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2005 DIGILAW 47 (DEL)

SANJAY SHARMA v. STATE (NCT) OF DELHI

2005-01-14

MANJU GOEL

body2005
Manju Goel, J. ( 1 ) THE revision petition is directed against the order dated 19th November, 2004 framing charges under Sections 498a/304b/34, IPC passed by Mr. A. S. Jaichandra, ASJ, Delhi in case FIR No. 308/2002, Police station Adarsh Nagar. ( 2 ) THE death in this case was caused by electric shock. For framing charge apart from other documents like the post-mortem report, etc. the prosecution relied upon the statement of Smt. Murti, mother of the deceased, and the statement of Mahender, father of the deceased, who deposed about the demand for dowry made by the accused and the harassment caused to the deceased by them. Both the parents suspected foul play on the part of the accused in the death of their daughter. Before the Court of Session it was submitted by the defence that as per the report of the electricity department which had conducted a spot inspection there was a possibility of electric leak at the particular point in the house where the unnatural death took place and that the death, therefore, was accidental and had no connection with the alleged harassment on account of dowry. The Court of Session observed that all the ingredients of the offence under Section 304-B of the Indian Penal Code (in short ipc) was present and that a prima facie case had been made out. The contention that a death caused by electric shock cannot be brought within the ambit of Section 304-B, IPC did not find favour with the learned Sessions Judge. ( 3 ) WHAT is argued before this Court is that since the cause of death was electric shock and since there was possibility of electric leakage it was a case of accident and further that the prosecution and investigation were duty-bound to prove that the death was not accidental. Reliance has been placed on Nallam veera Stayanandam v. Public Prosecutor, High Court of A. P. reported in 2004 (2) rcr (Criminal) 132 in which it was held that if the death was caused by an accidental fire a conviction under Section 304-B could not be sustained. ( 4 ) A death on account of electricity shock more often than not is caused by a leakage. The leakage can be intended or unintended. ( 4 ) A death on account of electricity shock more often than not is caused by a leakage. The leakage can be intended or unintended. The mere fact that the death was caused by electric shock does not necessarily lead to conclusion that the death was caused by an accident. If it is a case of pure accident, a case under section 304-B, IPC cannot be sustained. But the accused in such a case cannot be discharged only because such a possibility exists. ( 5 ) RELIANCE has also been placed on the judgment of Kunhiabdulla and Anr. v. Slate of Kerala reported as 2004 (2) RCR (Criminal) 197 in which the Hon ble supreme Court while culling out the ingredients of the of fence commented that the prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of death. It was, however, not the rationale of the judgment. A proper reading of the judgment will make this point clear. The Supreme Court in that case was not going through the questions of onus of proof or the material required for framing of charge. ( 6 ) THE Supreme Court in that judgment takes us first through the provisions of Section 304 of the Indian Penal Code (in short ipc ) and culls out the ingredients of the offence as under: " (I) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband. (iv) Such cruelty or harassment should be for or in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. " ( 7 ) THEN the Court refers to the provisions of Section 113b of the Evidence act regarding presumption as to dowry death and again culls out the situations in which the presumption can be raised. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. " ( 7 ) THEN the Court refers to the provisions of Section 113b of the Evidence act regarding presumption as to dowry death and again culls out the situations in which the presumption can be raised. The presumption that a person has caused dowry death can be raised only when the following situations are obtained: " (1) The question before the Court must be whether the accused has committed the dowry death of a woman (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304b IPC ). (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with any demand for dowry. (4) Such cruelty or harassment as soon before her death. " ( 8 ) THE Court then proceeds to say as under in para 11 of the judgment: "11. A conjoint reading of Section 113b of the Evidence Act and Section 304b, IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death occurring otherwise than in normal circumstances . The expression "soon before is very relevant where section 113b of the Evidence Act and Section 304b, IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. "soon before is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. " ( 9 ) THUS the sentence relied upon viz. "prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death occurring otherwise than in normal circumstances" is written in the judgment only to explain the meaning of "otherwise than in normal circumstances". " ( 9 ) THUS the sentence relied upon viz. "prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death occurring otherwise than in normal circumstances" is written in the judgment only to explain the meaning of "otherwise than in normal circumstances". This judgment in the case of Kunhiabdulla (supra) cannot be read as opinion expressed on the question of onus. Nor can be said that the supreme Court in paragraph 11 quoted above meant that before the charge was framed the prosecution should produce enough evidence to rule out the possibility of an accidental death. ( 10 ) THE question of onus has been squarely dealt with by the Supreme court in the case of Yashoda and Anr. v. State of M. P. reported as JT (2004) 2 SC 318 where the woman died in hospital shortly after being taken there in a critical condition. It was pleaded by the defence that the prosecution should have proved the cause of death. The Supreme Court said that once the prosecution proves the fact which gives rise to the presumption under Section 304-B, IPC the onus shifts to the defence and it is for the defence to produce evidence to rebut that presumption. The Supreme Court further says that it was for the defence to produce evidence to show that the death was not caused by them or that the death took place in normal course on account of any ailment or disease suffered by the deceased or that the death took place in a manner with which they were not at all connected. The following part of para 13 of the judgment can be quoted with profit: "mr. Gambhir seriously contended that it was for the prosecution to prove that the deceased had died in circumstances otherwise than normal. He contended that the prosecution ought to have examined the doctor and produced the relevant documents from the hospital to establish the cause of death of the deceased. We cannot uphold this contention. The prosecution has successfully established that the deceased was married to Kalicharan about 4 years before her death. The facts also reveal that the death was not under normal circumstances. We cannot uphold this contention. The prosecution has successfully established that the deceased was married to Kalicharan about 4 years before her death. The facts also reveal that the death was not under normal circumstances. There was also evidence to show that the deceased was persistently subjected to cruelty and harassment by her husband as well as by his parents in connection with demand for dowry, in particular the demand for gold ornaments. Once it is held that these facts stand established, under Section 304b/ipc a presumption arises that it is a case of dowry death, and that her husband or relatives who subjected her to cruelty and harassment shall be deemed to have caused her death. No doubt this is a rebuttable presumption, but in the absence of any evidence in rebuttal, the Court may, with the aid of the presumption, convict the accused of that charge. Once the prosecution proves the facts which give rise to the presumption under Section 304b, ipc, the onus shifts to the defence and it is for the defence to produce evidence to rebut that presumption. The defence may adduce evidence in support of its defence or may make suggestions to the prosecution witnesses to elicit facts which may support their defence. The evidence produced by the defence may disclose that the death was not caused by them, or that the death took place in normal course on account of any ailment or disease suffered by the deceased or that the death took place in a manner with which they were not at all connected. " ( 11 ) IN the present case so far as the onus is concerned, the prosecution has done its role by producing prima facie evidence which may raise the presumption under Section 304-B, IPC. Therefore, the same is sufficient to frame charge. It will be upto the defence to prove that the death was accidental for which the accused were not at all responsible. I find no force in the criminal revision. The same is accordingly dismissed. Appeal dismissed. .