V.B.Gupta, J.

Present petition has been filed under Sections 397 & 401 of the Code of Criminal Procedure, 1973 against order on charge as well as charge dated 26th July, 2008, passed by Additional Sessions Judge, Delhi.

2. Brief facts of this case are that on 16.07.2007 on receiving DD No.9A, SI Arvind Kumar along with constable went to D-386 Defence Colony, where a dead body of a female was lying in the toilet of the servant quarter at first floor and the body was fully burnt. The name and address of the lady was Gyatri wife of Sonu r/o. 6, Aliganj, Kotla Mubarakpur, aged 26 years, who had got married on 15.5.05. Proceedings U/S. 176 of Cr.P.C. ware conducted. Family members of the deceased had come to the spot.

3. Smt. Saroja, mother of deceased gave her statement to the Tehsildar that the marriage of her daughter was solemnized about two years ago with Sonu with the consent of both the families. In the marriage, no demand of dowry was made by her in laws and as per status, she gave the dowry. After marriage, the in laws of Gyatri did not make any demand of dowry neither Gyatri made any complaint in this regard to her.

4. About 1 ½ years ago, her daughter gave birth to a female child and thereafter, the mother in law and father in law, started harassing her daughter. These persons used to abuse Gayatri and used to say that she does not do work and on this issue there used to be quarrel. On the night of 15.07.07, Gyatri came to her and told that she and her husband will live separately at D-386, Defence Colony, New Delhi, in a servant quarter. Today at around 4 O? Clock, the police informed that Gyatri has died. She had doubt that her husband, the mother in law and father in law have killed her and her daughter has been mentally tortured and she was forced to finish her life.

5. Trial court, vide impugned order held that a prima facie case, is made out against all the appellants, qua the commission of offences punishable under Section 498-A read with Section 34 IPC and Section 306 read with Section 34 IPC. Accordingly, charges were framed.

6. It is contended by learned counsel for petitioners that on 16.07.2007, the executive Magistrate had recorded the first statement of the complainant and her other relatives, wherein neither any allegation pertaining to demand of dowry nor cruelty were made against the Petitioners. Due to this reason on the basis of the alleged first statement, no action was taken by the police against the petitioners. In the first statement dated 16.07.2007, name of the petitioner No.1 does not figure, either in the statement of the Complainant or in the statement of any of her other relative.

7. Other contention is that there are no allegations against the petitioners, either for demand of dowry or any kind of abetment to commit suicide. Moreover, none of the ingredients of Section 498-A/34 IPC or 306/34 IPC are made out against the petitioners.

8. Moreover, as per statements dated 16.07.2007 and 17.07.2007, there are no allegations for any demand of dowry and in these circumstances, the trial court did not frame charge against the petitioners and his parents for the alleged commission of dowry death, but on the contrary it framed charge U/s 498-A I.P.C in absence of any demand of dowry which is not tenable in the eyes of law.

9. Lastly, in the absence of the evidence of common intention, charge U/s 34 IPC cannot be framed against the petitioners.

10. In support of its contentions, learned counsel for petitioners cited following judgments;

(i) Sanju @ Sanjay Singh Sengar v. State of M.P. (2002) Crl.L.J.2796;

(ii) Ramesh Kumar v. State of Chhatisgarh 2001 RCR (Crl.) 537;

(iii) Bagwan Das v. Kartar Singh & Ors. 2007 (3) RCR (Crl.)87;

(iv) Kishori Lal v. State of M.P. 2007(3) RCR (Crl.) 385;

(v) Prashant Manchanda v. Lt. Governor of Delhi & Anr. 2007 (2) JCC 1227;

(vi) Sohan Raj Sharma v. State of Haryana 2008(2) JCC 1166;

(vii) Sonti Rama Krishna v. Sonti Shanti Sree & Anr. 20