R.D.Khare, J. - (1.) HEARD Sri V. P. Srivastava, senior advocate, assisted by Sri Madan Singh, learned counsel for the revisionists and learned A.G.A.
(2.) THE present criminal revision has been filed for quashing the summoning order dated 18.5.2009, passed by learned Chief Judicial Magistrate, Bijnor in Misc. Case No. 589 of 2008, Idrish v. Mohd. Sajid and others, arising out of Case Crime No. 767 of 2008, under Sections 304B/201, I.P.C. whereby the revisionists has been summoned to face trial under the charged sections. Learned counsel for the revisionists has referred to the provisions of Section 304B, I.P.C. and has argued that the said provision would be applicable if the death of the woman is caused by any burn or bodily injuries or caused otherwise than under normal circumstances within seven years of marriage and when it is shown that since soon before her death, she was subjected to cruelty or harassed by her husband or any relative of her husband in connection with any demand of dowry, then such death will be called dowry death. In the present case, it is contended that it is to be proved by the prosecution side that the death was caused otherwise, than under normal circumstances. Learned counsel for the revisionists has further drawn attention of this Court to Section 133B of Indian Evidence Act, which is quoted below : "113B. 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 had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death." It has been contended that the presumption of dowry death can be drawn only when evidence of cruelty soon before death of such woman exists by such person in connection with demand of dowry, which are lacking in the present case. In support of his contention, learned counsel for the revisionists has relied upon a judgment of Hon'ble Apex Court in Hira Lal and others v. State (Government of N.C.T.), Delhi, 2003 Crl LJ 3711, and has argued that presumption has to be necessarily ruled out, regarding possibility of natural and accidental death so, as to bring it within the purview of death caused otherwise than under normal circumstances and therefore, burden of proof initially lies with the prosecution and once this is not done, the revisionists cannot be summoned. Learned counsel for the revisionists further referred to Annexure-4 filed to the affidavit in the present revision, which is the statement of deceased father and has argued that the father of deceased was unable to see properly and that he belongs to labourer class and that his daughter, namely, Seema was suffering from epileptics attacks and further he was duly informed by his son-in-law, namely Praveen, with regard to the epileptics attack of her daughter soon before her death. In support of the aforesaid, reference has been drawn to written intimation sent to the Circle Officer by the concerned Doctor, i.e., Dr. Bhupendra Singh, who had examined Seema on the date of alleged incident, copy of which is annexed as Annexure-6 filed to affidavit in the present revision. In the aforesaid written intimation, the doctor had informed the police that on 4.7.2008 at about 4 a.m. Seema suffered epileptics attack, for which her husband namely, Praveen had taken him to his house and he had examined Seema who was under the epileptics attack but before she could be administered any medical aid, she expired. Learned counsel for the revisionists further referred to Annexure-9 filed to affidavit in the present revision, which is a post-mortem report and has drawn attention of this Court to post-mortem examination report which states that there was no external mark of injury seen on the body of deceased and cause of death could not be ascertained. He has also referred to chemical analyst report, copy of which is annexed as Annexure-10 to affidavit in the present revision to show that in the preserved viscera, no poison was found. It is therefore, argued that Seema, the deceased, died under normal circumstances from epileptics attack and she was not subjected to cruelty for demand of dowry, inasmuch as, the revisionists are labourers and the father of deceased, namely Seema, was also a labourer and therefore, there is no question of demand of dowry as alleged and thus, the prosecution has failed to discharge its duty as per Section 113B of Indian Evidence Act, and as such no offence under Sections 304B, I.P.C. is made out against the revisionists and the revisionists has been illegally summoned to face trial under the charged sections.
(3.) ON the other hand, learned A.G.A. has argued that deceased girl, Seema, died at her matrimonial house within seven years of her marriage under unnatural circumstances and her body was exhumed after seven days of her burial and therefore, post-mortem report cannot be relied upon and that the revisionists has been rightly summoned to face trial under the charged sections. Perused the order impugned, averments made in the affidavit filed in support of revision as well as arguments of the rival sides. The revisionists, by an order impugned, has been summoned to face trial under Sections 304B and 201, I.P.C. and they have right to bring the aforementioned facts before the learned court below and get themselves discharged under the charged sections.;