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Jharkhand High Court · body

2016 DIGILAW 578 (JHR)

Krishna Kant Dubey v. State of Jharkhand

2016-04-06

RAVI NATH VERMA

body2016
ORDER : Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure (in short 'the Code'), the petitioner has prayed for quashing of the order dated 19.12.2007 passed by learned Chief Judicial Magistrate, Palamau at Daltonganj in Panki P.S. Case No.68 of 2007 (G.R. No. 1337 of 2007) whereby and whereunder the cognizance of offence has been taken under Section 304-B of the Indian Penal Code and also under Section 3/4 of Dowry Prohibition Act against the petitioner. 2. The prosecution case, as it appears from the complaint case, in short, is that the marriage of the daughter of the complainant/informant was solemnized with one Amaresh Kumar @ Vivek @ Babloo as per Hindu rites and rituals almost six years ago and there was cordial relationship between both the families but due to non-fulfillment of demand of dowry, the daughter of the complainant was subjected to physical and mental torture and even the in-laws did not provide food and other articles. There was conciliation proceeding between the parties and an agreement was made between the families that the in-laws will not torture the daughter of the complainant but on 16.09.2007 the informant received the information that the in-laws, the husband and this petitioner have killed her daughter by strangulating her. In the said conciliation proceeding, this petitioner was also called as mediator. 3. It appears from the record that initially on the fardbeyan of the informant-Baleshwar Shukla, who was the father of the deceased, an F.I.R. was lodged against this petitioner and other co-accused persons including the in-laws and husband and the police after investigation submitted the charge-sheet against the in-laws and husband of the informant but final form was submitted against this petitioner, who was the maternal uncle-in-law of the deceased and one Ramadhar Ojha. However, on a complaint-cum-protest petition filed at the instance of the complainant/informant, the court took cognizance of offence against this petitioner and Ramadhar Ojha also by order dated 19.12.2007. However, on a complaint-cum-protest petition filed at the instance of the complainant/informant, the court took cognizance of offence against this petitioner and Ramadhar Ojha also by order dated 19.12.2007. It further appears that the case of other co-accused persons Amaresh Kumar (the husband of the deceased) Sharda Devi (mother-in-law) and Nand Gopal Jha (father-in-law of the deceased) was committed to the court of Sessions and after trial by judgment dated 7th April, 2012, the accused persons were acquitted of the charges levelled against them on the ground that the informant and all other prosecution witnesses examined during trial testified against the prosecution case and had categorically stated that the family life of the deceased was good and there was no any demand of dowry by the in-laws whereafter they were all declared hostile. 4. Learned counsel appearing for the petitioner while assailing the order taking cognizance seriously contended that even if the allegations made in the prosecution case is accepted on its face value, still on the basis of materials brought out on record, no offence under Sections 304-B of the Indian Penal Code or 3/4 of Dowry Prohibition Act are made out against the petitioners and that though the petitioner was one of the accused in the aforesaid case but after trial all other co-accused persons have been acquitted of charges. Learned counsel further relying upon the evidence of all the prosecution witnesses and the judgment passed by the court below, which were brought on record in this case by filing supplementary affidavit submitted that on perusal of those evidences led in the trial, it would appear that no case is made out against the petitioner and none of the ingredients responsible to constitute offence in the above provisions are available on record. It was also submitted that even from the allegations made in the F.I.R., it would appear that no allegation was levelled against this petitioner except that he had participated in the conciliation proceeding and after investigation, the police had submitted the final form against the present petitioner. 5. It was also submitted that even from the allegations made in the F.I.R., it would appear that no allegation was levelled against this petitioner except that he had participated in the conciliation proceeding and after investigation, the police had submitted the final form against the present petitioner. 5. Per contra, learned counsel appearing for the State submitted that as the charges against the petitioner has not been framed in the court below, it is not open to this Court to interfere in such matter at this stage in exercise of power under Section 482 of the Code and the petitioner cannot take advantage of acquittal of other accused persons. 6. In the case at hand, the allegation appears to be very serious where the daughter of the opposite party no.2 alleged to have been killed within seven years of her marriage by the accused persons but on perusal of the deposition of all prosecution witnesses it appears that none of the prosecution witnesses during trial has supported or corroborated the allegation levelled in the F.I.R. against the accused persons the in-laws and husband, whose case was earlier committed to the court of Sessions. It further appears that all the prosecution witnesses including the opposite party no.2-informant/complainant, the brother and sister of the deceased have all been declared hostile on their testimony that there was cordial relationship between the deceased and husband and in-laws and the deceased had never made any complaint either of demand of dowry or torture and even none of the prosecution witness has testified against this petitioner, who was the maternal uncle-in-law of the deceased. Since the informant/complainant-opposite party no.2 had not made any allegation against the co-accused persons or against this petitioner with relation to the crime, the trial court found no justification to come to any conclusion other than that the prosecution has not established the case against the accused persons beyond all reasonable doubt. Accordingly, acquitted the other accused persons from the charges, who faced trial. 7. So far as the present petitioner is concerned, it appears from the record that only allegation against him was that he was present in the conciliation proceeding and no any allegation is made out against the present petitioner either in the F.I.R. or in complaint petition or the evidence which was recorded in course of trial of the co-accused persons. So far as the present petitioner is concerned, it appears from the record that only allegation against him was that he was present in the conciliation proceeding and no any allegation is made out against the present petitioner either in the F.I.R. or in complaint petition or the evidence which was recorded in course of trial of the co-accused persons. Hence, this Court is of the considered view that order of cognizance against the present petitioner under Section 304-B of the Indian Penal Code and also under Section ¾ of the Dowry Prohibition Act cannot be sustained. 8. Accordingly, this criminal miscellaneous petition is allowed and order dated 19.12.2007 passed in Panki P.S. Case No. 68 of 2007 (G.R. No.1337 of 2007) by learned Chief Judicial Magistrate, Palamau at Daltonganj is, hereby, quashed so far as the present petitioner is concerned. Petition allowed.