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2008 DIGILAW 1323 (JHR)

Pronob Dey v. State of Jharkhand

2008-11-24

D.K.SINHA

body2008
JUDGMENT : Petitioners have invoked the extra-ordinary writ jurisdiction under Article 226 of the Constitution of India for directions commanding upon the respondents to arrange Test Identification Parade of the petitioners in Jagarnathpur P.S. Case No.105 of 2007 which was instituted for the alleged offence under Sections 376/34 of the Indian Penal Code or in alternative to issue appropriate directions in the interest of justice to the petitioners. 2. Prosecution story, relevant to the facts of case, is that the informant Suman Kumari respondent No.2 herein in her statement, recorded in the night of 8.6.2007 at about 1:30 a.m. before the police officer, narrated that on 7.6.2007 at about 12:30 p.m. she had come to her brother’s house situated in Hatia Railway Colony, B-Type near Kali Temple with her younger sister Laxmi Kumari. At about 10:30 p.m. on the same day she and her sister Laxmi Kumari had come to Hatia Railway Station with Butru Munda and Banti Kachchap and while returning, they were held up by four named and two unknown accused persons who appeared suddenly before them and started assaulting Butru and Banti. When she intervened as to why they were assaulting them, the culprits then caught hold both the informant and her sister and began to drag them towards the field nevertheless on the way her sister Laxmi Kumari escaped. All the accused persons then committed gang rape on her after forcibly removing her garments. Consequent to which she became unconscious and only on the alarm raised by her sister Laxmi Kumari witnesses from the Colony arrived at the scene but the accused escaped. Alleged occurrence took place at about 11:30 p.m. The police on her statement registered Jagarnathpur P.S. Case No.105 of 2007 on 8.6.2007 at about 5:00 a.m. against four named accused persons and two unknown. 3. Learned counsel Mr. Rajesh Kumar submitted that the petitioners were neither named in the F.I.R. nor any material appeared in course of investigation of the case. The statement of the prosecutrix was recorded under Section 164 of the Code of Criminal Procedure wherein though she admitted having subjected to gang rape by six boys but she did not implicate the petitioners in any manner. 4. Counter-affidavit has been filed on behalf of the respondent-State duly deposed by D.S.P., Hatia. The statement of the prosecutrix was recorded under Section 164 of the Code of Criminal Procedure wherein though she admitted having subjected to gang rape by six boys but she did not implicate the petitioners in any manner. 4. Counter-affidavit has been filed on behalf of the respondent-State duly deposed by D.S.P., Hatia. The deponent in his statement, as contained in paragraph-7, has clearly stated that the Investigating Officer after investigation of the case submitted chargesheet against Parvesh Lohara and Mangru @ Manoj Kachchap for the alleged offence under Sections 376/34 of the Indian Penal Code pending investigation against Sunil Dey and Konak Dey and that arrest warrants have been issued against them. Yet it was nowhere mentioned in the counter-affidavit that any material was found against the petitioners and that the investigation pending under Section 173(8) of the Code of Criminal Procedure, was directed only against Sunil Dey and Konak Dey. 5. By filing supplementary affidavit the petitioners contended that some of the accused against whom chargesheet was submitted were put on trial after framing of charge in Sessions Case No.30 of 2008 wherein the prosecutrix Suman Kumari was produced and examined as P.W.-1, Xerox copy of which has been annexed (Annexure-4), but she neither named nor claimed to identify the two strangers and even she declined to identify the accused in the dock who were chargesheeted in the instant case for the alleged offence of gang rape. 6. The learned counsel Mr. Rajesh Kumar pointed out with reference to interlocutory application (I.A. No.2061 of 2008) in which the petitioners have sought certain amendment in paragraph-1 of the main writ petition in the following manner: “That this writ application is being filed for quashing of First Information Report in Jagarnathpur P.S. Case No.105 of 2007 dated 8.5.2007 (G.R. Case No.2095 of 2007) for an offence alleged under Section 376/34 of the Indian Penal code as the petitioners are totally innocent and as their names have not come in the First Information Report as well as 164 Cr.P.C. statement of the so called victim girl.” 7. Mr. Praveen Kumar, J.C. to G.P.-II fairly conceded that under the given situation appropriate order may be passed. 8. Mr. Praveen Kumar, J.C. to G.P.-II fairly conceded that under the given situation appropriate order may be passed. 8. Having regard to the facts and circumstances of the case, I find that though the offence of gang rape was alleged against four named accused persons and two strangers on the statement of the prosecutrix Suman Kumari but at different stages in her statement under Sections 161, 164 of the Code of Criminal Procedure and finally her statement before the Trial Court she did not implicate the petitioners in any manner and therefore, according to the apprehension of the petitioners expressed in the writ petition that they are being terrorized by the Investigating Officer pending investigation under Section 173(8) of the Code of Criminal Procedure, I do not find any material to implicate the petitioners and therefore, the petition needs consideration. 9. This writ petition is accordingly allowed and under the given circumstances, I find it appropriate to observe that no offence is made out against the petitioners much less the offence alleged in Jagarnathpur P.S. Case No.105 of 2007, corresponding to G.R. Case No.2095 of 2007 pending before the Chief Judicial Magistrate, Ranchi and needless to say that no coercive step accordingly, is required to be taken against the petitioners in the instant case. 10. Consequently, I.A. No.2061 of 2008 also stands disposed of.