IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2524 of 2008 RABINDRA YADAV Versus THE STATE OF BIHAR ----------- 6 30.4.2010 Heard counsel for the petitioner and the State. The petitioner seeks quashing the order dated 13.7.2006 passed by the Chief Judicial Magistrate, Supaul in Jadia P.S. Case No.5 of 1998, dated 2.2.1998, G.R.No.91/98 by which cognizance of offence under sections 304B/201 of the Penal Code has been taken against him. Learned counsel for the petitioner submits that the F.I.R. has been lodged by the uncle of the deceased and not by her father. The learned Magistrate has relied upon the statement of the witnesses recorded in paragraphs 11, 12, 15, 16 and 24 of the case diary in taking cognizance under section 304B of the Penal Code and summoning the petitioner to face trial. The statements recorded in the aforesaid paragraphs of the case diary are hearsay in nature. These witnesses have not alleged any type of demand of dowry or torture. Further for making out a case under section 304B of the Penal Code, it is to necessary to find out whether the victim woman was subjected to cruelty or harassment by her husband or any of his relatives. The police after investigation submitted final report on 31.7.1998 stating to be a case of mistake of fact. He submits that only after eight years of the occurrence, the Magistrate took cognizance on 31.7.2006. According to him, the victim woman died on account of diarrhea and in support of his submission, he relied upon the certificate dated - 2 - 31.1.1998 granted by Dr. R.N. Ghosh stating therein that the deceased was under his treatment from 26.1.1998 to 31.1.1998 due to endometrial hemorrhage. Counsel for the State submits that the witnesses in paragraph 15 and 16 of the case diary stated that the petitioner tortured the victim woman for non-fulfillment of demand of dowry. He submits that the uncle of the victim girl has lodged the instant F.I.R., as the father of the victim girl used to remain ill. It is evident from perusal of the F.I.R. that the informant had stated that her niece Ranju Devi, aged about 20-22 years, was married to the petitioner in June, 1993 and after marriage she went to her Sasural in March 1996, where she gave birth to a female child. Further more the deceased used to inform him of torture and demand of dowry at the hands of her husband. The informant further stated that he learnt from the deceased that the petitioner was having illicit relationship with his Bhabhi Sunita Devi and both of them used to assault her. He further stated that only a month back she had again gone to her Sasural and on 2.2.1998 he learnt from his nephew Shashi Kumar that the accused persons have killed the deceased by administering poison and burnt with aid of Kerosene oil in the night. Subsequently her dead body was criminated in haste, without any information to prosecution side. The informant in his subsequent statement under section 161 Cr.P.C. supported his complaint. Section 304 B of the Penal Code has been inserted by Act 43 of 1986 for providing punishment of committing dowry death. - 3 - KHAN Section 113B of the Evidence Act provides that in dowry death of a woman, the presumption is that the person concerned have caused the death of a woman and the onus is on such person to prove his innocence. The statement of the informant under section 161 Cr.P.C. reiterating the allegations made in the F.I.R. prima facie shows the case under section 304B of the Penal Code. Further more there is an allegation that she was tortured for dowry before her death. Having considered the facts and circumstances of the case, I do not find any illegality in the impugned order taking cognizance and summoning the petitioner, who happens to be the husband of the deceased, to face trial under section 304B of the Penal Code. This application is accordingly dismissed. However, it would be open to the petitioner to raise all these points at the time of framing of charge. Before parting with this case, I would express my displeasure over the manner in which the case remained pending for almost eight years on the point of cognizance from 31.7.1998 to 31.7.2006. Such callousness is against the very principles of speedy trial enshrined in Article 21 of the Constitution. Let a copy of this order be forwarded to the Sessions Judge, Saharsa. (S.P.Singh,J)