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2008 DIGILAW 1179 (DEL)

Raman Kumar v. State

2008-12-18

H.R.MALHOTRA

body2008
H.R. Malhotra, J. 1. This revision petition is to assail impugned order dated 15th February, 2005 where the petitioners, who are- brother-in-law and sister-in-law(Nanad and Nandoi) of the deceased were charge sheeted besides other accused namely, the husband, father-in-law and mother-in-law of the deceased for commission of offence punishable under Section 498A /304B IPC. 2. It is the case of the petitioner that this is yet another case where all family members including petitioners have been roped in not withstanding there being no allegations that the deceased was subjected to maltreatment for and in connection with demand of dowry before her death. 3. It is further the case of the petitioners that even the FIR did not speak a word about these petitioners except making mere bald allegations with no material available on record indicating that these petitioners were responsible for causing death of the deceased at her matrimonial home. It is also the case of the petitioners that both these petitioners have not been living in the house where the incident had taken place and as such they hardly had any occasion to make interference in the matrimonial affairs of the couple. 4. It is further urged that reading of the statements of the mother of the deceased and other relatives indicate that these petitioners were not even named in the statement recorded by the SDM, however, after 12 days of the occurrence they made statement before the police making bald allegations against the petitioners. 5. It is urged by learned counsel for the petitioners that the only accusation appearing against the petitioner Raman Kumar is that he had reached the hospital after knowing about the incident and on the advice of his parents-in-law, he rang up parents of the deceased from the hospital about the death of their daughter and only on such allegation, he has been roped in this case and chargesheeted for commission of office punishable under Section 498-N304B IPC. 6. It is further urged by learned counsel for the petitioner that the statement of mother and father of the deceased did not implicate the petitioners nor did they give any specific incidents where from it could be gathered that these two petitioners were also responsible for driving the deceased to put an end her life for or in connection with the demand of dowry. He stated so after drawing my attention to the statement of the parents of the deceased made before the SDM. He further argued that supplementary statements of the parents of the deceased were recorded after about two months of the incident. Though they did not make accusations against the petitioner and his wife but gave their names generally without indicting if both the petitioners ever harassed the deceased about demand of dowry. 7. Further it is the case of the petitioner that supplementary statements of the aforesaid two persons are of no value same having been made at much later stage giving occasion to the parents of the deceased to improve the story in order to rope in the entire family. 8. Learned counsel for the petitioners to strengthen his arguments placed reliance on two judgments one reported in 104(2003) Delhi Law Times 824 and another reported in 95(2002) Delhi Law Times 147 (DB) on this subject. 9. I have considered these two authorities. These two authorities deal with the element of criminal culpability for the purpose of Section 498-A and 406 IPC. His Lordship while dealing with these aspects observed that "mental cruelty broadly means, when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and the husband and as a result of which it becomes impossible for the party who has suffered to live with the other party." His Lordship further observed that "ingredients of cruelty as contemplated under Section 498A are of much higher and sterner degree than the ordinary concept of cruelty applicable and available for the purposes of dissolution of marriage. 10. True in order to bring the offence under Section 498A, the cruelty should be of that degree as referred to above but in the case in hand, reading of the statements of the parents of the deceased and other near relatives clearly goes to show that nature of accusations appearing against the petitioners for the purpose of constituting offence under Section 498-A IPC do not make out a case for trying these two petitioners under Section 498-A IPC as the allegations are general nature and it cannot be taken as ingredients for the purpose of constituting offence under Section 498-A. Therefore, to charge them under Section 498A/304B/IPC would be totally against the material available on record. 11. 11. On the other hand, learned prosecutor urged that names of these two petitioners appear in the statement made by the parents of the deceased before the SDM and also before the police and, therefore, they are also guilty of committing offence punishable under Section 498-N304B/IPC. He further urged that the act of petitioner Raman-Kumar in making phone call from the hospital clearly indicates that he was present when the incident had taken place and that he too was responsible for causing the death of the deceased. 12. I have heard learned counsel for the petitioner and also learned prosecutor. I have looked into the statements of the parents of the deceased including other material on record. The deceased did not leave any suicide note while dying, therefore, the prosecution case primarily based on statements of the relatives of the deceased. 13. It is seen that the statements of the parents of the deceased and also younger sister of the deceased were recorded by the SDM on 29th May, 1999. Thereafter, police also recorded their statements on 11th June, 1999. 14. The parents of the deceased named everyone including deceased husband, mother-in-law, father-in-law, brother-in-law, sister-in-law. There is no denial of the fact that these two petitioners who are brother-in-law and sister-in-law of• the deceased were staying separately and not in the matrimonial home of the deceased. 15. Whatesle, has come out in the statements of parents of the deceased that on 28th May, 1999, petitioner Raman Kumar made a telephone call to the parents of the deceased that Aarti (since deceased) was seriously ill and then after about one and a half hour later he again telephoned that Aarti has since passed away. The question which comes for consideration is whether on such accusation, the petitioner should be put to trial. Evidence of this nature, even if goes unrebutted, would this kind of evidence be sufficient to convict these two petitioners. Merely because the petitioner Raman Kumar made a telephone call arid that too from the hospital would certainly not constitute an offence punishable under Section 498-A/304B/IPC. Evidence of this nature, even if goes unrebutted, would this kind of evidence be sufficient to convict these two petitioners. Merely because the petitioner Raman Kumar made a telephone call arid that too from the hospital would certainly not constitute an offence punishable under Section 498-A/304B/IPC. In order to bring the petitioners in the arena of offences, prosecution has to allege much more i.e. the deceased was subjected to maltreatment and harassment for and in connection with demand of dowry and that the petitioners used to cause physical and mental harassment of that nature that they were instrumental in driving the deceased to put an end to her life. Whatesle further important is that the prosecution must collect some evidence to prove that the soon before her death she was subjected to maltreatment and harassment at the hands of the petitioners for or in connection with the demand of dowry. 16. Reading of the statements of the mother and father of the deceased besides sister and other witnesses Balveer Kumar and Shivani recorded under Section 161 Cr.P.C. and also before SDM do not bring these two petitioners in the drag-net of the crime as accusation against them are too general in nature and it seems that their names have been inserted by the parents of the deceased so as to involve them as well for such offence whereas ingredients of Section 498A and 304B do not fit in against these two petitioners. The learned trial judge while framing issues did not specifically mention the role of these two petitioners despite the fact that the counsel for the accused persons while arguing their case specifically stated that there was no evidence available on record warranting framing of charge against these two petitioners but the learned trial judge without specifying as to what were the specific accusations proceeded to frame charge against these two petitioners also. 17. 17. I may state that framing of charge or discharging the accused is a valuable right of the prosecution and also that of the defence and, therefore, at the time of framing of charge, it is the bounden duty of trial judge to make judicial scrutiny of the material collected by the investigators and then proceed to frame charges against erring persons whereas learned trial judge though used the words that prima facie there was sufficient material against the accused persons but did not elaborate as to what kind of material was there against these two petitioners. 18. Moreover, merely making of phone call by Raman Kumar and that too from the hospital about the serious condition of the deceased would not in any manner constitute offence against him under Section 304B IPC. If he was really a party to the commission of crime he would have shirked or avoided to make phone call but since he had not caused any harassment or maltreatment to the deceased nor was he party to the offence under Section 304B IPC, therefore, he fairly telephoned the parents of the deceased from the hospital. 19. In view of the above discussion, this is a fit case where this court must exercise its inherent powers vested under Section 482 Cr.P.C. as these petitioner have merely been roped in on assumption and not on the strength of cogent material against them. Putting them to trial would be a futile exercise as the material so collected against them even if goes un-rebutted, these two petitioners in any case cannot be held guilty for commission of offence punishable under Section 498A/304B/IPC. Consequently the impugned order qua these two petitioners is set aside. However, charges framed against other accused persons shall remain there.