K.S. Rathore, J. - (1.) THIS revision petition has been preferred against the charge order dated 25.4.2009 passed by Additional Sessions and District Judge (Fast Track) No. 1, Jaipur District, Jaipur in Sessions Case No. 05/2009.
(2.) THE brief facts of the case are that an FIR No. 38/2008 was lodged at Police Station Pratap Nagar, Jaipur under Sections 498 -A, 304 -B, IPC on 13.9.2008 and after investigation charge -sheet has been filed against the Petitioner on 15.12.2008 under Sections 498 -A and 304, IPC. The learned Trial Court committed the case to District and Sessions Judge, Jaipur District, Jaipur which subsequently transferred to Additional District and Sessions Judge (Fast Track) No. 1, Jaipur District, Jaipur, who after giving opportunity of being heard to the parties framed charges under Sections 304 -B and 498 -A, IPC vide order dated 25.4.2009. Learned Counsel for the Petitioner has challenged the impugned charge order dated 25.4.2009 on the ground that Petitioner and deceased Renu married on 25,10.2004 against the wishes of her parents resultant to which an FIR No. 444/04 was registered at Police Station Mantown, Sawai Madhopur by father of deceased Shri Dharm Singh Meena. Learned Counsel for the Petitioner submits that family of deceased Renu had not met at least for one and half month prior to her death and, therefore, ingredients to constitute offence under Section 304 -B, IPC are not made out. Learned Counsel has referred to Section 304 -B, IPC which deals with dowry death and submitted that deceased should be subjected to cruelty or harassment by her husband or any relative of husband soon before her death. Learned Counsel has also referred the diary written by deceased Renu, which was lastly written on 28.5.2008 i.e. more than three and half months prior to her death and submitted that there is no evidence whatsoever that the deceased was subjected to cruelty for demand of dowry or otherwise. It is further contended that as per statement recorded under Section 161, Code of Criminal Procedure no evidence is available to constitute offence under Section 304 -B, IPC or 498 -A IPC. It is further submitted that upon bare perusal of statement under Section 161, Code of Criminal Procedure it reveals that deceased had never been subjected to cruelty for demand of dowry. In support of his arguments, learned Counsel has placed reliance oh the judgments rendered by Hon'ble Supreme Court in the case of Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra, reported in : IV (2008) CCR 231 (SC): IV (2008) DLT (Crl) 199 (SC): 2008 (10) SCC 394, and in the case of Gurucharan Kumar and Anr. v. Stare of Rajasthan, reported in, 2003 (1) WLC (SC) Cri. 322. In the case of Gurucharan Kumar (supra), the Hon'ble Supreme Court held as under: Demand for dowry not established, suicide committed by deceased G within 21/2 months of her marriage. According to prosecution there was a persistent demand for a car and the Appellants (in -laws) and the husband were constantly harassing G for dowry, suicide note not containing any statement which could be used against the accused -person, prosecution case based on the evidence of father, mother and sister of G, several letters written by G to her mother, sister and friend, also produced by the prosecution, letters, however, not showing that G was being subjected to cruelty or harassment in connection with any demand of dowry, on the contrary letters indicating that G received abundant love and affection in her matrimonial home, further G was keen to get her brother -in -law, married, suicide committed by G as she was unable to adjust in her matrimonial home, on facts prosecution failed to prove its case beyond reasonable doubt, Appellants acquitted, benefit of this judgment also extended to accused husband who did not appeal to the Supreme Court. Learned Counsel has also relied on the judgment rendered by Hon'ble Supreme Court in the case of Satvir Singh and Ors. v. State of Punjab and Anr. reported in, IV (2001) CCR 75 (SC):, 2002 (1) WLC (SC) Cri. 122 and in the case of Stale of H.P. v. Nikku Ram and Ors. In the case of State of H.P. (supra), the Hon'ble Supreme Court held as under: Dowry death, deceased allegedly subjected to cruelty and harassment by her husband, mother -in -law and sister -in -law in connection with dowry demand soon after marriage, mother -in -law giving her a drati blow causing incised wound on forehead of the deceased, deceased committing suicide on the same day by consuming naphthalene balls, death resulting due to poisoning and not due to injury caused by mother -in -law, held injuries found on the deceased not being caused her death despite there being demand of dowry the offence would not attract mischief of Section 304 -B, mother -in -law is liable to be convicted under Section 324, on fact there being no evidence of harassment within the meaning of Explanation (b) of Section 498 -A none of the accused can be held liable for offences under Section 306, in view of old age of the mother -in -law instead of imposing substantive imprisonment a fine of Rs. 3,000 imposed, fine if realised directed to be paid to the parents of the deceased.
(3.) PER contra, learned Counsel for the complainant as well as learned Public Prosecutor submit that ingredients of demand of dowry are fully proved and further submit that the deceased died within a period of seven years of her marriage and she had been subjected to cruelty or harassment by her husband or relatives of her husband. Learned Counsel further submitted that a bare perusal of diary reveals that husband was cruel to the deceased and it has been written in the diary by the deceased, thus the offence under Sections 304 -B and 498 -A, IPC is made out and charges have been levelled against the Petitioner under Sections 304 -B and 498 -A, IPC. In support of his arguments, learned Counsel has placed therein reliance on the judgment rendered by Hon'ble Supreme Court in the case of Smt. Shanti and Anr. v. State of Haryana reported in : I (1991) DMC 187 (SC): 1991 (1) SCC 371, wherein the Hon'ble Supreme Court held as under: Sections 304 -B and 498 -A, not mutually exclusive provisions, accused charged but acquitted under Section 304 -B can be convicted under Section 498 -A even in absence of any charge under Section 498 -A, so also acquittal under Section 498 -A will not prevent finding conviction under Section 304 -B, better practice would be to frame charge under both sections and also convict under both though no separate sentence may be awarded under Section 498 -A. Sections 304 -B and 498 -A cannot be held, to be mutually exclusive. These provisions deal with two distinct offences. Under Section 304 -B it is the dowry death that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in Section 498 -A and the husband or his relative would be liable for subjecting the woman to 'cruelty' any time after the marriage. Further a person charged and acquitted under Section 304 -B can be convicted under Section 498 -A without charge being there, if such a case is made out. But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under Section 498 -A in view of the substantive sentence being awarded for the major offence under Section 304 -B. Under Section 304 -B, dowry death, sentence, both accused women (mother -in -law of deceased and wife of brother of deceased's husband), second accused a young lady of 20 years, though cruelty on the part of both the accused established but no evidence as to cause of death and actual part played by the second accused found, in the circumstances, held, a minimum sentence of seven years RI would serve the ends of justice, hence sentence of life imprisonment altered to seven years RI for both Appellants. Learned Counsel has also placed reliance on the judgments rendered by Hon'ble Supreme Court in the case of Mohd. Hoshan A.P. and Anr. v. State of A.P. reported in : 2002 (7) SCC 414 and in the case of Gananath Pattnaik v. State of Orissa, reported in, I (2002) CCR 138 (SC):, 2002 (1). WLC (SC) Cri. 269. In the case of Gananath Pattnaik (supra), the Hon'ble Supreme -Court observed as under: Cruelty, concept and effect of them varies from individual to individual depending upon his social and economic status, 'cruelty' for the purpose of Section 498 -A needs not be physical, in a given case, even mental torture or abnormal behaviour may amount to cruelty and harassment, words and phrases, 'cruelty'.;