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2010 DIGILAW 81 (ORI)

TILLOTAMA BEHERA v. STATE OF ORISSA

2010-02-09

I.MAHANTY

body2010
JUDGMENT : I. Mahanty, J. - In the present application u/s 482 of the Code of Criminal Procedure, the Petitioner Smt. Tillotama Behera has sought to challenge the order dated 7.6.2005 passed by the learned S.D.J.M., Bhadrak in G.R. Case No. 1205 of 2001 taking cognizance against the present Petitioner along with ten Ors. for the alleged offences under Sections 366-A/376/384/313/506/109/34 of the Indian Penal Code. 2. Sri S.K. Sahoo, learned Counsel for the Petitioner states that an F.I.R. was lodged on 10.11.2001 before the Tihidi Police Station by the informant-Puma Chandra Behera alleging therein that one Subash Chandra Behera (brother of the present Petitioner) had kidnapped a minor girl, namely, Gitanjali Behera (daughter of the informant), aged about 13 years on 17.10.2001 while she had been to school. It is further alleged that Subash Chandra Behera kept her at some unknown place and had kept illicit physical relationship with the victim. It appears that Subash Chandra Behera was not present in the village since 17.3.2001 and the villagers apprehended him on 10.11.2004 and produced him before the police. After registering of the case, investigation was taken up and after completion of the investigation, charge-sheet was submitted against Subash Chandra Behera under Sections 366 and 376 I.P.C. where he faced trial before the Court of Sessions, wherein Subash Chandra Behera faced trial in ST. case No. 53/125 of 2003 in the Court of Addl. Sessions Judge, F.T.C. No. 1, Bhadrak and has been convicted. In course of examination, two witnesses were examined and on the basis a writ petition filed by the informant vide W.P.(C) No. 80 of 2004, further investigation was conducted by the I.O. and a supplementary charge-sheet was submitted against 11 accused persons including the present Petitioner under Sections 366-A/376/384/313/506/109/34 I.P.C. Thereafter, the impugned order of cognizance dated 7.6.2005 was passed. 3. Learned counsel for the Petitioner states that prior to taking cognizance. On the basis of supplementary charge-sheet dated 17.5.2005, the victim girl was examined on 20.01.2005 and during such examination on 20.1.2005, she has not alleged any cognizable offence against the Petitioner. 3. Learned counsel for the Petitioner states that prior to taking cognizance. On the basis of supplementary charge-sheet dated 17.5.2005, the victim girl was examined on 20.01.2005 and during such examination on 20.1.2005, she has not alleged any cognizable offence against the Petitioner. She only stated that while Subash Chandra Behera took her one place to Anr., she had stayed in the matrimonial house of the Petitioner (sister of main accused-Subash Chandra Behera) in the village Asura for 2 to 3 days and she has further stated that after the victim returned from Bombay, she had been received by Subash Chandra Behera and Anr. . She had been brought once again to the house of the Petitioner but the Petitioner did not permit the main accused/victim to reside in her house. Learned counsel for the Petitioner further states that the Petitioner is a married lady staying in village Asura with her three sons and three daughters and while there is no allegation of any cognizable offence against her but merely on the allegation that the main accused-Subash Chandra Behera is the younger brother of the Petitioner, she had been entangled in the case. In conclusion, learned Counsel for the Petitioner submitted that even accepting the entire prosecution case, keeping in view the statements of the witnesses recorded u/s 161 Code of Criminal Procedure including the victim and the evidence given by the victim in the sessions trial, no prima facie case is made out against the present Petitioner and as such, continuation of the proceedings against the Petitioner would amount to an abuse of the process of the Court and, therefore, prays that the same may be quashed. 4. The victim girl was examined as P.W.13 in ST. Case No. 193 of 2007. In her evidence, she has stated that she was studying in Class-IX in Talapada Girls High School and at the time of occurrence, she was 13 years old. Subash Behera's house is close to her house and she used to visit the house of Subash Behera who was married and she called the wife of Subash Behera as Nani (sister). It appears that there was exchange of the hot words between the father of Gitanjali (victim) and the main accused-Subash Chandra Behera about two months prior to the date of occurrence and since then Gitanjali had stopped visit to the house of Subash Behera. It appears that there was exchange of the hot words between the father of Gitanjali (victim) and the main accused-Subash Chandra Behera about two months prior to the date of occurrence and since then Gitanjali had stopped visit to the house of Subash Behera. It is further stated that on the second day of Raja, 2001, Gitanjali's parents had gone to their relative in the village Kalha and while Gitanjali was alone in the house, at about 8.00 P.M., she had gone to the village pond located behind her house to wash clothes. At that time, Subash Behera is stated to have entered their bari, pointed a knife and forcibly raped the victim against her will. It appears that two or three months after the date of occurrence, the victim became pregnant as a result thereof and on 17.10.2001 while she was returning from school she met Subash Behera and his friend. It appears that Subash Behera and the co-accused-Sura Behera, assaulted the victim and took her from village Nandapur to Pirhat where she was made remain in the house of one Mr.Jena. In the said house, an old lady gave her some 'cheramuli' (traditional medicine). Thereafter, the victim was taken to the village Mudhasahi in a trekker and kept her in a house of Mr. Jena for one day. It is further alleged that Subash Chandra Behera took the victim to Charampa to a clinic and the doctor gave her an injection that caused abortion. It appears thereafter, Subash Chandra Behera and his friend took the victim to Keonjhar in a motorcycle where she stated to have been remained for about 15 days. Thereafter the victim was taken Ghatagaon Tarini Temple where Subash allegedly forced the victim to marry with one Mahendra Jena and after taking some photographs of the alleged marriage, they remained there in a house closed to Tarini Temple, Ghatagaon. It is further alleged that the main accused took signatures in two stamped papers and two blank papers. One co-accused Subal Behera took the victim to Charampa and took her in his sister's house for three days where Surendra Behera, brother-in-law of Subash Behera and Subash Behera kept sexual intercourse with her against her will for three days. It is further alleged that the main accused took signatures in two stamped papers and two blank papers. One co-accused Subal Behera took the victim to Charampa and took her in his sister's house for three days where Surendra Behera, brother-in-law of Subash Behera and Subash Behera kept sexual intercourse with her against her will for three days. Thereafter, it appears that the victim was taken to Kuakhia and kept in house belonging to one old lady for about 4-5 days where again Subal Behera took the victim to village Talapada and forcibly had kept sexual intercourse with her. Thereafter, one Pradeep Behera, Subal Behera & Balia Behera took the victim to Bhubaneswar in a car where her signature was taken in four blank papers. Thereafter, she was taken to village Khaira for about 20 days where again sexual intercourse by the accused persons said to have been committed and then she was taken to Bhubaneswar where it is alleged that the accused-Subash Behera and Surendra Behera sent the victim to Bombay with one Shanti by train and she remained in Shanti's house for about one month. During this period, Shanti forced her into prostitution and since the victim did not agree, Shantilata took her back to her village. It appears that when the victim returned from Bombay by a train, she got down at the station, where Subash Behera & Badal Behera received her and once again took her to the village Asura in a bus and on such occasion, the sister of Subash (present Petitioner) did not agree to keep her in her house, whereafter the victim was taken to village Amruptur. Again it is alleged that the victim was forcibly raped and Subash Behera thereafter again sent the victim to Bombay with a person of village Pani Bhandar.At Bombay, she worked as a maid servant at various houses and after remaining there for about four years, the victim's father, advocate and police personnel came to Bombay and rescued her. 5. From the aforesaid description of the occurrence, it clearly appears that while the victim has stated in clear graphic terms to be stayed at various places where the victim was taken and occurrence occurred in each place. 5. From the aforesaid description of the occurrence, it clearly appears that while the victim has stated in clear graphic terms to be stayed at various places where the victim was taken and occurrence occurred in each place. But in so far as staying with the present Petitioner is concerned, while she stated that she remained there for 2 to 3 days, she did not state any incident to have taken place during her stay. Apart from the same, when the victim-Gitanjali returned from Bombay, she was once again taken to the Petitioners house when she herself stated that the Petitioner did not agree to keep them in her house. From the narration of events by the victim as noted hereinabove, it is clear therefrom that no particular of any culpable crime occurred in the house of the present Petitioner or during the stay of the victim in the present Petitioner's house for two or three days as alleged. Apart from the above, eight other co-accused persons who had been implicated along with the present Petitioner in the supplementary charge-sheet have all been acquitted. 6. In the case of Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others the Hon'ble Supreme Court held as follows : The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie established the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. 7. 7. Considering the aforesaid facts as well as the judgment of the Hon'ble Supreme Court in so far as the Petitioner is concerned, the proceeding in G.R. Case No. 1205(A) of 2001 arising out of Tihidi P.S. Case No. 178 of 2001 pending before the learned S.D.J.M., Bhadrak is quashed. 8. Accordingly, the CRLMC is allowed.