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2007 DIGILAW 557 (CHH)

SANTOSH KUMAR SINGH v. STATE OF CHHATTISGARH

2007-10-03

DHIRENDRA MISHRA

body2007
DHIRENDRA MISHRA, J. ( 1 ) THIS criminal revision is directed against the order dated 5. 9. 2007 (Annexure P-1) passed in Sessions trial No. 15/07 whereby learned Sessions judge has framed the charge under Section 304b and in the alternative under Section 306 of the Indian Penal Code (for short 'ipc')against the petitioners herein for the death of Smt. Sandhya Singh, wife of petitioner no. 1-Santosh Kumar Singh. ( 2 ) BRIEFLY stated, facts of the case are that smt. Sandhya Singh wife of Sanjay Singh and daughter of Baijnath Chand i. e. the complainant, died on 5. 9. 2006 i. e. within 7 years of her marriage with the petitioner no. 1, which was solemnized on 20. 4. 2001 and according to the postmortem report cause of death was hanging by rope around the neck leading to asphyxia. On the basis written report of Baijnath Chand, father of the deceased, offence under Sections 304b and 306/34 of the IPC was registered and accordingly, charge sheet was filed and the trial court has framed the charges by the impugned order against the petitioners herein. ( 3 ) LEARNED Senior Advocate for the petitioners submits that from perusal of the written complaint as also from the statement of witnesses recorded during trial it would be evident that there is no evidence available on record to show that any cruelty was committed against the deceased soon before her death. The allegations of demand of dowry of Rs. 1 Lac against the petitioner No. 1 and 2 are vague in the absence of details and there is no allegation of cruelty, as defined within the meaning of section 498a of the IPC. From perusal of framing of charge particularly under Section 306, it is evident that the trial court has not even mentioned that the accused persons abetted the deceased to commit suicide. He further submits that petitioner no. 3 is nowhere related to the deceased and there is no allegation against her that she committed cruelty with the deceased. The only allegation against her is that she had illicit relationship with the petitioner No. 1 and because of this also the deceased was tortured so many times. He further submits that petitioner no. 3 is nowhere related to the deceased and there is no allegation against her that she committed cruelty with the deceased. The only allegation against her is that she had illicit relationship with the petitioner No. 1 and because of this also the deceased was tortured so many times. It has been mentioned in the complaint that numerous fresh injuries of beating were present over the person of the deceased when the complainant saw the dead body in the hospital and thereby it has been alleged that after murdering her in the planned manner, the deceased was hanged. However, this allegation is belied from the postmortem report as also the inquest report of the deceased, which clearly mentions no other injury except the injuries of ligature mark. It is further argued that even if the evidence available in the charge sheet is accepted in its entirety, then also the petitioners cannot be convicted for the alleged offence and the trial court was not justified in framing charge by the impugned order. Reliance is placed on the judgment in the matter of state of M. P. v. S. B. Johari and others. ( 4 ) ON the other hand, learned counsel for the State has opposed the petition and argued that there are specific allegations against the petitioner No. 1 and 2 that deceased used to complaint that petitioner No. 1 and 2 tortured her from time to time in the name of demand of dowry and on receiving this information the complainant had paid rs. . 1 Lac twice. Further the petitioner No. 1 has illicit relationship with the petitioner no. 3, wife of tenant of the petitioners, and on this account also she was tortured and recently the deceased asked her father on telephone to take her back or else they would murder her, on which the father of the deceased brought back the deceased and thereafter left her back on 31. 8. 2006 and thereafter, she died unnatural death within seven years of her marriage. Reliance is placed on the judgment in the matter of munna Devi v. State of Rajasthan and another. ( 5 ) I have heard learned counsel for the parties and perused the record. 8. 2006 and thereafter, she died unnatural death within seven years of her marriage. Reliance is placed on the judgment in the matter of munna Devi v. State of Rajasthan and another. ( 5 ) I have heard learned counsel for the parties and perused the record. ( 6 ) AFTER going through the allegations present in the written report as also diary statement of complainant Baijnath Chand, balram, and Smt. Ramawati Bai, father, brother and mother of deceased as also rajkumar Singh and Falguni, it is seen that the deceased died within seven years of her marriage, which was solemnized on 20. 4. 2001 and there are allegations regarding torture in the name of demand of dowry by petitioner No. 1 and 2. The complainant has also alleged that he satisfied the demand on two occasions and paid Rs. 1 Lac two times. The allegation against the petitioner No. 3 is that the petitioner No. 1 has illicit relationship with her and because of this reasons she was tortured. The deceased was brought by her father on her complaint of torture, who resided at Rajnandgaon up to 31. 5. 2006 when she returned back to her matrimonial home and ultimately died on 5. 9. 2006 as a result of hanging. ( 7 ) IN the matter State of M. P. Versus S. B. Johari and others (supra) in Para 4 it has been held that 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 the accused committed the particular offence. 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 the accused committed the particular offence. ( 8 ) SIMILARLY view has been expressed in the matter of Munna Devi v. State of rajasthan (supra) and it has been held that revisional powers could be exercised only when it is shown that there is legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the fact value and accepted in their entirety do not constitute the offence for which the accused has been charged. There is no legal requirement for the trial court to write a reasoned and lengthy order for framing the charges. ( 9 ) THUS, from the evidence available on record, prima facie allegation of cruelty and torture in the name of demand of dowry is available against the petitioner No. 1 and 2 and the only question for consideration is whether the allegation of torture on account of the fact that the husband of deceased had illicit relationship with the petitioner No. 3 may be considered to be cruelty or harassment by her husband or any relative of her husband within the meaning of Section 304b of the IPC or cruelty as defined under section 498a of the IPC and whether presumption under Section 113a or 113b of the evidence Act as to abetment of suicide is available against the petitioner No. 3. ( 10 ) SECTION 113a of the Evidence Act roads under: "113a. Presumption as to abetment of suicide by a married woman-When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. " ( 11 ) THE allegation against the petitioner No. 3 is that husband of deceased i. e. petitioner No. 1 herein has illicit relationship with her. The question is whether by virtue of having illicit relations of her husband, the petitioner no. 3 may be considered to be relative of her husband for the purpose of drawing presumption under Section 113a of the Evidence Act. ( 12 ) THE necessary ingredients of dowry death under Section 304b of the IPC are that the woman was subjected to cruelty or harassment by her husband or any relative of her husband in connection with the demand of dowry. According to Section 113b of the Evidence Act once it is shown that soon before the death of a woman, she had been subjected by such persons to cruelty or harassment for, or in connection with the demand of dowry, the Court has to presume that such person has caused the dowry death. Whereas, cruelty with a woman by her husband or relative of her husband is punishable under Section 498a of the IPC and cruelty has been defined under Explanation (a) and (b) of this section. ( 13 ) AS per the case of the prosecution in the charge sheet the petitioner No. 3 is the wife of one Basant Kumar Rai, who resides as tenant in the house of petitioner no. 1 herein and therefore, the presumption under Section 113a of the Evidence Act cannot be drawn against her merely on the allegation that petitioner No. 1 has illicit relationship with her. There is no allegation in the charge sheet that petitioner No. 3 subjected the deceased to cruelty or harassment in the name of demand of dowry. Even if the entire evidence available in the charge sheet, which the prosecutor proposes to adduce to prove the guilt of the accused persons, is fully accepted before it is challenged by the cross-examination or rebutted by the defence evidence, then also it cannot be said that the petitioner No. 3 committed dowry death within the meaning of section 304b of the IPC or abetted the deceased to commit suicide and the learned sessions Judge was not justified in framing the charge under Sections 304b and 306 of the IPC against the petitioner No. 3. ( 14 ) IN the result, the revision preferred by the petitioner No. 1 and 2 being devoid of substance is hereby dismissed. However, the revision preferred by the petitioner No. 3 is allowed and the impugned order (Annexure P-4) by which the charge under Section 304b and 306 of the IPC has been framed against the petitioner No. 3 is hereby quashed. --- *** --- .