IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1239 of 2008 1. RAMASHANKAR SHARMA 2. TETARA DEVI 3. RAJU SHARMA 4. ANITA KUMARI 5. SUSHIL SHARMA 6. SUNIL SHARMA, RESIDENT OF BHABUA, WARD NO.13/OLD WARD NO.10. VERSUS 1. THE STATE OF BIHAR & 2. DHANPATI @ PUSPA W/O LATE NATHUNI SHARMA, GURASARA, RAMGARH, KAIMUR. ----------- 7 20.04.2010. Heard learned counsel for the petitioners, the complainant and the State. Petitioners pray for quashing order dated 9.5.2006, passed in complaint case no. 179 of 2006 by the Sub Divisional Judicial Magistrate, Bhabua, whereby he has taken cognizance of the offence under section 376 I.P.C. against petitioner no.6 and under section 498A and 406 of the I.P.C. and section 3 of the Dowry Prohibition Act against all the petitioners. The complainant states in the complaint petition that she was married to one Nathuni Sharma S/o petitioner no. 1 and 2, brother of petitioner no.3 to 6. Marriage took place in the year 1991. The complainant’s husband died in the year 2001 in motorcycle accident. After death of her husband, the accused persons insisted that she would stay with them at her Sasural ad further assured marriage with petitioner no.6, Sunil Sharma. Thus complainant continued to stay at her Sasural and Sunil Sharma began to act like her husband. When the complainant’s parents reminded the accused persons of their commitment to marry her with Sunil Sharma, they began to demand dowry. It would appear from the complaint - 2 - petition that such demand was made from them after 4 ½ years of death of her husband which took place in the year 2001. The accused persons have been alleged to have started torturing her for dowry since last few months. They also ousted her from house. Learned counsel for the petitioners submits that no case under section 498A, 376,406 I.P.C. and ¾ of the Dowry Prohibition Act would be made out against them. Furthermore, the petitioner submits that no case under section 498A I.P.C. would be made out against them, much less one under section 376 I.P.C. against petitioner no.6 in particular. However, learned counsel for the complainant submits that accused persons tortured her for dowry. He further submitted that petitioner no.6 began to keep relationship of husband with the complainant. Even assuming the prosecution case to be true, no case under section 376 I.P.C. is made out against petitioner no.6. The complainant neither in the complaint case nor in the S.A. has uttered a word that the petitioner had at any point of time established physical relationship with her. No witness examined in the enquiry under section 202 Cr.P.C. has made allegation to this effect. The complainant, at the maximum, stated that petitioner no.6 began to behave like husband to her. She admits that she had not yet married petitioner no.6 and the marriage is yet to take place. On the basis of solitary statement of the complainant stated above that petitioner began to behave like a husband, it cannot be - 3 - presumed that petitioner also had begun to have physical relationship with her in absence of any averment to the aforesaid effect. In the circumstances, I do not find necessary ingredient for framing a case against petitioner no.6 under section 376 I.P.C. So far as sections 498A and 406 I.P.C. and section 3 of the Dowry Prohibition Act is concerned, this Court finds that the complainant herself admitted that when the issue of marriage with petitioner no.6 was raked in the year 2005-06, the accused persons began to torture her and asked for dowry. It appears that allegation of demand of dowry is general and vague. Petitioner no.2 is mother-in-law, petitioner no.4 is Sister-in-law, petitioner no.3 and 5 are other brothers of petitioner no.6. I do not find sufficient materials for proceeding against them even under sections 498A, 406 I.P.C. and ¾ Dowry Prohibition Act. In the circumstances, the impugned order dated 9.5.2006 taking cognizance against petitioner no. 2,3,4 and 5 is quashed. The order taking cognizance against petitioner no.1 and 6 under section 498A I.P.C. and section 3 of the Dowry Prohibition Act is upheld. So far as section 406 I.P.C. is concerned, I do not find sufficient material for proceeding against any of the accused persons, as such, order taking cognizance under section 406 I.P.C. is also quashed. The instant petition stands disposed of. Shashi. (Samarendra Pratap Singh,J.)