Conflicting statements of Dowry in 304-b, charge removed

Rajasthan High Court

Vishwa Kumar Sharma
State Of Rajasthan And Anr. on 1 February, 2006

Equivalent citations: 2006 CriLJ 2096, I (2006) DMC 574, RLW 2006 (2) Raj 1123, 2006 (2) WLC 268

Bench: R Chauhan

JUDGMENT R.S. Chauhan, J.

1. Within two days of her marriage, Mamta, a young lady of 18 years, met her death at her matrimonial home. Her husband, the petitioner before us, has challenged the order dated 6.6.2005, passed by the Additional Sessions Judge, Neem Ka Thana Camp at Sri Madhopur, whereby he has been charged alternatively for offences under Sections 302 and 304-B, I.P.C.

2. In brief, the facts of the case are that on 9.5.2004 Mamta was married to the petitioner according to the Hindu rites. After her marriage, and accompanied by her nephew, Pradeep, she left for her matrimonial home at Guman Singh ki Dhani’. She went missing during the night of 11/12.5.2004 i.e., just two days after her marriage. Her in-laws, who sent two men from their village to her father, informed her father immediately, he rushed to her matrimonial home to find out about her whereabouts. On 12.5.2004 itself, Sita Ram lodged a report at Police Station Khandela about the fact that his daughter is missing. He further claimed that her in-laws are not telling the truth. Therefore, he would like the police to investigate the case. On 14.5.2004, the police asked Sita Ram to go back to Guman Singh Ki Dhani’ as a dead body had been discovered in a well outside the in-laws’ house. When he reached there, the body was pulled out. It was Mamta’s body. Therefore, on 14.5.2004, Sita Ram lodged another report with the police about the death of his daughter. In the report he alleged that he was informed about her absence from the house on 12.5.2004. He further claimed that when he reached the house of Mamta’s in-law he asked the father-in-law, Prabhu Dayal and the husband (the present petitioner) who told him that “they don’t know about her whereabouts. But in case he had given them a motorcycle and some more dowry, then they would have looked after the welfare of his daughter”. On the basis of this report, the police registered a formal FIR, FIR No. 64/2004 for offences under Sections 304B, 498A, I.P.C. After a thorough investigation, the police submitted a charge sheet against the petitioner and kept the investigation open against the other accused persons under Section 173(8) of Code of Criminal Procedure (henceforth to be referred to as ‘the Code’, for short). After hearing the Public Prosecutor, the Counsel for the complainant, and the Counsel for the accused, vide order dated 6.6.2005, the learned Additional Sessions Judge alternatively framed the charges under Sections 302 and 304-B, I.P.C. against the petitioner hence the petition before us.

3. Mr. S.R. Bajwa, Senior Advocate, the Counsel for the petitioner, raised many contentions: firstly, that the framing of charge is not a mechanical exercise but is a judicious one. Relying on the case of Union of India v. Prafulla Kumar Samal and Anr. , he has argued that while framing the charge the Court should act neither as the mouthpiece of the prosecution, nor as a post office for them. In order to examine whether the ingredients of a particular offence exist or not, the Court has a limited power to sift the evidence. In case only “suspicion” is aroused, or if two views of the evidence are possible, then the Court should discharge the accused. Only if “grave suspicion” is aroused, then charges should be framed.

4. Secondly, the Court has not sifted through the evidence. It has mechanically passed the impugned order. Hence, it has caused a great injustice to the petitioner.

5. Thirdly, in case the statements of the witnesses are properly read, then neither of the two offences-one under Section 302 or under 304-B, I.P.C. is made out. Since the essential ingredients are conspicuously missing, the learned Court was unjustified in framing the charges.

6. Fourthly, when Sita Ram lodged the first report on 12.5.2004, or did not even mention a word about the dowry demand for a motorcycle and for more dowries. He is absolutely silent on this point. He merely states that he has some suspicion about the in-laws. But when he lodges the second report on 14.5.2004, he introduces the element of “dowry demand.” Thus, the introduction of dowry demand is an after-thought, a ploy to fabricate a case for dowry death. Moreover, other witnesses who allegedly went with Sita Ram to Mamta’s in-laws’ house, such as Mohan Singh and Sawar Mai, do not say a word about the alleged “dowry demand. “Hence, there is no corroboration for his statement. Even Pradeep, Mamta’s nephew who accompanied her, does not say a word about any dowry demand made by the petitioner or by any of his family members. Hence, but for Sita Ram’s statement, there is no evidence for a dowry demand. Since there is no evidence, the question of “grave suspicion” does not even arise. In the absence of a dowry demand, obviously, the offence under Section 304-B, I.P.C. is not made out. Thus, the charge of offence under Section 304-B, I.P.C. has been framed illegally.

7. Fifthly, according to Pradeep’s statement, Mamta was slightly depressed on the 11th. According to him, Mamta told him that her husband was complaining about the fact that while her parents had promised that twenty persons would come with the ‘tika’ only four persons came. Therefore, the food prepared by them was spoilt. She further told him that her husband was complaining that the “barat” (wedding party) was not received properly and that he suspected her chastity. At the end, he claimed that because his “Mausa” (uncle) suspected his “Mausi’s” (aunt’s) chastity, therefore she fell into the well. Therefore, according to this witness, it is a case of suicide and not of murder. Hence, the charge for offence under Section 302, I.P.C. is not made out.

8. Sixthly, according to the post mortem report (PMR, for short) the cause of death is asphyxia. But there are many loose threads in the story of the prosecution. According to the PMR the deceased has suffered a lacerated wound on the inter-parietal region extending up to the occipital area. There is no water in her lungs, or stomach. Hence, the police would have us believe that Mamta was first killed and then her body was placed at the bottom of the well, where there was hardly any water. The learned Counsel has questioned whether all this is possible in a house full of guests? The police would also have us believe that Mamta was killed by the petitioner, transported by him to the well and placed inside the well in the dead of the night without any sound or light and without any help. According to the learned Counsel this is a far-fetched story. According to him, the lacerated wound is ante-mortem in nature, which she had received when she fell into the well. For, according to the PMR Mamoda; head was lying on a rock and it is only the lower part of the body that was immersed in the water. The upper part was above the water. Since upper part was above the water, the lungs and the stomach did not show the presence of water. According to him, it is a case of suicide; Mamta committed suicide because her chastity was doubted. She had secrets to keep. She was afraid that her un-chastity would be exposed.

9. On the other hand, Mr. Ved Prakash, the learned Counsel for the complainant has argued that at the time of framing of charges the Court is not supposed to meticulously examine the evidence. If a strong prima facie is made out against the alleged accused, then the Court is legally justified in framing the charges. Secondly, there is the evidence of the “last seen”. According to Pradeep, Mamta was last seen with the petitioner. She was in his room. She disappeared in the dead of the night. There is no explanation coming from the side of the petitioner as to what happened to his wife. In fact, there is studied silence on his part. Thirdly, the petitioner and his family members did not lodge a report with the police. The complainant did that. Their behavior is unnatural. For, a newly married daughter-in-law is missing, yet the in-laws don’t bother to lodge a report with the police. Fourthly, the PMR clearly reveals that Mamta was killed. For, there is a lacerated wound on the head; there is “multiple lacerations” in the inner side of both the lips. The tongue is protruding, the eyes are bulging, and there are “multiple injuries on the interior and posterior surface and margines of the tongue.” Blood is also coming out of the nostrils, and mouth. All this point to a violent death. According to the PMR, the cause of death is asphyxia (smothering). According to the Counsel, Mamta was first hit over the head, and then smothered and then placed at the bottom of the well. Therefore, clearly an offence under Section 302, I.P.C. is made out.

10. We have heard both the Counsel forthe parties, perused the challan papers examined the impugned order.

11. A distinction has to be made between the act of taking cognizance’ and the act of framing of charge’. The use of phraseology “prima facie case has to be considered” in both the situations has led to certain amount of confusion. Since the same phrase is used for both functions, a general impression is gathered that framing of charge is a knee-jerk reaction to the evidence gathered by the investigating agency. However, such is not the case.

12. It is trite to state that the Court takes cognizance of the offence and not of the offender Ref. to Manjeet Singh v. State of Rajasthan 1991 (1) Crimes 90 (Raj). In the case of Apt Kumar v. State of West Bengal , the Hon’ble Supreme Court has held: “The word ‘cognizance’ has no esoteric or mystic significance in criminal law or procedure. It merely means-become aware of and when used with reference to a Court or Judge, to take notice of judicially. The word ‘cognizance’ was used in the Code to indicate the point when Magistrate or Judges takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense”. While applying its mind the Court has to see if an offence is committed. Of course, even at this moment, the initial moment, the Court has to apply its judicious mind. But, it has to merely see if there is some ‘suspicion’ about the commission of the crime. Cognizance can be taken if, on the face of the record, there is some evidence about the commission of the offence. In fact according to the case of Mahesh Chand v. State of Rajasthan 1985 Cr. L.J. 301 (Raj.), the Full Bench of this Court has held that the cognizance of an offence can be taken even if the offenders are unknown. Hence, the existence of mere ‘suspicion’ would justify the taking of cognizance by the Court.

13. On the other hand, framing of charge is a step further in the systematic development of a trial. Although a trial is said to commence with the framing of charge, but in the judicial process of a criminal case, it is the second step aftertaking of cognizance. In order to understand the requirement of this judicial step, let us first refer to Sections 227 and 228 of the Code. (The present case deals with a Sessions trial. Therefore, we are confining our discussion to only Sections 227 and 228 of the Code).

14. Section 227 reads as under:

Discharge-If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record the reasons for so doing.

(emphasis added) On the other hand, Section 228 of the Code reads as under:

Framing of charge-(1) if, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial of the Chief Judicial Magistrate, [or any other Judicial Magistrate of the First Class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the First Class, or such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames a charge under Clause (b) of Sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.

(emphasis added)

15. In the case of discharging the accused or in the case of framing of charge, the Judge is required to take certain concrete steps, firstly, to “consider the record of the case and the documents submitted therewith”. Secondly, to hear both the prosecution and the accused. Thirdly, after hearing both the parties, in case he “considers that there is not sufficient ground for proceeding against the accused”, then he shall discharge him. Fourthly, in case the accused is to be discharged, the Judge must record reasons for such discharging.

16. But, in case “after such consideration and hearing, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence” (emphasis added), then he should follow the procedure laid down in Section 228 of the Code. Thus, the Judge must consider if there is sufficient evidence to formulate an opinion that the offence has been committed by the accused. Consideration of the facts has to be a substantial consideration and not an illusionary one. To consider means to examine with judicious mind. The phrase “of the opinion” has been interpreted to mean to come to a conclusion after weighing the evidence. Of course, at the moment of framing of charge, the Judge should not undertake a meticulous examination of the evidence. But nonetheless, he must sift the evidence to see if there is “sufficient” evidence to constitute the ingredients of the offence and to connect the accused to the offence. “Sufficient” has been interpreted to mean the existence of “grave suspicion” and not merely likelihood or mere “suspicion”. Since charge is framed after hearing both the parties and after examining the evidence produced by the Investigating Agency, more than mere ‘suspicion’ should exist in order to warrant the framing of the charge. A “grave suspicion” should connect the accused to the alleged crime.

17. Thus, there are differences between “taking of cognizance and “framing of charge”. Of course, both the acts require the application of judicious mind. However, the former is done without hearing both the parties. Cognizance is taken without the accused being heard. The latter is done after hearing both the parties. In the former, the Judge examines the evidence to see if an offence has been committed. In the latter, the Judge examines the Commission of the alleged crime by the accused. In the former, mere ‘suspicion about the commission of an offence’ is enough for taking of the cognizance. In the latter, “grave suspicion about the commission of the crime by the accused” should exist before a charge can be framed. In the former, the Judge is not supposed to sift through the evidence. In the latter, a limited sifting of the evidence is permissible. Therefore, when the phrase “prima facie evidence” is used, it is used for two different sets of examinations at two different stages of the criminal process. One has to realize that the trial progresses through different stages. Hence, appreciation of evidence has to be of different quality. While at the stage of cognizance it is mere ‘suspicion’, at the stage of framing of charge it is ‘grave suspicion,’ and at the end of trial, it is ‘a critical analysis and a meticulous examination of the entire evidence produced by the prosecution and the accused’. Therefore, the appreciation of evidence at the stage of framing of charges is at micro level; at the end of the trial it is at macro level. Hence, the mental level of appreciation changes at every stage of the criminal process: from a cursory appreciation to a critical one.

18. While dealing with the scope and ambit of Section 227 of the Code, in the case of’ Union of India v. Prafulla Kumar Samal (supra) the Hon’ble Supreme Court laid down certain principles in the following words: That the Judge while considering the question of framing of charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(1) Where the materials placed before the Court discloses grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(2) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(3) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting the trial.

19. The Hon’ble Supreme Court has expressed similar views recently in the case of Dilawar Balu Kurane v. State of Maharashtra 2002 WLC (SC) Criminal 182. Therefore, while examining the legality of the order framing the charge, we must consider if the learned Additional Sessions Judge has applied these principles or not.

20. In the present case, initially in his report of 12.5.2004, Sita Ram does not utter a word about any dowry demand. The element of dowry demand is first time introduced in the report dated 14.5.2004. However, those persons whom he claims to be with him when the demand was allegedly made do not support his statement. Both Mohan Singh and Sawar Mal are silent on this point. Hence, there is no corroboration of Sita Ram’s statement from the statement of those who were allegedly with him. Although the Court is not supposed to examine corroboration at this moment, but the conspicuous silence on the part of other witness is loud enough to warrant notice. Moreover, the one person in whom the deceased would have naturally confided in is her nephew, Pradeep. She confides in him to the point of telling him that the petitioner doubts her chastity. Yet, according to Pradeep she nowhere states that any dowry is being demanded or that any adverse comments have been made about the quality or quantity of dowry given to the newly weds. In case any such comments had been made either by the husband or by his family members, the deceased would have told her nephew. But, a perusal of his statement clearly reveals that she did not make any such statement to him. There is no other witness, either the relatives of the deceased, such as her brother Sandeep, or the neighbours of the in-laws such as Gokul Chand, who tell us about any demand for dowry. In fact, according to Smt. Manju there was no dowry demand at the time of wedding. According to Gokul Chand no dowry demand was made when the wedding party reached the matrimonial home. Thus, during the wedding or after the wedding, the petitioner or his family members did not raise any demand for dowry.

21. Admittedly, Mamta has died within two days of her marriage, that is “within seven years of her marriage’. Undoubtedly, she has died “otherwise than under normal circumstances”. Therefore, the first two elements of offence under Section 304-B, I.P.C. do exist. However, the third element of “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” is conspicuously missing in the evidence available before the Court. Since the third essential ingredient is absent, the learned Judge was unjustified in framing the charge for offence under Section 304-B, I.P.C.

22. As far as the offence under Section 302, I.P.C. is concerned, there is sufficient evidence to warrant a grave suspicion against the petitioner. According to Pradeep, the last time Mamta was seen was with the petitioner in their bedroom. On the morning of 12.5.2004, she had disappeared. The petitioner and his family members searched for her. But they did not bother to inform the police. That task was left to Mamta’s father to do. According to the witnesses, Gokul Chand and Banwarilal the petitioner’s father merely stated that Mamta is missing since 3:00 a.m. at night. They made it sound like as though she had voluntarily left the house. But the fact that eventually her body was discovered only in Petticoat and blouse shows that she did not voluntarily leave the house. A daughter-in-law knowing fully well that the eiders of the family were sleeping outside the front of the house would not walk out of the house only in her Petticoat and blouse in a village. Moreover, in case she had fallen in the wel1 as claimed by the petitioner, in the dead of the night, the splash in the water would have made enough noise to wake up those sleeping outside the house. For, according to the site plan, the well is in front of the petitioner’s house. Furthermore, a person cannot smother himself. According to the Post-mortem Report, the deceased died due to smothering. The fact that the head had a lacerated wound, the lips had multiple lacerated wounds in the inside, the tongue was protruding outside the mouth, and had multiple injuries on the anterior and posterior surface and margines of the tongue, the eyes were bulging out, both the nostrils and the mouth had bloody fluids in them, these facts clearly show that the deceased was initially hit and then smothered by someone. Prima facie, the death is homicidal. Considering the fact that she was with her husband during the night, along with the facts mentioned above, a grave suspicion is aroused against the accused. Pradeep’s mere opinion that his ‘Mausi’ (aunt) fell into the well because her husband suspected her chastity would not ipso facto make her death suicidal. Hence, the learned Additional Sessions Judge was justified in framingthe charge for offence under Section 302, I.P.C.

23. In the result, while partly allowing this petition we quash and set aside the charge for offence under Section 304-B, I.P.C., but we sustain the charge for offence under Section 302, I.P.C. The order framing charge dated 6.6.2005 stands modified accordingly. However, it is clarified that observations made above, with regard to the evidence produced by the investigating agency, should not affect eitherthe course of the trial, or the judgment to be pronounced at the end of the trial.

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