Zardari Dharampal Wakude & Anr. v. State of NCT of Delhi

B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 IPC can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court. It is common ground that a charge under Section 304B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304B depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial Court can and indeed ought to frame a charge of murder Bail Application No. 1718/2012 Page 3 punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial Court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir’s case. The High court no doubt made a half hearted attempt to justify the framing of the charge independent of the directions in Rajbir’s case, but it would have been more appropriate to remit the matter back to the trial Court for fresh orders rather than lending support to it in the manner done by the High Court." Reliance was placed by learned senior counsel for petitioner upon a Division Bench decision of this Court in Criminal Appeal No. 797/2001, Diwan Singh Vs. State, rendered on 14th September, 2010 to assert that bursting of stove also connotes spilling of contents, fuel of the stove with force. Attention of this Court was drawn by learned senior counsel for petitioner to the MLC of the deceased wherein it has been categorically noted that the patient/ deceased herself had stated that she had caught fire and was burnt due to bursting of stove. It was pointed out that in the Inquest Report of 29th March, 2011, it is concluded as under:- 'During investigation of the whole incident it transpires that the victim herself locked her inside the kitchen in early Bail Application No. 1718/2012 Page 4 hours on 23/04/2010 and was found crying being in flames which may be due to bursting of stove as intimated by the victim to the doctor when admitted, kindly refer the MLC, or otherwise, However, the evidential circumstances at the scene of the incident do not prove the bursting of stove, which was intact, photographs taken and also do not correlate with the recorded statements of the husband of the victim and neighbours. The statements of the parents and of neighbours reveal that there was no foul play on the part of any one in the incident. However, in the subsequent statement of the parents of the victim, they had expressed apprehension that their daughter was burnt by their son-in-law Sh. Mukesh is connivance with his family members. Certainly, the cause of death is due to flames of fire, but in the absence of statement of the deceased it cannot be conclusively arrived at the exact circumstances which led to the incident/ death of the victim.' Learned Additional Public Prosecutor for respondent-State opposes this application by contending that Section 302 of the IPC was added as the mother of the deceased in the supplementary statement had asserted that the deceased was murdered. Attention of this Court was drawn to the status report filed wherein it is stated that in the subsequent statement of parents of the deceased, they had expressed apprehension of the deceased being burnt by her husband and her in-laws. According to the prosecution, the deceased was murdered by accused persons because they had considered the deceased as unlucky, as mother-in-law of the deceased had died and the deceased was disturbed on account of being considered unlucky. Upon hearing and on perusal of the copy of the charge sheet and the status report, I find that as to whether initial version of Bail Application No. 1718/2012 Page 5 victim/deceased herself locking herself inside the kitchen in the early hours of 23rd April, 2010 and of crying being in flames due to bursting of stove is the true version or the later version of deceased dying under unnatural death because she was being taunted on account of being unlucky as her mother-in-law had died, is an aspect which would be considered at trial. Since charge-sheet in this case has been filed, so in view of the fact that the petitioners are already on anticipatory bail for the offence of dowry death, I find that it is a fit case to grant bail to petitioners for the offence under Section 302 of I.P.C. Accordingly, this application is allowed and it is directed that petitioners – Zaradari Dharampal Wakude, son of Shri Dharampal Wakude and Lokesh Zardari Wakude, son of Shri Zardari Dharampal Wakude, be admtitted to bail by the trial court upon their furnishing bail bond in the sum of `30,000/- each with one local surety in the like amount to the satisfaction of the trial court. This application is disposed of, without commenting upon merits of the case, lest it may prejudice either side at trial.