Yamin & Ors vs State
2009 Latest Caselaw 4034 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Reserved on:05th October, 2009
                       Judgment Delivered on:07th October, 2009

                            CRL.R.P.342/2009

        YAMIN & ORS.                               ..... Petitioners
                            Through:    Mr.Kishan Nautiyal, Advocate.
                       versus

        STATE                                     ..... Respondent
                             Through:   Mr.Manoj Ohri, APP.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the
        Digest?                                       Yes

INDERMEET KAUR, J.

1. This revision petition has been filed against the

impugned order dated 28.2.2008 whereby the Trial Court had

framed charges under Section 498-A/304-B/34 of the IPC

against three co-petitioners. Yamin Petitioner No.1 is the

father-in-law, Smt.Vakila Petitioner No.2 is the mother-in-law

and Farukh Petitioner No.3 is the brother-in-law of the victim

Shahana.

2. Deceased Shahana had been married to co-accused

Mohd.Farid on 13.4.2005 as per muslim rites. She had died

in the matrimonial home on 27.8.2007. It was not a natural

death; there is no dispute to this proposition; whether it was

homicidal or suicidal would not make any difference as both

homicide and suicide fall within the definition of 'death

otherwise than under normal circumstances' as contained in

Section 304-B of the IPC.

3. Out of the essential ingredients of Section 304-B IPC,

three i.e.

(a) death of a woman,

(b) by burns or bodily injuries or occurrence otherwise

than in normal circumstances and

(c) within seven years of her marriage,

stand established.

4. Learned counsel for the appellants has challenged the

order of the framing of charge primarily on the ground that

the SDM had recorded the first statement of the relatives of

the victim, namely, her father Nawab Ali, her mother Zaibun

and her brother Mohd. Shahid on 28.8.2007 but in all these

statements there were no direct allegation against the

petitioners and the allegations, at best, were levelled against

the husband of the victim, namely, Fareed. The

supplementary statements of the said persons recorded by

the Investigating Officer wherein the allegations against the

petitioners have surfaced for the first time are of little value

and no credence can be placed on such subsequent

statements which had not detailed the offence in the first

instance. These are major improvements having no

evidentiary value and as such the Trial Court has mis-

appreciated the evidence which had been collected by the

prosecution in these supplementary versions. For this

propostion reliance has been placed upon a judgment

reported in Narender Kumar and Anr. vs. State (Govt. of NCT

of Delhi) 2008 (1) JCC 1. Even otherwise, the submissions are

vague with no specific allegations levelled against the

petitioners in the absence of which the court has erred in

framing charge. For this proposition reliance has been placed

upon a judgment reported in Babita vs. State 2009 (2) LRC

180 (Del). Additionally, it has been argued that a grave

suspicion by itself is not sufficient for framing of charge

unless allegations are specific. Reliance has been placed

upon a judgment reported in Yogesh @ Sachin Jagdish Joshi

vs. State of Maharashtra 2008 VI AD (SC) 381. Learned

defence counsel has also placed reliance upon Basavaraja

and Ors. vs. State of Karnataka (2008) 9 SCC 329 to

substantiate his submission that where the evidence

collected by the prosecution would not be sufficient to prove

the charge, the trial would be an empty formality. It is

submitted that in the instant case no final opinion on the

cause of death has been obtained by the investigating

agency. Attention has been drawn to the post-mortem report

wherein the doctor had kept the opinion on the cause of

death pending till the toxicological analysis report of the

viscera is made available. It is submitted that the report of

the viscera which is dated 20.11.2007 has categorically

opined that metallic poisons, ethyl and methyl alcohol,

cyanide, phosphide, alkaloids, barbiturates, tranquilizers and

insecticides could not be detected in the viscera of the victim

i.e. her liver, spleen and kidney. The prosecution, thus, has

no evidence as to how the death of the victim had occurred;

the ante-mortem injuries noted in the post-mortem were

insufficient to cause death and death by poisoning also

having been ruled out by the report of the viscera, there is

thus no conclusive opinion on the cause of death; it would be

a fruitless trial.

5. The revision petition has been opposed.

6. The parties had admittedly been married on 13.4.2005.

The incident had occurred on 27.8.2007; i.e. within less than

three years of the marriage of Shahana and Fareed. It is also

not in dispute that the victim had died in the matrimonial

home where the petitioners also resided along with Fareed,

the husband of the victim. The information about the

incident had been received by the family of the victim

through her neighbours and not directly through the

petitioners or the husband of the victim. The statement of

Nawab Ali, the father of the victim was recorded by the SDM

on 28.8.2007. The same has been perused. He has

specifically stated that one month after the marriage of his

daughter she had informed him that she was being harassed

for dowry and her husband used to beat her; so much so, that

his son-in-law was not even talking to his father-in-law; he

received information about his daughter being hospitalized in

the late evening of 27.8.2007; when he reached the hospital

his daughter had already died but his son-in-law had no

explanation to offer. This version of Nawab Ali categorically

recites that he doubted his son-in-law regarding the death of

his daughter. His daughter was fine and was not suffering

from any disease; her sudden death should be investigated.

On the very same day, his supplementary statement was

recorded by the Investigating Officer wherein he had detailed

the role of the present petitioners i.e. Yamin, Vakila as also of

Farukh who also used to harass her for bringing insufficient

dowry.

7. To the same effect is the statement of Zaibun, the

mother of the victim whose statement was recorded first by

the SDM on 28.8.2007 and on the very same day by the

Investigating Officer; in her statement before the

Investigating Officer she had detailed the role of the co-

petitioners.

8. In the statement of Sahid Saifi, the brother of the

victim, recorded before the SDM, it has been stated that

besides her husband, her in-laws also used to trouble her for

bringing insufficient dowry. The role of the in-laws i.e. all the

petitioners has been categorized in the first statement of

Mohd.Sahid Saifi and thereafter again as recorded in his

statement before the Investigating Officer which was also of

the same date.

9. Statements of Rajuddin, a member of the 'Biradari' as

also of Hakim Ali, uncle of the victim have also been perused.

All the said statements i.e. of the father, mother and the

brother of the victim had been recorded on 28.8.2007 itself.

Human nature is very complex. Different persons react

differently under pressure or in times of sudden bereavement

or grief. The shock suffered by a parent having seen his

daughter dead in an unnatural manner can in some cases

prevent immediate outpouring of reasons. This proposition

has been laid down in Alamgir Sani vs. State of Assam (2002)

10 SCC 277 and can well answer the submissions of the

learned defence counsel as to why in the first statement

recorded of the parents of the victim before the SDM, no

detailed role had been attributed to the petitioners.

10. The judgment relied upon by the learned counsel for

the petitioner as reported in Narender Kumar and Anr. vs.

State (Govt. of NCT of Delhi) (supra) was against a final

conviction i.e. after the evidence had been marshaled and

would thus have no application to the present case which is

only at the stage of the framing of charge.

11. The second judgment relied upon by the counsel for the

petitioner reported as Babita vs. State (supra) is also not

applicable to the facts of the instant case as the allegations

against the petitioners are specific and cohesive.

12. Principles for framing of charge are well established; a

strong suspicion against the accused from the evidence

produced which makes out a prima facie case is sufficient for

framing of charge. State of Bihar vs. Raj Narain AIR 1991 SC

1308.

13. In the instant case, there are four ante-mortem injuries

which had been noted in the post-mortem report but the

doctor had opined them to be insufficient to cause death. The

FSL report has also been perused wherein metallic poisons,

ethyl and methyl alcohol, cyanide, phosphide, alkaloids,

barbiturates, tranquilizers and insecticides could not be

detected in the viscera. Thereafter, the post-mortem report

along with FSL report had been placed for opinion before the

concerned doctor who had vide his subsequent opinion dated

15.12.2007 opined that poisoning as a cause of death could

not be ruled out. Trial is yet to take place and the doctor has

yet to come into the witness box to explain his subsequent

opinion.

14. In Taiyab Khan and Ors. Vs. State of Bihar AIR 2006 SC

673, the Supreme Court had held that even in the absence of

the report of viscera and the prosecution not having been

able to prove that death had occurred by poisoning, the fact,

nevertheless, stood established that it was a case of

unnatural death; Section 304-B makes reference to death

which occurs otherwise than under normal circumstances.

15. The submissions made by the revisionist are without

any force. There is prima facie sufficient material to hold that

the co-petitioners had subjected Shahana to

cruelty/harassment in connection with demand for dowry; her

death had occurred within less than three years of her

marriage in unnatural and abnormal circumstances. The

presumption under Section 113-B of the Evidence Act is also

attracted. The impugned order calls for no interference.

Revision petition dismissed.

(INDERMEET KAUR) JUDGE

07th October, 2009 rb