Sanjay Sharma And Ors. vs The State (Nct) Of Delhi
2005 Latest Caselaw 58 Del

JUDGMENT

Manju Goel, J.

1. The revision petition is directed against the order dated 19th November, 2004framing charges under Sections 498A/304B/34 IPC passed by Shri 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 chargeapart from other documents like the post mortem report etc. the prosecutionrelied upon the statement of Smt.Murti, mother of the deceased, and thestatement of Mahender, father of the deceased, who deposed about the demand fordowry 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 oftheir daughter. Before the court of Sessions it wa submitted by the defensethat as per the report of the electricity department which had conducted a spotinspection there was a possibility of electric leak at the particular point inthe house where the unnatural death took place and that the death, t erefore,was accidental and had no connection with the alleged harassment on account ofdowry. The court of Sessions observed that all the ingredients of the offence under Section 304 of the Indian Penal Code (in short `IPC') was present andthat a pri a facie case had been made out. The contention that a death causedby electric shock cannot be brought within the ambit of Section 304B IPC didnot find favor with the learned Sessions Judge.

3. What is argued before this court is that since the cause of death waselectric shock and since there was possibility of electric leakage it was acase of accident and further that the prosecution and investigation wereduty-bound to prove that the deat was not accidental. Reliance has been placedon 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 deathwas caused by an accidental fire a conviction under Section 304B could not besustained.

4. A death on account of electricity shock more often than not is caused by aleakage. The leakage can be intended or unintended. The mere fact that thedeath was caused by electric shock does not necessarily lead to conclusion thatthe death was caused b an accident. If it is a case of pure accident, a caseunder Section 304B IPC cannot be sustained. But the accused in such a casecannot be discharged only because such a possibility exists.

5. Reliance has also been placed on the judgment of Kunhiabdulla and Anr. v. State of Kerala reported as 2004 (2) RCR (Criminal) 197 in which the Hon'bleSupreme Court while culling out the ingredients of the offence commented thatthe prosecution has to ule out the possibility of a natural or accidental deathso as to bring it within the purview of death. It was, however, not the rationof the judgment. A proper reading of the judgment will make this point clear.The Supreme Court is that case was not g ing through the questions of onus ofproof or the material required for framing of charge.

6. The Supreme Court in that judgment takes us first through the provisions ofSection 304 of the Indian Penal Code (in short `IPC') and culls out theingredients of the offence as under:

"(i) The death of a woman should be cause by burns or bodily injury orotherwise 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 orany relative of her husband.

(iv) Such cruelty or harassment should be for or in connection with demand ofdowry.

(v) Such cruelty or harassment is shown to have been meted out to the womansoon 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 inwhich the presumption can be raised. The presumption that a person has causeddowry death can be r ised only when the following situations are obtained:

"(1) The question before the Court must be whether the accused has committedthe dowry death of a woman. (This means that the presumption can be raisedonly 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 hisrelatives.

(3) Such cruelty or harassment was for, or in connection with anydemand 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. Aconjoint reading of Section 113B of the Evidence Act and Section 304B IPC showsthat there must be material to show that soon before her death the victim wassubjected to cruelty or harassment. Prosecution has to rule out thepossibility of a natu al or accidental death so as to bring it within thepurview of the `death occurring otherwise than in normal circumstances'. Theexpression `soon before' is very relevant where Section 113B of the EvidenceAct and Section 304B IPC are pressed into servic . Prosecution is obliged toshow that soon before the occurrence there was cruelty or harassment and onlyin that case presumption operates. Evidence in that regard has to be led byprosecution. `Soon before' is a relative term and it would depend upon crcumstances 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 thepossibility of a natural or accidental death so as to bring it within thepurview of the `death occurring otherwise than in normal circumstances'' iswritten in the judgment only to exp ain the meaning of ''otherwise than innormal circumstances''. This judgment in the case of Kunhiabdulla (Supra)cannot be read as opinion expressed on the question of onus. Nor can be saidthat the Supreme Court in paragraph 11 quoted above meant that be ore thecharge was framed the prosecution should produce enough evidence to rule outthe possibility of an accidental death.

10. The question of onus has been squarely dealt with by the Supreme Court inthe case of Yashoda and Anr. v. State of M.P. where the woman died in hospital shortly after being taken there in a criticalcondition. It was plea ed by the defense that the prosecution should haveproved the cause of death. The Supreme Court said that once the prosecutionproves the fact which gives rise to the presumption under Section 304B IPC theonus shifts to the defense and it is for the de ence to produce evidence torebut that presumption. The Supreme Court further says that it was for thedefense to produce evidence to show that the death was not caused by them orthat the death took place in normal course on account of any ailment or di easesuffered by the deceased or that the death took place in a manner with whichthey were not at all connected. The following part of para 13 of the judgmentcan be quoted with profit:

Shri Gambhir seriously contended that it was forthe prosecution to prove that the deceased had died in circumstances otherwisethan normal. He contended that the prosecution ought to have examined thedoctor and produced the relevant documents from th hospital to establish thecause of death of the deceased. We cannot uphold this contention. Theprosecution has successfully established that the deceased was married toKalicharan about 4 years before her death. The facts also reveal that thedeath was not under normal circumstances. There was also evidence to show thatthe deceased was persistently subjected to cruelty and harassment by herhusband as well as by his parents in connection with demand for dowry, inparticular the demand for gold ornamen s. Once it is held that these factsstand established, under Section 304B IPC a presumption arises that it is acase of dowry death, and that her husband or relatives who subjected her tocruelty and harassment shall be deemed to have caused her death. N doubt thisis 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 thatcharge. Once the prosecution proves the facts which give rise to thepresumption under sec ion 304B IPC, the onus shifts to the defense and it isfor the defense to produce evidence to rebut that presumption. The defense mayadduce evidence in support of its defense or may make suggestions to theprosecution witnesses to elicit facts which may support their defense. Theevidence produced by the defense may disclose that the death was not caused bythem, or that the death took place in normal course on account of any ailmentor disease suffered by the deceased or that the death took place in a annerwith which they were not at all connected."

11. In the present case so far as the onus is concerned, the prosecution hasdone its role by producing prima facie evidence which may raise the presumptionunder Section 304 IPC. Therefore, the same is sufficient to frame charge. It will be up to the de ence to prove that the death was accidental for whichthe accused were not at all responsible. I find no force in the criminalrevision. The same is accordingly dismissed.