PAWAN KUMAR PATHAK Vs. STATE OF U P

JUDGEMENT

(1.) THIS application has been filed by Dr. Pawan Kumar Pathak dr. Shreedhar Pathak and Smt. Sheela pathak with a prayer to quash the proceedings of State v. Dr. Pawan Kumar Pathak and others, arising out of charge-sheet submitted in Case Crime No. 264 of 2006 under Sections 498a, 304b IPC and 3/4 Dowry prohibition Act P. S. Bhelupur district varanasi pending in the Court of learned chief Judicial Magistrate, Varanasi.

(2.) THE facts of the case in brief are that in the present case, FIR has been lodged by o. P. No. 2 Smt. Padmawati Devi in Case crime No. 264 of 2006 under Sections 304b, ipc and Section 3/4 of Dowry Prohibition act at P. S. Bhelupur district Varanasi on 7. 6. 2006 at about 8. 30 p. m. in respect of the incident which had occurred on 22. 4. 2005 at unknown time at the house of the applicants. It is alleged that the deceased Dr. Asha Pathak wife of the applicant No. 1 Dr. Pawan Kumar Pathak was subjected to cruelty to fulfil the demand of dowry, the applicants were harassing the deceased for taking the land of the mother of the deceased, the mother of the deceased is a widow, poison was administered due to which she died on 22. 4. 2005 or 23. 4. 2005. The marriage of the deceased was solemnized with applicant No. 1 Dr. Pawan Kumar pathak on 21. 11. 2000. Thereafter the postmortem examination was prepared on 24. 4. 2005, the cause of death of coma as a result of the brain haemorrhage, in which the present FIR was registered in pursuance of the order passed under Section 156 (3) Cr. P. C. First the matter was investigated, thereafter the IO came to the conclusion that the applicants have committed the alleged offence and submitted the charge-sheet dated 19. 11. 2006 in the Court of learned CJM. Varanasi, the charge-sheet was submitted for the offence punishable under Section 498a, 304b IPC and, Section 3/4 Dowry Prohibition Act. The learned magistrate Varanasi has taken cognizance on 20. 12. 2006. Thereafter the IO applied for doing further investigation under Section 173 (8)Cr. P. C,. the same was allowed by the learned CJM Varanasi on 8. 1. 2007, the report of further investigation has also been submitted drawing the conclusion that the allegations made against the applicants could not by substantiated by the material collected by the IO but on the basis of the charge-sheet dated 19. 11. 2006 the learned c. J. M. taken cognizance and summoned the applicants to face the trial. Therefore, it was requested to the Court concerned that at the stage of trial all the witnesses examined during further investigation and the letter collected by the IO may also be examined as the witness of the prosecution and letter may also be proved. Being aggrieved from the criminal prosecution, the applicants have preferred this application.

(3.) HEARD Sri V. P. Srivastava, Senior advocate, assisted by Sri Amit Kumar srivastava, learned counsel for the applicants, learned AGA for the State of U. P. and sri Manish Tiwari, learned Counsel for O. P no. 2 Smt. Padmwati Devi. It is contended by the learned counsel for the applicants that the allegations made against the applicant in respect of the demand of dowry and subjecting the deceased to cruelty or harassment for the purpose of fulfilling the demand of dowry are absolutely false, baseless because there was no demand of dowry and the deceased was never subjected to cruelty or harassment to fulfil the demand of dowry. The death of the deceased is natural; she died due to her illness. The death is not unnatural even according to the post-mortem examination report no ante-mortem injury was found on the person of the deceased and the cause of death was due to coma as a result of brain haemorrhage. The viscera was also not preserved to ascertain any other cause of death as of poison. The post-mortem examination report also shows that the death of the deceased was natural because the deceased was suffering from High Blood Pressure. All of sudden she became unconscious on 23. 4. 2005. She was shifted to Sri Ram krishna Mission Hospital, Varanasi where attempts were made by the doctors to save her life but unfortunately she died, its information was given to the first informant. Thereafter, the inquest report was prepared and post-mortem was conducted. According to the facts and circumstances of the case no offence under Sections 498a, 304b IPC and 3/4 Dowry Prohibition Act is constituted. The applicants are innocent; they are husband, father-in-law and mother-in-law of the deceased respectively. They are commanding good reputation in the society but due to the ulterior motive or some other malicious reasons FIR has been lodged against the applicants and illegal charge-sheet has been submitted by the IO in hurry without collecting proper evidence. Thereafter, the superior officer of the police passed order for doing further investigation for which permission has been obtained from the CJM and proper further investigation has been done, report of further investigation has also been submitted in which the io has drawn the conclusion that no evidence could be collected to substantiate the allegations made against the applicant. According to further investigation, the applicants have been falsely implicated in the present case because the death was natural, condition of the deceased became serious all of a sudden on 23. 4. 2005, she was taken to Sri Ram Krishna Mission hospital, Varanasi, efforts were made by the doctors to save her life but she could not survive. The IO came to the conclusion that the cause of death was clearly mentioned by the doctor in the post-mortem examination report that is why viscera was not preserved to ascertain the alleged cause of death due to poisoning the basis of the charge-sheet dated 19. 11. 2006. The learned CJM has taken cognizance that is why a request was made to examine the witness who have been interrogated in further investigation at the stage of trial and to consider the latter collected by the IO during further investigation. In such circumstances, the prosecution of the application is illegal because no offence is made out against them. Therefore, the proceedings of Criminal Case No. 11643 of 2006 under Section 498a, 304b IPC and section 3/4 Dowry Prohibition Act pending in the Court of learned CJM Varanasi may be quashed.