IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.5533 of 2008 KAPIL DEV SINGH, Son of Late Lukho Singh, resident of Village- Sakeen, Malikpur, P.S. Akbarpur, District-Nawadah.........Petitioner. Versus 1. The State of Bihar. 2. Manoj Singh, S/O Chandrika Singh. 3. Chandrika Singh, S/O Late Vanshi Singh. 4. Kranti Devi, W/O Chandrika Singh. 5. Rinki Kumari, D/O Chandrika Singh. All residents of Village- Bargaon, P.S. Phatehpur, District-Gaya......................Opposite parties. ----------- For the petitioner: Mr. Binod Pd. Singh, Advocate. For the O.Ps. : Mr. Binod Kumar, Advocate. For the State : Mr. Rajesh Kumar, A.P.P. ---------- 5. 16.04.2010. Heard learned counsel for the petitioner and learned counsel for the State and opposite parties. The present application has been filed for quashing the order dated 10.12.2007 passed in Cr. Revision No. 22 of 2006 passed by the learned Sessions Judge, Nawadah, whereby the learned Sessions Judge, Nawadah, has refused to interfere with the order dated 04.01.2006 passed by the learned Chief Judicial Magistrate, Nawadah, in Complaint Case No. 918 of 2003, Trial No. 2697 of 2005 arising out of Akbarpur P.S. Case No. 59 of 2002 whereby the learned Chief Judicial Magistrate, Nawadah, has dismissed the protest-cum-complaint petition no. 918 of 2 2003, Trial No. 2697 of 2005 hence the petitioner has also challenged the order dated 04.01.2006 passed by the learned Chief Judicial Magistrate, Nawadah. The petitioner filed the complaint case no. 727 of 2001 before the learned Chief Judicial Magistrate, Nawadah, on 05.10.2001 alleging therein that the complainant’s daughter, namely, Kiran Devi, was married with Manoj Singh on 17.06.1993 but after the marriage there was demand of Maruti Car or in alternative the demand was of two lacks rupees. It is alleged that after taking cash and jewellery, the accused persons took the complainant’s daughter after six years of the marriage but even then also they used to torture and persisted with demand of one lac rupees. The alleged torture was conveyed to the complainant and the complainant’s son by the victim. In paragraph no. 10 of the complaint petition it is alleged that on 01.10.2001 when the complainant went to meet his daughter to Tisco Camp, Orissa, then the neighbours of accused persons conveyed that on 21.09.2001 the complainant’s daughter was assaulted, strangulated and thereafter the 3 accused persons fled away. Then complainant went to the native village of the accused persons and enquired but they did not give satisfactory answer except that all of sudden the complainant’s daughter has died. In view of the aforesaid background, the complaint was filed. The complaint being transferred under Section 156(3) of Cr.P.C. resulted in the registration of Akbarpur P.S. Case No. 59 of 2002 under Sections 498A, 304B and 201/34 of the Indian Penal Code. Subsequently, the police took up the investigation and during investigation the police found that there is no direct evidence. Moreover, during investigation it was found that initially the marriage took place by kidnapping the boy as the victim was old patient of heart ailment. The medical documents of Indira Gandhi Institute of Medical Sciences, Patna, was also located by the investigating agency suggesting that the victim was suffering from heart ailment and was being treated by the opposite parties. The death certificate has also been located by the investigating agency which suggests that the victim died on 21.09.2001 at 3.25 P.M. during treatment and 4 the cause of death was heart diseases. Then after completion of investigation the police submitted final form vide Final Form No. 137 of 2002 on 06.11.2002 under Sections 498A and 304B/34 of the Indian Penal Code as mistake of fact. On the protest petition being filed on behalf of petitioner, four witnesses were examined of which enquiry witness No. 1 is Daymanti Devi, wife of the complainant and the mother of the victim girl. In paragraph no.1 of her deposition she has stated that the marriage took place 11 years ago but there was demand and the husband’s side used to torture. This witness came to know about the occurrence through her husband to the effect that when the husband of this witness went to Orissa, the neighbouring people conveyed that her daughter has been killed. Since the house of the opposite parties was locked which generated suspicion in the mind of complainant but this witness has not disclosed the name of any neighbour who conveyed to her husband about the killing of her daughter. Babloo Kumar has been examined as 5 enquiry witness no. 2. He is the son of the complainant and has stated that marriage took place on 17.06.1993 and in paragraph no. 3 he has also stated that whatever has been conveyed by his father he has deposed accordingly but enquiry witness no.2 has also not named any one who conveyed to his father about the occurrence. Enquiry Witness No.3 is Nano Singh. He has stated that the victim was killed after eight years. In paragraph no.4 it is stated that this witness also deposed whatever he heard from the complainant but he has also not disclosed name of any person who disclosed about the death of the victim to the complainant. Enquiry Witness No. 4 is Chunchun Singh and he has admitted that he is neighbour of the complainant and has only deposed whatever has been conveyed to him by the complainant, Kapildeo Singh and his son, Babloo Singh. After examination of the enquiry witnesses, the learned Magistrate dismissed the protest-cum-complaint vide order dated 04.01.2006 on the ground that on mere suspicion the case was lodged but no such 6 neighbours who conveyed about the occurrence to the complainant have been examined in the case. The order dated 04.01.2006 by which the protest-cum-complaint was dismissed came to be challenged by the petitioner in Cr. Revision No. 22 of 2006 before learned Sessions Judge, Nawadah, which was also dismissed on 10.12.2007 on the ground that the police found the case as a mistake of fact in view of the fact that the victim was suffering from heart ailment she went to her in-laws house alongwith the medicines and in- laws got her treated even in I.G.I.M.S., Patna, and the treatment records were located by the investigating agency which reflects that the victim suffered heart attack and when pain aggravated she was admitted to Tisco Hospital, Joda Keenjhao where she died on 21.09.2001. Then dead body was brought to the village-Bargaon. The petitioner was informed but instead of participating in the cremation, a complaint was filed after about two weeks on 05.10.2001. Hence, the learned Sessions Judge did not find any illegality and irregularity in the order of the learned 7 Magistrate and dismissed the revision application after going through the materials on record including the case diary. Now both the orders dated 04.01.2006 and 10.12.2007 have been challenged in the present proceeding. Learned counsel for the petitioner submitted that there was demand of dowry and torture leading to death of the victim hence prima facie case is made out against opposite parties. Learned counsel for the opposite parties has submitted that the police after thorough investigation found the case as mistake of fact then the enquiry witnesses were examined in the protest-cum-complaint and most of them deposed as hearsay then the complaint was dismissed by the learned Magistrate. Thereafter, the revisional court also examined the whole records and found that no case is made out. It is further submitted that maliciously false case was filed to harass the opposite parties. Hence revival of prosecution case will amount to allow the petitioners to abuse the process of the court. 8 On perusal of the complaint, it appears that the marriage is admittedly performed on 17.06.1993 as mentioned in the complaint petition hence on the own averment of the complainant when the death took place on 21.09.2001 no case under Section 304B of the Indian Penal Code prima facie appears to be made out as the other witnesses have also supported the date of marriage as eight years prior to the occurrence. During the investigation, the police found that the victim was suffering from heart ailment. She was being treated in the Government Hospital and during treatment, she died in Tisco Hospital. The death certificate was also traced by the investigating agency. From the record, it appears that on mere suspicion or on ill advise, the complainant resorted to file the complaint case because the materials on record does not even raise suspicion for the allegations levelled by the petitioner in the complaint. After the police submitted the final form as mistake of fact then on protest petition four enquiry witnesses were examined and out of them the complainant is the only 9 witness who visited place of occurrence, found the opposite parties’ house locked which generated suspicion and the suspicion got confirmed when neighbours conveyed about the death but complainant has not disclosed the name of any such neighbours nor any one of them even came forward to get themselves examined during the investigation or enquiry. Other enquiry witnesses are hear-say witnesses as they deposed whatever was conveyed to them by the complainant. None of the witnesses have disputed the medical report as well as the death certificate. Admittedly as per the complainant and the enquiry witnesses, there is no direct evidence of the alleged occurrence. Hence in my view, I do not find any illegality in the order dated 04.01.2006 passed by the learned Chief Judicial Magistrate, Nawadah, in Complaint case no. 918 of 2003, Trial No. 2697 of 2005 arising out Akbarpur P.S. Case No. 59 of 2002 and in the order dated 10.12.2007 passed by the learned Sessions judge, Nawadah, in Cr. Revision No. 22 of 2006. From the discussions made above, it is 10 apparent that the complaint was maliciously filed on mere suspicion as there is neither any direct or indirect evidence in the matter much less constituting the prima facie case. The evidences collected during the investigation or witnesses examined during enquiry rather completely nullify the allegations levelled against the opposite parties. Hence the revival or continuation of such a prosecution will be sheer abuse of the process of the court. Hence, in view of the discussions made above, the present application is dismissed. U.K. (Dinesh Kumar Singh,J)