State vs Ashok Kumar And Ors.
2006 Latest Caselaw 1835 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. This revision petition has been preferred by the State against the order on charge dated 1.3.2001 passed by the learned Additional Sessions Judge. The State is aggrieved because the learned Additional Sessions Judge, while charging the respondents Nos. 1-3, 5 and 6 under Sections 498A/34 IPC, has discharged them in respect of the offence punishable under Section 304B IPC.

2. The learned Additional Sessions Judge also, discharged respondent No.4 (Suman) in respect of all the offences.

3. I have heard the learned Counsel for the State as well as Mr Andley, the learned senior counsel appearing for the respondents. Mr Andley submitted that respondent No.5 Ram Dass, who was the father-in-law of the deceased Geeta, has also passed away on 22.2.2002 after the order on charge was passed. He appears, now, on behalf of the surviving respondents.

4. The deceased Geeta was found dead on the night intervening 30th April and 1st May, 2000 as she was hanging from the ceiling fan at House No. 86/2, Gali No. 20, Som Bazar, Gawri, Delhi. On being informed, the police reached the spot and thereafter, the body of the deceased Geeta was taken for conducting a post mortem examination and further proceedings ensued. An FIR No. 110/2000 was registered at police station New Usmanpur, under Sections 498A, 406, 304B/34 IPC. An investigation followed the registration of the FIR and culminated in the filing of the challan. All the respondents were arrayed as accused. The learned Additional Sessions Judge, after considering arguments advanced by the counsel for the parties, was pleased to discharge accused Suman, inasmuch as she did not fall within the category of relatives as specified under Section 498A IPC. He also discharged all the remaining accused for the offence under Section 304B on the ground that there was no evidence or material on record to show any demand for dowry/money either soon before or about the date of the death of the deceased. In the opinion of the learned Additional Sessions Judge one of the prime ingredients of Section 304B was not made out and, accordingly, he directed the framing of the charge only under Section 498A/34. The impugned order revealed that although there was an allegation for demand for Rs 51,000/-, but that demand was not raised soon before the death of the deceased Geeta and that there was no material to show that the alleged cruelty was meted out by the respondent and, in particular, by Ashok (husband of the deceased Geeta), in connection with the said demand for dowry.

5. It is also noted in the impugned order that the deceased Geeta had left a suicide note although there is no mention as to whether the hand-writing contained in the suicide note was compared with her admitted hand-writing to arrive at a conclusion that the suicide note was written with her own hand. However, the learned Additional Sessions Judge was impressed by the fact that the suicide note did not implicate any of the respondents.

6. Having considered the arguments advanced by the counsel for the parties, I am of the view that while the learned Additional Sessions Judge was right in observing that the ingredients of Section 304B are not made out in the present case on the basis of the material available, the learned Additional Sessions Judge ought to have considered the question of framing charges under Section 306 particularly in view of the presumption that the Court can raise by virtue of the provisions contained in Section 113A of the Indian Evidence Act, 1872. For the sake of convenience, the said provision is reproduced hereinbelow:

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.

Explanation For the purposes of this section, cruelty shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860).

7. Reading the aforesaid provision, the conditions for invoking such a presumption are that the woman should have 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. In the present case, the learned Additional Sessions Judge had already formed the opinion that prima facie a case under Section 498A was made out against the respondents. The explanation to Section 113A also refers to cruelty as having the same meaning as in Section 498A IPC. Once a prima facie case under Section 498A IPC had been found to be made out, then cruelty insofar as the Section 113A of the Evidence Act is concerned is also made out. As regards the deceased Geeta dying within seven years of her date of marriage, that stands established. She was married on 15.5.1995 whereas she died on the night of intervening 30th April and 1st May, 2000, which is clearly within seven years from the date of her marriage. Therefore, the presumption under Section 113A can be raised and, in the circumstances of the case, ought to have been raised. Once the presumption is raised, the charge under Section 306 has to be framed. The question that arises at this stage is as to against which person this charge under Section 306 IPC can be framed. Having examined the entire material on record, it appears that the charge would lie against the husband namely Ashok because it is he alone who was allegedly having an affair with Suman whom he wanted to marry and, therefore, he would be the accused insofar as the offence under Section 306 IPC is concerned.

8. Accordingly, this revision petition is disposed of with the direction that the impugned order requires to be modified to the extent that charge under Section 306 IPC be framed against the accused Ashok only. The other charge framed under Section 498A/34 IPC by the learned Additional Sessions Judge against the surviving respondents shall remain.

9. It goes without saying that all observations contained in this order are only for the purposes of considering the question of framing of charges and shall not be used at the time of final arguments in the trial of the case.

10. A copy of this order be sent to the concerned Metropolitan Magistrate for further proceedings.

11. The Lower Court Record be sent back immediately.