SAXENA, J. - (1.) THIS revision petition has been directed against the order dated 24. 11. 93 passed by the learned Special Judge, S. C. & S. T. (Prevention of Atrocities) Act, Cases, Pali, whereby she framed charge for the offence under section 304-B I. P. C. against all the petitioners.
(2.) BRIEFLY stated the prosecution case is that deceased Smt. Kankuri daughter of Khima Ghanchi was married to petitioner Mishriya some time in the year 1984. On the same day petitioner Mishriya's sister Smt. Gawari was married in exchange (Anta- Santa) to Damariya, the brother of deceased Smt. Kankuri. The 'muklawa' of the deceased was performed some time in the year 1988. It is alleged that Smt. Kankuri was being maltreated and harassed by petitioners Mishriya, Gheesa Ram and Smt. Pemi, the father-in-law and mother-in-law respectively of the deceased, they used to tell her that she was a lady of easy virtue and as such they would not keep her in their house. It is further the case of the prosecution that for last six months prior to the alleged incident, which took place on 29. 4. 1990, Smt. Kankuri was living at her parents' house situated in village Bussi. The petitioner's house is also situated in a hemlet (Dhani) near the boundary of village Bussi. Smt. Gavari had delivered a baby child about three months prior to the incident and as such she was also living at her parents' house. On 29. 4. 90, petitioner Mishriya came to his in law's house to fetch his wife Smt. Kankuri (deceased), who was reluctant to go to her in-laws house. However, her parents namely Khima and Smt. Phuli persuaded her to go with Mishriya, because they apprehended that in case she did not go to petitioner's house, their daughter Smt. Gavari will also not be sent to her husband Damariya's house. Ultimately on 29. 4. 90 at about 10 a. m. Khima and Smt. Phuli performed "vida" of Smt. Kankuri. Her brother Damariya took her on a bicycle, while petitioner Mishriya followed them on foot. After leaving Smt. Kankuri at her in-laws house, Damariya came back on the same day. It is the case of the prosecution that Smt. Kankuri died in the night of 29. 4. 90 as she had consumed some poison. Khima Ram lodged a report the said incident on 1. 5. 90 at 9. 00 a. m. at Police Station Guda Endla, where a case under sections 498a & 306 I. P. C. was registered. The Dy. S. P. , who conducted the investigation in this case, prepared the site plans of the Dhani as also the house of petitioners, seized samples of vomit stained soil and control soil therefrom. He also prepared the memo of the dead body of Smt. Kankuri. The Medical Board consisting of three doctors, conducted the post-mortem examination of the dead body of Smt. Kankuri. The doctors did not notice any external injury on her body. They preserved and sealed the visceras containing her liver, lungs, spleen, kidney as also the stomach and its contents and piece of small intestine in two bottles, which were sent to the State Forensic Science Laboratory for chemical and histopathological examination. The Medical Board tentatively opined that the cause of death of the deceased appeared to be due to poisoning. However, the final opinion was reserved. The Assistant Director, State Forensic Science Laboratory vide his report dated 26. 3. 90 opined that the portions of visceras of the deceased and the vomited soil gave positive test for the presence of monocrotophos insecticide. During investigation it also transpired that deceased Smt. Kankuri had vomited twice on the day of incident just before her 'vida', that thereafter she had vomited twice in the way, when she was being taken by her brother Damariya on a bicycle and that thereafter she again vomited in the 'dhani' of Mishriya and ultimately died on the same day. It further transpired from investigation that Smt. Kankuri had taken the said insecticide at her parents' house. After completion of the investigation, the police submitted the challan against the petitioners for the offences under sections 498a & 306 I. P. C. only in the court of Chief Judicial Magistrate Pali, who in turn committed the case to the learned Sessions Judge, Pali. Ultimately the case was transferred to the files of the learned Special Judge, S. C. & S. T. (Prevention of Atrocities) Act, Cases cum Additional Sessions Judge, Pali. After hearing petitioners and the learned Public Prosecutor and perusing the challan papers, the learned trial Judge by her impugned order dated 24. 11. 93 ordered for framing charge for the offence under section 304-B I. P. C. only against the petitioners and on the same day the charge was framed. Hence this revision petition. I have heard Mr. N. S. Charan, the learned counsel for the petitioners, Mr. H. R. Panwar, the learned Public Prosecutor at length and carefully perused the record of the lower Court and the challan papers. Mr. N. S. Charan has strenuously contended that there is no material on record even to prima facie constitute the offence under section 304-B I. P. C. against the petitioners, because there is not a fringe of evidence to show that the deceased was subjected to cruelty or harassment soon before her death by them in connection with any demand of dowry. He has urged that the deceased was living at her parents' house continuously for the last six months prior to the alleged incident, that she was reluctant to go to her in-laws' house, that her parents persuaded and forced her to go to petitioners' house and that from the evidence collected in this case, it also stands fully established that she had consumed insecticide at her parents' house and also vomited twice there and thereafter twice in the way and again vomited at petitioners' house. According to him the story of demand of dowry was lateron invented, which does not find mention in the F. I. R. dated 1. 5. 90 lodged by Khima Ram. After investigation the police also filed the challan against the petitioners for the offences under sections 498a & 306 I. P. C. only. Therefore, the learned Sessions Judge has committed an illegality in framing the charge for the offence under section 304-B I. P. C. against the petitioners, which is groundless. On the other hand, Shri H. R. Panwar, the learned Public Prosecutor has asserted that from the police statements of various witnesses, it is evident that the deceased Smt. Kankuri had told her parents that if she was sent to her in-laws' house then they would not see her back alive, that the petitioners used to harass and maltreat her and that her death occurred otherwise then under normal circumstances within seven years of her marriage. He has, however, submitted that sufficient evidence has not been collected by the I. O. , to show that she was subjected to cruelty or maltreatment by the petitioners in connection with any demand of dowry soon before her death. I have given my anxious consideration to the rival submissions.
(3.) IN Union of INdia vs. Prafulla Kumar Samal and Anr (1), the Apex Court has formulated the following guide lines for considering the question of discharge of the accused or for framing of change against the accused under sections 227 & 228 Cr. P. C. :- "the judge while considering the question of the framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidences 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. The test to determine a prime 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. IN exercising his jurisdiction under section 227 the Judge which under the present Code is a senior and experienced court can not 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 weight the evidence as if he was conducting a trial. " The purpose of section 228 Cr. P. C. is to ensure that the courts should be satisfied that the accusation made against the accused is not frivolous and there is some material evidence against him. In other words, there should be sufficient ground for presuming that the accused has committed an offence. The basic ingredients for constituting the offence under section 304-B I. P. C. are (1) that the death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances, (2) that such death should have occurred within seven years of her marriage, (3) that soon before death she was subjected to cruelty or harassment by her husband or any relative of her husband; and (4) that such cruelty or harassment should be for or in connection with demand for dowry. ;