MANU/MP/0165/2005

Equivalent Citation: II(2005)DMC 448

IN THE HIGH COURT OF MADHYA PRADESH

Criminal Revision No. 1702 of 2004
Decided On: 20.01.2005
Appellants: Sampat Kumar Dwivedi and Ors.
Vs.
Respondent: State of M.P.
Hon'ble Judges/Coram:
U.C. Maheshwari, J.
Counsels:
For Appellant/Petitioner/Plaintiff: P.N. Mishra, Adv.
For Respondents/Defendant: J.K. Jain, Govt. Adv.
Case Note:
Criminal - Framing of Charges - Sections 34, 498A, 306, 304B and 302 of
Indian Penal Code, 1860, (IPC) - Deceased was wife of applicant no. 1 -
Committed suicide by consuming pesticide after eleven years of marriage -
Applicants made accused of causing death of deceased - Trial Court directed
to frame charges under Sections 498A, 306, 304B and 302 r/w 34 of IPC -
Hence, present petition for quashing of said charges - Held, for prosecution
under Section 304B of IPC death must have been caused within seven years
of marriage - In instant case, death took place after seven years of
marriage - Hence, Section 304B of IPC not applicable - As per police report,
sufficient evidence available regarding charges of cruelty and harassment -
Hence, order for framing of charges under Sections 498A, 306, 302 r/w 34
deserve to be upheld - Petition partly allowed
ORDER
U.C. Maheshwari, J.
1 . This revision petition, under Section 397 read with Section 401, Criminal
Procedure Code (for short 'Cr.P.C.') is directed against the order dated 5.10.2004
passed by IIIrd Additional Sessions Judge, Satna in Sessions Trial No. 227/2004
whereby the charges under Sections 498A, 304B, 306, 302 read with Section 34 of
Indian Penal Code (for short 'I.P.C.') are directed to be framed against the applicants
and in pursuance of this order, the charges have been framed.
2 . As per prosecution story, Smt. Saroj Dwivedi got married with Sampat Kumar
Dwivedi applicant No. 1 in the year 1993. Smt. Saroj Dwivedi committed suicide on
26.4.2004 by consuming some poisonous pesticides. After her death Marg was
registered at the Police Station Jaitwara and after inquiry the offence was registered
against the present applicants as they were relatives of the deceased.
3 . After holding investigation the charge-sheet was submitted under the above said
sections of I.P.C. and after committal of the case the charges have been framed as
said above.

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4. Having heard the learned Counsel for the applicants Mr. P.N. Mishra, and learned
Government Advocate Mr. J.K. Jain, and perused the charge-sheet I have not found
any substance for interference in this revision in relation to the charges framed under
Sections 498A, 306, 302 read with Section 34 of I.P.C.
5. So far charge under Section 304B of I.P.C. is concerned, firstly I have to examine
whether Section 304B of I.P.C. is attracted to the present facts and circumstances or
not? The Counsel for the applicant cited a reported decision of the Apex Court in
Kaliyaperumal and Anr. v. State of Tamil Nadu, MANU/SC/0624/2003 :
2003CriLJ4321 , in which it has been held in para 4:
"4. Section 304B, I.P.C. deals with dowry death which reads as follows--
'304-B. Dowry death--(1) Where the death of a woman is caused by
any burns or bodily injury or occurs otherwise than under normal
circumstances within seven years of her marriage and it is shown
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, such death shall be called
'dowry death' and such husband or relative shall be deemed to have
caused her death.
Explanation-- For the purpose of this sub-section 'dowry' shall have
same meaning as in Section 2 of the Dowry Prohibition Act, 1961
(28 of 1961).
(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven years but
which may extend to imprisonment for life.'
The provision has application when death of a woman is caused by any burns
or bodily injury or occurs otherwise than under normal circumstances within
seven years of her marriage and it is shown that soon before her death she
was subjected to cruelty or harassment by her husband or any relatives of
her husband for, or in connection with any demand for dowry. In order to
attract application of Section 304B, I.P.C., the essential ingredients are as
follows--
(i) The death of a woman should be caused by burns or bodily injury
or otherwise than under a normal circumstances.
(ii) Such a death should have occurred within seven years of her
marriage.
(iii) She must have been subjected to cruelty or harassment by her
husband or any relative of her husband.
(iv) Such cruelty or harassment should be for, or in connection with
demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to
the woman soon before her death.
Section 113B of the Evidence Act is also relevant for the case at hand. Both
Section 304B, I.P.C. and Section 113B of the Evidence Act were inserted as
noted earlier by the Dowry Prohibition (Amendment) Act (43 of 1986) with a
view to combat the increasing menace of dowry deaths. Section 113B reads

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 as follows--
'113-B : 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 has 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.
Explanation--For the purpose of this section 'dowry death' shall have
the same meaning as in Section 304B of the Indian Penal Code (45
of 1860).'
The necessity for insertion of the two provisions has been amply analysed by
the Law Commission of India in its 21st report dated 10th August, 1988 on
'Dowry deaths and Law Reform'. Keeping in view the impediment in the pre-
existing law in securing evidence to prove dowry related deaths. Legislature
thought it wise to insert a provision relating to presumption of dowry death
as a proof of certain essentials. It is in this background presumptive Section
113B in the Evidence Act has been inserted. As per definition of 'dowry
death' in Section 304B of I.P.C. and the wording in the presumptive Section
113B of the Evidence Act, one of the essential ingredients, amongst others,
in both the provisions is that the concerned woman must have been "soon
before her death" subjected to cruelty or harassment "for or in connection
with the demand of dowry". Presumption under Section 113B is a
presumption of law. On proof of the essentials mentioned therein, it becomes
obligatory on the Court to raise a presumption that the accused caused the
dowry death. The presumption shall be raised only on proof of the following
essentials--
(1) The question before the Court must be whether the accused has
committed the dowry death of a woman, (This means that the
presumption can be raised only if the accused is being tried for the
offence under Section 304B, I.P.C.).
(2) The woman was subjected to cruelty or harassment by her
husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with, any
demand for dowry.
(4) Such cruelty or harassment was soon before her death."
6. In view of the aforesaid dictum of the Apex Court the three things are found in the
case in hand which are: firstly, Smt. Saroj Dwivedi died due to unnatural death under
abnormal circumstances. Evidence of cruelty and harassment has also been collected
by the investigating agency and harassment was in connection of the demand of
dowry. This evidence is also available on record, but marriage took place in the year
1993 and the incident did not take place within seven years from the date of marriage
and, therefore, this one of the ingredients is absent. On the other hand, as per
interrogation recorded under Section 161, Cr.P.C. their near relatives of the deceased
namely grand-father Vishnu Kant Sharma, father Ramakant Sharma, brothers Rakesh
Kumar and Suresh Sharma and mother Raj Kumari have categorically said that the
marriage took place in the year 1993 by Hindu customs, rites and ritual.
7. In view of the above said circumstances, it is prima facie established by the police

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report and challan papers that the said marriage took place in the year 1993 and the
alleged incident took place on 25.4.2004 and 26.4.2004, therefore, it is held that the
said incident took place after seven years of the marriage of the deceased and
applicant No. 1.
8. In view of the aforesaid circumstances, the charge under Section 304B of I.P.C. is
not made out against any of the applicants. But, so far other charges are concerned,
sufficient evidence is available on record to frame the said charges. Therefore, this
revision petition is partly allowed. In view of the principle laid down by the Apex
Court in the aforesaid reported decision the charge framed under Section 304B
against the applicants is set aside and the Trial Court is directed to delete this charge
and to proceed with the trial with other charges.
9. The revision is partly allowed.

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