Sukh Nandan and others vs State of U.P. and another

Amar Saran, J

Heard learned Counsel for the petitioners and learned Additional Government Advocate.

By means of this petition the petitioners have challenged an order dated 19.2;2007 passed by the Additional Sessions Judge/FTC No. 4, Sultanpur dismissing the criminal revision against an order dated 7.2.2006 passed by the Chief Judicial Magistrate, Sultanpur accepting the final report and rejecting the protest petition and the cognizance order dated 6.11.2008 passed by the Chief Judicial Magistrate, Sultanpur in a ease under section 498A/302 IPC.

It is argued by the learned ''Counsel for the petitioners that the order dated 19.2.2007 was passed without hearing the petitioners and in this view of the matter the decision laid down in Raghu Raj Singh Rousha v. M/s. Shivam Sundaram Promoters (P) Limited and another, 2009 (65) ACC 629 (SC) was breached.

In Raghu Raj Singh Rousha''s case it was observed that if an order on a criminal revision is passed Without hearing the aggrieved party or accused, it will violate section 401(2)Cr.P:C. and for this reason the order of the Revision Court should be set aside.

In the present case this averment appears to be incorrect because the order itself notes that the revisionistcomplainant (present O.P. No. 2) and the opposite parties (the petitioners in the present case) were heard through an amicus curiae and, therefore, it cannot be said that there was any violation of section 401 (2).

Moreover, to obviate this technical objection, I have myself heard the learned Counsel for the petitioners at length on the merits of the matter too.

The learned Magistrate has accepted the final report and rejected the protest petition by holding that there was reason to believe that the neck of the deceased was caught in the belt of the irrigation Pumping set. The Revisional Court has, however, not accepted this finding. I also find that a perusal of the postmortem report shows that the cause of death was asphyxia as a result of strangulation. There was a ligature mark 26 cm. x 3 cm. on right side base of neck just below thyroid and above right clavicle starting from front of neck just above supra sternal notch going backward posteriorly and transversely up to the middle portion of the back of the neck.

There were other injuries including traumatic swelling on led parietal occipital region 6 cm. x 4 cm. contusion on left side of abdomen and on the dorsal aspect of right wrist joint and right side of chest just below right clavicle, abraded contusion 4 cm. x 2 cm. on the anterior aspect of left knee joint and right side of the chest. I think that when this smarter is seriously examined by the Trial Court and the doctor is also produced, only then a deeision can be taken whether the deceased was murdered or she had died accidentally by her neck being caught in the engine of Pumping Set.

I think the learned Magistrate appears to have exceeded his jurisdiction in reaching this conclusion at this stage. Moreover the death of Neelam Devi had taken place on 19,2.2005 within five years of the marriage, which took place on 30.11.2000. A demand of Rs. 50,000/ cash, motorcycle and other dowry items was alleged. The cause of death was certainly unnatural as the incident had taken place in the Sasural of the deceased and the informantopposite party No. 2, father of the deceased, not being an eyewitness of the incident, his statement was of no consequence. Also the fact that the grandfather of the deceased Babulal stated that he was told that Neelam had djed by getting caught in the engine, was no reason for rejecting the protest petition and accepting the final report. The reliance on the hearsay evidence of witnesses, which found favour of the Magistrate before.whom they stated that they leant that Neelam had accidentally died because she had got caught in a pumping set, was not justified. ;

The onus lay on the defence to explain how the incident had taken place and the deceased had died in the Sasieral and simply because most of the witnesses of the Sasural are not supporting the prosecution case, provides little reason for accepting the final report, as it was clear that apart from the mark of strangulation on the neck of the deceased, there were injuries on the other parts of her body and because of a mere possibility expressed by the doctor in his statement under section 161 Cr.P.C. when questioned by.the I.O. that the decease might have, died neck got caught in hqr Saci all these provided little reasons for accepting the final report and rejecting the protest petition.

The Additional Sessions Judge by the impugned order has also merely set aside the order of the lower Court and directed that the protest petition be treated as a complaint and the procedure of a complaint case be followed. The order of the Sessions Judge is'' dated 19.2.2007, which was not challenged before a superior Court initially. Even the order of the CJM dated 6.11.2008 taking cognizance of the case subsequently after the matter was remanded to him pursuant to the order of the Sessions Judge appears to suffer from no illegality and is a reasoned order. It has also been challenged very belatedly. In the order of the CJM dated 6.1 1.2008 specific instances of dowry demand and the statements of the witnesses of dowry demand have been mentioned, who were examined under sections 200 and 202 Cr.P.C. viz. P.W. 1, Sukh lal. P.W. 2 Mewa Lal, P.W. 3, Dr. Amitabh Mishra and P.W. 4, Constable Mahendra Singh.

P.W. 2Mewa lal expressed a suspicion that the deceased had been murdered and her bangles were broken and she was made to lie near the pumping set for creating an impression that her neck had got caught in the pumping set.

P.W. 1 Sukh lal was the Pradhan of the village, where the incident took place. He stated that no cry or alarm was heard, but this story was developed that Neelam had died by her neck being caught in an engine set. Even the engine had not run on that day.

P.W. 3, Dr. Amitabh Mishra has disclosed that the deceased has eight antemortem injuries and he has specifically stated that the injuries on the neck of the deceased could not have been the result or the neck being caught in the belt of the motor because the bell is thicker. Hence the Chief Judicial Magistrate by the impugned order has reached the opinion that a prima facie case was disclosed under section 498A/302 IPC.

I see no illegality in the said order. The petition is accordingly dismissed. Petition Dismissed.