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2016 DIGILAW 1130 (ORI)

MURARI PASAYAT v. KHIRADHAR PASAYAT

2016-11-21

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. - This application under Section 482 of Cr. P.C has been filed by the petitioner Murari Pasayat challenging the order dated 12.06.2012 passed by the learned S.D.J.M., Jharsuguda in I.C.C. Case No. 56 of 2012 in taking cognizance of the offences under Sections 498-A/302/201/34 of the Indian Penal Code and issuing process against him. 2. It is the prosecution case as per the complaint petition filed by the complainant-opposite party No.1 Khiradhar Pasayat in the Court of learned S.D.J.M, Jharsuguda that the complainant gave the marriage of his elder daughter Jagyansini @ Sujata (hereafter "the deceased") to the petitioner in a temple at Belpahad in the district of Jharsuguda. After marriage, the couple stayed at Belpahad in the paternal house of petitioner till 18.06.2011, during which period the petitioner subjected the deceased to torture in connection with demand of dowry and threatened her to kill her in case the demand is not fulfilled. It is the further case of the prosecution as per in the complaint petition that the complainant along with other witnesses came to the house of the petitioner and assured him to comply the demand gradually. On 19.06.2011 the petitioner took the deceased to his working place at Aurangabad, where the petitioner continued to torture the deceased in connection with demand of dowry On 29.06.2011, the complainant received a phone call from the deceased that there was apprehension of danger to her life as the petitioner was threatening her to kill and on the very next day i.e. on 30.06.2011 the complainant received the sad news about the death of the deceased. The complainant reached at Belpahad where he got information that the deceased committed suicide by hanging. The complainant saw the dead body of the deceased and due to mental shock, he became unconscious and after completion of ritual ceremony, he accompanied with his brothers to Kranti Chawk Police Station and reported the matter and though a case was registered but the enquiry was closed. It is case of the complainant that the petitioner tortured the deceased from the very day of marriage at his residence at Belpahad so also at Padmapur in Aurangabad. 3. It is case of the complainant that the petitioner tortured the deceased from the very day of marriage at his residence at Belpahad so also at Padmapur in Aurangabad. 3. It appears that in connection with the death of the deceased, Kranti Chowk P.S.U.D. Case No.38 of 2011 was registered and during U.D case inquiry, the dead body of the deceased for sent for postmortem examination to Government Medical College and Hospital Aurangabad, where the doctor noticed one oblique ligature mark around the neck above thyroid but he found no fracture of thyroid/cricoid cartilage or fracture of thyroid bone and no other injuries on any part of the body was found and he opined the cause of death was due to hanging. The Sub-inspector of Police of Kranti Chowk Police Station at Aurangabad submitted final report before the Special Magistrate and Asst. Commissioner of Police, City Department, Aurangabad City, indicating therein that while the deceased was alone in her residence on 30.06.2011, she committed suicide by hanging her to the fan and nobody has given any written or oral complaint nor anybody had raised any complaint. It was further observed that since the opinion of the medical officer was that the death was due to hanging, therefore, inference could be done that the deceased was unable to give physical satisfaction to her husband and was feeling depressed. After gathering information from the chits recovered at the spot it was held that it is a case of the unnatural death and it is not an offence. 4. The complaint petition was filed before the learned S.D.J.M., Jharsuguda by the opposite party on 15.05.2012 and accordingly, I.C.C. Case No. 56 of 2012 was registered. The learned Magistrate recorded the initial statement of the complainant and conducted inquiry contemplated under Section 202 Cr.P.C, in course of which the complainant examined five witnesses. After perusing the complaint petition, initial statement and the evidence of the witnesses, the learned Magistrate was of the view that there are sufficient materials under Sections 498-A/302/201/34 of the Indian Penal Code and accordingly, took cognizance of such offences and issued process against the petitioner. 5. Mr. After perusing the complaint petition, initial statement and the evidence of the witnesses, the learned Magistrate was of the view that there are sufficient materials under Sections 498-A/302/201/34 of the Indian Penal Code and accordingly, took cognizance of such offences and issued process against the petitioner. 5. Mr. Piyus Patnaik, learned counsel for the petitioner appearing on behalf of the petitioner contended that the impugned order is not sustainable in the eye of law and the learned Magistrate has passed the order in a mechanical manner without looking at the postmortem report which indicates that it is case of hanging. He further submitted that the prima facie ingredients of the offences under Sections 302/201 of the Indian Penal Code are not attracted and therefore, the order of cognizance so far as those offences are concerned should be quashed He placed the postmortem report which has been annexed to the 482 Cr.P.C. application. Mr Akshaya Kumar Sahoo, learned counsel for the opposite party No. 1 on the other hand placed the complaint petition as well as the statements of the witnesses. He did not dispute that the postmortem report findings is that it was a case of hanging and except the ligature mark around the neck, there was no other injury noticed on any part of the body of the deceased as per the postmortem report. He however submitted that since it is a case of suicide and there are materials on record to show that due to the abatement of the petitioner, the deceased committed suicide and there are also materials on record to show that soon before her death, the deceased was subjected to physical and mental torture in connection with the demand of dowry, therefore, the ingredients of the offences under Sections 306 and 304-B of the Indian Penal Code are attracted The learned counsel for the State supported the submissions made by the learned counsel for the complainant and submitted that there is no illegality or infirmity in the impugned order. 6. Considering the submissions made by the learned counsel for the respective parties and on perusal of the material available on record and the postmortem report which is annexed to this application, it is clear that it is a case of hanging and there is absolutely no material on record that the petitioner has committed murder of the deceased. 6. Considering the submissions made by the learned counsel for the respective parties and on perusal of the material available on record and the postmortem report which is annexed to this application, it is clear that it is a case of hanging and there is absolutely no material on record that the petitioner has committed murder of the deceased. In absence of either any ocular or medical evidence to that effect that it is a case of culpable homicide, I am of the view that merely basing on the suspicion expressed by the complainant, the order of taking cognizance of the offence under Section 302 of the Indian Penal Code is not sustainable in the eye of law. Similarly, there is absolutely no material on record that the petitioner caused disappearance of the evidence of the offence knowing or having reason to believe that the offence has been committed or gave false information in respect of the offence which he knew or believed to be false. Law is well settled that intent to screen the offender committing an offence must be apparent, A mere suspicion is not sufficient. In absence of any prima facie materials, I am of the view that the ingredients of offence under Section 201 of the Indian Penal Code are not attracted However, since in the compliant petition as well as in the initial statement and the statements of the witnesses examined during inquiry under Section 202 of Cr PC., there are ample materials on record that within seven months of marriage, the deceased died and the prima facie materials are there to show that she was subjected to torture in connection with demand of dowry, I am of the view that the cognizance should be taken under Section 306 as well as under Section 304-B of the Indian Penal Code. 7. In view of the aforesaid discussions, the Criminal Misc. Case is allowed in part. The order of taking cognizance of the offences under Sections 302 and 201 of the Indian Penal Code stands quashed. Learned Magistrate shall take cognizance of the offences under Sections 306 and 304-B of the Indian Penal Code, in addition to Section 498-A of the Indian Penal Code which he had already taken and shall proceed in accordance with law. Final Result : Disposed Of