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2009 DIGILAW 1427 (PAT)

Saraswati Devi v. State Of Bihar

2009-11-13

MANDHATA SINGH

body2009
JUDGEMENT MANDHATA SINGH, J. 1. Heard Both the parties. 2. The Revision application is filed against the order dated 28.11.2001 passed by the Sub-Divisional Judicial Magistrate, Sadar, Motihari in Complaint Case No. 269 of 2001. 3. One Pinki Kumari, daughter of Mahendra Singh was killed in between the night of 5/6.5.2000. This complaint is filed making accusation against these petitioners with a further allegation that a false Police Case was instituted also investigated with wrong conclusion. Villagers as well as Opposite Party No. 2 placed the real fact before the I.O. to the effect that complainant and her daughter deceased were working in the house of the petitioner, Sonu Singh. Deceased became pregnant and abortion was attempted on behalf of the petitioner, Sonu Singh and others. In that course, she was killed after pressing her neck and after her death, dead body was kept behind the bathan of complainant. The Doctor found that the deceased was carrying four months pregnancy and four inch wooden stub was found in the private part of the deceased. Petitioner no. 1, who is said the informant of Tirkaulia P.S. Case No. 99 of 2000. 4. In course of enquiry, witnesses examined and postmortem report was called for and its attested copy was kept on record. After hearing the complaint, cognizance has been taken in the case. 5. In this regard, learned counsel for the appellants referred several Judgments passed by the Honble Supreme Court and also by this Court i.e., 1963 S.C. 1430, 1992 S.C. 604 and 1988 P.LJ.R. 216. 6. What the principle is decided by their lordships in the decision is not doubted on behaif of the opposite party and myself is also convinced that cognizance can be taken basing the material collected in course of enquiry only. Two of the documents for which it is said that they were beyond the scope of enquiry specifically postmortem report and another supervision report of Trikaulia P.S. Case No. 99 of 2000. After going through the Complaint petition itself and materials available on the record, it is clear that postmortem conducted on dead body of the deceased was relied upon in the complaint petition. The same was called for from Tirkaulia P.S. Case No. 99 of 2000. Thereafter, its attested copy is kept on the record. So, it cannot be said that this postmortem report is not part of the record. The same was called for from Tirkaulia P.S. Case No. 99 of 2000. Thereafter, its attested copy is kept on the record. So, it cannot be said that this postmortem report is not part of the record. Moreover, killing of the deceased is not doubted. None of the parties making any submission that death was natural one. 7. Now. the observation of the learned S.D.J.M. on the point of supervision note of T.P.S. Case No. 99 of 2000 is relevant only and that is to the effect "perused the supervision note of that case. In that supervision note, I do not find any concrete supporting evidence to disbelieve the probability of the instant case". This evidence cannot be taken in positive side. It is likely to be taken into consideration for cross-examination of a witness for which deciding a point only examination-in-chief would have been taken into consideration and in that course, if some observation is made that in course of cross-examination also nothing has appeared to discredit the statement made by the witness. So, it cannot be said in any case that observation of supervision note was taken for corroborating the other materials available on record as there is clear observation in the impugned order that altogether five witnesses have been examined during enquiry. All have supported the fact alleged in the complaint petition. 8. Thereafter, there is mention about direction made by the Additional Sessions Judge-IInd, Motihari, which was made in Cr. Revision no. 480/1984 of 2000/2000. Really, once the complaint petition was dismissed under Section 203 that order was challenged in Revision before Sessions Judge and after transfer of the revision, material was decided by the Additional Sessions Judge-lind passed in Cr. Revision No. 480/84 of 2000/2000. It was mandatory for the learned S.D.J.M. to follow the direction made in the revision which has not been challenged anywhere. 9. Thus, I find no illegality committed by the iearned S.D.J.M., Motihari while passing the impugned order. 10. Accordingly, the revision application is dismissed.