MISHRIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This revisioll petition has been directed against the order dated 24.11.1993 passed by the learned Special Judge, S.C. & S.T. (prevention of Atrocities) Act, Cases, Pali, whereby she framed charge for the offence under section 304B I.P.C. against all the petitioners.

(2.) Briefly stated the prosecution case is that deceased Smt. Kankuri daughter of Khima Ghanchi was married to petitioner Mishriya some time in the year 1984. On the same day petitioner Mishriyas sister Smt. Gawari was married in exchange (Anta-Santa) to Damariya, the brother of deceased Smt. Kankuri. The Muklawa of the deceased was performed some time in the yearl988. It is alleged that Smt. Kankuri was being maltreated and harassed by petitioners Mishriya, GheesaRam and Smt. Pemi, the father-in-law and mother-in-law respectively of the deceased, they used to tell her that she was a lady of easy virtue and as such they would not keep her in their house. It is further the case of the prosecution that for last six months prior to the alleged incident, which took place on 29.4.1990, Smt. Kankuri was living at her parents house situated in village Bussi. The petitioners house is also situate in Hemlet (Dhani) near the boundary of village BlIssi. Smt. Gavari had delivered a baby child about three months prior to the incident and as such she was also living at her parents house. On 29.4.1990, petitioner Mishriya came to his in-laws house to fetch his wife Smt. Kankuri (deceased), who was reluctant to go to her-in-laws house. However, her parents namely Khima and Smt. Phuli persuaded her to go with Mishriya, because they apprehended that in case she did not go to petitioners house, their daughter Smt. Gavari will also not be sent to her husband Damariyas house. Ultimately on 29.4.1990 at about 10 a.m. Khima and Smt. Phuli performed Vida of Smt. Kankuri. Her brother Damariya took her on a Bicycle, while petitioner Mishriya followed them on foot. After leaving Smt. Kankuri at her in-laws house, Damariya came back on the same day. It is the case of the prosecution that Smt. Kankuri died in the night of 29.4.1990 as she had consumed some poison. Khima Ram lodged a report the said incident on 1.5.1990 at 9.00 a.m. at Police Station Guda Endla, where a case under Sections 498A & 306 I.P.C. was registered. The Dy. S.P., who conducted the investigation in this case, prepared the site plans of the Dhani as also the house of petitioners, seized samples of vomit stained soil and control soil there from. He also prepared the memo of the dead body of Smt. Kankuri. The. Medical Board consisting of three doctors, conducted the post-mortem examination of the dead body of Smt. Kankuri. The doctors did not notice any external injury on her body. They preserved and sealed the visceras containing her liver, lungs, spleen, kidney as also the stomach and its contents and piece of small instetine in two bottles, which were sent to the State Forensic Science Laboratory for chemical and histopathological examination. The Medical Board tentatively opined that the cause of death of the deceased appeared to be due to poisoning. However, the final opinion was reserved. The Assistant Director, State Forensic Science Laboratory vide his report dated 26.3.1990 opined that the portions of visceras of the deceased and the vomitted soil gave positive test for the presence of monocrotophos insecticide. During investigation it also transpired that deceased Smt. Kankuri had vomited twice on the day of incident just before her Vida, that thereafter she had vomited twice in the way, when she was being taken by her brother Damariya on a bicycle and that thereafter she again vomited in the Dhani of Mishriya and ultimately died on the same day. It further transpired from investigation that Smt. Kankuri had taken the said insecticide at her parents house. After completion of the investigation, the police submitted the challan against the petitioners for the offences under sections 498A & 306 I.P.C. only in the court of Chief Judicial Magistrate, Pali who in turn committed the case to the learned Sessions Judge, Pali. Ultimately the case was transferred to the files of the learned Special Judge, S.C. & ST. (Prevention of Atrocities) Act, Cases Cum Additional Sessions Judge, Pali After hearing petitioners and the learned Public Prosecutor and perusing the challan papers, the learned trial Judge by her impugned order dated 24.11.1993 ordered for framing charge for the offence under section 304-B I.P.C. only against the petitioners and on the same day the charge was framed. Hence this revision petition.

(3.) I have heard Mr. N.S. Charan, the learned counsel for the petitioners, Mr. H.R. Pan war, the learned Public Prosecutor at length and carefully perused the record of the lower court and the challan papers.