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2017 DIGILAW 381 (JHR)

Sahdeo Mehta v. State of Jharkhand

2017-02-23

ANANDA SEN

body2017
JUDGMENT : Ananda Sen, J. In this petition, the petitioners have prayed for setting aside the order dated 27.9.2014 passed by the learned Xth Additional Sessions Judge, Hazaribagh in ST No. 496 of 2010, arising out of Sadar P.S. Case No. 426/2010 (G.R. No. 1790/2010), whereby and whereunder, the summons have been issued to the petitioners under section 319 Cr.P.C. to face the trial for the offence under Section 304-B IPC. 2. Hazaribagh Sadar P.S. Case No. 426 of 2010 has been lodged by one Wakil Prasad Mahto against the eight accused persons alleging therein that they have committed the offence under Section 304-B/34 IPC. It has further been alleged that the daughter of the informant, namely, Seema Devi, was married with Raju Mehta son of Sahdeo Mehta two years prior to the date of occurrence. It has been alleged that at the time of marriage, several articles and materials were given as dowry. The in-laws started torturing Seema Devi and demanded Rs. 50,000/-and a motorcycle. The informant tried to pacify the dispute but in vain. It is alleged that on 5.6.2010, the daughter of the informant was killed by the named accused persons. The FIR was against Raju Mehta-husband, Sahdeo Mehta-Father-in-law, Koushila Devi-mother-in-law, Mahesh Mehta-elder brother-in-law, Sheela Devi-elder-sister-in-law, Ajay Mehta-2nd brother-in-law, Sarita Devi-2nd Sister-in-law and Anita Devi -married sister-in-law. The police took up the investigation and filed charge-sheet only against Raju Mehta and Koushila Devi and did not sent up six accused persons for trial. The case was committed to the court of sessions and thereafter trial commenced. Fifteen witnesses were examined during trial. During the trial, it is alleged that the witnesses deposed against the accused who were not sent up for trial and the materials have been brought on record to proceed against non-charge-sheeted accused persons thus, a petition under Section 319 Cr.P.C. was filed to proceed against the petitioners, namely, Sahdeo Mehta, Mahesh Mehta @ Mahesh Prasad, Sarita Devi @ Bijul Devi, Ajay Mehta @ Ajay Prasad, Sheela Devi and Anita Devi. 3. The trial court vide order dated 27.9.2014 held that there are sufficient materials to summon these six persons (petitioners herein) in terms of Section 319 Cr.P.C. The order dated 27.9.2014 is under challenge. 4. Heard the learned counsel for the parties and perused the impugned order. 5. Section 319 (1) of the Cr.P.C. reads as under:- “319. 3. The trial court vide order dated 27.9.2014 held that there are sufficient materials to summon these six persons (petitioners herein) in terms of Section 319 Cr.P.C. The order dated 27.9.2014 is under challenge. 4. Heard the learned counsel for the parties and perused the impugned order. 5. Section 319 (1) of the Cr.P.C. reads as under:- “319. Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under subsection (1) then- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” 6. From the aforementioned provision, it is quite clear that the court has to decide whether a non-accused person be tried together with the other accused, if there are sufficient materials in the evidence to proceed against them. 7. Now from the evidence, it has to be seen whether these persons have committed any offence or not. The court below has recorded the gist of the evidence in the impugned order. 8. P.W.3 has taken the name of five persons on the point of demand of dowry. The evidence of P.W.-3 has been brought on record. He stated that Sahdeo Mehta (father-in-law), Kousilya Devi (Mother in-law), Mahesh Mehta (elder brother-in-law) and Gotni (un-named) have demanded the dowry and tortured the deceased. He also submits that Raju Mehta (husband) (who is already facing the trial) has strangulated the deceased. The evidence of P.W.-3 has been brought on record. He stated that Sahdeo Mehta (father-in-law), Kousilya Devi (Mother in-law), Mahesh Mehta (elder brother-in-law) and Gotni (un-named) have demanded the dowry and tortured the deceased. He also submits that Raju Mehta (husband) (who is already facing the trial) has strangulated the deceased. P.W.-4 has not taken the name of any person. P.W.-5 stated that Raju Mehta, Mahesh Mehta and Ajay have killed the deceased. He has also stated that Koushila, Sheela and Sarita were also involved in the said offence. P.W.-6 and 7 did not take the name of accused persons, which is apparent from the impugned order also. P.W.-8 is the informant, who has taken the name of all the petitioners to the effect that they also demanded dowry. 9. The instant case is registered under Section 304-B/34 IPC. The presumption under Section 113 -B of the Evidence Act will be applicable in this case. In view of this section, the prosecution has to prove the demand of dowry, torture or cruelty or harassment soon before the death in connection or with demand of dowry and the death has occurred within 7 years from the marriage. Once these three facts come in the evidence, the burden will shift on the accused to prove their innocence. 10. In the instant case, from the evidence, which has been brought on record, I find that there is allegation with regard to demand of dowry and torture on the deceased against the petitioner Nos. 1 to 5. The evidence, which has been brought on record, is sufficient to proceed against them. The point whether the prosecution has able to prove the three ingredient, as mentioned above, has to be decided by the trial court. So far as petitioner No. 6 is concerned, from the evidence, it appears that there is no material on record to proceed against her. Further more, she is a married sister-in-law, residing in the village of her husband, which is a different from that of other accused persons. 11. Thus, on the discussion made above, the impugned order does not warrant interference so far as petitioner Nos. 1 to 5 are concerned. The impugned order is set aside with regard to petitioner No. 6 is concerned. 12. Accordingly, this petition stands allowed in part.