[1] SB CRIM REVISION PET 1755/2009 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CRIMINAL REVISION PETITION NO. 1755/2009 NARENDRA SINGH Vs. STATE OF RAJASTHAN Date: 09/03/2010 HON'BLE MR. JUSTICE K.S. RATHORE Mr. Ravi Yadav with Mr. Manish Acharya, Advocate for the petitioner. Mr. Amit Punia, Public Prosecutor for the State. **** The instant criminal revision petition under Section 397/401 of the Code of Criminal Procedure is preferred by the petitioner challenging the order dated 10.12.2009 passed by the Additional District & Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur in Sessions Case No. 44/2001, by which charge under Section 304B IPC has been framed against the accused-petitioner. Brief facts of the case are that on 19.08.1991 a report came to be lodged by Shri Ram Kumar Aswani and Shri Naresh Kumar Aswani to S.P., Jaipur City, Jaipur, wherein it was alleged that on 10.08.1991 the complainant's sister who was married to the accused-petitioner, was found dead hanging to the ceiling fan in her matrimonial house in suspicious circumstances and it seems that she has been killed. On the basis of the said report, the police registered a case under Section 306 IPC and started investigation. [2] SB CRIM REVISION PET 1755/2009 It is further submitted that during investigation the accused-petitioner was enlarged on anticipatory bail by the District & Sessions Judge, Jaipur City, Jaipur on 22.02.1992. Thereafter on 07.12.1992 a charge-sheet came to be filed against the accused-petitioner for the alleged offence under Section 306 IPC in the Court of Judicial Magistrate No.7, Jaipur City, Jaipur, who committed the case to the Court of District & Sessions Judge, Jaipur City, Jaipur, from where it was transferred to the Court of Special Judge (Sati Niwaran) & Additional District & Sessions Judge, Jaipur City, Jaipur for trial. On 08.05.2007, the trial Court after hearing the rival submissions of the respective parties framed charge for the offence under Section 306 IPC against the accused-petitioner. Being aggrieved and dissatisfied with the said order of the trial Court dated 08.05.2007, the accused-petitioner preferred a revision petition before this Court which was registered as S.B. Criminal Revision Petition No. 470/2007 and the same came to be decided by this Court vide order dated 23.07.2009, whereby the impugned charge order dated 08.05.2007 was set aside and the matter was remanded back to the trial Court for deciding the same afresh to frame suitable charge against the accused- petitioner. The Additional Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur, after giving opportunity [3] SB CRIM REVISION PET 1755/2009 of being heard to the parties, framed charge against the accused-petitioner under Section 304B IPC vide its order impugned dated 10.12.2009. The said impugned order dated 10.12.2009 has been challenged by the petitioner by way of present revision petition on the ground that the trial Court failed to consider this aspect of the matter that in the instant case there is substantial delay in lodging the FIR as Smt. Bharti Singh died on 10.08.1991 whereas the FIR was registered on 19.08.1991. Therefore, lodging of FIR after such a delay itself makes the case suspicious and that too without any details and as such, no case under Section 304B IPC can be made out against the accused-petitioner. The impugned order has further been challenged on the ground that the trial Court totally failed to consider the ingredients of the FIR and the statement recorded under Section 161 Cr.P.C. of the deceased as in the whole statement including the statements of neighbors to the house of the accused-petitioner and deceased, friends and relatives, not a single witness stated that the accused-petitioner committed any cruelty with the deceased in connection with demand of dowry, which makes it amply clear that when the basic ingredient of Section 304B IPC is missing in the present case that is to say that “cruelty in connection to demand of dowry” is missing, no case can be said to be made [4] SB CRIM REVISION PET 1755/2009 out against the accused-petitioner under Section 304B IPC. It is averred that the trial Court failed to consider the story of the prosecution also because as per the statement of witness Suman who herself stated that she was best friend of the deceased and there was a long period of courtship between the deceased and the accused-petitioner and thereafter both of them owing to love between them entered into nuptial wedlock against the wishes of the family of the deceased, therefore, it is suffice to say that it was a case of love marriage where no question of dowry arose between the parties. The said witness also stated that whenever she met with the deceased she always praised the accused petitioner and on the fatal date also she was very happy with her husband when the witness met with the deceased till 5.00 p.m. in the evening. On the contrary, she was blaming her brothers and parental side for not behaving properly with her and as such, the basic ingredient of Section 304B IPC that is to say that soon before the death, the deceased ought to have been subjected to cruelty in order to coerce her for unlawful demand of dowry, is missing. On the contrary, there is positive evidence against the complainants itself for their bad mental status which the trial Court totally failed to consider. It is also submitted that the trial Court further failed to consider that even in the [5] SB CRIM REVISION PET 1755/2009 complainants statement recorded under Section 161 Cr.P.C. it has been categorically stated that after her marriage there was no connection between the deceased and the complainants, rather they had never talked her before death. In these circumstances, the finding arrived at by the trial Court that the accused-petitioner asked for money from the deceased's parental house through deceased, is totally baseless and perverse to the record of the case and as such, prima-facie no case is made out against the petitioner for the offence under Section 304B IPC. Further, the trial Court failed to consider that immediately after the death of the deceased, there was an enquiry by the ACM, Jodhpur for the unnatural death of the deceased, wherein the original suicidal note was subjected to enquiry of the ACM and enquiry report and original documents were sent to the Investigating Officer by the ACM, therefore, disbelieving the suicidal note by the trial Court is not only perverse to the record but also per se illegal. The trial Court failed to consider that the prosecution under Section 113B of the Indian Evidence Act, can only raise charge against the accused when the basic three ingredients of the alleged offence under Section 304B are fulfilled i.e. “death in unnatural circumstances within 7 years of marriage”, “soon before death subjected the [6] SB CRIM REVISION PET 1755/2009 deceased to cruelty for fulfillment of demand of dowry”. In the instant case, there is not even an iota of evidence with regard to the main ingredient of the offence i.e. dowry. After referring the statements and the order passed by the trial Court, the learned counsel for the accused-petitioner submits that the Hon'ble Supreme Court time and again laid down that at the time of framing of the charges, the criminal court is under an obligation to consider that liberty of a person is at stake and the trial courts are not expected to act alike mouth piece of the prosecution to endorse the charge-sheet while framing the charges, rather they are under a bounded duty to consider and sift the evidence to this extent that in case no grave and suspicious charge is against the accused then the criminal court is within its right to discharge the accused, but in the present case the trial Court gone ahead a step and framed charge again the accused-petitioner under Section 304B IPC. In support of his submissions, the learned counsel for the petitioner placed reliance on the judgments delivered by the Hon'ble Supreme Court in the cases of Sunil Bajaj Vs. State of M.P., reported in (2001) 9 SCC 417, (2) Mungeshwar Prasad Chaurasia And Another Vs. State of Bihar, reported in (2002) 10 SCC 163, (3) Gurucharan Kumar And Another Vs. [7] SB CRIM REVISION PET 1755/2009 State of Rajasthan, (2003) 2 SCC 698 and in the case (4) State of Rajasthan Vs. Teg Bahadur And Others, reported in (2004) 13 SCC 300. The judgment delivered by the Hon'ble Supreme Court in the case of Baljeet Singh And Another Vs. State of Haryana, reported in (2004) 3 SCC 122, has also been referred by the learned counsel for the petitioner, wherein the Hon'ble Supreme Court observed in the following terms:- “B. Penal Code, 1860- Ss. 304-B and 498-A- Suicide by wife- Allegation of dowry death- Guilt of appellant husband- Whether established on facts- Complaint filed nearly 8 days after the incident after lots of deliberation and consultation- Statement of father of deceased D that he had no knowledge of death of D and her cremation was done without informing him and his family, held on facts, not true- Possibility that D committed suicide in a state of depression- One B who was stated to have given information to complainant party about the death of D, was an imaginary person- PW 6 speaking about harassment of D but failed to state so in his statement under S. 161 CrPC- Appellant was employed in some other town and most of the time he was away from his village (where D was living)- In view of the above and the fact that the prosecution failed to prove that the death of D occurred within seven years of her marriage, held, conviction liable to be set aside.” Learned counsel for the petitioner further placed reliance on the judgment of the Hon'ble Supreme Court delivered in the case of Surinder Kaur [8] SB CRIM REVISION PET 1755/2009 And Another Vs. State of Haryana, reported in (2004) 4 SCC 109, wherein the Hon'ble Supreme Court while reiterating the same view has observed as under:- “Penal Code, 1860- S. 304-B- Dowry death- Proximity of the cause- Appreciation of- Conviction of two sisters-in-law of deceased- Propriety- High Court confirming conviction of appellants and husband of deceased B- But, acquitting father-in-law and mother-in-law of B as their names not mentioned in FIR- General allegations without particulars of time and date regarding the alleged harassment meted out by appellants- Specific allegations made only against husband and his father- Appellants not parties to demand for buffalo and Rs. 25,000 which appeared to be the proximate cause of B committing suicide- If at all the prosecution case against the appellants was to be accepted it would only show that soon after the marriage i.e. about 2 1/2 years prior to the death of B, there was some alleged harassment for lack of dowry- Hence, allegations not proximate to the death of B- Improvement in evidence of PW7- No ground to differentiate the case of appellants from that of their mother who was acquitted on same set of evidence- Held, courts below erred in convicting the appellants- Appeal allowed.” In support of his submission that since the accused-petitioner has not been charged under Section 306 IPC and the charge framed by the trial Court has been quashed and set aside by this Court vide order dated 23.07.2009, therefore, the accused- petitioner cannot be convicted under Section 304B IPC, the learned counsel for the petitioner placed reliance on the judgment rendered by the Hon'ble [9] SB CRIM REVISION PET 1755/2009 Supreme Court in the case of Harjit Singh Vs. State of Punjab, reported in (2006) 1 SCC 463. Learned counsel for the petitioner further referred the judgment of the Hon'ble Supreme Court delivered in the case of T. Aruntperunjothi Vs. State Through S.H.O., Pondicherry, reported in (2006) 9 SCC 467, wherein the Hon'ble Supreme Court observed in the following terms:- “Penal Code, 1860- S. 304- B- Suicidal death of a woman- Whether she was subjected to cruelty or harassment by her husband for or in connection with demand for dowry soon before her death- Proof- Conduct of family members of deceased was relevant as no complaint was made by them and they took back all articles given in marriage- Instead deceased's husband (appellant) himself lodged the FIR- Demand for dowry not established by cogent evidence- No evidence, direct of indirect, as regards harassment or cruelty by appellant against his wife- Necessary ingredients of circumstantial evidence for holding appellant guilty not considered by trial court as well as High Court- Even if there was misunderstanding between appellant and deceased, that would not automatically lead to the conclusion that appellant committed offence under S. 304-B as law does not raise such a presumption- Trial court took erroneous view that another person had made demands from deceased's parents as messenger of appellant and that his insistence revealed that what was demanded by that person was a dowry demand- Such a hypothesis could not be made basis for conviction of appellant under S. 304-B- Defence version that cause of death was that deceased had insisted to go to her mother's house but she was not allowed, plausible- Having regard to the peculiar features of the case, held, cruelty or [10] SB CRIM REVISION PET 1755/2009 harassment for dowry being the cause for death of the deceased, not established beyond all reasonable doubt- Conviction under S. 304-B not sustainable.” The judgments of the Hon'ble Supreme Court rendered in the cases of (1) Appasaheb And Another Vs. State of Maharashtra, (2007) 9 SCC 721, (2) Biswajit Halder Alias Babu Halder And Others Vs. State of W.B., (2008)1 SCC 202 and in the case of (3) Rajesh Tandon Vs. State of Punjab, 1995 SCC (Cri) 817, have also been relied upon by the learned counsel for the petitioner. Per contra, learned Public Prosecutor appearing on behalf of the State controverted the submissions made on behalf of the petitioner and submits that no illegality has been committed by the Additional District & Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur while passing the order impugned dated 10.12.2009 and rightly framed charge under Section 304B IPC against the accused- petitioner. Much emphasize has been given by the learned Public Prosecutor that in the earlier revision petition i.e. S.B. Criminal Revision Petition No. 470/2007, which was preferred by the petitioner against the order dated 08.05.2007 passed by the trial Court framing charge for the offence under Section 306 IPC against the petitioner, this Court vide order dated 23.07.2009 upon consideration [11] SB CRIM REVISION PET 1755/2009 of each and every aspect as well as the judgments rendered by the Hon'ble Supreme Court, observed as under:- “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 considered opinion that the instant case requires reconsideration by the learned Court below. 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.” Meaning thereby the charge framed under Section 306 IPC against the petitioner by the trial Court vide order dated 08.05.2007 has been quashed and set aside by this Court vide order dated 23.07.2009. It is further contended that pursuant to the directions given by this Court in the aforesaid revision petition No. 470/2007 vide order dated 23.07.2009, the trial Court reconsidered the matter afresh and rightly framed charge under Section 304B IPC against the accused-petitioner vide order impugned dated 10.12.2009 and the same requires no interference by this Court and the present revision petition deserves to be dismissed being devoid of merit. I have heard rival submissions of the [12] SB CRIM REVISION PET 1755/2009 respective parties and carefully perused the order impugned passed by the trial Court dated 10.12.2009 and also thoroughly gone through the judgments referred before this Court. Section 2 of the Dowry Prohibition Act, 1961 (for short 'the Act of 1961') provides definition of “dowry”, which reads as under:- “2. Definition of “dowry”.- In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation II.- The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code.” Now, to decide the present controversy, it is necessary to examine the provisions of Section 304B IPC which reads as under:- “304B. Dowry 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 [13] SB CRIM REVISION PET 1755/2009 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. Explanation.- For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]” To examine the fact whether any offence under Section 304B IPC has been committed or not, it is necessary for the prosecution to establish that soon before death the deceased was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry and then only such death can be called “dowry death”. The meaning of “dowry” has been taken as it is as in Section 2 of the Act of 1961, which has already been reproduced herein above. The prosecution can only establish the guilt of the accused-petitioner under Section 304B IPC with the help of evidence and the statements of the witnesses recorded by the trial Court. Witness Shri Jagat Singh S/o Shri Bhawani Singh, deposed in his statement as under:- [14] SB CRIM REVISION PET 1755/2009 '.....नरेÛि के कमरे मɅ मɇ नहȣं गया इन दोनɉ के आपस मɅ झगडा ǒपसाद व मनमुटाव वाली बात मɇने नहȣं देखी दोनɉ बडे ूेम से रहते थे.....' Same has been deposed by witness Shri Sitaram Gupta S/o Shri Jamna Lal Gupta in his statement which is reproduced hereunder:- '.....मɇने नरेÛि िसंह व भारती के आपस मɅ कहा सुनी व झगडा ǒपसाद होते कभी नहȣं देखा मेरȣ इनसे ǒवशेष जानकारȣ भी नहȣं ÈयɉǑक मɇ रात को लेट घर पर आता हंू.....' Further witness Kum. Suman D/o Shri Chaman Lal Sharma, the friend of the deceased, in her statement stated as under:- 'नरेÛदर व भारती बहत खुश थे मɇने ु कभी मनमुटाव व झगडा नहȣं देखा और ना हȣ आपस मɅ कभी नाराजगी देखी Ǒदनांक 10/8/91 को मɇ करȣब 1 बजे भारती के पास आयी थी हम दोनɉ ने पकौडे तथा आलू के परांठे बनाये इतने मɅ हȣ नरेÛदर आ गया हमने तीनɉ ने एक साथ बैठकर पकौडे तथा पंराठे खाये Ǒफर मɇ थोडȣ देर के िलये लेट गयी नरेÛदर व भारती आपस मɅ हंसी मजाक कर रहे थे Ǒफर करȣब 5 बजे मɇ जाने लगी तो भारती ने Ǒफर उसे चाय ǒपलाई तथा कहा Ǒक कल बालɉ मɅ मɅहदȣ लगायɅगे सुबह आना तब मɇने सुबह आने से मना कर Ǒदया था Ǒफर मɅ घर चली गयी ....' Witness Kum. Indra Sharma D/o Shri Rameshwar Prasad Sharma, stated the same version in her statement which reads as under:- [15] SB CRIM REVISION PET 1755/2009 '... भारती व नरेÛदर िसंह हमेसा खुश रहते थे भारती िसंह के आपस मɅ बडे भाई से बोल चाल नहȣं था बाकȧ सभी से अÍछे सàबंध थे भारती तथा नरेÛदर दोनɉ हȣ शराब पीते थे भारती को मɇने कभी शराब पीते नहȣं देखा नरेÛदर Ïयादा शराब पीने का आदȣ है इसके अलावा इस हादसे बाबत मुझे कोई जानकारȣ नहȣं है।' Again witness Shri Badrinarain S/o Shri Chandmal, also stated in her statement as under:- 'मɇने नरेÛि व भारती के आपस मɅ झगडा Ǒफसाद होते नहȣं देखा दोनो साथ नौकरȣ पर जाते थे साथ आते थे बडे ूेम से रहते थे इसके ससुराल वालɉ को इनके घर आते जाते मɇने नहȣं देखा मुझे यह मालूम है Ǒक भारती व नरेÛि िसंह ने अपने घरवालɉ कȧ मजȸ के ǔखलाफ यह शादȣ कȧ थी।' Witness Shri Chandan Mal S/o Shri Shivdan Mal, the next door neighbour, stated in his statement as under:- '....नरेÛि िसंह व भारती िसंह को आपस मɅ लडते झगडते कभी नहȣं देखा दोनɉ ूेम से रहते थे एक साथ नौकरȣ पर जाते थे और एक साथ आते थे....' Yet another neighbour Shri M.K. Ansari S/o Shri Manzoor Kareem, also stated as under:- '.....बडे ूेम से रहते थे हमने इनके आपस मɅ कहा सुनी व लडाई झगडा होते कभी नहȣं देखा....' [16] SB CRIM REVISION PET 1755/2009 Smt. Maya Devi W/o Late Shri Ashok Kumar, the mother of deceased Bharti, stated in her statement as under:- '......हमेशा पैसɉ कȧ तंगी के बाबत कहती थी व बताती थी Ǒक मेरे पित सारा शराब मɅ उडा देते हɇ मɇने कई बार उसे पैसे भी Ǒदये गैस खरȣद कर दȣ तथा कपडे भी देती थी Ǒदनांक 10/8/91 कȧ रात को मुझे मेरे लडके ने बताया Ǒक भारती ने आ×मह×या करली मुझे ओर कोई जानकारȣ तो नहȣं है लेǑकन भारती जब भी मेरे पास आती कुछ परेशान सी रहती थी तथा पैसे कȧ तंगी के बाबत कहती थी नरेÛि िसंह के चǐरऽ के बाबत मुझे मेरे लडके रामकुमार ने बताया था' The statement of the mother of the deceased does not constitute the offence under Section 304B IPC. So is the statement of Shri Ram Kumar Aswani S/o Shri Ashok Kumar, the brother of the deceased, who stated in his statement as under:- 'अचानक भारती ने नरेÛि िसंह से हमारȣ मजȸ के ǔखलाफ आय[समाज मɅ शादȣ करली और वह नरेÛि िसंह के साथ रहने लग गयी तब से मɇने उससे बोलना चालना बÛद कर Ǒदया था उसकȧ ǔजÛदगी कैसी गुजर रहȣ थी मुझे पता नहȣं मɇ मेरȣ मां तथा छोटे भाई से अलग रहता हं भारती शादȣ के बाद कभी मेरे ू घर पर नहȣं आयी Ǒदनांक 10/8/91 को रात करȣब 12 बजे मजहर करȣम अंसारȣ तथा चÛदन मल माथुर मेरे घर पर आये और कहा Ǒक नरेÛि िसंह अपने मकान मɅ रो रहा है.... .... भारती उस Ǒदन 5 बजे तक अपनी सहेली सुमन के साथ थी और पूण[तया नॉरमल थी रात को मेरे पास एक इÛिा नाम कȧ लडकȧ का टेलीफोन आया था उसने भारती कȧ मौत के बाबत पूछा था नरेÛि िसंह के कई अÛय लडǑकयɉ से [17] SB CRIM REVISION PET 1755/2009 नाजायज सàबंध है और वह बदमाश ूवृित का लडका है मेरȣ बहȣन आ×मह×या नहȣं कर सकती हालात को देखते हये मुझे इसमɅ नरेÛि िसंह पर पूरा शक है इसने ु उसकȧ ह×या कȧ है। यह पहले भी Ǒकसी मड[र के मामले मɅ िलƯ रहा है।' Another brother of the deceased, Shri Naresh Aswani S/o Shri Ashok Kumar Aswani, attested the version deposed by his brother Shri Ram Kumar Aswani, stating as under:- 'तब हम घरवाले ने भारती को समझाया Ǒक उसके साथ यह ठȤक नहȣं है अगर तुझे शादȣ हȣ करनी है तो तू Ǒकसी भी कौम का कोई अÍछा लडका ढंढ ले हम तेरȣ शादȣ कर दɅगे लेǑकन नरेÛि कुमार ू िसंह ने