SUBHASH CHAND GUPTA Vs. STATE OF DELHI

JUDGEMENT

(1.) The counsel for the parties have been heard. The main issue raised in this petition is with regard to the non-framing of charges under Section 304-B IPC against the respondent Nos. 2 to 8. The point urged before this court by the learned counsel for the petitioner was that the trial court refrained from framing charges under Section 304-B IPC primarily on the ground that the death of the deceased (Kavita) was not under unnatural circumstances.

(2.) The learned counsel for the respondents submitted that before a case can be brought within the provisions of Section 304-B IPC, three ingredients have to be cumulatively established. Those three being that the death should have occurred within seven years of the marriage; secondly, the death should have taken place under unnatural circumstances; and thirdly, that the death should have been connected or related to cruelty and harassment pertaining to demands for dowry just before the death of the woman. According to him, and rightly so, even if one of these ingredients is missing, then the case cannot be brought within the sweep of Section 304-B IPC. He submitted that the trial court had examined the aspect of unnatural death and having come to the conclusion that the death occurred under natural circumstances, there is no way in which it could have framed charges under Section 304-B IPC.

(3.) The learned counsel for the petitioner, however, placed reliance on the decisions of the Supreme Court in the cases of Anant Chintaman Lagu v. The State of Bombay: 1960 (2) SCR 460 and Om Wati (Smt) and Another v. State (Through Delhi Admn.) and Others: 2001 (4) SCC 333 to show that the post mortem report would not be conclusive at the stage of framing of charges because there could be other evidence to establish the circumstances under which the death took place. As an example, he read out a portion from Anant Chintaman Lagu (supra) which referred to a medical text wherein the example of carbon monoxide poisoning was given. It was indicated that if a person dies due to carbon monoxide poisoning and tests are not done within 24 hours of the death, there would be no trace of it in his blood. Therefore, although the person would have died due to the poison, since the post mortem was conducted subsequent to 24 hours, the report would not indicate the presence of any poison. Taking this example, the learned counsel for the petitioner submitted that the post moretm report in the present case merely said common poisons were not found. He submitted that there could be uncommon poisons and, secondly, there could be poisons which went undetected in the post mortem examination. Thus, in view of the Supreme Court decisions, the post mortem report taken in isolation without examination of the other material on record cannot form the basis of an order of discharge under Section 304-B IPC. The learned counsel for the respondents submitted that even if the post mortem report is not taken into consideration and it is assumed without admitting, of course, that the death was not a natural one, the third ingredient of allegations of cruelty and harassment connected with demands for dowry soon before the death was also missing. But, I find that this aspect has not been discussed in the impugned order, which has proceeded merely on the basis of the post mortem report and the finding with regard to Kavita's death being natural.