ORDER
U.C. Maheshwari, J.
1. This revision petition is directed against the order dated 30.10.2004 passed by the First Additional Sessions Judge, Umaria in S.T. No. 117/2004, whereby the direction for framing charges against the applicants under Sections 498/34, 304B and in alternative 306 of I.P.C. has been given and the same have been framed.
2. The prosecution case in brief is that the deceased Mamta was married with applicant No. 2 Rakesh @ Gudda Sahrma before four years from the date of incident i.e., 14.7.2002. On this day deceased Mamta poured kerosene on herself and ablazed, immediately she was shifted to the Public Health Centre, Chandia and from where she was referred to Medical College, Jabalpur, during the treatment she succumbed to death due to burn injuries. As per procedure initially preliminary inquiry was held and on the basis of such inquiry Crime No. 166/02 was registered by Police Chandia on dated 3.10.2002 for offence under Sections 304B, 306/34 of I.P.C. against the applicants. As per the contents of FIR the applicant No. 2 was married before four years in the year 1998 and at the time of marriage he demanded a 'Mohanmala' (a kind of golden chain) but due to inability of the parents of deceased the same was not given, therefore, applicant No. 2 annoyed with the parents of deceased and due to this reason deceased was neglected by him and not only this but the applicant No. 2 after his marriage never come to the home of her parents and the circumstances came to this stage on 14.7,2002 that when the deceased demanded some vegetables from her Jethani then she was subjected by some abusing language by her Jethani. When this incident was told by the deceased to applicant No. 2 then she was again neglected by her husband by saying some funny words and due to this torture deceased poured kerosene on her and committed suicide.
3. In this manner she was subjected to cruelty in relation to demand of dowry within seven years from her marriage and committed suicide. During the investigation and inquiry under Section 174 of Cr. P.C. the interrogations were made and the case diary statements were recorded including the statement of mother and father of the deceased.
4. In the case diary statement, besides other contention Ram Awtar Sharma has made following version:
'Hindi matter omitted'
Not only in the case diary statement but on the merge statement recorded on 17.2.2003, same witnesses has deposed as under:
'Hindi matter omitted'
While Smt. Lalita Devi has deposed in the merge statement recorded on 2.10.2002 as under:
'Hindi matter omitted'
5. Counsel of the applicant submitted that there is a long distance in between the marriage and alleged incident of suicide and, therefore, soon before her death the deceased was subjected to cruelty or harassment by her husband or any relatives in connection with a demand of dowry has not been prima facie proved. It is also submitted that on the basis of Challani papers or other papers submitted along with police report under 173 of Cr. P.C., no ingredients of Section 304B of I.P.C., are available and the charge under Section 304B of I.P.C. cannot be sustained. He has also assailed other charges as framed by the Trial Court on the lack of ingredients of said offence.
6. Counsel of the applicant supported his argument by placing reliance on so many authorities of this Court as well as Apex Court, those are considered as follows:
(1) He referred the judgment rendered by the Apex Court reported in : 1990CriLJ1869 , Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and Ors., in this decision it was directed that at the stage of framing of charges there should be evaluation of material and documents for finding put the ingredients of alleged offence, and if the ingredients are not proved then charges cannot be framed.
(2) He cited another case reported in AIR 1972 S.C. 1454, Century Spinning and Manufacturing Co. Limited Ram Prasad Poddar v. State of Maharashtra, in which it was held that if there is no ground for framing of charges, must be considered to be groundless, which is same meaning as to say that there is no ground for framing the charges.
(3) He cited another case Satvir Singh v. State of Punjab, : 2001CriLJ4625 , although this case is pertaining to Sections 304B and 306 of I.P.C. but the findings were given on the appreciation of evidence at the final stage. That is not a position in the case at hand.
(4) He cited another case reported in : 2001CriLJ4700 , Sunil Bajaj v. State of M.P., and referred para 11 of the decision. But the facts and circumstances of that is also not applicable to the case at hand because it was decided on merits after concluding the trial.
(5) He also cited the case reported in : 2002CriLJ980 , Dilawar Babu Kurane v. State of Maharashtra, which says in relating to framing of charges which is not culminating into conviction, then criminal proceedings liable to be quashed.
In my opinion that situation is not involved in the case at hand.
(6) He further referred AIR 2002 SCW 2748, Mangeshwar Prasad v. State of Bihar.
This case is also decided on merits after recording the evidence of witnesses and on appreciation of evidence at the final stage.
(7) Besides the above said cases, he also cited a reported case in 2002 (1) C. Cr. J. M.P. 65, Anil Malpani and Anr. v. State of M.P. through CBI. This case is related to the Prevention of Corruption Act and the facts and circumstances are very different.
(8) He also placed reliance on 2002 (1) C.Cr. J. M.P. 77, in which the applicants were discharged, from the charges under Sections 302/34 in alternative 304B read with 34 of I.P.C. but in that case FIR was lodged after four months from the date of incident and the allegations were disclosed after long delay and that is why the accused were discharged but in the case at hand at the initial stage of merge the allegation In respect of demand of dowry and in continuing of that the incident took place, as appearing on the perusal of case diary and statement of mother and father of deceased, therefore, that case also does not help the applicant.
(9) Lastly Counsel of the applicant cited a case of Apex Court, Kunhiadulla and Anr. v. State of Kerala, 2004 S.C. 1731. Although this case was also decided after whole trial and on the basis of appreciation of evidence on record but some principles laid down in this case in respect of Sections 304B and 113B of I.P.C.
7. For proper consideration of this revision some Important paras of this judgment are as under:
'(8) Section 304B, I.P.C. deals with dowry death which reads as under as follows:
'304-B. 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, in connection with any demand for dowry, such husband or relative shall be deemed to have caused her death.
Explanation : For the purpose of this sub-section 'dowry' shall have 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.
(9) The provision has application when 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 for, or in connection with any demand for dowry. In order to attract application of Section 304B, I.P.C. the essential ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise 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 or any relative of her husband.
(iv) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
(10) Section 113B of the Indian Evidence Act, 1872 (In short the 'Evidence Act' is also relevant for the case at hand. Both Section 304B, I.P.C. and Section 113B of the Evidence Act were inserted by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to deaths. Section 113B reads as follows:
'113-B. Presumption as to 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 has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, they shall presume that such person had caused the dowry death. Explanation : For the purposes of this section 'dowry death' shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)'.
The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in 21st Report dated 10th August, 1988 on 'Dowry Deaths and Law Reform.' Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related deaths. Legislature though it was to insert a provision relating to presumption of dowry death on proof of certain essentials. In it in this back ground presumptive Section 113B in the Evidence Act has been inserted. As per the definition of 'dowry death' in Section 304B, I.P.C. and the wording in the presumptive Section 113B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been 'soon before her' subjected to cruelty or harassment 'for or in connection with the demand of dowry.' Presumption under Section 113B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B, I.P.C.).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
(11) A conjoint reading of Section 113B of the Evidence Act and Section 304B, I.P.C. shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances.' The expression 'soon before' is very relevant where Section 113B of the Evidence Act Section 304B, I.P.C. are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that Brings in the importance of a proximity test both for proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304B, I.P.C. and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114, Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after the theft' is either the thief, or has received the goods knowing them to be stolen, unless he can account for its possession. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.'
8. So, in view of the said principles when I examine the present matter then it is a matter of fact that as per Challani papers the deceased Mamta was died under abnormal circumstances and by unnatural death and also within seven years of her marriage who poured kerosene and ablazed herself, and she was subjected to harassment in relation to the demand of dowry from the day first of the marriage as said above, therefore, all ingredients are available in the record for framing the charges against the applicants under Section 304B of I.P.C.
9. While on other hand the Counsel for respondent State has supported and justified the impugned order and prayed for dismissal of this revision petition.
10. He submitted that on the basis of evidence collected by the Investigating Agency during the investigation prima facie all ingredients of Section 304B and Section 306 of I.P.C. are found. His further contention is that at the stage of charges prospect of fact whether it would be ultimately found guilty or not cannot be a criteria for discharging the applicants. In support of his contention he cited 1991 Vol. 1 Cr. L.J. 268, Mst. Premwati v. State of M.P., in which it is held that:
'Section 304 was introduced in the Penal Code by Dowry Prohibition (Amendment) Act, 1986. The opening clause of Sub-section (1) of Section 304B reads as under:
'where the death of a woman is caused any burns or bodily injury or occurs otherwise than under normal circumstances....'
A bare reading of section indicates that it is applicability would be attracted not only when the death is 'caused' by some one, but also when the death 'occurs' unnaturally. If occurrence of death is preceded by cruelty or harassment by in-laws for or in connection with dowry demand and if the connection between the two can be established, mere occurrence of death is enough through death may not have been 'caused' by the in-laws. This interpretation has at least who internally built-in clues in the language of Section 304B. If at all applicability would have been intended to be attracted on death being caused by some one else than the victim, then there was no necessity of using the word 'occurs' in context with death other than under normal circumstances. If at all the framers of the law would have intended the liability to be fixed on the person actually causing the death, there would have been no necessity of using the language 'and such husband or relatives shall be deemed to have caused her death' at the end of Sub-section (1) of Section 304B, I.P.C. It suggests that the framers intend and contemplate the liability of occurrence of death being fastened on the in-laws, though they did not in fact cause the death, by creating a fiction. Creating such circumstances as complete a person to choose the death as only way of getting out of misery would also attract the applicability of Section 304B of the India Penal Code.'
10. His further reliance was 2002 Vol. (2) J.L.J. 266, M. Saran v. Central Bureau of Investigation, Jabalpur, in which it is held that:
'As far as framing of charge is concerned, the learned trial Judge has taken note of the statements recorded under Section 161 of the Code and other materials brought on record. It is not a case which does not disclose any admissible or acceptable evidence. It is not disputed that the petitioner had prepared the RROs and despatched the coal. The learned Counsel for the petitioners contended that if the documents which were sought to be called for and would have been called for they would have clearly and graphically established that the cases of the petitioners were quite genuine and sanguine and there was no reason to frame the charge. In my view, such a stand can be taken in course of defence and such a plea squarely lies in the realm of defence. Whether the petitioners had any role to play in the crime concerned or not, cannot be scanned and scrutinized at this juncture in the manner in which the learned Counsel for the petitioners would like the learned trial Judge of this Court to do. Sifting of evidence to find out reliability, probability and the credibility of the same cannot be done at the stage of framing of charge.'
11. This aspect had been considered by Apex Court on various occasions and laid down some principles and guide lines about framing the charges, which are as under:
(1) : 1977CriLJ1606 , State of Bihar v. Ramesh Singh :
'Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce or not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.'
(quoted from the Placitum)
(2) : 1996CriLJ2448 , State of Maharashtra v. Som Nath Thapa :
'32. The aforesaid shows that if on the basis of material on the record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.' (3) : 1997CriLJ2248 , State of Maharashtra v. Priya Sharan Maharaj and Ors.:
'8. The law on the subject is now well settled, as pointed out in Niranjan Singh Punjabi v. Jitendra Bijjaya, : 1990CriLJ1869 , that at Sections 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence, the Court may, for this limited purpose, shift 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. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is lot of sufficient ground for proceedings against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.' (4) : 2000CriLJ3478 , Om Prakash Sharma v. Central Bureau of Investigation, Delhi:'...It is trite law that the standard of proof normally adhered to at the final stage is lot to be insisted upon at the stage where the consideration is to be confined to find out a prima facie case and decide whether it is necessary to proceed to the next stage of framing the charges and making the accused to stand trial for the same. This Court has already cautioned against undertaking a roving inquiry into the pros cons of the case by weighing the evidence or collecting material, as if during the course or after trial vide Union of India v. Prafulla Kumar Samal, : 1979CriLJ154 . Ultimately, this would always depend upon the facts of each case and it would be difficult to lay down a rule of universal application and for all times. The fact that in one case the Court thought fit to exercise such powers is not compelling circumstances to do so in all and every case before it, as a matter of course and for the mere asking. The Court concerned must be allowed a large latitude in the matter of exercised of discretion and unless in a given case the Court was found to have conducted itself in so demonstrably and unreasonable manner unbecoming of a judicial authority, the Court superior to that Court cannot intervene very lightly or in a routine fashion to interpose or impose itself even at that stage. The reason being, at that stage, the question is one of mere proprieties involved in the exercise of judicial discretion by the Court and not of any rights concretised in favour of the accused.'
12. In view of the abovesaid principles, if I examined the present matter then it is clear on the basis of Challani papers that deceased Mamta was died by unnatural death within seven years from the date of her marriage and was subjected to cruelty with harassment in connection with demand of dowry from the date of her marriage. Therefore, at present for framing of charges all the ingredients are found on the record.
13. So far charges of 306, I.P.C. is concerned in above said circumstances all ingredients of abatement as ascribed under Section 107 of I.P.C. are also prima facie available on record like instigation, involvement of applicants in conspiracy and intentionally creation of the circumstances in which the deceased committed suicide and lastly the ingredients of Section 498A of I.P.C are also prima facie and apparently on record so these charges are also not required any interference in revisional jurisdiction.
14. In view of the above said premises it is clear that the Trial Court by invoking its vested jurisdiction has not committed any mistake or error or illegality in framing the charges against the applicants and I do not find any perversity or anything against the propriety of law in the impugned order, as such revision petition does not having any merits and it deserves to be and is hereby dismissed. However, it is further directed that whatever observation has been made in this order shall not influence the merits of trial against the applicant.