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2008 DIGILAW 150 (CAL)

Jyotsna Khatoon v. Sonali Khatoon

2008-02-01

BISWANATH SOMADDER

body2008
Judgment :- (1.) HEARD the learned Advocate appearing on behalf of the petitioners. (2.) NONE appears on behalf of the complainant/opposite party when the matter is called. The learned Advocate for the petitioner is directed to file an affidavit of service before this Court with regard to notice given in terms of this Courts earlier order dated 17/5/2007, by next Tuesday i. e. 5th February, 2008. (3.) THIS is an adjudication under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973. In the instant petition, the petitioners herein prays for quashing of the proceedings initiated upon a complaint made by the complainant/opposite party herein, being C. R. No. 57 of 2001, under sections 376/366/323/109 of the Indian Penal Code, pending before the learned judicial Magistrate, Mekhligunj, Cooch Behar. (4.) A xerox copy of the original complaint has been annexed to the instant petition. The same being in Bengali, the learned Advocate appearing on behalf of the petitioner has, however, produced an official English translation, which may be kept on record. (5.) FROM the said complaint dated 2nd August, 2001, made before the court of the learned Magistrate. It appears that the date and time of occurrence of the incident complained was 25th June, 2001 at 8 p. m. The complainant, sonali Khatoon has stated in the said complaint that she was a little educated village girl. The accused persons were the neighbours of the complainant. The accused No. 1, Tahiruddin, being the principal accused, and the complainant, appears to have known each other. This appears from the complaint itself. (6.) ON 25th June, 2001 at 8 p. m. , the principal accused being accused no. 1, came for a visit to the complainants house. In the complaint it has been stated that the complainant went to relieve herself at the western side of the house and upon coming to know of this, the accused No. 1 went to that side. The complainant has thereafter stated in her complaint that the accused No. 1 went there and forcibly caught hold of the complainant in the jute field and handled her breasts and throwing the complainant down on the ground, he outraged her modesty. When the complainant tried to shout, the accused No. 1 threatened to throttle and kill her. (7.) SHE goes on to state that just two minutes after being raped, the accused Md. Mostafa, Md. When the complainant tried to shout, the accused No. 1 threatened to throttle and kill her. (7.) SHE goes on to state that just two minutes after being raped, the accused Md. Mostafa, Md. Shahjahan and Md. Bakul arrived at the spot and the three accused gave a proposal to the complainant about getting her engaged with the principal accused at his house on that very day itself. After that, the three accused persons together with the principal accused, took the complainant to the house of the principal accused, Tahiruddin. (8.) AFTER the news of the incident spread amongst the neighbours, the complainant narrated all the incidents to the neighbours witnesses presence. In the middle of all this the principal accused ran away from his house. (9.) ON the following day i. e. on 26th June, 2001, the complainants father submitted a written statement to the Haldibari Police Station regarding the incident and the informant took the complainant to Haldibari Police Station to give her statement and she narrated the entire incident at Haldibari Police station. From the complaint, it appears that the complainant has stated that in order to save the principal accused No. 1 from a rape case, other accused appeared before a shalish that when the principal accused No. 1 returned home he would be married to the complainant and a shalishnama was recorded to the effect on a stamp paper of Rs. 10/-on 27/6/2001. The complainants father and Sahajuddin signed on it and most of the person from the boys side signed on it as witnesses. The case was kept in abeyance by informing the police station about the shalish. (10.) IN the written complaint, it has been stated that according to the provisions of the shalish the complainant was kept in the house of the principal accused No. 1. After ten days had elapsed from the date of the incident, the other accused persons, namely Manju Khatoon, Matiful Khatoon, Rahima khatoon and Jyotsna Khatoon, began torturing the complainant in many ways by abusing the complainant using unmentionable swear-words and by slapping and hitting her at random intervals. (11.) ACCORDING to the complainant, the purpose of all this was to see that the complainant was unable to stay in the house of the accused No. 1. (11.) ACCORDING to the complainant, the purpose of all this was to see that the complainant was unable to stay in the house of the accused No. 1. (12.) IN the complainant, it has also been stated by the complainant that while she was living in the house of the principal accused No.1 in terms of the shalish, she used to be made to sleep alone in the southern room of the house and while she slept alone, the accused Md. Mostafa, Md. Bakui and md. Shahjahan even tried to rape her in the darkness of the night. (13.) IT further appears from the complainant that the accused, nazimuddin, Md. Musharraf, Md. Ahuyar and Md. Shahjuddin got the complainants father to give one bigha of land to the family of the principal accused No. 1 as dowry on the pretext that the complainant shall married to the accused No. 1 and the same was still in the possession of the family of the principal accused No. 1 at the time of complainant. (14.) THE complainant has also stated that in order to deprive her and her father of their right to file a case, the accused persons took the complainants father, in a planned manner, to the house of the principal accused No. 1 on 11th July, 2001. The accused Md. Shahjuddin, md. Ahuyar, Md. Musharraf, and Md. Nazimuddin took a written and signed statement from the complainants father in the presence of people from the side of the accused wherein it was written that the complainants father was taking away the complainant and that he would not file a complaint against the accused etc. and handed the complainant to her father. (15.) IN the complaint it has also been stated that when the complainant was staying in the house of the principal accused No. 1, no one from her house could go to that house. (16.) LASTLY, it has been stated in the complaint that when the complainants father again went to the police station, the officer-in-charge of the police station told him that he had wanted to start the case much earlier, but the complainants father had said that the boy and girl would get married and after so many days statements could not be taken. The complainant, thus, had to come to Court, on seeing no other way, and the delay in filing the case was due to the instigation of the accused. (17.) I have referred to the written complaint made before the learned judicial Magistrates Court on 2nd August, 2001. In detail, in order to get clear picture of the sequence of events, as has been narrated by the complainant in her written complaint. (18.) FROM a bare perusal of the said written complaint and upon considering the facts of the case as enumerated above, I have not been able to understand as to why, even on a prima facie basis, all the accused persons, save and except, the principal accused No. 1, being Tahiruddin, son of Md. Kazimuddin, could be charged under Sections 376 and 366 of the Indian Penal code. It is patently clear from a plain reading of the complaint that the principal accused No.1, on the date of the incident i.e. 25th June, 2001 knew the complainant and vice versa. So far as involvement of the principal accused no. 1 is concerned, I am unable to express any opinion at this stage as to his complicity in the matter which shall be decided on trial. However, so far as the other accused persons is concerned, being the petitioners in the instant application, I have no hesitation to hold that on the basis of the written complaint made by the complainant/opposite party before the learned Judicial Magistrate, mekhligunj, Cooch Behar, no case has been made out under Section 376/366 of the Indian Penal Code as against them. (19.) IN the circumstances, the complaint case, being C.R. 57 of 2001, as against the petitioners herein, stands quashed. The complaint case shall now proceed only against the principal accused No. 1, Tahiruddin, son of Md. Kazimuddin. (20.) THE criminal revisional application stands allowed to the extent as indicated above.