- (1.) By way of this Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C., the accused-petitioners, who are husband and mother-in-law respectively of the deceased, have challenged the order dated 24.5.2006 passed by the Court of Special Judge, Women Atrocities and Dowry Cases, Jaipur City, Jaipur in Sessions Case No.12/2006 whereby the learned trial Court directed to frame charge against them for the offences under Sections 498-A and 304-B IPC.
(2.) Brief relevant facts for the disposal of this petition are that marriage between deceased-Smt.Seema and accused-petitioner-Shri Vijay Singh took place on 1.12.2001 in accordance with the Hindu Rites and Usages and on 5.9.2003, Smt.Seema received burn injuries at her matrimonial home at about 8.00 in the night and she was immediately taken to SMS Hospital, Jaipur by her in-laws and after allegedly taking a certificate about her mental and physical condition to make statement from the duty doctor present at the said Hospital her statement was recorded by Judicial Magistrate No.21, Jaipur City, Jaipur on 6.9.2003 at 2.50 a.m. i.e. in the mid-night of 5.9.2003 and 6.9.2003. In the said statement it was stated by Smt.Seema that in the evening about 7-8 p.m. she was alighting a 'Deepak' which accidently fell down and as a result thereof her clothes caught fire and she sustained burn injuries. It was further stated by her that at that time her husband was not present in the house and her in-laws never harassed her for demand of dowry at any time. It is to be noted that Smt.Seema died on 8.9.2003 at 6.30 p.m. at the same Hospital during the course of her treatment and information about her death was given by the Hospital to the Police Station Jhotwara, Jaipur which was recorded on 8.9.2003 at 7.45 p.m. in the 'Rojnamcha- Aam' and on the basis of that report Marg Report No.37/2003 under Section 176 Cr.P.C. was registered at the said Police Station. Information about unnatural death of Smt.Seema as a result of burn injuries was given to Sub-Divisional Magistrate concerned to hold inquiry under Section 176 Cr.P.C. and during the course of such inquiry statements of father, mother and brother of the deceased were recorded, "Panchayatnama" was prepared and after postmortem dead-body was handed over to her in-laws for cremation. Inquiry report prepared by Sub-Divisional Magistrate was handed over to SHO Police Station Jhotwara, Jaipur vide letter dated 23.3.2004 mentioning therein his finding about cause of death of Smt.Seema. Thereafter about a delay of about six months father of deceased-Shri Mal Singh addressed a computer written application to His Highness Governor of Rajasthan in which it was alleged that his daughter Smt.Seema was murdered by her in-laws as their demand for dowry could not be fulfilled. The said written report was sent for necessary action to Police Station Jhotwara, Jaipur upon which FIR No.107/2004 for offence under Section 304-B IPC was registered and investigation was undertaken. During the course of investigation statements of several witnesses including that of mother, father and brother of the deceased were recorded. The place of incident was inspected and some burnt clothes allegedly worn by the deceased at the time of the said incident were recovered from a room from the matrimonial home of the deceased. The seized clothes were sent to FSL for examination and FSL report was obtained. After usual investigation charge-sheet for offences under Sections 498-A and 304-B IPC was filed against the petitioners. Learned trial Court after hearing both the parties and considering the evidence and material available on record proceeded to frame charge as already stated. Feeling aggrieved the accused-petitioners are before this Court by way of this criminal revision petition.
(3.) In support of the petition learned counsel for the petitioners submitted as below: (1) As per the material and evidence available on record on the direction of Chief Judicial Magistrate, Jaipur City, Jaipur, Judicial Magistrate No.21, Jaipur City, Jaipur reached at SMS Hospital, Jaipur and he obtained a medical certificate about fit mental and physical condition of the deceased from duty doctor Raman Sethi on 6.9.2003 at 2.20 a.m. and thereafter statement of deceased was recorded by him at 2.50 a.m. and in this regard order-sheet was also drawn on 6.9.2003 at 3.00 a.m. by the learned Magistrate. As per the statement of the deceased-Smt.Seema no allegation of any kind was made against the petitioners or any other family member of the husband of the deceased and it was specifically stated that she caught fire accidentaly as 'Deepak' fell upon her in the room at about 7-8 p.m. There is no reason to doubt the statement of the deceased recorded by a Judicial Magistrate. The veracity and truthfulness of this statement cannot be doubted and questioned merely by a bald statement subsequently made by the complainant-father of the deceased to the effect that they were present in the Hospital during whole of the night and no such statement was ever recorded by any Magistrate or any other officer. It is well settled legal position that "dying declaration" carries great evidentiary value and it cannot be discarded or overlooked merely on the basis of a statement subsequently made by the complainant. Learned trial Court without recording any reason has overlooked and ignored this important and relevant piece of evidence while considering the question of framing of charge against the petitioners. From the evidence available on record it is further revealed that application for recording of dying declaration of the deceased was submitted by a police officer, P.S.Jhotwara before CJM Jaipur on 6.9.2003 at 1.30 AM upon which Judicial Magistrate was directed to take necessary steps in accordance with law and the statement so recorded was sent by him in a sealed cover vide letter No.13 dated 6.9.2003 to the Court of Additional Chief Judicial Magistrate No.1, Jaipur City. It is not possible to forge and fabricate all these documents. As it is an admitted fact that parents of the deceased were present in the hospital during whole of the night, it was not possible for the in-laws of the deceased to compell or pressurize her to make false statement regarding the manner in which she sustained burn injuries. It is not the case of complainant himself that deceased was compelled or pressurized to make a false statement. (2) Subsequent to the unnatural death of the deceased proceedings under Section 176 Cr.P.C. were conducted by the concerned Sub-Divisional Magistrate and during the course of such proceedings "Panchnama" of the dead body of the deceased was prepared and statements of complainant and his family members were recorded and a report was prepared but FIR was not registered as no offence was found to have been committed. Objection was not made by the complainant or by any his family member to the report so prepared or for non registration of FIR. It is to be noted that after postmortem body of the deceased was handed over to her in- laws for cremation and cremation was performed by them in accordance with the Hindu Rites and Usages and at that time also no objection or doubt of any kind was raised by the complainant or any other family member about cause of death of the deceased. If the petitioners or any other member of their family would have responsible for the death of deceased in any manner the complainant could not have allowed the body of the deceased to be handed over to the in-laws for cremation. This fact shows that at that time complainant and his family members were fully satisfied that the deceased has suffered an accidental death and no foul play has been committed by petitioners or any other member of their family. (3) The complainant filed a written computerized report before His Highness Governor of Rajasthan on 16.3.2004 i.e. about six months after the incident in which allegations against the petitioners were made for the first time. No explanation has been furnished by the complainant for such a great delay made in lodging the FIR and this alone is clear indication of the fact that the complaint has been made with oblique motive only to harass the petitioners and their other family members. (4) Even if the allegations made in the complaint are taken to be true at their face value even then offences under Sections 498-A and 304-B IPC are not made out as there is no allegation that demand of dowry was ever made from the deceased or her family members by the petitioners. For an offence to be made out under Section 304-B IPC, one of the ingredients to be shown is that soon before the death demand of dowry was made and when such demand was not fulfilled she was harassed but in the present case no such allegation has been made even in the belated complaint. (5) In the present case the best evidence which is available on record is the "dying declaration" of the deceased and it is also first version of the incident and it must be preferred over other evidence collected by the investigating agency during the course of investigation which is mainly in the form of statements of complainant and his family members. (6) Seizure of burnt clothes of the deceased from the house of petitioners after registration of FIR on 26.3.2004 is very doubtful and it carries no evidentiary value as it is not believable that petitioners would keep burnt clothes of the deceased in a cloth bag in their house even after six months from the date of incident so that the same could be recovered and seized by the police during investigation and, therefore, FSL report about traces of kerosene oil in the seized clothes carries no evidentiary value even at this stage of the proceedings. In the facts and circumstances of the case, it is clear that some burnt clothes having traces of kerosene oil were planted and a fake and false recovery was made. (7) In the present case there are two contradictory sets of evidence available on record, one in the form of oral statements of the complainant and his family members supporting the case of the prosecution that the aforesaid offences were committed by the petitioners and the other in the form of "dying declaration" of the deceased herself according to which no offence was committed by the petitioners and, therefore, looking to the facts and circumstances of the case and more particularly in view of the fact that dying declaration of the deceased was recorded by a Judicial Magistrate immediately after the incident after obtaining medical certificate from the duty doctor and it is an admitted fact that parents of the deceased were also present in the hospital, second set of evidence must be preferred over the oral statements of the family members of the deceased recorded during the course of investigation conducted on the basis of a belated FIR for which no explanation has been furnished. (10) Although, at the stage of framing of charge for an offence against an accused only prima facie has to be seen whether sufficient evidence is available on record to frame charge for such an offence, but at the same time it is also well settled legal position that at the time of framing of charge it is the duty of the trial Court to consider each and every material available on record and if there are two sets of evidence, the one which is direct in nature and favourable to the accused is to be preferred but in the present case, the learned trial Court totally ignored this basic legal requirement for framing of charge for an offence. (11) It is also well settled legal position that if from the material and evidence made available on record the basic ingredients required to make out an offence are not shown, charge cannot be framed but in the present case the learned trial Court did not consider this aspect of the matter in a proper manner and mechanically proceeded to frame charge against the petitioners with a finding that the scientific evidence in the form of FSL report is to be preferred over any other evidence available on record overlooking the fact that seizure of burnt clothes itself is doubtful as the seizure was made after six months of the incident. ;