met with unnatural death within seven years of her Cr. Rev. No. 104/2019 Page no. 4/11 marriage, IO informed the SDM about death of Disha. SDM after making inquiry from Sh. Laxman Kataria and Kavita Kataria i.e. parents of deceased, recorded their statements wherein they had stated that their daughter was living happy married life and her husband and other in-laws had not made any demands for dowry. They further stated that in the death of their daughter Disha, there was no fault on the part of her husband and in-laws and she died due to negligence of doctor. As per orders of SDM, post-mortem examination was conducted on the dead body of deceased and viscera was sent for chemical examination. On 23.09.11, Laxman Kataria, father of deceased, gave a written complaint to the SDM wherein he alleged that on 18.07.2011 he had given his statement to the SDM under pressure of his son-in-law (respondent/accused) as he had threatened that life of son of deceased, aged about 4 ½ years, will be spoilt. However, truth was that after marriage of his daughter (deceased) with the respondent/accused, she was subjected to harassment and cruelty for the dowry demands by the respondent/accused and his family members.
Respondent/accused and his mother used to beat deceased. Further, as per postmortem report of deceased, her three ribs were in broken condition and there were four deep injury marks on her body, which indicated that she was beaten mercilessly even prior to her death.
8. On the basis of said complaint of Laxman Kataria, present case Cr. Rev. No. 104/2019 Page no. 5/11 FIR was registered u/s 498A IPC and after competition of investigation, chargesheet was filed only against respondent/accused. Subsequently, further investigation was also conducted in respect of offence under section 304B IPC but again supplementary chargesheet was filed qua commission of offence under section 498A IPC only.
9. Vide impugned order, the learned Trial Court discharged the respondent/accused qua commission of offence punishable u/s 498-A IPC. Feeling aggrieved, the present revision petition has been filed by the State against the impugned order.
10. At the outset, a perusal of the impugned order would reveal that the learned Trial Court also dealt with the allegations qua commission of offence punishable u/s 304-B IPC as well as u/s 498-A IPC against the accused. Para 1 and para 13 of the impugned order clearly show that the learned Trial Court elaborately dealt with the facts qua commission of offence punishable u/s 304-B IPC to hold that no charge u/s 304-B IPC was made out against the accused.
11. A perusal of the entire trial court record would reveal that after conclusion of the investigation in present FIR No. 1009/11, chargesheet qua commission of offence u/s 498-A IPC only was filed against the respondent/accused. The chargesheet was filed in the court on 24.12.2014 and thereafter supplementary chargesheet qua commission of offence u/s 498-A IPC only was filed on 20.01.2017. From the perusal of the record of the main chargesheet as well as supplementary Cr. Rev. No. 104/2019 Page no. 6/11 chargesheet, it is also revealed that there is no order for taking cognizance of offence by the learned Trial Court. Both main chargesheet as well as supplementary chargesheet were filed alleging commission of offence u/s 498-A IPC by the respondent/accused. In such circumstances, the discussion by the learned Trial Court regarding the allegations qua offence punishable u/s 304-B IPC is totally unwarranted. Even otherwise, it is beyond the jurisdiction of the learned Trial Court to express its opinion qua commission of offence punishable u/s 304-B IPC as the offence is triable exclusively by the Court of Session. Section 209 Cr.P.C. clearly stipulates when in a case instituted on a police report or otherwise, it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit the case of the Court of Session after complying with the provisions of section 207 or 208 as the case may be and shall send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence and shall also notify the public prosecutor of the commitment of the case to the Court of Session. It appears that Section 209 Cr.P.C. skipped the attention of the learned Trial Court and the learned Trial Court got swayed by the arguments of the complainant at the time of hearing arguments on the point of charge. In hearing and proceeding to decide submissions of the complainant qua commission of offence punishable u/s 304-B IPC, the learned Trial court clearly exceeded its jurisdiction in violation of Section 209 Cr.P.C.
12. As far as the opinion of the learned Trial Court about the Cr. Rev. No. 104/2019 Page no. 7/11 commission of offence punishable u/s 498-A IPC by the respondent/accused is concerned, the same is also not in consonance with the settled propositions of law on the subject.
13. As per settled propositions of law, at the stage of charge the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. A roving enquiry into the material available on record is not warranted at the stage of framing charge. It was held in Smt. Omwati & Anr v. State through Delhi Administration & Ors decided by the Apex Court on 19.03.2001 in Appeal (Crl) No. 304 of 2001 that 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 proceedings 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. The Court is not required to enter into meticulous consideration of evidence and material placed before it at this stage. In Smt. Omwati (supra) case, the Apex Court referred Kanti Bhadra Shah & Anr v. State of West Bengal 2000(1) SCC 722 wherein it was held that there is no legal requirement that the trial court should write an order showing the reasons for framing a charge. Further, the judgment in State of Bihar v. Ramesh Singh AIR 1997 SC 2018 was cited with approval wherein Cr. Rev. No. 104/2019 Page no. 8/11 it was held that 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 Hon'ble Bench of three Judges in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhaunja & Ors AIR 1980 SC 52 also laid down that the Court has to consider the question of framing the charges on general considerations of the material placed before it by the investigating agency and even on the basis of strong suspicion founded on materials before it, the Court can form a presumptive opinion regarding the existence of factual ingredients constituting the offence alleged and in that event be justified in framing the charges against the accused in respect of the commission of the offence alleged to have been committed by them.
14. In the light of above mentioned settled propositions of law, a perusal of the record would show that there are two statements of the complainant dated 18.07.2011 and 23.09.2011 given to Sh. D.P. Singh, SDM, Gandhi Nagar. Though in statement dated 18.07.2011, the complainant did not level allegations against the respondent/accused, in statement dated 23.09.2011, the allegations regarding demand of dowry, harassment and treating the deceased with cruelty were categorically levelled against the respondent/accused and his family members. The complainant also stated in statement dated 23.09.2011 that his earlier Cr. Rev. No. 104/2019 Page no. 9/11 statement dated 18.07.2011 given to the SDM was under pressure of the respondent/accused. In these circumstances, the findings of the learned Trial Court that the complainant failed to adduce the evidence that he made the statement to the SDM under duress is not correct. The fact whether the complainant improved upon his earlier version while making subsequent statement dated 23.09.2011 or not is certainly a matter of trial. The observations of the learned Trial Court that the complaint made by the complainant lacked specificity of allegations also borders on assumptions as the complaint cannot be said to be encyclopedia containing all the allegations in all material particulars. The truth and veracity of any such complaint can be tested during the course of trial. The fact that there are no other statement of any other family members of the deceased except the complainant also cannot be said to make the respondent/accused entitled for discharge. Similarly from merely photographs placed on record, that's too by the respondent/accused, it cannot be held conclusively that the deceased was leading a blissful happy married life. It is a matter of common prudence that none would like to be photographed in her sad and unhappy state. Even otherwise, no documents/photographs filed by the respondent/accused could have been considered at the time of arguments on point of charge as laid down by Hon'ble bench of three Judges in State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568. Furthermore, as per the post-mortem examination report dated 20.07.2011, some external injuries were also noticed which were opined Cr. Rev. No. 104/2019 Page no. 10/11 to be ante mortem in nature, caused by blunt force trauma and were found to be consistent with being 2 to 7 days old in duration which can only be explained by the doctors concerned during trial. The learned Trial Court did raise some suspicion against the respondent/accused but then proceeded to wrongly observe that there was no case of grave suspicion against the respondent/accused.
15. In view of above discussed facts and circumstances, in my considered opinion, the findings given by the learned Trial Court are not correct. The impugned order is suffering from impropriety and is not sustainable in the eyes of law. Accordingly, the revision petition filed by the State is allowed. The impugned order dated 27.03.2019 passed by the learned Metropolitan Magistrate(East), Karkardooma court, Delhi, in the case titled as 'State v. Jai Kishan Datwani', bearing FIR No. 1009/2011, u/s 498A IPC of PS Shakarpur, is hereby set aside. The learned Trial Court is directed to proceed against the respondent/accused as per law.
16. TCR be sent back alongwith copy of this judgment.
17. File be consigned to the Record Room.
KULDEEP Digitally signed by
KULDEEP NARAYAN
NARAYAN Date: 2020.06.29
18:15:28 +05'30'
(Pronounced on 29-06-2020 (Kuldeep Narayan)
through vc) Additional Sessions Judge-04
East District, Court No. 10
Karkardooma Courts, Delhi
Cr. Rev. No. 104/2019 Page no. 11/11