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2004 DIGILAW 983 (JHR)

RAJENDRA YADAV v. STATE OF JHARKHAND

2004-09-22

H.S.PRASAD

body2004
Judgment : ( 1 ) THIS application under Section 482 of the Code of Criminal Procedure has been filed for quashing the impugned order dated 28-1-2003 passed in Criminal revision No. 153 of 2002 whereby the learned Sessions Judge, Deoghar set aside the order dated 3-8-2002 by which learned chief Judicial Magistrate had taken cognizance against the petitioners under Sections 323, 354, 448 and 504, IPC and directed further inquiry and also for quashing the subsequent order dated 21-6-2003 passed in P. C. R. Case No. 366 of 2002 whereby and whereunder the learned Chief Judicial Magistrate, Deoghar took cognizance against the petitioners under Sections 323, 354, 448 and 504, IPC. ( 2 ) PROSECUTION case in brief is that the complainant-opposite party No. 2 filed a complaint case being P. C. R. Case No. 366/ 2002 alleging therein that the complainant-opposite party No. 2 resides separate from her in-laws in old house with her husband. The husband of the complainant-opposite party had gone to field to sow paddy seedlings and at about 9 A. M. on 17-6-2002 when her husband was out of field after seedlings work, the petitioners-accused came at the house of the complainant and began to talk with the complainant in most filthy languages and on protest by the complainant-opposite party not to use such language then accused persons caught her and threw her on the ground and petitioner rajendra Yadav removed the Sari and Saya of the complainant-opposite party and committed rape on her. She protested but in vain because petitioner Janardan Yadav has put towel on the mouth of the complainant-opposite party, so she could not raise alarm. After commission of rape by Rajendra Yadav, janardan Yadav also committed rape on her. Petitioner-accused showed pistol and gave threatening of dire consequences. In the meantime Purbi Devi came at the house of the complainant and saw the occurrence and on hulla witnesses reached there and saw the petitioners-accused running away from that place. Thereafter the complainant-opposite party and witnesses went to the house of accused Bhagloo Yadav and narrated the incidence to the accused Bhagloo Yadav, who is the father of accused Janardan Yadav but he too abused the complainant-opposite party and witnesses. In the meantime petitioner Mohan Thakur came there and assaulted the complainant-opposite party with slaps and threatened her. Thereafter the complainant-opposite party and witnesses went to the house of accused Bhagloo Yadav and narrated the incidence to the accused Bhagloo Yadav, who is the father of accused Janardan Yadav but he too abused the complainant-opposite party and witnesses. In the meantime petitioner Mohan Thakur came there and assaulted the complainant-opposite party with slaps and threatened her. The complainant-opposite partly went to Mohanpur P. S. on 17-6-2002 at 2 P. M. to inform the police and complainant narrated the occurrence to Officer Incharge, who assured to institute a case against the accused-petitioners. Thereafter she again went to Mohanpur P. S. on 20-6-2002 to find out the exact position of the case but no case had been instituted by the police and, therefore, she has filed this complaint case. ( 3 ) LEARNED counsel for the petitioners submitted that a palpably false case has been instituted against the petitioners. According to the learned counsel for the petitioners, it cannot be expected that in broad daylight a woman in a village would be raped and she would not raise any alarm and even when her husband was out and persons residing in the nearby area must have heard the noise. Had there been any such occurrence then she would have raised alarm. It is laughable to say that after the accused persons were talking to her in the most filthy language and immediately thereafter they committed rape and when they were armed with pistol, they did not exhibit the arm at the first instance to frighten her but at the time of leaving the place one of them showed revolver to frighten her. It was also pointed out that she and her husband went to police station and officer on duty assured her to take action against the responsible persons but she nowhere alleges that Darogaji sent her to doctor for medical examination and complainant is silent on this point. It is enough to come to a finding that allegation is false because when she went to P. S. and stated about rape on her then officer on duty would have definitely sent her to hospital for examination and when this was not done it means that she had not actually gone to the P. S. and she did not like to be examined by any police officer or so because falsity of the matter will come to light. It was also pointed out that two persons are alleged to have committed rape on her and out of two persons one is said to have assaulted the complainant-opposite party with fists and slaps. It was also pointed out that the CJM has already taken cognizance under Sections 323, 448. 354 and 504 of the Indian Penal code and after perusing the evidence on record there was no material before the Revisional Court to direct further enquiry in the matter and further that when the actual victim was examined and whose statement was supported by other witnesses examined under Section 202 Cr. P. C. , the learned CJM found the case to be a case under Section 354, IPC and not under Section 376, IPC and on further enquiry two more witnesses were examined, but they were definitely not the eye witnesses. Hence there was no further material against the petitioners for the cognizance to be taken under Section 376, IPC instead of 354, IPC, although there is direct allegation of rape against two persons. When after examination of so many witnesses, the learned CJM took cognizance under Sections 323, 448, 354, IPC and not under Section 376, IPC then learned Court of revision should not have interfered with the order of the CJM and should not have gone merely on the statement of complainant-OP in the complaint petition. ( 4 ) ON the other hand, learned counsel for the complainant-opposite party No. 2 submitted that there is no illegality or irregularity in the order passed by the learned sessions Judge in the revision application and the learned Court below has rightly taken cognizance under Section 376, IPC instead of Section 354, IPC. The learned counsel further pointed out that there was direct allegation against the petitioners and the learned Court below had committed an error by not taking cognizance under Section 376, IPC and that mistake has been rectified by the order passed in revision application and cognizance under Section 376, IPC besides other sections has rightly been taken. ( 5 ) FROM perusal of materials available on record, it appears that opposite party No. 2 had earlier filed a complaint before the learned CJM and learned CJM, after recording entire evidence on SA and after holding enquiry under Section 202 Cr. ( 5 ) FROM perusal of materials available on record, it appears that opposite party No. 2 had earlier filed a complaint before the learned CJM and learned CJM, after recording entire evidence on SA and after holding enquiry under Section 202 Cr. P. C. and examining as many as seven witnesses, took cognizance under Sections 323, 448, 354 and 504, IPC and thereafter complainant-opposite party filed a Cr. Revision No. 153/ 2002 and learned Sessions Judge issued notice to the other side but in spite of service of notice they did not appear and after hearing the learned counsel for the complainant-opposite party and P. P. Incharge the learned Sessions Judge passed an order directing the learned Court below to hold further enquiry and in pursuance of that order learned Court of CJM examined two more witnesses and took cognizance under sections 323, 448, 376, 504, IPC. In this connection, it will appear that complainant-opposite party was the victim lady and she had made her statement on SA before the learned Court of CJM and as many as seven witnesses were examined and after consideration of all the statements of the witnesses and of complainant-opposite party the learned CJM have taken cognizance under sections 323, 354, 448 and 504, IPC but not under Section 376, IPC although from very perusal of complaint petition it will appear that there is direct allegation against two of the petitioners for commission of rape on complainant-opposite party. But at the revisional stage the learned Sessions Judge had no other material than what was before the learned CJM and the learned CJM did not find out a case under Section 376, IPC. But in terms of order passed in revision directing the CJM to hold further enquiry and in pursuance of that order the learned CJM examined two more witnesses, but they were admittedly not the eye witnesses, and, therefore, on the basis of evidence of two more witnesses taking cognizance under Section 376, IPC is not proper. From the complaint petition it appears that there is direct allegation against two of the petitioners still the order passed in Cr. From the complaint petition it appears that there is direct allegation against two of the petitioners still the order passed in Cr. Revision 153/2002 is not sustainable because there was yet another stage before the learned CJM while holding trial under the Sections, in which learned CJM for the first time has taken cog-nizance under Section 323, IPC and when evidence to that effect comes on record that in fact rape has been committed then there was a choice before the learned Court of CJM or Judicial Magistrate to commit the case to the Court of Session. ( 6 ) HENCE in the facts and circumstances of the case, the order dated 28-1-2003 passed in Cr. Revision No. 153/2002 is hereby quashed and consequently the cognizance taken on the basis of the order passed by the learned Chief Judicial Magistrate under Sections 323, 448, 376 and 504, ipc by order dated 21-6-2003 is also quashed and order dated 3-8-2002 by which cognizance was taken under Sections 323, 448, 354 and 504, IPC, is hereby restored. As a result of quashing of order dated 21-6-2003 the cognizance taken on 21-6-2003 on the basis of order passed on 28-1-2003 in Criminal Revision No. 153 of 2002 stood set aside and consequently trial of the case will proceed on the basis of the order of cognizance taken under Sections 323, 448, 354 and 504, IPC and in course of recording of evidence if it is found that the case is under section 376, IPC is made out, then learned trial Court will commit the case to the Court of Session under Section 323 Cr. P. C. in accordance with law. With the aforesaid observation and direction, this quashing application is disposed of. Ordered accordingly. --- *** --- .