Parveen Kumar vs State of Haryana

R.L. Anand, J.—This is a criminal revision and has been directed against the order dated 8.6.1998 passed by Addl. Sessions Judge, Jagadhri, who framed the charges u/s 304-B of the Indian Penal Code against petitioner Parveen Kumar, u/s 304-B read with Section 109 of the Indian Penal Code against petitioners Kanta Rani and Sunita and u/s 498-A of the Indian Penal Code against all the petitioners.

The brief facts can be noticed in the following manner :

Kamla Rani was married with Parveen Kumar petitioner about 2/2 1/2 years prior to her death. It is the case of the prosecution that soon after the marriage, Parveen Kumar, his mother Kanta Rani and sister Sunita started harassing Kamla Rani deceased for bringing insufficient dowry. They used to make demand of fridge, scooter and colour television. Once the deceased was given beating and sent in a bus from Sadhaura to Yamuna Nagar where she stayed for about six months at the house of her brother Roshan Lai and thereafter with the intervention of Panchayat she was sent to the house of the petitioners. On 22.12.1996 Parveen Kumar petitioner brought Kamla Rani to the house of her brother Roshan Lal and went away after leaving her there. At that time she was not feeling well. It is further alleged that the petitioners did not arrange any medicine etc. nor they provided any proper food to the deceased, as a result of which the death of the deceased took place on 24.12.1996 at about 9.00 p.m. It is also the case of the prosecution that the petitioners used to declare that in case the deceased does not bring the dowry she will not be kept in her matrimonial home and Parveen Kumar will be married again. The matter was reported to the police on the next day i.e. on 25.12.1996.

On the above allegations the petitioners were challaned under Sections 304-B, 304-B/109 and 498-A, Indian Penal Code.

The learned Trial Court for the reasons given in para Nos. 2 to 4 of the impugned order decided to frame the charges against the petitioners under Sections 304-B, 304-B/109 and 498-A, Indian Penal Code, which read as under :

"The doctor, who conducted the post mortem examination on the dead body of Kamla Rani, was examined in the Court to ascertain the cause of death. She deposed that as per report of Pathologist, Kamla Rani was suffering from lung disease which was chronic in nature i.e. at least for the last 15 to 20 days and not for one or two days.

Relying upon this evidence, the defence Counsel argued that since the cause of death is the chronic lung disease it cannot be said to be a death otherwise than under normal circumstances and there is no allegation that the accused subjected Kamla Rani to harassment for any demand of dowry immediately prior to her death the offence u/s 304-B, Indian Penal Code is not made out against any of the accused. Reliance in support of his arguments was placed by the defence Counsel on Sham Lai v. Bhagwan Dass, 1997 (1) CLR 383, wherein there was no evidence on record to show that the deceased was either treated with cruelty or harassed with the demand of dowry within 10 to 15 days prior to the occurrence and in these circumstances the prosecution u/s 113-B of the Evidence Act was held not applicable to the prosecution.

But after going through all the circumstances on the file, I do not find much substance in the arguments of the defence Counsel at least for the purpose of the framing of charge. Parveen Kumar is the husband of Kamla Rani deceased. Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 defines the term maintenance. According to that term maintenance includes :

(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;

(ii) ................................"

Parveen Kumar being the husband of Kamla Rani deceased was under an obligation not only to provide proper food and clothings but also proper medical attendance and treatment. u/s 32, Indian Penal Code the words which refer the acts done extends also illegal omissions. There is allegation against the accused that they did not provide medicines or proper food to the deceased. So the lung problem of Kamla Rani can become chronic because of the non-providing of proper treatment to her by her husband at the instigation of the other accused. This fact can be more clarified by the doctor, who conducted the post mortem examination on the dead body when he is regularly examined in the Court after framing of charge because according to that doctor the lung disease qould be 15 or 20 days old. During this period and even prior to that Kamla Rani was at the house of the accused. So the omission of Parveen Kumar and the instigation by the other accused to omit to provide medical treatment to Kamla Rani is an offence if that has aggravated the lung problem and that offence has been abetted by the other two accused.

So far as the demand is concerned, there was a continuous demand from the accused of colour T.V., scooter and fridge etc. because these were not given at the time of marriage. The accused also used to declare that in case their demands were not fulfilled they will go for second marriage of Parveen Kumar. The case is at the stage of framing of charge. The charge can be framed even on suspicion. The observations made by the Hon''ble Supreme Court in Sham Lal''s case at the time of final decision of the case cannot be applicable at this stage of framing of charge.

So the allegations contained in the F.I.R., especially the omission of Parveen Kumar to provide medicines the omission of Parveen Kumar and the abet- ment by the other accused to Parveen Kumar for that omission, prima facie constitute an offence u/s 304-B, Indian Penal Code against Parveen Kumar and Section 304-B read with Section 109, Indian Penal Code against other two accused. All the facts also disclose the commission of an offence u/s 498-A, Indian Penal Code against all the accused. So they be charge-sheeted accordingly."

Aggrieved by the said order the present revision.

I have heard Mr. R.K. Jain, Advocate on behalf of the petitioners, Mr. Salainder Singh, D. A.G. on behalf of the State and with their assistance I have gone through the record of this case.

It is true that as per Section 228, Criminal Procedure Code while framing the charges the Trial Court is not expected to go into the merits of the case. A reading of the language of Section 228 would show that if the Trial Court presumes that there are sufficient grounds to hold that the accused had committed the offence, in that eventuality the Court is competent to frame the charge. In other words, merits of the case are not supposed to be looked into at the time of the framing of the charge. The Trial Court is not expected to see whether the evidence collected by the investigating agency is enough for basing the conviction or not. The law has gone to the extent that even on strong suspicion charge can be framed. Inspite of these principles of law in favour of the prosecution, there must be some premises from which the Court can fly to hold that there were grounds for presuming that the petitioners had committed the offence. In other words, the flight must be towards substantive offence. The petitioners in this case have been charge sheeted for the offence u/s 304-B with the aid of Section 109, Indian Penal Code. A reading of Section 304-B would show that prima facie there should be three ingredients in favour of the prosecution so as to sustain the charge under that section. The first ingredient is that the death of a woman has been caused by any burns or bodily injury or occurs otherwise than under normal circumstances. The second ingredient is that such death has taken place within seven years of her marriage and the third ingredient is that it should be shown by the prosecution from the allegations that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry. In the present case if the entire allegations of the prosecution are taken on its face value, this Court is of the considered opinion that the first ingredient is totally missing. The doctor who conducted the post mortem examination on the dead body of Kamla Rani was examined in the Court to ascertain the cause of death. She deposed that as per the report of the pathologist the deceased was suffering from lung disease which was chronic in nature. In this view of the matter the death of the deceased can directly be attributed to the chronic lung disease and, therefore, it cannot be said that the death has taken place under abnormal circumstances. The learned Trial Court has advanced the reasons for framing the charge against the petitioners that since the petitioners have not provided medical treatment to the deceased, there it amounts to omission and act also includes omission and in these circumstances the petitioners are prima facie guilty for the offence u/s 304-B, Indian Penal Code. This reasoning adopted by the learned Trial Court does not convince me at all. It is not the case of the prosecution that the deceased died on 22.12.1996. She stayed in the house of her brother from 22.12.1996 to 24.12.1996. It can be equally possible that since the deceased was suffering from some problem she might have expressed her intention to go to the house of her brother Roshan Lal to get some treatment there. The Trial Court has presumed that since the petitioners did not provide medicines or proper food to the deceased and that was the reason that the deceased developed lung problem and it became a chronic disease. In the opinion of this Court the Trial Court has presumed too much for the benefit of the prosecution.As prima facie no data has been placed on the file that the death of the deceased had taken place under abnormal circumstances, the ingredients of Section 304-B of the Indian Penal Code are not made out. In this view of the matter, the Trial Court has committed a patent illegality in framing the charge u/s 304-B against Parveen Kumar and u/s 304-B read with Section 109, Indian Penal Code against Kanta Rani and Sunita Rani and the same are hereby set aside.

The learned Counsel for the petitioners then tried to convince this Court that ingredients of Section 498-A, Indian Penal Code are not attracted. In support of his contention, the learned Counsel for the petitioners submitted that Sunita Rani petitioner is a married sister of Parveen Kumar. She is residing separately and there was hardly any occasion on her part to treat the deceased with cruelty. I am not convinced with the submission made by the learned Counsel for the petitioners. I have stated above that in order to frame a charge we have to be guided by the allegations and the data collected by the investigating agency. There are specific allegations that the deceased was subjected to cruelty and harassment in connection with the demand of dowry at the hands of the petitioners. There was a demand of fridge, scooter and colour T.V. No doubt, Sunita Rani is a married sister of Parveen Kumar petitioner but it cannot be ruled out at this stage that she might have abetted her brother or she might have treated the deceased with cruelty. There are allegations against the petitioners that they were desirous to see the death of Kamla Rani so that the second marriage for Parveen Kumar may be arranged. In these circumstances, I do not support the argument of the learned Counsel for the petitioners when he made an unsuccessful effort for the quashment of the charge u/s 498-A of the Indian Penal Code.

In the light of above discussion, the revision is partly allowed and the charge u/s 304-B against Parveen Kumar petitioner and u/s 304-B read with Section 109 Indian Penal Code against Kanta Rani and Sunita Rani petitioners stand quashed. Now the only charge which survives against the petitioners u/s 498-A, Indian Penal Code will be triable by a Magistrate. Therefore, directions are given to the Trial Court to send the file of this case to the Court of Chief Judicial Magistrate, Jagadhri who will proceed according to law but only u/s 498-A, Indian Penal Code against the petitioners. The said Court can frame such other charge /charges against the petitioners if the facts of the case so warrant.

Nothing stated above shall amount an expression of my opinion on the merits of the case.

Parties are directed to appear before the Court of Addl. Sessions Judge, Jagadhri on 8.3.1999. The Addl. Sessions Judge shall send the record of the case to the Court of C.J.M. forthwith and shall also fix a date so that the petitioners may be able to appear before the C.J.M., Jagadhri.