SUSHIL KUMAR DUBEY Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS Criminal Revision application is directed against the order dated 4 -1 -2003 passed by the Sub -Divisional Judicial Magistrate, Dhanabad by which the learned Magistrate rejected the application filed by the petitioners under Section 239 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for discharge in connection with Sindri P.S. Case No. 44 of 2001 corresponding to G.R. No. 1890 of 2001 registered under Sections 498A, 323/34 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act.

(2.) THE brief facts of the prosecution case as stated that the marriage of petitioner No. 1 (Sushil Kumar Dubey) was solemnized with opposite party No. 2 (Kiran Dubey) on 25 -1 -1998 and after marriage, opposite party No. 2 went to her Sasural and stayed therefor one month. Thereafter, the accused persons started torturing her because of non -fulfilment of demand of dowry as they were demanding more money and also they were demanding one Computer and Motorcycle which could not be fulfiled and, therefore, they were torturing her. Later on they were also demanding the price money of Computer and Motorcycle. The accused -persons put a condition that unless the said money is paid, opposite party No. 2 complainant would not be kept in the house. It is further alleged that on 6 -6 -1998, the father of opposite party No. 2 complainant paid a sum of Rs. 40,000/ - and thereafter, she remained peacefully for sometime. But again they started demanding a sum of Rs. 50,000/ - which could not be paid and the accused -persons again started torturing and assaulting her. Accordingly, a written report was submitted to the police resulting registration of a case under Sections 323, 498A and 34 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act. The police investigated into the case and submitted charge -sheet against the accused -persons petitioners.

(3.) MR . Krishna Murari, learned Counsel appearing on behalf of the petitioners submitted that the learned Court below committed error in rejecting the prayer of discharge as no case as alleged in made out. It is further submitted that actually petitioner No. 1 had already filed a divorce suit against opposite party No. 2. However, the said Title (Matrimonial) Suit No. 54 of 2001 was withdrawn when both the parties entered into a compromise by order dated 10 -9 -2001 as both the parties have filed a compromise petition before the Court below which will be evident from Annexure -4. It is further argued that petitioner No. 1 later on filed a Title (Matrimonial) Suit No. 255 of 2001 for restitution of conjugal rights when opposite party No. 2 complainant failed to live with petitioner No. 1 and started imposing several conditions for coming to her Sasural which will be apparent from the written statement filed by Kiran Dubey (Opposite Party No. 2) vide Annexure 7/2 and actually opposite party No. 2 complainant desires that petitioner No. 1 may live in her house as Ghar Damad. Learned Counsel relied upon a case of Dilawar Balu Kurance v. State of Maharashtra, (2002 (1) JCR 490 (SC). It is argued further that while considering the question of framing charge, the Court has to weigh the evidence for finding whether or not a prima facie case against the accused has been made out but the Court below failed to weigh the evidence collected in the instant case and so, there is no material for framing charge against the petitioners.