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2009 DIGILAW 522 (ORI)

Gangadhar Barik v. State of Orissa

2009-07-20

R.N.BISWAL

body2009
ORDER Dt.20.7.2009 — Heard learned counsel for the petitioners and learned Addl.Standing Counsel on the petition under Section 482 of Cr.P.C. The petitioners have challenged the order dated 23.07.2007 passed by the learned S.D.J.M., Bhadrak in G.R. Case No.1491 of 2006, wherein he took cognizance of the offence under Section 498-A/302/304-B/34 I.P.C. read with Section 4 of the D.P. Act so far as they are concerned. The petitioners are father and son. The deceased Kanakalata Barik married Mohan Barik, another son of petitioner No.1 on 3.6.2005. It is alleged that she was tortured by the relatives of her husband and the husband himself for non-fulfilment of their demand of dowry. Ultimately, in furtherance of their common intention, they committed her murder. On this allegation, the F.I.R. was lodged. After investigation, charge sheet was submitted under Sections 498-A/302/304-B/34 of I.P.C. read with Section 4 of the D.P. Act against the petitioners, the husband of the deceased and her mother-in-law. On going through the case diary and the charge sheet the learned S.D.J.M., Bhadrak took cognizance of the aforesaid offences vide order dated 23.07.2007, which is under challenge as stated above. Learned counsel for the petitioners submits that admittedly, the deceased died within seven years of her marriage on burn injuries. As found from the case diary, the deceased stated in her statement under Section 161 Cr.P.C. that her husband and mother-in-law tortured her in many a ways. There is no whisper against the petitioners. It is also found from the dying declara¬tion of the deceased that on the date of occurrence, as her husband and mother-in-law scolded her, she herself poured kerosene over her, just to threaten them. In the meantime, her husband set her ablaze. So, there is no prima facie material against the petitioners that they had any role in commission of murder of the deceased. The statement of the deceased is also silent with regard to torture for non-fulfilment of demand of dowry by the present petitioners. So, the offence under Section 498-A/302 of I.P.C. and Section 4 of the D.P. Act cannot be attracted against the petitioners. The statement of the deceased is also silent with regard to torture for non-fulfilment of demand of dowry by the present petitioners. So, the offence under Section 498-A/302 of I.P.C. and Section 4 of the D.P. Act cannot be attracted against the petitioners. Even if it is presumed that the deceased committed suicide by burning herself, still then since there is no prima facie material to hold that soon before her death the deceased was tortured by the petitioners, they cannot be liable for the offence under Section 304-B of I.P.C. Learned counsel for the petitioners further submits that the husband and mother-in-law of the deceased, who faced trial before the Ad-hoc Addl. Sessions Judge, Bhadrak have been acquitted honourably. Learned Addl.Standing Counsel, on the contrary, contends that one Pradip Mishra while being examined by the police stated that some time after marriage of the deceased, the petitioners and their family members demanded further dowry and when the same could not be complied with, they tortured the victim as he heard from the victim herself. When the statement of the victim is conspicuously silent in this regard, the statement of this wit¬ness will not be helpful to the prosecution. Taking into consideration the facts and circumstances of the case and the argument advanced by learned counsel for the peti¬tioners, the CRLMC is allowed and the impugned order dated 23.07.2007, wherein the learned S.D.J.M., Bhadrak took cognizance of the offence under Sections 498-A/302/304-B/34 of I.P.C. read with Section 4 of the D.P. Act so far the petitioners are con¬cerned is hereby quashed. Accordingly, the CRLMC is disposed of. L.C.R. be remitted back forthwith. Urgent certified copy of this order be granted as per rules. CRLMC disposed of.