Bihari Mahta Vs. Dhani Devi and ors.

Bihari Mahta vs Dhani Devi and ors.

Disposition Petition allowed Court Jharkhand Decided Feb 26, 2010

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https://sooperkanoon.com/case/848955

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Citation: sooperkanoon.com/848955
Court: Jharkhand High Court
Judge: D.N. Patel, J.
Decided On: Feb 26, 2010
Subject: Property
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- What remains to be seen is as to whether Pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. If these ingredients are proved by the prosecution then the conviction of th...

Key legal issue: Property
Outcome / disposition: Petition allowed

Parties & Advocates

Appellant / Petitioner

Bihari Mahta

Respondent

Dhani Devi and ors.

Excerpt

- what remains to be seen is as to whether pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. if these ingredients are proved by the prosecution then the conviction of the accused under section 304b, ipc will be complete.[para 9] the question is, in the absence of corpus delicti, could it be presumed that the accused persons alone were responsible for the death of pinki. we must hasten to add here that the accused persons have already been acquitted of the murder charge. [para 9] it is clear that pinki's death was caused because of the burns and not in the normal circumstances. the finding of the trial court and the appellate court in that behalf is correct. for this reason we are not impressed by the argument of the learned counsel that in the absence of corpus delicti, the conviction could not stand. [para10] it is clear that the prosecution has not only proved the offence under section 304b, ipc with the aid of section 113b, indian evidence act but also the offence under section 201, ipc. [para 15] held: we have gone through the judgments of the trial court as well as the appellate court carefully and we find that both the courts have fully considered all the aspects of this matter. we, therefore, find nothing wrong with the judgments and confirm the same. the appeal is, therefore, dismissed.[para 16].....of taking evidence by the petitioner (original defendant) has been closed and, therefore, the present petitioner (original defendant) has preferred this writ petition.2. learned counsel for the petitioner (original defendant) submitted i hat in fact the partition suit no. 30 of 2003 has been filed by present respondent nos. 1 and 2 against the present petitioner. they all are nearby relatives. plaintiffs have examined their witnesses and the defendant has examined only one witness and the stage of taking evidence has been closed down by the learned trial court vide order dated 15th july, 2008. the petitioner (original defendant) wants to examine three more witnesses and they will not consume much time and this can be over within stipulated time as granted by this court. the stage of taking evidence may be opened by the order of this court. the petitioner (original defendant) is ready and willing to make the payment before the trial court as a token cost.3. when the mutter is ea led out learned counsel for the respondents is absent. though respondents are served, nobody appears on behalf of the respondents. neither the matter is mentioned on behalf of the respondents nor the counsel for the respondents is present.4. having heard learned counsel for the petitioner and looking to the counter affidavit, filed by the respondents and also looking to the facts and circumstances of the case, it appears that-(i) the present respondent nos. 1 and 2 are the original plaintiffs, who have instituted partition suit no. 30 of 2003 before learned iiird additional munsif, ranchi.(ii) it appeals this the original plaintiffs have examined their witnesses and the original defendant has examined only one witness and, thereafter, the stage of taking evidence has been closed down by learned trial court vide order dated 15th july, 2008.(iii) it also appears dial the original defendant wants to examine three more witnesses(iv) looking to the annexure-1, it appears that the original.....

Full Judgment

D.N. Patel, J.

1. Present petition has been preferred under Article 227 of the Constitution of India against the order passed by learned IIIrd Additional Munsif, Ranchi in Partition Suit No. 30 of 2003, whereby, the stage of taking evidence by the petitioner (original defendant) has been closed and, therefore, the present petitioner (original defendant) has preferred this writ petition.

2. Learned Counsel for the petitioner (original defendant) submitted I hat in fact the Partition Suit No. 30 of 2003 has been filed by present respondent Nos. 1 and 2 against the present petitioner. They all are nearby relatives. Plaintiffs have examined their witnesses and the defendant has examined only one witness and the stage of taking evidence has been closed down by the learned trial court vide order dated 15th July, 2008. The petitioner (original defendant) wants to examine three more witnesses and they will not consume much time and this can be over within stipulated time as granted by this Court. The stage of taking evidence may be opened by the order of this Court. The petitioner (original defendant) is ready and willing to make the payment before the trial court as a token cost.

3. When the mutter is ea led out learned Counsel for the respondents is absent. Though respondents are served, nobody appears on behalf of the respondents. Neither the matter is mentioned on behalf of the respondents nor the counsel for the respondents is present.

4. Having heard learned Counsel for the petitioner and looking to the counter affidavit, filed by the respondents and also looking to the facts and circumstances of the case, it appears that-

(i) The present respondent Nos. 1 and 2 are the original plaintiffs, who have instituted Partition Suit No. 30 of 2003 before learned IIIrd Additional Munsif, Ranchi.

(ii) It appeals this the original plaintiffs have examined their witnesses and the original defendant has examined only one witness and, thereafter, the stage of taking evidence has been closed down by learned trial court vide order dated 15th July, 2008.

(iii) It also appears dial the original defendant wants to examine three more witnesses

(iv) Looking to the Annexure-1, it appears that the original defendant is of much advance age i.e. approximately 80 years and he was also suffering form cold, cough and fever as stated in the application, given by he original defendant to the trial court on 15th July, 2008.

5. In view of the aforesaid facts and reasons, I hereby allow this petition and the order passed by the trial court i.e. by learned IIIrd Additional Munsif, Ranchi dated 15th July, 2008 in Partition Suit No. 30 of 2003 is hereby quashed and set aside as the aforesaid aspect, of the matter has not been properly appreciated by the trial court. Tire stage of taking evidence by the original defendant is open and the present petitioner (original defendant) is permuted to examine his witnesses.

6. Learned Counsel to the petitioner submitted that they want to examine three witnesses, which will be over within maximum period of thirty days.

7. In view of this submission, I hereby direct the petitioner (original defendant) to take his evidence within a period of thirty day and I hereby direct the trial court to hear and decide, finally, the Partition Suit No. 30 of 2003 on or before 30th June, 2010. This application of taking evidence by the petitioner (original defendant) is allowed and the stage of taking evidence, which was closed down by the trial court i.e. the impugned order is hereby quashed and set aside. The stage of taking evidence by the defendant is open with a exist of Rs. 1,000/- (Rupees one thousand only). This amount will he deposited by the petitioner (original defendant) before the trial court and upon proper application by the plain ills, this amount is permitted to be withdrawn by the plaintiffs. The amount towards the cost of Rs. 1,000/- (Rupees on thousand only) will be deposited within a period of fifteen days from today.

8. The petition is, hereby, allowed and disposed of, in view of the aforesaid directions.

9. Interim rebel granted earlier stands vacated.

Same Court & Year Jharkhand · 2010 Same Parties Bihari Mahta vs Dhani Devi and ors. Same Subject Property Same Judge D.N. Patel, J.

Property