Ravindra Singh - (1.) THIS application has been filed by the applicants Amit Kumar, Smt. Subhadra Devi, Naveen Kumar with a prayer to quash the order dated 2.2.2009 passed by learned Chief Judicial Magistrate, Bhadohi (Gyanpur) in Criminal Case No. 462 of 2009 (earlier case No. 8 of 2008) State v. Amit Kumar and others, under Sections 498A and 304B, I.P.C. and Section 3/4 of D. P. Act arising out of Police report submitted by Officer Incharge of P. S. Durgaganj in Case Crime No. 268 of 2007, P. S. Durgaganj, District Sant Ravidas Nagar.
(2.) THE facts in brief of this case are that F.I.R. of this case has been lodged by O.P. No. 2 Sri Virendra Kumar Shukla under Sections 498A, 304B, I.P.C. and Section 3/4 of D.P. Act against the applicants alleging therein that his daughter, the deceased Anjana was married with the applicant Amit Kumar, she has been murdered by the applicants on 16.4.2007 at about 9.00 a.m. by putting her on fire only because the first informant could not provide them a Maruti car which was demanded by them as dowry. On the next day of the alleged incident the first informant given the information to the police of P. S. Durgaganj who did not take any action, thereafter the first informant moved an application under Section 156 (3), Cr. P.C., in the Court of learned C.J.M., Bhadohi who allowed the same on 22.6.2007, in pursuance of the order dated 22.6.2007 the F.I.R. of this case has been registered. After lodging the F.I.R. it was investigated by the Investigating Officer who submitted the final report dated 15.11.2007 in the Court of learned C.J.M. Bhadohi, on that final report the notice was issued to the O.P. No. 2 who filed his objection dated 8.5.2008 in the Court of learned C.J.M., Bhadohi. After considering the police report as well as the objection filed by the O.P. No. 2 the learned C.J.M., Bhadohi rejected the final report and summoned the applicants to face the trial for the offence punishable under Sections 498A and 304B, I.P.C. and Section 3/4 of D. P. Act vide order dated 2.2.2009. Being aggrieved from the order dated 2.2.2009 the applicants filed the present application. Heard Sri V. P. Srivastava, senior advocate assisted by Sri Ajay Kumar Shukla, learned counsel for the applicants, learned A.G.A. for the State of U. P. and Sri V. C. Mishra, learned counsel for the O.P. No. 2. 1. It is contended by learned counsel for the applicants that applicant No. 1 is husband of the deceased, applicant No. 2 is mother-in-law of the deceased and applicant No. 3 is dewar of the deceased. The marriage of the deceased was solemnized with the applicant No. 1 on 30.4.2006, she was living at her husband's house happily. On 16.4.2007 at about 9.00 a.m. she was cooking the food on a gas stove, but all of sudden her clothes caught fire and she moved here and there on account of fire pain, on her shrieks the applicants and other villagers came there who extinguished the fire, thereafter she was taken to Jeevan Jyoti Hospital, Allahabad, she was admitted there in private ward, its information was given to her parents telephonically, on that information they came to the hospital to see the deceased in the evening and they did not make any adverse comment. The police was informed by the hospital authorities, who came to the hospital and called the Addl. City Magistrate-I, Allahabad for recording her statement. Her dying declaration was recorded by the Magistrate after obtaining the certificate of her fitness issued by the doctor. She clearly stated in her dying declaration that she was caught by fire accidentally and nobody was responsible for the same. But unfortunately she succumbed to her injury on 28.4.2007. Its information was given to her parents and local police, thereafter inquest report was prepared in the presence of one Manjesh Kumar, cousin of the deceased who was also of the opinion that death was caused by accidental fire when the deceased was cooking. The post mortem report of the death was conducted on 29.4.2007. On the same day cremation of the dead body was done according to the Hindu rites. Thereafter the O.P. No. 2 who is very cunning and criminal minded person demanded Rs. Ten lacs and started blackmailing to the applicants, his demand was not accepted by the applicants then he moved the application under Section 156 (3), Cr. P.C., the same was allowed on 22.6.2007 consequently the F.I.R. of the present case was registered. The investigation was done by the circle officer. The first informant did not appear before the Investigating Officer in spite of the calls and notice. Contrary to it he sent a registered letter to S.S.P. on 19.7.2007 alleging therein that his statement was not being recorded, thereafter the Investigating Officer went to the residence of the first informant and recorded his statement on 20.8.2007 in Parcha No. 13 of the case diary. The first informant did not accompany the Investigating Officer for making the spot inspection, it has been mentioned in Parcha No. 14 dated 22.8.2008 of the case diary. The Investigating Officer recorded the dying declaration of the deceased in case diary in its Parcha No. 15 dated 23.8.2007. The inquest report and post mortem examination have been copied in Parcha No. 16 dated 24.8.2007. The spot inspection was conducted by the Investigating Officer in the presence of the first informant on the same day. The number of the statements of respectable persons and villagers were recorded who confirmed that fire was accidental, its entry was made in Parcha No. 17 dated 5.9.2007. In Parcha No. 18 dated 11.9.2007 the statement of Kuldeep who is brother of the deceased was recorded. According to the Parcha No. 19 dated 15.9.2007 the Investigating Officer sought permission to go to Allahabad for investigation. The O.P. No. 2 was annoyed with the Investigating Officer because he had not investigated the matter as the O.P. No. 2 desired. Then he moved an application before S.S.P. to change the Investigating Officer, on that application Investigating Officer was changed and investigation was entrusted to Circle Officer, Gyanpur, its entry has been made in Parcha No. 20 dated 17.9.2007. The new Investigating Officer took the investigation in his hand on 26.9.2007, its entry has been made in Parcha No. 21. The statement of the first informant was again recorded on 26.7.2007, its entry has been made in Parcha No. 21A of the case diary. The statement of the scribe of the F.I.R. has been recorded on 3.10.2007, its entry has been made in Parcha No. 22. The statement of the family members and other persons as well as doctor etc., were recorded on 17.10.2007, its entry has been made in Parcha No. 23 dated 17.10.2007. The Investigating Officer has recorded the dying declaration of the deceased and also recorded the statements of the doctor who conducted the post-mortem examination. The statement of Addl. City Magistrate-I, Allahabad was also recorded on 1.11.2007, its entry has been made in Parcha No. 24. The statement of the accused have been recorded in the case diary on 15.11.2007, its entry has been made in Parcha No. 25. The allegations made against the accused persons appear to be false, therefore, final report No. 5 of 2007 has been submitted, its entry has been made in Parcha No. 25 dated 15.11.2007. The Investigating Officer has done the fair investigation and came to the conclusion that applicants were falsely implicated, therefore, final report was submitted in favour of the applicants. 2. The learned C.J.M., Bhadohi committed a manifest error in passing the order dated 22.9.2007 whereby the final report has been rejected and the applicants have been summoned to face the trial, because the learned Magistrate concerned has not properly perused the police report and the protest petition filed by O.P. No. 2 in which the first informant has narrated the same false and fabricated story as of F.I.R. and the statements of the first informant recorded under Section 161, Cr. P.C. There is no evidence to support the prosecution story. There is no additional evidence on record before the learned Magistrate concerned which can have rendered the investigation as false and faulty. 3. The learned Magistrate concerned has not cared to peruse the case diary and the evidence collected by the Investigating Officer on the basis on which the inference has been drawn by the Investigating Officer for filing the final report. 4. That the learned court below has failed to appreciate the dying declaration of the deceased recorded by learned Magistrate concerned and there is no reason to disbelieve the statement of the deceased. During investigation the Investigating Officer has not collected any such evidence to show that the prima facie any offence is made out against the applicants. 5. The deceased was admitted in hospital by her in-laws, the expenses was borne by them. The applicants and their family members appeared in the hospital during treatment of the deceased and they participated in the cremation of the dead body, on the contrary the complainant was not attended the daughter at the hospital or at the time of inquest and cremation, he was not cooperated with the investigation. 6. The learned Magistrate concerned excluded the fact that the local police was informed all the incident on the same day and the police officer was also present in the hospital but no complaint regarding demand of dowry etc., was made. 7. That the applicants are innocent, they have not committed the alleged offence but they have been falsely implicated in the present case. 8. The impugned order dated 2.2.2009, passed by learned C.J.M., Bhadohi is illegal and the same may be set aside. In reply of the above contention, it is submitted by learned A.G.A. that on the basis of the allegation made in the F.I.R. and the statement of the first informant recorded under Section 161, Cr. P.C., prima facie offence punishable under Sections 498A and 304B, I.P.C. and Section 3/4 of D.P. Act is made out. The Investigating Officer has not come at the real conclusion by way of filing the final report, the Investigating Officer has relied upon only the dying declaration which is a piece of evidence, it requires probe. The learned Magistrate concerned has passed the well reasoned order after going through the case diary. The learned Magistrate concerned has not committed any error in rejecting the final report and summoning the applicants to face the trial. The application is devoid of merit and the same may be dismissed.
(3.) IT is further contended by learned A.G.A., that this application may be dismissed outrightly because the applicants have filed the case diary even its photostat copies, the same may not be available to the applicants. Considering the submissions made by learned counsel for the applicants, learned A.G.A. and from the perusal of the record it appears that in the present case the applicants have filed the copy of the case diary, the same may not be available to the applicant at any stage of the investigation or trial even the certified copies of parchas of the case diary may not be issued. The case diary may be perused by the Court on summoning from the investigating agency or from the Court concerned where it has been filed by the Investigating Officer The present application is supported by many annexures which are the parchas of the case diary. Such annexures cannot be read in support of the averments made in the affidavit filed by the deponent Amit Mishra. In such circumstance, this application is liable to be dismissed on this ground alone. So far as the trial of the case is concerned on the basis of the allegation made in F.I.R. the marriage of the deceased was solemnized with the applicant Amit Kumar, thereafter she was subjected to cruelty to fulfill the demand of dowry, ultimately she was killed after putting her on fire on 16.4.2007 at about 9.00 a.m. the offence under Sections 498A and 304B, I.P.C. and Section 3/4 of D.P. Act is clearly made out. During investigation the dying declaration of the deceased was also recorded in which she had not made any allegation against the applicants. The dying declaration is not a conclusive evidence, it is a piece of evidence, it requires proof during trial, it may be proved or may not be proved, it will be tested by the trial court. On this ground alone the prosecution story may not be discarded. The learned Magistrate concerned has gone through the police report, after perusing the same the learned Magistrate concerned has rejected the final report and summoned the applicants to face the trial vide order dated 2.2.2009, it is a well reasoned order and it is not suffering from any illegality or irregularities, therefore, the prayer for quashing the impugned order is refused.;