SHIPRA RASTOGI Vs. STATE & ANR.

JUDGEMENT

(1.) By the present revision petition, the Petitioner lays a challenge to the order dated 28 th March, 2009 passed by the learned Additional Sessions Judge whereby he did not frame a charge under Section 307 IPC against Respondent No. 2 and remanded the matter back to the learned Metropolitan Magistrate as all other charges if made out were triable by a Magistrate.

(2.) The learned Counsel for the Petitioner contends that the learned Additional Sessions Judge failed to appreciate that there was sufficient evidence to show that a prima facie case under Section 307 IPC was made out. The Petitioner had made specific averments regarding thinner being poured in her statement under Section 161 CrPC. The plea of the Respondent No.2 about the statement recorded before the SDM does not merit consideration, since after receiving 40% thermal burn injuries, the Petitioner was not even in a position to speak. It is further contended that the observation of the learned Additional Sessions Judge regarding there being no evidence for use of thinner as per the CFSL report is perverse. The report only states that the presence of thinner could not be ascertained. Reliance is placed on Madan Lal Kapoor vs. Rajiv Thapar & Ors., 2008 3 JCC 1626, Raghubir Singh & Ors. vs. State (NCT of Delhi), 2007 1 DMC 594, Abhishek Verma vs. Enforcement Directorate, 2007 145 DLT 504, Subhash Chand Gupta vs. Stae of Delhi & Ors., 2007 1 DMC 394.

(3.) Per Contra learned Counsel for the Respondent No.2 contends that the Petitioner is residing in his house and he is out of his own house. The Petitioner has concocted false and fabricated case against the Respondent No.2 and his family members and the said story about thinner being poured is an afterthought. Learned Counsel further contends that the Petitioner did not report the said incident for 6 months and has not even been able to give a plausible reason for the delay. The statement recorded by the SDM is genuine and the Petitioner could definitely speak but she could not speak aloud. Therefore the averment made by the Petitioner is incorrect. Further the SDM had no reason to note down a false statement of the Petitioner.