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Vipin Kaushik @ Vicky & Ors. vs The State Nct Of Delhi on 5 July, 2018

*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 04th July, 2018
Judgment delivered on : 05th July, 2018
+ CRL.REV.P.717/2017 Crl.M.A.15750/2017(stay)

VIPIN KAUSHIK @ VICKY ORS. ….. Petitioners

versus

THE STATE NCT OF DELHI …. Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Vikas Sharma, Mr. Pradeep
Kumar, Mr. Rajat Nagar and Mr.
Deepak Aggarwal, Advs.

For the Respondents : Mr. Kamal Kr. Ghai, Addl. PP for the
State with Inspr. Anuj Agarwal
Mr. Ashok Kumar Tiwari, Adv. for
R-2 with R-2 in person

CORAM:-
HON’BLE MR. JUSTICE SANJEEV SACHDEVA
SANJEEV SACHDEVA, J.

1. The petitioners had filed the present revision petition
impugning the order on charge dated 06.05.2017 and the charge
framed on 20.05.2017, whereby the Trial Court held that there is
sufficient material on record to frame charges under Section 498A/34
IPC and 304B/34 IPC in the alternative under Section 306/34 IPC
against all the accused persons.

CRL.REV.P.717/2017 Page 1 of 8

2. Petitioner no.1 is the husband of the deceased, petitioner no.2 is
the wife of the elder brother of petitioner no.1 and petitioner no.3 is
the mother of the petitioner (mother-in-law of the deceased).

3. On 04.07.2018, learned counsel for the petitioner withdrew the
petition in so far as petitioner no.1 and 2 are concerned and restricted
the same to petitioner no.3 i.e. the mother-in-law.

4. The subject FIR No. 58/2016 was registered under Section
498A/304B/34 IPC P.S.Gandhi Nagar on the complaint of the father
of the deceased who has contended that his daughter was married to
petitioner no. 1/the son of the petitioner no.3. He received information
that his daughter had locked herself in a room and was not opening
the door. When he along with his brother and neighbours reached her
house the door was closed from inside. When they opened the door,
they found that his daughter had committed suicide.

5. In the FIR, it is alleged that his daughter used to complain about
her in-laws and used to say that her Jethani (husband’s elder brother’s
wife) used to harass her.

6. Learned counsel for the petitioner submits that there is no
material or even an iota of evidence against the petitioner no.3, the
mother-in-law. It is contended that post the committing of suicide,
inquest proceedings were conducted by the concerned SDM. It is
submitted that learned SDM recorded the statement of the

CRL.REV.P.717/2017 Page 2 of 8
complainant/father of the deceased, the sister of the deceased, the
brother of the deceased as also the mother of the deceased.

7. Specific queries were put to the said persons by the SDM with
regard to the role of the petitioner no. 3 (mother-in-law) as to whether
there was any complaint ever by the deceased qua her, the answer
was in the negative.

8. Complainant Rajkumar (father of the deceased) was asked the
question “Whether the deceased complained against mother-in-law
and father-in-law” to which, answer given was “no there was no such
complaint”. Question: “Whether Bharti complained about her in-
laws.” Answer: “My daughter Bharti complained that her sister-in-
law tortured her.”

9. The sister of the deceased: Anjali, in reply to a question “when
did you talk to Bharti last time?”, answered “I talked last time to
Bharti on Saturday 06.02.2015 and she told that her mother-in-law is
not like as she was earlier. She used to taunt on me.”

10. The brother of the deceased in response to the question
“Whether Bharti complained about any relatives or in-laws”,
answered “Bharti used to say that her sister-in-law Pooja and
mother-in-law used to taunt her and always complain about the
articles given at the time of festivals.” In response to the question
“against whom you want action and why”, the answer given was “I

CRL.REV.P.717/2017 Page 3 of 8
want action against Bharti’s sister-in-law (Jethani) because she used
to complain against her.”

11. In the statement given by the mother of the deceased to the
question “whether Bharti made any complaint against her mother-in-
law and father-in-law”, the answer given is “Bharti told that her
mother-in-law has not been behaving properly except that there was
no other complaint.”

12. Learned counsel for the petitioner further submits that in the
statements recorded under section 161 Cr.P.C. of all the above, there
is no averment or allegation against the petitioner no.3, mother-in-law.
Learned counsel for the petitioner submits that there is no allegation
regarding demand of dowry or cruelty against the petitioner no.3
either in the statement made before the SDM or in the subsequent
statement under Section 161 Cr.P.C.

13. Learned counsel for the petitioner submits that only where the
material placed before the Court raises a grave suspicion against the
accused, which has not been properly explained, only then it can be
held that a prima facie case for framing of charge is made out.

14. Learned APP as also learned counsel for the complainant
concede that apart from the above-referred statements, there is no
material against the petitioner no. 3.

CRL.REV.P.717/2017 Page 4 of 8

15. In Almohan Das v. State of West Bengal [AIR 1970 SC 863 :
(1969) 2 SCR 520 : 40 Com Cas 643 : (1970) Cri LJ 860] the
Supreme Court laid down the role of the magistrate at the time of
framing of charge as follows:

“A Magistrate holding an enquiry is not intended to act
merely as a recording machine. He is entitled to sift and
weigh the materials on record, but only for seeing
whether there is sufficient evidence for commitment, and
not whether there is sufficient evidence for conviction. If
there is no prima facie evidence or the evidence is totally
unworthy of credit, it is his duty to discharge the
accused: if there is some evidence on which a conviction
may reasonably be based, he must commit the case.”

16. Further, the Supreme Court in Union of India vs. Prafulla
Kumar, AIR (1979) 3 SCC 4 has held as under:-

“10. Thus, on a consideration of the authorities
mentioned above, the following principles emerge:

(1) That the Judge while considering the question of
framing the charges under Section 227 of the Code has
the un-doubted 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;

(2) 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;

CRL.REV.P.717/2017 Page 5 of 8

(3) That 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.

(4) 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 enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a
trial.”

17. A Coordinate Bench of this Court in Bhagwanti vs. State
2002(1) JCC 127 reiterated the principle that at the stage of framing
of charge broad probability of the case, total effect of the evidence
and documents produced before it and any basic infirmity appearing
in the case can be considered. Only where grave suspicion arises
against the accused would it be proper to frame a charge. If there are

CRL.REV.P.717/2017 Page 6 of 8
vague and bald allegations without anything more, charge cannot be
framed.

18. In the present case in so far as petitioner No. 3/mother-in-law of
the deceased is concerned, there is categorical statement by the
relatives of the deceased that she had no complaint against her.
Though two of the relations have stated that the conduct of mother-in-
law was not the same and that she was not behaving properly, there is
no allegation that the petitioner’s mother-in-law used to harass the
deceased or make any demand for dowry. The focus of the allegations
in the statements made before the SDM as in the inquest proceedings
as well as the statements recorded under Section 161 Cr.P.C. appears
to be against the husband and the jethani and not against petitioner
No. 3.

19. Clearly, from the material produced before the trial court, one
cannot come to the conclusion that grave suspicion arises as against
petitioner No. 3, the mother in law. The test laid down by the Supreme
Court in Prafulla Kumar (supra), for framing of charge, is not
satisfied. The trial court while framing charge has erred in considering
the case of all the three accused at par, without examining that the
allegations against the three are not at par.

20. On examination of the material produced, in my view no case
for framing of charge is made out against petitioner no.3, the mother-
in-law. For the foregoing reasons, the impugned order on charge dated

CRL.REV.P.717/2017 Page 7 of 8
06.05.2017 and the charge framed on 20.05.2017, qua petitioner No.
3: Smt. Yashodhara wife of Mam Chand Kaushik, is set aside.
Petitioner No.3 is directed to be discharged. It is clarified that any
observation made herein shall not have any bearing on the merits of
the case during trial in so far as other accused are concerned.

21. The petition is dispose of in the above terms.

22. Order Dasti under signatures of Court Master.

SANJEEV SACHDEVA J
JULY 05, 2018
rk

CRL.REV.P.717/2017 Page 8 of 8

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