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State vs Nafisa @ Anisa & Anr. on 24 September, 2018

*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 28th August, 2018
Judgment delivered on: 24th September, 2018

+ CRL.REV. P. 93/2016
STATE ….. Petitioner

versus

NAFISA @ ANISA ANR. ….. Respondents
Advocates who appeared in this case:
For the Petitioner : Ms. Neelam Sharma, Addl. PP for the State

For the Respondent : Mr Kapil Singhal, Advocate.

CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT

SANJEEV SACHDEVA, J.

1. State has filed this revision petition impugning order dated
04.03.2015 in FIR No. 580/2014 under Sections 302/498A/304B
Indian Penal Code, 1860 (IPC for short), Police Station Gokul Puri, in
so far as the order discharges the respondents of the commission of
offence under Sections 498A /304B IPC.

2. Respondent No. 1 was the mother-in-law of the deceased.
Respondent no. 2 was the husband of the deceased.

3. By the impugned order on charge, trial court has declined to
frame charges under Section 498A/304B IPC against either of the two
accused, however, has framed a charge under Section 302 IPC against

Crl.Rev.P.93/2016 Page 1 of 7
respondent no. 2, the husband.

4. Subject FIR was registered on the complaint of the deceased
who had sustained burn injuries. A call was received and when the
Constable reached the house of the complainant, she was found in a
fully burnt condition and was taken to hospital. Doctor declared that
she had sustained 95% to 100% burns, however, was fit for statement.
Her statement was recorded by the concerned SDM. On her statement,
subject FIR was registered under Section 498A/307/34 IPC.
Subsequently, two days later, the complainant died due to burn
injuries. On her death, Section 302 IPC was added.

5. It would be expedient to refer to the FIR, which was recorded
on the statement of the victim. The English translation of the same
reads as under:-

“Statement of Nazmin, Wife of Boby dated 10.06.2014, at
9.15 am. I Nazmin, D/o Late Latif and Wife of Adil @
Boby, Resident of H. No. F-2, Gali No. 2, Sundar Nagri,
Delhi, Aged about 19 years do hereby solemnly affirm
that my marriage was solemnized on 24.03.2014
according to the rites and rituals of Muslim Community
and my parents had given sufficient dowry according to
their status. On 09.06.2014, I along with my father-in-
law, mother-in-law and sister of my mother-in-law Anisa
came back from my parental home to my matrimonial
home at around 7 pm. I cooked for all the family
members and after having food my husband told me that
you came here to drink my blood and he hit me thrice by
hand and said that I will set you on fire. I was laying on a
sofa situated at the outside of the room and my husband
lay down on the bed inside and I slept. At about 12.30 am

Crl.Rev.P.93/2016 Page 2 of 7
in the midnight I felt that I have been set on fire and
while burning I ran towards upstairs where other family
members were sleeping and I was shouting. PCR officials
took me to Emergency Ward of GTB Hospital. My
husband has set me on fire and my mother-in-law Anisa
used to harass me. Appropriate legal action may be taken
against them. I am giving this statement in my full
conscious. LBT Impression of Nazmin”

(underlining supplied)

6. The trial court in the impugned order on charge has taken into
account the allegations in the FIR as also the statement of the
witnesses recorded and has opined that in none of the statements,
there is any allegation with regard to demand of dowry or harassment
for dowry.

7. The statement of the deceased to the SDM makes specific
allegation against her husband. There is no allegation with regard to
any demand for dowry or harassment for dowry. The only allegation
against respondent no. 1, the mother-in-law is that she used to harass
her. Deceased has not stated that the harassment was because of
dowry.

8. Section 498-A IPC reads as under:

“498A. Husband or relative of husband of a woman
subjecting her to cruelty.–Whoever, being the husband
or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment
for a term which may extend to three years and shall also
be liable to fine.

Explanation.–For the purpose of this section, “cruelty”

Crl.Rev.P.93/2016 Page 3 of 7

means–

(a) any wilful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment
is with a view to coercing her or any person
related to her to meet any unlawful demand for
any property or valuable security or is on account
of failure by her or any person related to her to
meet such demand.”

9. For Section 498A to be satisfied, subjection of a woman to
cruelty is necessary. Cruelty, has been defined by explanation to
Section 498A IPC to mean wilful conduct of such a nature as is likely
to drive a woman to commit suicide or to cause grave injury or danger
to life, limb or health of woman or harassment of the woman with a
view to coercing her or any person related to her to meet any unlawful
demand for any property or valuable security or on account of failure
to meet such demand.

10. Section 304B IPC reads as under:-

“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, or in connection with, any demand for
dowry, such death shall be called `dowry death’, and
such husband or relative shall be deemed to have caused

Crl.Rev.P.93/2016 Page 4 of 7
her death.”

11. The ingredient of Section 304B IPC is where death has
occurred otherwise then under normal circumstances within seven
years of marriage and it is shown that soon before her death, her
husband or any relatives in connection with any demand for dowry
subjected her to cruelty or harassment.

12. The Supreme Court in Dilawar Balu Kurane v. State of
Maharashtra, (2002) 2 SCC 135 has held as under:

“12. Now the next question is whether a prima facie
case has been made out against the appellant. In
exercising powers under Section 227 of the Code of
Criminal Procedure, the settled position of law is that the
Judge while considering the question of framing the
charges under the said section 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; where the materials placed
before the court disclose 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; by and large 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 justified to discharge the accused, and in exercising
jurisdiction under Section 227 of the Code of Criminal
Procedure, the Judge 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
but should not make a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was

Crl.Rev.P.93/2016 Page 5 of 7
conducting a trial (see Union of India v. Prafulla Kumar
Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609] ).”

13. For a charge to be framed the material placed before the court
should disclose grave suspicion against the accused and 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 justified to discharge
the accused.

14. In the present case, there is no material or evidence on record to
show that there was ever any demand for dowry or harassment or
cruelty relating to any demand for dowry, either by the husband or by
his mother.

15. The allegation made by the deceased/complainant is that when
she was sleeping, she felt that someone had burnt her and she has
specifically stated that her husband, respondent no. 2 had burnt her.
There is no averment or allegation by the complainant that there was
any harassment or cruelty in relation to dowry. As she has
categorically stated that her husband had burnt her, trial court has
framed a charge under Section 302 IPC against the husband and since
there is no material on record to show the commission of offence
under Section 498A IPC or Section 304B IPC either by the mother-in-
law or the husband, trial court has, in my view, rightly discharged the
mother-in-law and the husband under Section 498A and 304B IPC.

Crl.Rev.P.93/2016 Page 6 of 7

16. In view of the above, I find no infirmity in the view taken by
the trial court in discharging the respondents of the offences under
Section 498A and 304B IPC. The petition is accordingly dismissed.

17. Order Dasti under signatures of Court Master.

SANJEEV SACHDEVA, J
SEPTEMBER 24, 2018
‘rs’

Crl.Rev.P.93/2016 Page 7 of 7

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