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2013 DIGILAW 236 (UTT)

Kuldeep Goyal v. State of Uttarakhand

2013-05-02

ALOK SINGH

body2013
Judgment : 1. In compliance of this Court’s order dated 26.04.2013 Investigating Officer Navneet Singh Bhullar is present, in person, in the Court. 2. This is an application seeking regular bail in Case Crime no. 82 of 2012 (Sessions Trial No. 90 of 2012) under Section 498-A, 304-B IPC read with Section ¾ of the Dowry Prohibition Act, police station Patel Nagar, District Dehradun. 3. In the present case, before the trial court Dr. Ram Chandra Singh Rawat PW7 has been examined. As per statement of PW7 Dr. Ram Chandra Singh Rawat, no injury was noticed on the person of deceased Pooja and cause of death could not be ascertained. Therefore, viscera were preserved for chemical examination. 4. Today, Ms. Anjali Noliyal, Advocate appearing for the applicant, handed over a photo copy of the postmortem report of deceased Pooja, which is taken on record. 5. As per postmortem report and as per statement of Dr. Ram Chandra Singh Rawat PW7, no injury was noticed on the body of deceased, cause of death could not be ascertained and viscera were preserved for the chemical examination. No viscera report is received as yet to say cause of death of Ms. Pooja was due to poisoning. 6. Applicant is in judicial custody for last one year. He was arrested because report was lodged against him for the offence punishable under Section 304-B, 498-A IPC and ¾ of the Dowry Prohibition Act. Despite the fact that no injury was found on the dead body of Ms. Pooja and cause of death of Pooja could not be ascertained, applicant is facing trial for the offence punishable under Section 304-B IPC. 7. Considering the entire facts and circumstances of the present case, I direct let the applicant be released on bail on furnishing his personal bond of Rs.50,000/- and two sureties, of the like amount to the satisfaction of learned trial court. 8. Before parting with the judgment, in view of peculiar facts and circumstances of the present case, this Court while exercising the supervisory jurisdiction under Article 227 of the Constitution of India read with inherent jurisdiction as provided under Section 482 Cr.P.C. of the would like to discuss and observe as under: 9. Now, very important questions of law have emerged for the consideration by this Court: (i). Now, very important questions of law have emerged for the consideration by this Court: (i). As to whether police is well within its jurisdiction to arrest the husband and relative of husband and to file charge-sheet for the offence punishable under Section 304-B IPC, if no ante mortem injuries are found during the postmortem and chemical examination of viscera does not suggest death by poisoning? (ii). What Magistrate and Sessions Judge are supposed to do if police has filed charge-sheet under Section 304-B IPC in the aforesaid facts and circumstances of the case. 10. Mr. A.S. Gill, Sr. Government Advocate, contends that if there are allegations in the FIR to the effect that deceased was subjected to cruelty and harassment, in connection with demand of dowry before her death and death was within seven years of marriage, statutory presumption under Section 113-B of the Evidence Act would be against the husband or relatives of the husband, as the case may be, therefore, police is duty bound to arrest the accused considering the gravity of the offence. He further contends that if accused is arrested, then in normal course after completion of investigation, charge-sheet has to be filed within statutory period, as provided under 167 (2) Cr.P.C.; therefore, even if cause of death could not be ascertained during the postmortem and chemical - pathological examination report of viscera is not received, even then police has to file charge-sheet in anticipation of receiving positive chemical examination report about poisoning within statutory period of filing of charge-sheet otherwise, accused would be enlarged on default bail under Section 167 (2) Cr.P.C. and thereafter, can manipulate or temper with the evidence. 11. Mr. A.S. Gill, Sr. Government Advocate, further contends that if charge-sheet is filed containing the statements of witnesses stating that deceased wife was subjected to cruelty and harassment for the demand of dowry, in view of the statutory presumption against the accused, as provided under Section 113-B of the Evidence Act, Magistrate can take cognizance under Section 304-B IPC and commit the trial to the Court of Session. Thereafter, Court of Session can frame charge for the offence punishable under Section 304-B IPC and commence the trial without waiting for viscera report to the effect that death was due to poisoning. 12. As per dictum of Hon’ble Apex Court in the case of Kans Raj Vs. Thereafter, Court of Session can frame charge for the offence punishable under Section 304-B IPC and commence the trial without waiting for viscera report to the effect that death was due to poisoning. 12. As per dictum of Hon’ble Apex Court in the case of Kans Raj Vs. State of Punjab reported in 2000 (5) SCC 207 in order to seek conviction under Section 304-B for the dowry death, prosecution is obliged to prove that death of wife was caused due to burn injuries or bodily injuries or occurred otherwise than under normal circumstances; such death should have been occurred within 7 years of her marriage; deceased was subjected to cruelty and harassment by husband or relative(s) of husband; such cruelty should be, in connection with demand of dowry, soon before her death. 13. Section 113-B of the Indian Evidence reads as under: Section 113-B Presumption of dowry death – When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation – For the purpose of this Section “dowry death” shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860) 14. Having perused Section 113-B of the Indian Evidence Act, I have absolutely no hesitation to hold that when dowry death is proved, as defined under Section 304-B IPC, the Court shall presume that husband or relative(s) of the husband, as the case may be, has caused “dowry death”; sine quo non to draw presumption under Section 113-B of the Indian Evidence Act is “dowry death”. 15. To say that death is “dowry death” it must be shown that death is due to burn injuries or bodily injuries or it is otherwise than normal circumstances. In other words, if death of wife is not due to burn or bodily injuries and is not under abnormal circumstances, then death cannot be said to be a “dowry death”. 15. To say that death is “dowry death” it must be shown that death is due to burn injuries or bodily injuries or it is otherwise than normal circumstances. In other words, if death of wife is not due to burn or bodily injuries and is not under abnormal circumstances, then death cannot be said to be a “dowry death”. In the humble opinion of this Court untimely or young death of the wife that too within seven years of her marriage at her matrimonial home should not be considered as ‘dowry death’ simply because parents or relatives of wife are making complaints about the demand of dowry before her death, unless and until, death is unnatural i.e. due to burn injuries or bodily injuries or under abnormal circumstances viz. poisoning or strangulation or drowning etc. etc. 16. As observed hereinbefore, neither burn injuries nor bodily injuries were found on the dead body Ms. Pooja during postmortem nor cause of death could be ascertained, therefore, without pathology / chemical examination report to the effect cause of death was due to poisoning her death cannot be called as “dowry death”. 17. I do not agree with the submission made by Mr. A.S. Gill, Sr. Government Advocate to the effect that police can arrest and file charge-sheet for the offence under Section 304-B IPC, simply because some of the relatives of deceased wife have made accusation against the husband and his relative(s) that wife was subjected to cruelty and harassment in connection with demand of dowry, soon before her death, awaiting Viscera report. Contention of Mr. A.S. Gill, Sr. Government Advocate, that if charge-sheet is not filed within the statutory period simply because viscera report is not received, accused may get default bail for not filing the charge-sheet on the face of it, is untenable for the simple reason if tomorrow, viscera report does not say poisoning, who will restore the time spent by the accused in jail. 18. Hon’ble Apex Court in the case of State of Kerala Vs. Raneef reported in 2011 (1) SCC 784 has held as under: “15. In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. 18. Hon’ble Apex Court in the case of State of Kerala Vs. Raneef reported in 2011 (1) SCC 784 has held as under: “15. In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case?” 19. In view of the dictum of Hon’ble Apex Court in the case of Raneef (supra), if report comes suggesting no poisoning, can we restore the time period spent by the husband or his relative(s) in jail, obviously, answer would be no. Therefore, I am of the firm view that in the present scenario, police should have not filed charge-sheet in haste and should have waited for the viscera report. 20. Assuming that accused is granted default bail for not filing the charge-sheet within statutory period and tomorrow viscera report comes suggesting case of poisoning, accused can be convicted and sentenced in accordance with law. Therefore, no prejudice is going to be caused to the prosecution or to the complaining party. However, in the event viscera report comes suggesting no case of poisoning, prejudice shall be caused to the husband or his relatives for languishing in jail without any reason. 21. It is true that if wife dies within 7 years of her marriage and allegations are made that deceased was subjected to cruelty and harassment in connection with demand of dowry suspicion arises in the mind of the police and general public that perhaps the case fall within the ambit of Section 304-B IPC. 22. In the present case, Investigating Officer did not wait for the viscera report. As per the postmortem report, no external or internal injury was found on the dead body of Ms. Pooja nor cause of death could be ascertained. Even then, police has arrested the applicant and he is languishing in jail 23. Hon’ble Apex Court in the case of Joginder Kumar Vs. State of U.P. reported in 1994 (4) SCC 260 has observed as under: “No arrest can be made because it is lawful for the police officer to do so. Even then, police has arrested the applicant and he is languishing in jail 23. Hon’ble Apex Court in the case of Joginder Kumar Vs. State of U.P. reported in 1994 (4) SCC 260 has observed as under: “No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.” 24. In view of the dictum of Hon’ble Apex Court in the case of Joginder Kumar (supra), simply because accusation is made, accused should not be arrested for the offence punishable under Section 304-B IPC, if postmortem does not suggest burn injuries or bodily injuries and cause of death could not be ascertained during postmortem examination. Arrest can be kept in abeyance till viscera report is received suggesting poisoning. Police should not act in haste and to play with the personal liberty of citizen in violation of Article 21 of the Constitution of India. 25. In the present case, not only police filed charge-sheet but also learned Magistrate took cognizance thereon and committed the trial to the Court of Session for the offence punishable under Section 304-B IPC. Learned Session Judge did not examine the matter, at the time of framing of charge and framed the charge for an offence punishable under Section 304-B IPC mechanically and started examining the prosecution witnesses and has examined seven prosecution witnesses despite the fact that viscera report has not seen the light of the day, as yet. 26. Mr. Learned Session Judge did not examine the matter, at the time of framing of charge and framed the charge for an offence punishable under Section 304-B IPC mechanically and started examining the prosecution witnesses and has examined seven prosecution witnesses despite the fact that viscera report has not seen the light of the day, as yet. 26. Mr. U.K. Uniyal, learned Advocate General, with all his fairness, for which he is known at Bar, submits that learned Magistrate and learned Sessions Judge must examine the case before taking the cognizance and at the time of framing of charges and should not act mechanically. He further contends that had Magistrate or Sessions Judge been vigilant, this position would have not arisen. He further contends that they could have asked for viscera report before proceeding further and the matter could have reached to its logical end. 27. Hon’ble Apex Court in the case of Manubhai Ratilal Patel Vs. State of Gujrat reported in 2013 (1) SCC 314 in paragraph 24 held under: 24. The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner. 28. Hon’ble Apex Court in the case of Sajjan Kumar Vs. CBI reported 2010 (9) SCC 368 in paragraph 21 held under: “21. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner. 28. Hon’ble Apex Court in the case of Sajjan Kumar Vs. CBI reported 2010 (9) SCC 368 in paragraph 21 held under: “21. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:- (i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 29. As per the dictum of Hon’ble Apex Court in the case of Manubhai (supra) as well as Sajjan Kumar (supra), it is, thus, clear that Magistrate, while passing the order of remand or taking cognizance on the police report, does not act in executive capacity, rather he acts in judicial capacity. While acting in judicial capacity, the learned Magistrate, is duty bound to examine the entire material placed before him and to satisfy himself as to whether case warrants cognizance, judicial remand or police remand, as the case may be. After this stage, second stage comes at the time of framing of charges. At the time of framing of charge, learned trial court must consider probative value of material on record. The trial Judge must apply judicial mind whether on the material placed on record framing of charge under Section 304-B IPC would be justified. Trial Judge should not act as mouthpiece of the prosecution. If two views are possible and one of them give rise to suspicion, as distinguished from grave suspicion, the trial Judge is empowered to discharge the accused. All the Judicial Officers must exercise their respective jurisdiction and powers judiciously. 30. In the present case, unfortunately, neither the Investigating Officer waited for viscera report nor the Magistrate applied judicial mind at the time of taking cognizance on the police report and at the time of committal to the court of Session nor trial Judge applied judicial mind while framing the charges. 30. In the present case, unfortunately, neither the Investigating Officer waited for viscera report nor the Magistrate applied judicial mind at the time of taking cognizance on the police report and at the time of committal to the court of Session nor trial Judge applied judicial mind while framing the charges. Had anyone of them been vigilant, accused could have not been prosecuted for the offence under Section 304-B IPC and perhaps could have been released on bail for other offence i.e. 498-A IPC and ¾ of the Dowry Prohibition Act. 31. Let a copy of this judgment be forwarded to all the Judicial Officers of Uttarakhand and Director General of Police, Uttarakhand, for information and strict compliance.