SATISH CHAUBEY Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard learned counsel for the revisionist, learned counsel for the opposite party Nos. 2 to 5, Sri Ramesh Chand Gupta, learned A.G.A. for the State and perused the material placed on record.

(2.) By means of present criminal revision revisionist, who is informant in S.T No. 10 of 2020 (State Vs. Sanjay Pathak) arising out of case crime No. 405 of 2019, under Sec. 498-A, 304B I.P.C. and Sec. 3 and 4 of Dowry Prohibition Act, P.S.- Panki, District- Kanpur Nagar, has assailed the impugned order dtd. 10/6/2022, passed by learned Additional Sessions Judge F.T.C. Court No. 1 Etawah, whereby applicant moved an application 30 KH for summoning of respondent Nos. 2, 3 and 4, who are father-in-law, mother-in-law and sister-in-law (Nanad) of the decreased as Sec. 319 Cr.P.C. has been dismissed. The factual matrix of the case in brief are that an F.I.R. was lodged at the instance of informant Satish Chaubey at P.S. Panki, District- Kanpur Nagar on 8/10/2019 with averment that he had married his daughter Priyam @ Divya Pathak with accused Sanjay Pathak on 3/12/2016, in which he spent around rupees 15 lakh up to his capacity, but when she came back after sometime of marriage to the place of the informant, she told that her in-laws are very greedy people, they used to tease her for bringing less dowry. He consoled his daughter that in course of time things will get improve, but his daughter used to inform him that she is being subjected to torture by her husband and inlaws, her sister-in-law, Bittu Tiwari is very interfereing with regard to bringing of dowry. He would console his daughter that she should keep patience, things will get right. On 5/10/2019, his daughter telephoned him that her husband Sanjay Pathak, mother-in-law, Kanchan Pathak, father-in-law Devi Dyal are engaged in maar peet with her. He could not rush to the place of her daughter due to busyness. On the next day, he tried to communicate with his daughter telephonically but phone could not be connected. On same day at around 6:00 P.M., he received information that his daughter had died. The F.I.R. was lodged after 2 days of the incident. Additional City Magistrate, III conducted inquest on dead body of the deceased on 7/10/2019 at the place of the incident in presence of police and punch witnesses. In inquest report, fresh marks of friction were found on neck of the deceased, in the opinion of Panch witnesses, the deceased died on 6/10/2019 by hanging. In the postmortem report of the deceased Divya Pathak, a ligature mark 27 cm x 2 cm around the neck with gap of 10 cm R.P. side back of neck- distance 4.5 cm below chin, 6 cm below left ear,1.5 cm below right ear- on dissection white glistening subcutaneous tissue underline ligature mark was found. According to opinion of doctor, the cause of death was asphyxia due to ante-mortem hanging. The investigation was conducted by Circle Officer, who examined the witnesses, conducted local inspection of place of incident, prepared site plan and after concluding investigation, submitted charge-sheet against husband of the deceased namely, Sanjay Pathak and dropped the name of named accused persons Devi Dayal Pathak, Kanchan Pathak and Bittu Tiwari @ Sukriti, the sister-in-law of the deceased, finding their implication in the F.I.R. false. According to Investigating Officer, the parents-inlaw of the deceased were residing separately from deceased and her husband, prior to death of the deceased and accused Bittu Tiwari was married 20 years ago and visit her parental place, occassionaly. Her matrimonial place lies in District-Kanpur Dehat. The Investigation Officer placed reliance on statements of independent witnesses Chaya Devi, Guddi wife of Ram Singh, Asha wife of Vinod Kumar, Balram, Jagdish Dubey, Sumant Pandey while exonerating the respondent nos. 2 to 4 in chargesheet. The learned Magistrate took cognizance of the offence against chargesheeted accused Sanjay Pathak and committed the case for trial to court of Sessions. On commitment of the case for trial, charge were framed under Ss. 498-A, 304B I.P.C. and Sec. 3 and 4 of Dowry Prohibition Act against accused Sanjay Pathak. In prosecution evidence P.W.-1 Satish Chaubey, present revisionist was examined and after his cross- examination, an application under Sec. 319 Cr.P.C. has been moved by P.W.-1 Satish Chaubey, the informant with prayer to summon accused persons Devi Dyal, Kanchan Pathak and Bittu @ Sukriti under Sec. 319 Cr.P.C. to face trial together with accused Sanjay Pathak, who is already facing trial. Learned trial court rejected said application 30 Kha by impugned order after hearing the applicant, public prosecutor and learned counsel for accused-Sanjay Pathak, on ground that on perusal of evidence on record, it appears that the case is of suicide and not of homicidal death. On the basis of evidence on record, no fact or circumstance is disclosed on basis of which it prima facie appears that 4 accused-persons have participated in the offence. General allegations against these accused-persons with regard to demand of dowry and subjecting the deceased to torture are made in evidence of P.W. 1- Satish Chaubey, but no specific charge has been levelled therein. Independent witnesses are examined by Investigating Officer at C.D.-12, who have stated that proposed accused Devi Dyal Pathak and Kanchan Pathak were residing separately from their son Sanjay Pathak and proposed accused Bittu Tiwari was married 20 years ago and she resides in her matrimonial place at District- Kanpur Dehat. In these circumstances, it is difficult to believe that proposed accused persons had subjected the deceased to torture pursuant to demand of dowry. The deceased was residing with her husband Sanjay Pathak and she died due to hanging at the place of her husband during 7 years of her marriage, therefore, in considered opinion of the court, the summoning of proposed accused persons is not found justifiable in the light of law laid down by Apex Court in Hardeep Singh Vs. State of Punjab (2014) 3 SCC 92.

(3.) Feeling aggrieved by impugned order, instant criminal revision have been preferred by the informant in the case. Learned counsel for the revisionist submitted that impugned order dtd. 10/6/2022, passed by learned trial court is against the law laid down by Hon'ble Supreme Court in catena of decisions with respect to exercise of powers under Sec. 319 Cr.P.C. The Court below has not considered the application under Sec. 319 Cr.P.C. as well as the statement of the revisionist given during the course of trial as P.W. 1 in correct perspective, while passing the impugned order. In present case all the essential ingredients of Sec. 498-A, 304-B and 3/ 4 D.P. Act are clearly made out against respondent nos. 2, 3 and 4 and complicity of these accused persons in the offence cannot be ruled out. The informant and family members of the deceased have supported F.I.R. version in their statement under Sec. 161 Cr.P.C. also. There is consistent version in the statement of informant in F.I.R., statement under Sec. 161 Cr.P.C. as well as his statement as P.W. 1 before the Court . On the basis of material on record, it is evident that there was continuous demand of dowry from the deceased Priam @ Divya by her husband as well as her in-laws, the proposed accused, who were also named in F.I.R. She was subjected to cruelty and torture by all the 4 named accused persons, but only the husband of the deceased has been chargesheeted and name of remaining three accused persons were wrongly dropped by the Investigating Officer on the basis of placing reliance on statements of unconcerned persons. The evidence of P.W. 1 is sufficient to establish prima facie case against proposed accused persons for summoning them under Sec. 319 Cr.P.C. The deceased was subjected to cruelty by all the named accused persons shown, before her death as evident from the evidence of P.W. 1 and previous version in F.I.R. as well as his statement under Sec. 161 Cr.P.C. The P.W. 1 has categorically stated in crossexamination that the deceased was not suffering from fever or she authored any suicide note. He denied the hand-writing of the deceased in suicide note during cross-examination. He lastly concluded that learned court below while passing the impugned order has completely ignored evidence regarding complicity of respondent nos. 2 to 4 in making demand of dowry, consequent torture committed against the deceased and the death of deceased in abnormal circumstances at her matrimonial home. From site plan prepared by police, it is clear that respondent Nos. 2 and 3 are living next to the house of the accused Sanjay Pathak (husband) and the same cannot be termed as separate living. There is specific allegations against respondent Nos. 2 to