JUDGMENT Ravindra Singh, J.
1. This application has been filed by the applicants Veer Singh, Smt. Munni and Smt Shimla with a prayer that the order dated 23.10.2007 passed by learned Chief Judicial Magistrate, Gautam Budh Nagar by which the final report was rejected and the applicants have been summoned to face the trial for the offence punishable under Sections 498-A, 304-B IPC and Section 3/4 D.P. Act and the order dated 19.1.2008 passed by learned Addl. Sessions Judge/ FTC-1, Court No. 9, Gautam Budh Nagar in criminal revision No. 159 of 2007 by which the revision filed by the applicants has been dismissed, may be aside.
2. The facts in brief of this case are that in the present case FIR has been lodged by O.P. No. 2 Har Pal at P.S. Surajpur on 14.10.2005 at 5.00 A.M. in case crime No. 245 of 2005 under Sections 498-A, 304-B IPC and Section 3/4 D.P. Act in which the applicants and co-accused Mukesh are named as accused. It is alleged that the marriage of the deceased Smt. Munesh was solemnized with co-accused Mukesh on 30.6.2001. The applicants and co-accused Mukesh were not satisfied with the articles given as gift in the marriage, they were demanding the car for which the first informant had shown his inability then the deceased was being subjected to cruelty by the applicants and co-accused Mukesh and many of the times she was beaten and expelled from the house. The first informant had made an attempt to pursue with applicants and co-accused for not subjecting the deceased to cruelty and the deceased was sent to her in-laws house. Again she was beaten and expelled. Thereafter first informant along with some other persons commanding respect in society had made contact to the applicant Veer Singh and co-accused Mukesh then they were asked by the applicants and co-accused Mukesh that the deceased will not be kept at their house till their demand is not fulfilled. But after great consultation the deceased was sent to her in-laws house before Raksha Bandhan festival but the deceased was continuously put on harassment then the first informant and his son Rakesh met the deceased at her in-laws house where she disclosed that the applicants had come at his house at the Dashehara, she was beaten by them for brining the car and she expressed the apprehension to her life from her in-laws. On 13.10.2005 at about 2.00 P.M. Bijendra Singh, the nephew of the first informant Raj Singh and Anil went to meet the deceased at her house where they found dead body of the deceased lying on the bed in a precarious condition, but she disclosed on a quarry that the applicants and co-accused Mukesh had administered the poison forcefully and she would not alive and asked to bring her to the hospital very soon. Thereafter the nephew of the first informant Raj Singh and Anil brought the deceased Navin Hospital, Greator NOIDA from where considering the serious condition of the deceased she was referred to Fortis Hospital where she died, thereafter the FIR of this case has been lodged. After preparing the inquest report, the post mortem examination report of the deceased was conducted on 14.10.2005 at 3.30 P.M. According to the death certificate issued by Fortis Hospital the cause of death was unknown poisoning. According to post mortem examination report the deceased had sustained three ante mortem injuries, but cause of death could not be ascertained, hence viscera was preserved. The matter was investigated and I.O. came to the conclusion that applicants and co-accused have not committed the alleged offence and submitted the final report dated 23.1.2006, which was protested by the first informant in the court of learned C.J.M., Gautam Budh Nagar, considering the facts, circumstances of the case and case diary the final report was rejected and the order of the further investigation by some other competent Investigating Officer was passed on 2.5.2006 but after further investigation, I.O. again submitted the final report, it was again protested by the first informant, considering the material collected by the I.O. the learned C.J.M., Gautam Budh Nagar rejected the final report and taken the cognizance against the applicants and co-accused Mukesh for the offence punishable under Sections 498-A, 304-B IPC and 3/4 D.P. Act and they were summoned to face the trial. Against the order dated 23.10.2007 the applicants filed a criminal revision No. 159 of 2007, the same was dismissed on 19.1.2008 by learned Addl. Sessions Judge/ FTC-1, Court No. 9, Gautam Budh Nagar. Being aggrieved from the order dated 23.10.2007 passed by learned C.J.M., Gautam Budh Nagar and order dated 19.1.2008 passed by learned Addl. Sessions Judge/FTC-1, Court No. 9, Gautam Budh Nagar, the present application under Section 482 Cr.P.C. has been filed.
3. Heard Sri Satish Trivedi, Senior Advocate assisted by Sri D.S. Pandey, learned Counsel for the applicants, learned A.G.A. for the State of U.P. and Sri Kameshwar Singh, learned Counsel for O.P. No. 2.
It is contended by learned Counsel for the applicants that;
3.1. that applicant No. 1 Veer Singh is Jeth of the deceased, applicant No. 2 Smt. Munni is wife of applicant No. 1 and applicant No. 3 Smt. Shimla is married Nanad of the deceased. The applicant No. 1 is Assistant Commissioner, Trade Tax, on the day of the alleged incident he was posed at Rai Bareli, his wife applicant No. 2 and his children were residing at J-1, Janakpuri, Aligarh. The applicant No. 3 Smt. Shimla was married about 19 years back, she is teaching at Nagar Nigam Primary School, Harsh Vihar, Delhi-110093. They were living separately at different places, they were having no concerned with the family affairs of the deceased and her husband co-accused Mukesh because they were living separately at G-18 Delta-11, Greater NOIDA where the deceased was allegedly subjected to cruelty and died in a hospital of NOIDA.
3.2. That the death of the deceased is not unnatural because according to the post mortem examination report the cause of death could not be ascertained, hence viscera was preserved, but according to the viscera report dated 18.4.2006 no poison was found in the viscera, therefore, no offence under Section 304-B IPC is made for which the essential requirement is of unnatural death within seven years of marriage of deceased.
3.3. That in the present case after proper investigation the I.O. came to the conclusion that the applicants and co-accused have been falsely implicated and submitted the chargesheet but the learned C.J.M., Gautam Budh Nagar without considering the fact and circumstance of the case, particularly the fact that it was not unnatural death rejected the final report and order of further investigation by some other competent Investigating Officer was passed, after further investigation also the final report was submitted but without any proper reason the learned C.J.M., Gautam budh Nagar rejected the final report and taken the cognizance against the applicants and co-accused for the offences punishable under Sections 498-A, 304-B IPC and Section 3/4 D.P. Act and they have summoned to face the trial. The learned revisional court also did not consider the legal position as well the circumstance of this case and dismissed the revision without applying the judicial mind. The impugned orders dated 23.10.2008 and 19.1.2008 are illegal and are liable to be set aside.
3.4. That the applicants are innocent, they have not committed any offence, they have been named In the FIR only for the purpose of harassment with an ulterior motive, so that they may be sent in jail, in case the applicants are sent to the jail the service and social career of the applicants shall be badly affected.
4. I In reply of the above contention, it is submitted by learned A.G.A. and learned Counsel for the complainant that the specific allegation have been made in FIR and in the statement of the witnesses that the applicants and co-accused Mukesh were demanding the car in dowry for which they were subjecting the deceased to the cruelty, even she was expelled from the house soon before her death, she was subjected to cruelty to fulfil the demand of dowry and the deceased herself stated that the poison was administered to her by the applicants and co-accused Mukesh, thereafter her condition became precarious then she was taken to the hospital by the nephew of the first informant Raj Singh and Anil, considering the seriousness of the deceased the matter was referred to Fortis hospital, Sector 62 NOIDA where she died during treatment. According to the death certificate issued by Fortis Hospital, the cause of death was unknown poisoning. According to the post mortem examination report also the deceased has sustained three ante mortem injuries which shows that she was subjected to cruelty and poison was administered forcibly, the death of the deceased was unnatural, even the applicants and co-accused Mukesh have not made any sincere effort to provide the proper medical aid to the deceased. The marriage of the deceased was solemnized on 30.6.2001 but she has died on 14.10.2005, she has died within seven years of her marriage. The death was unnatural, thereafter Section 304-B IPC is made out but under the influence of the applicants the proper investigation was not done and without any cogent reason final report has been submitted but the same was not accepted by learned C.J.M. concerned and ordered for further investigation by some other competent Investigating Officer who also submitted the final report without considering the seriousness of the allegations which have been made against the applicants, therefore, the same has been rightly rejected by the learned C.J.M., Gautam Budh Nagar after perusing the case diary. There is no illegality in rejecting the final report, taking the cognizance and summoning the applicants and co-accused to face the trial. Learned revisional court has also passed a well reasoned order considering all the facts and circumstances of the case as well as the legal position and dismissed the revision filed by the applicants on 19.10.2008 which is not suffering from any illegality or irregularities. The applicants have filed the Criminal Misc. Writ Petition No. 10927 of 2005 with a prayer to quash the FIR of this case dated 14.10.2005, the same was disposed of on 17.11.2005 by the Division Bench of this Court by holding that there was no cogent reason to quash the FIR in question and the option was given to the applicants to appear before the court concerned within one month and to apply for bail and it was directed to dispose of the same in view of the Full Bench of this case court as reposted in 2004 (Alld. C.J.) 1846 Smt. Amrawati and Anr. v. State of U.P. and order for expeditious investigation was passed, but in pursuance of the above mentioned order the applicants have not surrendered before the court concerned till now. The applicants have challenged the order dated 2.5.2006 passed by learned C.J.M., Gautam Budh Nagar before this Court by way of Criminal Revision No. 2674 of 2006 by which the learned C.J.M. has rejected the final report and passed the order for further investigation by some other competent Investigating Officer but the same was was dismissed as withdrawn on 19.5.2006 with liberty to file a petition. Thereafter the applicants filed the Criminal Misc. Application No. 26959 of 2007 under Section 482 Cr.P.C. before this Court but the same has also not pressed on 22.11.2007 when the court was not convinced to grant any relief and no reliance can be placed on the expert opinion as mentioned in the viscera report because it was a result of some manipulation, which was challenged before the court of learned C.J.M., Gautam Budh Nagar, thereafter the viscera was again sent to Vidhi Vigyan Prayogshala, Uttar Pradesh, Mahanagar, Lucknow, the same was analysed and it was reported by Joint Director, Vidhi Vigyan Prayogshala, U.P. Vide letter dated 10.5.2007 to learned C.J.M. Gautam Budh Nagar that the sample sent for analyse, there was no viscera tissue, at the place of viscera tissue some liquid was sent. It has been reported by the Joint Director, a higher authority then Assistant Director, Vidhi Vigyan Prayogshala, U.P. 15-Taj Road Agra who had submitted earlier viscera report. In such circumstances no reliance can be placed and viscera report dated 18.4.2006. This application filed by the applicants is misconceived, there is no illegality in the impugned orders, therefore this application may be dismissed.
5. In view of the facts, circumstances of the cae, submission made by learned Counsel for the applicants, learned A.G.A., learned Counsel for the complainant (O.P. No. 2) and from the perusal of the record it appears that the contention of the learned Counsel for the applicants is that according to the post mortem examination report the cause of death could not be ascertained, hence viscera was preserved to ascertain the cause of death and according to the viscera report dated 18.4.2006 no poison was found, therefore the death of the deceased is not unnatural and no offence under Section 304-B IPC is made out because unnatural death is one of the ingredients for constituting the offence under Section 304-B IPC within a period of seven years of her marriage to deal with this issue, the perusal of the material collected by the I.O. and the considertion of wording of Section 304-B is required which show that according to the prosecution version the marriage of the deceased was solemnized with co-accused Mukesh on 30.6.2001 thereafter she was subjected to cruelty to fulfil the demand of car as dowry ultimatley the poison was administered to her by the applicants and co-accused Mukesh and she died in hospital on 15.10.2005, the death of the deceased is within seven years of her marriage. According to the death certificate issued by Fortis Hospital, the cause of death was unknown poisoning and according to the post mortem examination report the deceased has sustained three ante mortem injuries and according to definition of Section 304-B IPC where the death of a woman is caused by any burns or bodily injury or occures otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. In the present case the death of the deceased has occurred other with than under normal circmustances within seven years of her marriage and the expert report dated 18.4.2006 sent by the Assistant Director, Vidhi Vigyan Prayogshala, U.P. 15-Taj Road, Agra showing that no poison was found in viscera report is disputed by the counsel for the O.P. No. 2 by way of filing objection before the court of C.J.M. concerned who had again directed to send the viscera tissue to another labouratory who vide a letter dated 10.5.2007 sent by Joint Director, Vidhi Vigyan Prayogshala U.P. Mahanagar, Lucknow addressed to learned C.J.M., Gautam Budh Nagar that in the sample the Viscera tissue was not sent, at that place some liquid was sent, which reflects that there was some manipulation, even the opinion of the expert is always a advisory character and not binding on witnesses of fact and the, expert evidence is not conclusive and the deceased had sustained ante mortem injuries. Therefore, at this stage it can not be said that no offence under Section 304-B IPC is made out.
6. So far as the next contention regarding the separate living of the applicants is concerned it shall be is a plea of defence considered by the trial court and the applicants shall get the opportunity to take this plea at the different stages of trial.
So far as the plea of the alivy is concerned, it can be taken by the applicants at the stage of the trial. It is not a stage of appreciation of the evidence, it is a stage to see whether on the basis of the meterial collected by I.O. prima facie any offence is made out. There is sufficient material to show that prima facie offence is made out against the applicnats and other co-accused. The learned C.J.M. has gone through record and passed a well reasoned order dated 23.10.2007 by which the final report submitted by I.O. has been rejected, the cognizance has been taken against the applicants for the offence punishable under Sections 498-A, 304-B IPC and Section 3/4 D.P. Act. It is a well reasoned order. The revisional court has also dismissed the Criminal Revision No. 159 of 2007 on 19.1.2008 after considering the facts and circumstances of the case as well as legal position regading the constitution of the offence punishable under Section 304-B IPC. It is a well reasoned order, it is not suffering from any illegality or irregularities, therefore, the prayer for quashing the order dated 23.10.2007 passed by learned C.J.M., Gautam Budh Nagar in case No. 210 of 2006 and the order dated 19.1.2008 passed by learned Addl. Sessions Judge/FTC-1, Court No. 9, Gautam Budh Nagar in Criminal Revision No. 247 of 2007 is refused.
7. However, considering the order dated 17.11.2005 passed by the Division Bench of this Court in criminal Misc. Writ Petition No. 10927 of 2005 whereby the prayer for quashing the FIR was refused and the direction was issued that in case the applicants appear within a month or produce before the court concerned and apply of bail in connection with case crime No. 247 of 2005 under Sections 498-A, 304-B IPC and Section 3/4 D.P. Act the same shall be heard and disposed of in accordance with the ratio of judgment of Full Bench of this Court as reported in 2004 (Alld.C.J.) 1846 Smt. Amrawati and Anr. v. State of U.P. This direction was passed after considering the FIR and post mortem examination report but after investigation the final report was submitted and the same has been rejected by learned C.J.M., Gautam Budh Nagar and the cognizance has been taken against the applicants and they have been summoned to face the trial. It is again directed that in case applicants appear beore the court concerned within one month from today and apply for bail the same shall be heard and disposed of in view of the Full Bench judgment of this Court reported in the case of Smt. Amrawati and Anr. v. State of U.P. as mentioned above.
With this direction, this application is finally disposed of.