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2008 DIGILAW 449 (JHR)

Sakila Khatoon v. State Of Jharkhand

2008-04-11

D.K.SINHA

body2008
ORDER D.K. Sinha, J. 1. This Criminal Revision is directed against the order passed by Shri D.K. Singh, Judicial Magistrate, 1st Class, Hazaribagh on 5.2.2005 in Complaint Case No. 1032 of 2004 corresponding to T.R. No. 1156 of 2005, whereby and whereunder, the opposite party No. 2 Lakhendra Thakur was discharged for the alleged offence under Section 376 of the Indian Penal Code under Section 203, Code of Criminal Procedure. 2. Brief fact of the case, as stands narrated in the statement of the petitioner Sakila Khatoon before the Keredari police, was that she was the Chairperson of Mahila Mandal Vikas Manch, Prakhand Keredari. On 16.6.2004 at about 8.00 a.m. she proceeded with the opposite party No. 2 Lakhendra Thakur, Accountant of the said organization, aged about 35 years and boarded the bus. She along with the opposite party No. 2 alighted from the bus at village Kodway and from there she went to village Deshwari with him on foot. In the said village she had to contact a female member, but when failed to meet her, she along with the opposite party No. 2 proceeded towards Patra on foot. It was alleged that when they reached near the Deshwari forest, the opposite party No. 2 Lakhendra Thakur took out a dagger from his possession, threatened her to keep quiet and forcibly committed rape after removing her garments by the side of the bush. She further alleged that opposite party No. 2 threatened to kill her after commission of rape in case of disclosure of the occurrence to any one and that he promised to maintain throughout her life if she would keep mum. Because of such threatening the prosecutrix explained that she could not narrate the occurrence to any one but when she could not control the trauma, she narrated the occurrence to her mother Most. Hafizam Khatoon on 23.6.2004 and pursuant to that she was taken to Keredari police station where her statement was recorded and she put her signature on the statement in presence of her mother Most. Hafizam Khatoon. Hafizam Khatoon on 23.6.2004 and pursuant to that she was taken to Keredari police station where her statement was recorded and she put her signature on the statement in presence of her mother Most. Hafizam Khatoon. On the basis of such statement, Keredari P.S. Case No. 22 of 2004 for the offence under Section 376 of the Indian Penal Code against the opposite party No. 2 was drawn, but after investigation, the Investigating Officer submitted final form exonerating the opposite party No. 2 from the charge under Section 376 of the Indian Penal Code as levelled by the petitioner herein. Pursuant to that, petitioner filed a protest petition before the Chief Judicial Magistrate, Hazaribhag on 29.11.2004, which was treated as Complaint Case No. 1032 of 2004. Inquiry was conducted and witness on behalf of the complainant-petitioner was examined under Section 202 of the Code of Criminal Procedure and the Judicial Magistrate dismissed the complaint petition of the petitioner under Section 203 of the Code of Criminal Procedure. 3. The learned Counsel for the petitioner submitted that the Judicial Magistrate committed serious illegality by dismissing the protest petition-cum- complaint of the petitioner in spite of strong prima facie case against the O.P. Lakhendra Thakur for the commission of an offence under Section 376 of the Indian Penal Code as presented by the petitioner in her statement recorded under Section 164 of the Code of Criminal Procedure corroborated by the statement of her mother Most. Hafizam Khatoon in course of inquiry under Section 202 of the Code of Criminal Procedure. The prosecutrix in her statement under Section 164 of the Code of Criminal Procedure, categorically supported her previous statement before the police and learned Judicial Magistrate grossly erred by not appreciating the materials on the record as also the prima facie case against the opposite party No. 2. 4. Finally, it has been submitted that the complaint petition of the petitioner was dismissed as also on the basis of injury report as no injury was found in the private parts of the prosecutrix and similarly, no sign of rape was found on her person. The learned Counsel exhorted that the Judicial Magistrate erroneously observed that delay of eight days in lodging the FIR was not explained and the alleged rape could not be supported in the injury report. 5. The learned Counsel exhorted that the Judicial Magistrate erroneously observed that delay of eight days in lodging the FIR was not explained and the alleged rape could not be supported in the injury report. 5. On the other hand counsel for the opposite party No. 2 strongly opposed the contention aforesaid, and submitted that the petitioner, at the first instance, had instituted police case after eight days of inordinate delay for the alleged offence under Section 376 of the Indian Penal Code against the opposite party No. 2 and after a detailed investigation allegation against the opposite party No. 2 could not be substantiated and final form was submitted under Section 173 of the Code of Criminal Procedure exonerating him from the criminal liability. On the protest petition against the final form of the police, inquiry was conducted but as no prima facie case against the opposite party No. 2 was made out, learned Judicial Magistrate rightly dismissed the complaint petition by a reasoned order under Section 203 of the Code of Criminal Procedure and therefore, the impugned order does not call for interference, the learned Counsel for the O.P. submits. 6. Having regard to the rival contentions of the parties, 1 reiterate the settled law that what is required to be considered after inquiry under Section 202 of the Code of Criminal Procedure is whether there appears prima facie evidence of a criminal offence to proceed against the accused. No other extraneous consideration should weigh or the probable undesirable result of the proceeding of "no sufficient ground" is maintainable. It is further settled that sufficient ground did not mean sufficient grounds for conviction, but there must be prima facie materials on the record and not only suspicion to put the accused upon trial and the complaint should not be dismissed on the result of former police investigation. In the instant case, the Judicial Magistrate dismissed the complaint on two counts the delay in lodging the FIR and the medical evidence which did not support the allegation of rape. 7. I am of the firm view that these grounds are not sufficient for dismissal of a complaint under Section 203 of the Code of Criminal Procedure. In the instant case, the Judicial Magistrate dismissed the complaint on two counts the delay in lodging the FIR and the medical evidence which did not support the allegation of rape. 7. I am of the firm view that these grounds are not sufficient for dismissal of a complaint under Section 203 of the Code of Criminal Procedure. Learned Judicial Magistrate grossly erred by ignoring the statement of the complainant- petitioner recorded under Section 164 of the Code of Criminal Procedure who has supported her earlier version as also the statement of her mother during enquiry under Section 202, Code of Criminal Procedure which is corroborative in nature supporting the allegation of rape against O.P. No. 2. The Judicial Magistrate under the facts and circumstances was required to be sensitive and judicious while recording the final order under Section 202 of the Code of Criminal Procedure. 8. I find that neither the doctor nor the medical examination report of the victim-petitioner was produced in course of enquiry under Section 202 of the Code of Criminal Procedure but the learned Judicial Magistrate upon erroneous consideration without application of judicial mind and appreciation of the prima facie materials on the record dismissed the complaint petition and such dismissal order cannot sustain. 9. Accordingly, the order impugned dated 5.2.2005 passed by Sri D.K. Singh, Judicial Magistrate, 1st Class, Hazaribagh in Complaint Case No. 1032 of 2004 corresponding to T.R. No. 1156 of 2005 under Section 203 of the Code of Criminal Procedure is set aside and the Complaint Case No. 1032 of 2004 is restored with the direction to the Court concerned to proceed in accordance with law and under Section 209, Code of Criminal Procedure. 10. This Criminal Revision is allowed.