Krishan Kumar vs Nct Of Delhi
2006 Latest Caselaw 1397 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. This revision petition has been filed challenging the order on charge dated 31.5.2000 passed by the learned Additional Sessions Judge whereunder the present petitioner has been charged of having committed offences under Section 304B/498A/34 IPC. The counsel for the petitioner as well as the counsel for the State have been heard.

2. This case brings up an interesting question to be decided. The petitioner's wife Rekha died on 27.3.1996. It was an unnatural death. The death was an apparent murder as she had sixteen injuries caused by stabbing. The police has failed to solve the murder. However, the present petitioner had been implicated by the police under Section 302/304B/498A/34 IPC. The learned Additional Sessions Judge, upon an examination of the record, found that on the basis of the available material as on date, a case under Section 302 IPC was not made out against the present petitioner. However, charges were framed under Section 304B/498A/34 IPC. In paragraph 13 of the impugned order, the learned Additional Sessions Judge pointed out that in this case deceased Rekha died an unnatural death within seven years of her marriage with the accused Krishan Kumar. It was also observed that there was sufficient evidence brought on record that soon before her death, the respondent was subjected to harassment and torture by accused Krishan Kumar on the ground of dowry. It was, therefore, concluded by the learned Additional Sessions Judge that as such there were, prima facie, sufficient grounds to frame a charge against the accused Krishan Kumar for an offence punishable under Section 304B IPC. He, however, also came to the conclusion that it is not relevant as to whether the death was suicidal or homicidal or whether the accused had a direct connection with the death or not.

3. The issue before this Court is whether the death having occurred in the circumstances aforesaid could be construed as a dowry death within the meaning of Section 304B IPC. Section 304B reads as under:

304B. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

Explanation - For the purpose of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

4. As observed by the Supreme Court in T. Aruntperunjothi v. State through SHO., Pondicherry , the essential ingredients of the said offence are:

(1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;

(2) such death must have occurred within seven years of marriage;

(3) soon before her death, such woman must have been subjected to cruelty or harassment by her husband or any relative of her husband;

(4) such harassment or cruelty must be connected with the demand for dowry;

(5) such cruelty must be shown to have been meted out to the woman soon before her death.

5. If one carefully looks at the facts of the present case then, apparently, all the aforesaid ingredients are made out. This is so because Rekha died as a result of bodily injuries and in circumstances which were other than normal. Her death occurred within seven years of marriage. There are allegations that soon before her death she was subjected to cruelty and harassment by her husband. There are also allegations that such alleged cruelty or harassment was in connection with the alleged demand for dowry and there are also allegation that such alleged cruelty was meted out to ,the deceased Rekha soon before her death. However, I feel that it is still not covered under Section 304B because the occurrence of death on the basis of materials available on record is independent to the demand for dowry and the alleged cruelty in connection with that demand. To explain this position an extreme example may be taken which would clarify the whole situation. Suppose within two years of marriage a husband treats his wife with cruelty and harasses her in connection with a demand for dowry which he repeatedly makes and the wife being fed up with these repeated demands for dowry and cruelty decides to go to her parents home. For going to her parents' home, which is some distance away, she undertakes a train journey and the train meets with an accident and she dies in that accident. Would such a death be regarded as a dowry death? In my view, no. Because there is no connection between the death and the demand for dowry and the cruelty meted out by her husband. Another example may be considered. Let us assume that after four years of marriage a husband demands dowry and treats his wife with cruelty. The wife is strong willed and these demands and taunts do not trouble her. One day, while she is out shopping, a bomb explosion takes place in the market and she dies. Could her death, under these circumstances, be treated as a dowry death? Once again, my answer would be - no. The one thing that is missing in both these examples is the link between the husband's conduct and the cause of death. Without this link, the presumption of the husband causing the death cannot be raised.

6. A similar situation has arisen in the present case on the basis of material available on record till date. Rekha was admittedly murdered by somebody. It has not yet known as to who is responsible for the murder. The record, as of now, shows that Rekha was murdered and that this murder was not in connection with the cruelty or harassment allegedly meted out by her husband nor is there any link with the murder and the demand for dowry allegedly made soon before her death by her husband. Therefore, in my view, a charge under Section 304B cannot be framed.

7. Insofar as the charge under Section 498A/34 IPC is concerned, that has been correctly framed and no interference is called for.

8. Now coming to the issue of the investigation with regard to the murder of deceased Rekha. It is unfortunate that the Investigating Agencies have not conducted a proper investigation and has been unable to solve the murder. Being unable to solve the murder, it was very easy for them to foist the same as a case under Section 304B on the accused Krishan Kumar. In this manner, an unsolved murder becomes a solved crime. In my view, two crimes have been committed here. One is based on the alleged atrocities of the husband and the other is the murder of Rekha. There may be a connection between the two although that is not borne out by the record as is available today. Then, there may be no connection. It is for the Investigating Agency to conduct a thorough and complete inquiry and investigation and to ascertain how and under what circumstances the murder of Rekha took place. Unfortunately, that has not been done despite the same having been repeatedly sent for further investigation by the Court below.

9. Mr Pawan Sharma, who appears for the State, pointed out that the learned Additional Sessions Judge, by an order dated 27.1.1999, had directed that the investigation be carried out by the CBI. However, that order was challenged right up to the Supreme Court and the Supreme Court had set it aside on the ground that the Sessions Court had no power to direct the CBI to investigate the matter. It is on that basis that a further investigation was carried out, not by the CBI, but, by the Special Investigation Cell of the police itself. However, I feel that the investigation has not been carried out properly inasmuch as this matter cannot be considered to be a solved case. It is an unsolved murder and the investigation has to be taken to its logical conclusion. In these circumstances, I direct the CBI to take up the investigation with regard to the murder of Rekha and to complete the same as expeditiously as possible. The DCP North-East is directed to send the case papers to the CBI for such investigation.

10. Insofar as the present case qua the petitioner is concerned, the charge stands modified to read only under Section 498A/34 IPC. The trial shall continue on the basis of this charge.

11. The Lower Court record be sent back immediately.

12. Any observations made in this judgment and order shall not be used to the prejudice of the parties in the trial.

dusty.