AJAY SINGH Vs. STATE

JUDGEMENT

(1.) BY this petition the Petitioner Ajay Kumar has challenged the order dated 3rd September, 2009 whereby charge under Section 304 IPC was directed to be framed and framed against the Petitioner and co-accused Smt. Kamlesh, Petitioner's wife and his sons Kamal Kant and Deepak Kumar. On 25th May, 2010 this Court issued notice to the Petitioner and the co-accuseds as to why charge under Sections 302/34 IPC be not framed against them and passed the following order: "I have heard learned counsel for the Petitioner and APP for the State. By way of this revision petition, the petitioner has challenged the order dated 3rd September, 2009 passed by the learned Additional sessions Judge framing charge against him as well as three other co-accused persons under Section 304/34 IPC. The petitioner-accused is the father-in-law of deceased Mamta. As per the case of the prosecution, on the day of the incident accused Kamal Kant, husband of the deceased, had first fought with her and then sprinkled kerosene oil on her and pushed her towards the burning gas stove in the kitchen of their house. She fell on the burning stove and caught fire. The petitioner, his wife and his other son Deepak were, as per the further case of the prosecution, at that time came out of the house and were seen by two witnesses running away. The police being informed of the incident registered a case under Section 307/498-A/34 IPC but the victim succumbed to the burn injuries and then the case was converted into one under Section 302 IPC. Upon conclusion of investigation Section 304-B IPC (Dowry Death) was also invoked and the petitioner, his wife and his two sons were charge-sheeted by the police under Sections 498-A/304- B/302/34 IPC. In due course the case came to be committed to Sessions Court and the learned Additional Sessions Judge on 3rd September, 2009 passed the following order on charge.

(2.) THUS the Petitioner and the co-accused persons Smt. Kamlesh, Kamal Kant and Deepak were heard through learned counsel and learned Amicus Curiae as to the order on charge and why charge under Sections 302/34 IPC be not framed against them. Learned counsel for the Petitioner and the learned Amicus Curiae stated that the deceased had made three statements/dying declarations, two before the SDM and the third before the Investigating Officer which do not implicate the Petitioner and the co- accuseds for offence under Sections 302/34 IPC. The video CD given by the Complainant to the police officer has not been investigated. Since the authenticity of the CD and the identification of the voice therein have not been done, the same is not admissible in evidence and cannot be looked at even at the stage of charge. Reliance is placed on Navindchandra N. Majithia vs. State of Meghalaya, 2000 (8) SCC 323. It is contended that a perusal of all the three statements clearly show that they are tutored and cannot be relied upon. Even if the statements are taken on their face value, they do not show any intention on the part of the Petitioner and the co- accused to kill the deceased as alleged and thus no charge under Section 304 or Section 302 IPC is made out against them. A perusal of the three statement consistently show that neither the Petitioner nor his family members, that is, the co-accused were present at the place of the incident when the alleged offence took place and thus the statements of the witnesses, who allegedly saw the Petitioner and the co-accused running away from the place of incident, are false. The deceased had married Kamal Kant against the wishes of her family members. Therefore, the family of the deceased has falsely implicated them by making the deceased to change the statements repeatedly. The deceased was well and was discharged from the hospital on 10th April, 2009 and she died as she developed septicemia in her stomach. Hence in no case offence under Section 302 IPC is made out. Thus the Petitioner be discharged of the offence under Section 304 IPC and no charge under Sections 302/34 IPC be directed to be framed against the Petitioner or his family members, the co-accused.

(3.) I have heard learned counsel for the parties.