AT PATNA CRIMINAL MISCELLANEOUS No. 844 of 2010 · Patna High Court

Heard learned counsel for the petitioners and learned Additional P.P. for the State.

In spite of having personal service upon O.P. No.2, he failed to appear.

Petitioners have challenged order dated

18.12.2009 passed by Chief Judicial Magistrate, Gopalganj in connection with Kateya P.S. Case No. 196/2009 whereby and whereunder the learned lower court took cognizance for an offence punishable under Sections 304, 201, 120B/34 of the IPC and summoned the petitioners and others.

O.P. No.2/informant, Sri Niket Shukla filed a written report disclosing therein that in the background of non Patna High Court Cr.Misc. No.844 of 2010 (4) dt.26-07-2012 2 fulfillment of a Maruti car, his niece Ambalika Tiwary was tortured and lastly was done to death at her Sasural and her dead body had already been disposed of. He has named all the persons including the petitioners.

Contention on behalf of the petitioners is that petitioner no.1 happens to be father of Gotni of deceased while petitioner no.2 happens to be brother of Gotni of deceased. Though informant and petitioners happen to be distant relative but on political front, they both represent different groups and on account thereof they were not on good terms. It has further been submitted that in the aforesaid background, the informant after getting an opportunity dragged him otherwise there was no occasion for the petitioners to interfere with the affairs of the deceased because of the fact that deceased along with her husband, father-in-law, mother-in-law was residing at Arunachal Pradesh and just a day prior to the occurrence, they had come to Gaura, place of Sasural where occurrence is alleged to have taken place. Then submitted that there happens to be statement of some of the witnesses disclosing the fact that deceased had committed suicide. Also submitted that during course of investigation police had also collected evidence with regard to political differences amongst the informant as well as Dharamdeo Tiwary, petitioner no. 1. Further Patna High Court Cr.Misc. No.844 of 2010 (4) dt.26-07-2012 3 submitted the aforesaid background complicity of petitioners appears to be highly improbable and further having it a case of false implication, petitioners are entitled for discharge.

On the other hand, learned APP opposed the prayer and submitted that for the present purpose only prima facie case has to be seen and nothing more which the learned lower court had found and on account thereof took cognizance.

Carbon copy of the case diary is available on the record. From perusal of the case diary, it is evident that two kinds of evidences are available on the record. The first one happens to be Naiharwala and the second happens to be belonging to the resident of village- Gaura including statement of sister-in-law of deceased. From perusal of statement of all the witnesses, it is evident that save and except statement of informant none had named the petitioners. Para-5 of the case diary happens to be statement of Rupesh Shukla, brother of deceased who on the alleged date had gone to meet with deceased at Gaura. Just returning therefrom, he received the sad news. In the aforesaid statement he had not named the petitioners and in likewise manner in para-6, Kamdeo Shukla, in para-7 Gauri Shukla stated. So even from the statement of inmates of the house, presence of petitioners is nowhere. Patna High Court Cr.Misc. No.844 of 2010 (4) dt.26-07-2012 4

Now, coming to the FIR, again there happens to be absence of petitioner on the alleged date rather at one occasion, it has been alleged that father of Jethani of deceased and his two sons repeatedly used to come and tortured the deceased for the purpose of procurement of dowry and further made comments that illiterate and rustic has succeeded in getting her appearance. Para- 13 happens to be his further statement. From perusal of the same, it is evident that at the time of marriage petitioners along with his another son had insisted for Maruti car but subsequently thereof, no allegation is found against them. It has further been narrated by him that when his nephew had gone to meet with the deceased, he had found mother-in-law, father-in-law, husband of deceased along with Tinku Tiwary and Amit Tiwary but the same is not visible from statement of Rupesh Kumar recorded under Para-5. On the other hand, he had made allegation against Jethani of deceased, namely, Sarita Devi. Further from evidence of driver of vehicle by which the dead body of the deceased was disposed of was examined under 164 of the Cr.P.C. and from para-40, it is evident that he had not named the petitioners.

In the aforesaid facts and circumstances, virtually, there happens to be total absence of concrete material to justify summoning of petitioners including others to face trial for an Patna High Court Cr.Misc. No.844 of 2010 (4) dt.26-07-2012 5 offence punishable under Sections 304(B), 201, 120B/34 of the IPC.

Consequent thereupon the order impugned to the extent of petitioners, Dharamdeo Tiwary and Tinku Tiwary @ Purushottam Tiwary is set aside.