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2000 DIGILAW 69 (ORI)

Debaki Naik v. State of Orissa

2000-02-04

R.K.PATRA

body2000
JUDGMENT R. K. PATRA, J. — Both the cases being analogous were heard together and are disposed of by this common order. 2. In Criminal Revision No. 445 of 1993 the petitioner Debaki Naik seeks to challenge the validity of the order dated 25.5.1993 of the Sub-divisional Judicial Magistrate, Sundargarh in G.R.Case No. 268 of 1992 taking cognizance of the offence punishable under Sec. 308/34 of the Indian Penal Code (hereinaf¬ter referred to as ‘the IPC’). Criminal Misc. Case No. 1325 of 1994 has been filed under Sec. 482 of the Code of Criminal Proce¬dure by Mitrabhanu Naik, husband of Debaki Naik, (petitioner in Crl. Revision No. 445 of 1993) challenging the self-same order of the learned Magistrate. 3. FACTS : Petitioner-Debaki Naik filed an FIR before the Inspector-in-charge, Sadar P.S., Sundargarh on 6.6.1992 at 10.30 p.m. which was registered as Sundargarh P.S.Case No. 49(3) of 1992. Her allega¬tion was that on 6.6.1992 at about 9 p.m. Rabiratna Naik (opp. party No. 2 in Crl. Revision No. 445/93) committed criminal house trespass into her house during the temporary absence of her husband and when he attempted to commit rape on her, she challenged him and caused injury on his person by a knife in order to save herself from being molested. The police took up investigation and filed charge-sheet against Rabiratna Naik under Secs. 457, 376/511, IPC in the Court of the SDJM, Sundargarh in G.R.Case No. 254 of 1992. As the offence is triable exclusively by the Court of Session, the learned Magistrate committed the case to the Court of learned Sessions Judge, Sundargarh, who in turn transferred the records to the Court of the Assistant Ses¬sions Judge, Sundargarh on whose file it has been registered as S.T.Case No. 59/7/53 of 1993-97. FIR No. 51/5 of 1992 under Sec. 324, IPC was filed by the ASI Brundaban Naik on 10.6.1992 at 8.30 a.m. before the Inspector-in-charge, Sadar P.S. alleging that during the course of investigation in P.S.Case No. 49 dated 6.6.1992 under Secs. 457, 376/511, IPC it came to light that on the night of occur¬rence (6.6.1992 at about 9 p.m.) while Debaki Naik was sleeping in her house with her minor son, Rabiratna Naik entered inside her bed room for immoral purpose to which the former (Debaki Naik) protested and assaulted Rabiratna Naik by means of knife causing multiple injuries on his person. In the meantime Mitrab¬hanu Naik (husband of Debaki) arrived and helped her. Rabiratna Naik came out of the house after sustaining bleeding injuries on his person and got himself admitted in district headquarters hospital, Sundargarh for treatment. The Medical Officer on exami¬nation found 16 multiple injuries on his person. Debaki Naik alone could not have inflicted such large number injuries on Rabiratna Naik and the complicity of her husband Mitrabhanu Naik in inflicting injuries could not be ruled out. The police after investigation submitted final report on 14.5.1993 in the Court of SDJM, Sundargarh (vide G.R.Case No. 268 of 1992) stating that although it is a case under Sec. 307/34, IPC against Debaki Naik and her husband Mitrabhanu Naik, the acts done by them come within the purview of Section 79, IPC. The injured-Rabiratna Naik filed a protest petition under Sec. 173, Cr.P.C. on 19.5.1993 before the SDJM contending that the final report submitted by the police saying that it was a ‘mistake of fact’ was not correct and prayed for a direction for further investigation. The learned Magistrate after hearing the parties has passed the impugned order holding as follows : “(i) There is a strong prima facie case of attempt to commit culpable homicide not amounting to murder punishable under Sec. 308 read with Section 34, IPC against both the accused persons namely Mitrabhanu Naik and Debaki. (ii) Whether the accused persons are protected under Sec. 79, IPC or not is a matter to be considered by evidence during trial and not now i.e. at this stage of the case.” The learned Magistrate further observed that there is no need to direct re-investigation as there is ample evidence on record against both the accused persons Debaki Naik and Mitrabhanu Naik to proceed against them under Sec. 308/34, IPC. He has according¬ly taken cognizance of the offence punishable under Sec. 308/34, IPC and issued summons to both of them. 4. The limited question that arises for consideration is whether the learned Magistrate was justified in taking cognizance of the offence punishable under Sec. 308/34, IPC. On a close and careful perusal of the materials available on record, it would appear that Sadar P.S. Case Nos. 40 of 1992 and 51 of 1992 arose out of one incident which occurred on 6.6.1992 in the house of Debaki Naik. On a close and careful perusal of the materials available on record, it would appear that Sadar P.S. Case Nos. 40 of 1992 and 51 of 1992 arose out of one incident which occurred on 6.6.1992 in the house of Debaki Naik. In the former case which was registered on the basis of the FIR lodged by her, the gravamen of the allegation is that Rabiratna Naik committed criminal house trespass into her house and when he tried to commit rape on her, in order to save herself from being molested, she assaulted him by the knife. In the second case, i.e. Sadar P.S. Case No. 51 of 1992 investigation proceeded to find out whether the injuries sustained by Rabiratna Naik were inflicted only by Debaki Naik or by herself and her husband, and in the circumstances, she as well as her husband could get protection under any of the provisions contained in Chapter IV of IPC. It is relevant to state here that as a matter of fact the Investigating Officer in the case diary of Sadar P.S. Case No. 51 of 1992 has remarked that that case is the counter case of Sadar P.S.Case No. 49 of 1992. For the aforesaid reasons, the learned Magistrate rightly on the facts and circumstances did not accept the final report and has taken cognizance of the offence under Sec. 308/34, IPC and directed issuance of summons to Debaki Naik and Mitrabhanu Naik. I am, therefore, not inclined to interfere with the order dated 25.5.1993 passed in G.R.Case No. 268 of 1992. 5. The matter, however, does not end here. The learned Assistant Sessions Judge in S.T.No. 59/7/53 of 1993-97 (arising out of Sadar P.S.Case No. 49 of 1992) after framing charge against Rabiratna Naik under Secs. 457, 376/511, IPC proceeded with the trial and in the meantime the prosecution has examined its last witness (P.W. 15) on 1.10.1996 and closed its evidence. The case was posted to 30.10.1996 for recording the statement of the accused. It appears that there is a direction from this Court in order dated 15.10.1996 passed in Misc. Case No. 1287 of 1996 (arising out of Crl. Misc. Case No. 3202 of 1996) to the learned Assistant Sessions Judge to postpone the pronouncement of judgment in the sessions trial. It appears that there is a direction from this Court in order dated 15.10.1996 passed in Misc. Case No. 1287 of 1996 (arising out of Crl. Misc. Case No. 3202 of 1996) to the learned Assistant Sessions Judge to postpone the pronouncement of judgment in the sessions trial. On 30.10.1996 the learned Assistant Sessions Judge, as already fixed by him, recorded the statement of the accused-Rabiratna Naik under Section 313, Cr.P.C. stating that the case has not yet been fixed for judgment was only fixed for recording the statement of the accused. He has further held that it cannot be said at this stage that the ac¬cused has not committed the alleged offence and, accordingly, called upon him to enter into his defence and to adduce evidence. On 13.11.1996 one Gahendra Patel was examined as D.W. 1 and defence was closed on the same day. The learned Assistant Sessions Judge did not hear the argument because of this Court’s direction to postpone the pronouncement of judgment, as indicated above. 6. In view of my finding that both the cases arose out of the same incident, in the interest of justice, they should be disposed of by one Court. I would, therefore, direct the learned SDJM, Sundargarh to commit G.R.Case No. 268 of 1992 to the Court of the learned Assistant Sessions Judge, Sundargarh for trial who will dispose of both the cases according to law one after anoth¬er. The main case (Sessions Trial No. 59/7/53 of 1993-97) has practically reached the final stage. Although in the aforesaid case, the defence has closed its case, if prayer is made to adduce any evidence, the same may be granted. With the aforesaid observation and direction, the criminal misc. case as well as the revision is disposed of. With the disposal of both the cases, the interim orders passed therein stand automatically vacated. L.C.Rs. be sent back forthwith to the respective Courts. Revision and Misc. Case disposed of.