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2000 DIGILAW 34 (ORI)

ABDUL GAN v. STATE OF ORISSA

2000-01-16

P.K.TRIPATHY

body2000
JUDGMENT : P.K. Tripathy, J. - None appears. 2. This application u/s 482, Code of Criminal Procedure is of the year 1996. The further proceeding of S.T. No. 2/185 of 1996-1995 of the Court of Additional Sessions Judge, Balasore has remained stayed. The case is at the stage of admission. Under such circumstances, this Court proposes to dispose of this application on perusal of the grounds advanced in the application u/s 482, Code of Criminal Procedure, so also after perusal of the materials available on the lower Court's record. 3. Sajeda Khatun was married to Abdul Rasid and he is one of the accused in the said S.T. Case. Abdul Rasid is the son of Petitioner No. 1 Abdul Gani, and Petitioner No. 2 Tuli Khatun is the second wife of Petitioner No. 1. Accused Abdul Rasid had married to said Sajeda Khatun in 1991 and she was found dead on the morning of 11.6.1992. According to the post-mortem report, death of the deceased was due to throttling and there were injuries on the body of the deceased. After completion of investigation on 23.3.1993 charge-sheet was filed against the husband and the above named parents-in-law (petitioners) of the deceased for the offences punishable under Sections 498-A, and 302, I.P.C. During the course of investigation, though the statements of a large number of witnesses were recorded u/s 161, Code of Criminal Procedure but as per the subsequent developments, investigation changed hands and as per direction in course of the investigation, statements of the parents and the sisters of the deceased and one or two more witnesses were recorded u/s 164, Code of Criminal Procedure After the said charge-sheet was filed, the present Petitioners moved an application u/s 482, Code of Criminal Procedure with the prayer to quash the order of cognizance against them. After hearing the Petitioners, on 12.9.1995 this Court refused to interfere with the order of cognizance and accordingly that application was disposed of. Thereafter when the case was received on transfer by learned Addl. Sessions Judge, Balasore for trial he heard the parties and framed charge for the offences punishable under Sections 304-B/ 34, 302/34, 498-A/34, I.P.C. and Section 4 of Dowry Prohibition Act, vide the impugned order dated 25.3.1996. That is challenged in this application u/s 482, Code of Criminal Procedure on the ground of non-existence of a prima facie case. 4. Sessions Judge, Balasore for trial he heard the parties and framed charge for the offences punishable under Sections 304-B/ 34, 302/34, 498-A/34, I.P.C. and Section 4 of Dowry Prohibition Act, vide the impugned order dated 25.3.1996. That is challenged in this application u/s 482, Code of Criminal Procedure on the ground of non-existence of a prima facie case. 4. As it appears from the contentions advanced by the Petitioners in their application u/s 482, Code of Criminal Procedure they bank upon the statements of witnesses recorded u/s 161, Code of Criminal Procedure to substantiate their plea of innocence. Law is well settled that charge can be framed against a person if there exists a prima facie case. So far the present case is concerned, the statement of the witnesses u/s 164, Code of Criminal Procedure makes out a prima facie case implicating the Petitioners for the aforesaid alleged offences. Whether or not the statement of the witnesses u/s 164, Code of Criminal Procedure will be found credible as against the statement recorded u/s 161, Code of Criminal Procedure that is a matter for consideration at the time of trial. The said contradictions in the statement cannot be the ground to reject the prosecution case at the threshold by granting an order of discharge inasmuch as an order of discharge u/s 227, Code of Criminal Procedure is permissible only in the absence of sufficient ground for proceeding against the accused, Contradiction of the aforesaid nature cannot be regarded as absence of sufficient ground to frame charge. of course, if such witnesses shall fail to explain the contradiction, accused persons may utilise the same in furtherance of the defence and the plea of innocence. Upon perusal of the statements on record this Court finds existence of a prima facie case for framing of charge. Perhaps for that reason, Petitioner's application u/s 482, Code of Criminal Procedure to quash the cognizance was also turned down. This Court does not find any reason to interfere with the impugned order-and accordingly the Crl. Misc. Case is not admitted and it is rejected on merit. Send back the L.C.R. along with a copy of this order to the Court below immediately with a direction that trial of the case be resumed as expeditiously as possible and it be completed by resorting to day to day trial and by avoiding liberal adjournments.