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Babu Lal Jha & Anr. vs State Of Gnct Of Delhi on 12 March, 2019

$~17

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 12.03.2019

+ CRL.REV.P. 605/2017

BABU LAL JHA ANR ….. Petitioners
versus

STATE OF GNCT OF DELHI ….. Respondent
Advocates who appeared in this case:
For the Petitioner : Neeraj Bhardwaj, Advocate.

For the Respondent : Ms. Meenakshi Dahiya, APP for the State.
Insp. Prahlad Singh, PS Shahdara.
Mr. Ajit Nair with Mr. Dharampal Tiwari and Mr.
Avdesh Nuiwala, Advocates for R-2.

CORAM:
HON’BLE MR. JUSTICE SANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J. (ORAL)

CRL.REV.P. 605/2017 Crl.M.A.13222/2017 (stay),
Crl.M.A.31993/2018 (for early hearing)

1. Petitioners impugn order dated 31.05.2017, whereby, charge has
been framed against the petitioners under Section 498A/34 304B/34 IPC
and an alternative charge under
Sections 302/34 IPC has also been framed.
Petitioners are the parents-in-laws of the deceased.

2. Subject FIR was registered on the complaint of the father of the
deceased, who contended that his daughter had got married on 25.02.2008
and she was initially living with her in-laws at their house in the village. It

CRL.REV.P. 605/2017 Page 1 of 6
is alleged that immediately after marriage, petitioner No.2 started
demanding dowry from her and even the petitioner No.1 – her father-in-law
used to harass her. Within one year of marriage she was turned out of her
matrimonial house and started residing with her parents. Subsequently, it is
alleged that the parents made her understand and she went back to her
matrimonial house.

3. The husband and wife are alleged to have shifted to Delhi where the
husband was working. It is alleged in the FIR that from time to time the
husband of the deceased as well as the petitioners used to make demand for
dowry and the father of the deceased would meet the demand from time to
time.

4. It is alleged that few days before her death, the father of the
deceased had provided Rs.30,000/- for purchase of a TV. Further, it is
alleged that the petitioners being uneducated and the deceased being a
graduate was being harassed with regard to upbringing of the child.

5. The deceased is alleged to have committed suicide on 19.06.2012
and chargesheet was filed alleging that the nature of injuries recorded in the
MLC was not supportive of the theory of suicide and indicated towards the
commission of offence of murder. On perusal of the record, the Trial Court
framed charges against the petitioners under
Sections 498A/304B read with
Section 34 IPC. Alternatively, the Trial Court has framed a charge under
Sections 302/34 IPC.

6. Learned counsel for the petitioners submits that the allegations with
regard to demand for dowry and harassment are general and vague and

CRL.REV.P. 605/2017 Page 2 of 6
there is no material to show that the petitioners were either residing with
the deceased or were present at the time when she died.

7. Learned counsel for the petitioners submits that the Trial Court has
framed an alternative charge under
Section 302 IPC merely on
presumption.

8. Learned APP for the State as also learned counsel appearing for the
complainant submits that there is sufficient material to show that the
deceased was subjected to demand for dowry as well as harassment from
time to time on account of dowry and further the demands for dowry were
met by the parents of the deceased from time to time.

9. Learned counsel appearing for the complainant submits that a
cheque for Rs.1,44,000/- was given to the petitioner No.1 to meet his
demand for dowry. It is disputed by the petitioners that the said amount
was given towards dowry.

10. Perusal of the impugned order shows that the Trial Court has framed
an alternative charge under
Section 302 IPC raising a negative
presumption. The Trial Court has inter alia held as under:-

“From the material on record, I am of the view that there is
prima facie case for framing charge against accused Babu
Lai Jha and Urmila Devi u/s. 498-A/34 and 304-B/34
IPC. As
far as alternative charge u/s. 302
IPC is concerned, since the
presence of these two accused at the spot is neither confirmed
nor ruled out, it is better to frame charge in the alternative
u/s. 302/34
IPC as well.

Charges framed accordingly to which both the accused
pleaded not guilty and claimed trial.”

CRL.REV.P. 605/2017 Page 3 of 6

11. The Trial Court has framed alternative charge under section 302/34
IPC solely on the ground that the presence of the petitioners at the spot is
neither confirmed nor ruled out. It is an admitted position that the
petitioners were not ordinarily residing with the deceased in Delhi and were
residing in Muzzafarpur District, Bihar.

12. Though there is a dispute as to whether normally the petitioners
would visit Delhi from time to time or not, however, there was no material
to show that they either visited Delhi or in and around the date of the death
or were present in Delhi on the day of the incident. None of the
prosecution witnesses have in their respective statements even alleged that
the petitioners were either visiting the deceased or were seen in Delhi
around the time of her death.

13. Insofar as the charge under Section 302 is concerned, the presence of
the petitioners is not established or even alleged by any of the witnesses. A
charge cannot be framed solely on a presumption that their presence is
neither confirmed nor ruled out. For framing a charge, grave suspicion is
required to be shown by the prosecution of the involvement of the accused
in the subject offence. It would have been a different case if there was a
witness alleging that the petitioners were present in Delhi and they were
disputing the same, in which case, it would have been a matter for trial but
none of the prosecution witnesses have even alleged that the petitioners
were seen in Delhi or in the house where the deceased was residing when
her death occurred.

CRL.REV.P. 605/2017 Page 4 of 6

14. Further, there is no material on record to show common intention
also.

15. In view of the above, the alternative charge framed against the
petitioners under
Section 302/34 IPC clearly is not sustainable.

16. Coming to the charge under Sections 498A and 304B/34 IPC, I am
prima facie of the view that there is sufficient material to give rise to grave
suspicion against the petitioners of having committed the subject offence.

17. The complainant, i.e., the father of the deceased, her mother and her
brother have categorically stated that from time to time demand for dowry
was being raised by not only the husband but also the petitioners. They
have also averred that the said demand was being met from time to time.
The complainant has also alleged that few days before the death of the
deceased, he had paid Rs.30,000/- for purchase of a TV. The death of the
deceased has occurred within 7 years of marriage and is a death other than
from natural circumstances and there are averments of the family of the
deceased that soon before the death of the deceased, she was subjected to
demands for dowry inter alia by the petitioners.

18. In my prima facie view, the allegations give rise to grave suspicion
of petitioners having committed an offence under
Sections 498A/304B IPC
and the facts, as alleged, satisfy the basic ingredients of the said Sections.

19. In view of the above, I find no infirmity in the impugned order
insofar as it framed charges under
Section 498A/34 304B/34 IPC against
the petitioners.

CRL.REV.P. 605/2017 Page 5 of 6

20. Accordingly, the petition is allowed to the limited extent that the
impugned order, insofar as it frames alternative charges under
Sections
302/
34 IPC against the petitioners is concerned, is set aside and the
impugned order, insofar as it frames charges under
Sections 498A/34 IPC
and 304B/34
IPC against the petitioners is concerned, is sustained.

21. The Trial Court shall, accordingly, modify the charges in terms of
this order.

22. The petition is disposed of in the above terms.

23. Order Dasti under signatures of the Court Master.

MARCH 12, 2019 SANJEEV SACHDEVA, J
st

CRL.REV.P. 605/2017 Page 6 of 6

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