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Jharkhand High Court · body

2010 DIGILAW 91 (JHR)

Kameshwar Bhuiya v. State of Jharkhand

2010-01-18

D.K.SINHA

body2010
JUDGMENT This Cr. Revision is directed against the order impugned dated 27..6.2008 passed by the Additional Sessions Judge-II Dhanbad in S.T.No. 345 of 2007 by which the petition filed on behalf of the petitioners for their discharge for the alleged offence under sections 376/323/506/34 of the Indian Penal Code was rejected and the petitioners were called upon to stand charge. Prosecution story in short was that while the complainant-informant Rita Devi was staying at her matrimonial home, the petitioner No.1 Kameshwar Bhuiya went there and informed about the serious illness of her mother and also that she was admitted at the Central Hospital Dhanbad, accordingly, she was asked to immediately accompany him, lest she would not see her mother. Relying upon the version of the petitioner No.1 the complainantinformant immediately proceeded with him and arrived at "Putki More" late in the evening where she came across Vijay Lal Petitioner No.3. Both the petitioners Kameshwar Bhuiya and Budhiya Bhuiya asked her to stay in the house of the petitioner No.1 Kameshwar Bhuiya who undertook to take her to her mother in the morning. Relying upon the promise of the petitioners she came to the house of Kameshwar Bhuiya where she met his mother and the latter also narrated about the illness of her mother and that she was admitted in the hospital. The complainant further alleged that while she was sleeping in the night, the petitioner No. 1 Kameshwar Bhuiya committed rape on her with the aid of his mother Radhia Bhuiya and when she came to learn that her mother was quite alright and that she was very much there in her house, she went to her mother and narrated the occurrence. She narrated her woes to the police but when no action could be taken she filed a complaint petition which was referred to the police station under section 156(3) of the Cr.P.C. for institution of a case and pursuant to that Putki (Bhagabandh) P.S.Case No. 88 of 2006 was registered against all the three accused persons for the 2 alleged offence under sections 376/323/506/34 of the Indian Penal Code. After investigation the police submitted charge sheet against all of them. After investigation the police submitted charge sheet against all of them. The learned counsel appearing on behalf of the petitioners assailed the order impugned dated 27.6.2008 passed in S.T.No. 345 of 2007 only on the ground that no criminal liability under section 376 of IPC can be fastened against the petitioner no. 2 Radhia Bhuiya and the petitioner No. 3 Vijay Lal against whom there was no allegation of commission of rape and the learned court erred by observing that offence of rape was attracted against them also. Having regard to the facts and circumstances of the case, I find substance in the argument that the criminal liability of the offence under section 376 of the Indian Penal Code in the given facts and circumstances of the case cannot be fastened upon the petitioners no 2 and 3. The complainant specifically alleged that the petitioner No.2 Radhia Bhuiya abetted the offence by givingfalse information that her mother was ill and admitted to hospital thereby creating a situation for the stay of the complainant in her house and in that manner she assisted her son Kameshwar Bhuiya who committed rape on the complainantinformant Rita Devi and therefore, under section 376 read with Section 109 IPC is attracted under the given situation offence against the petitioner No.2 Radhia Bhuiya who is called upon to stand charge in such offence. I further find in the back drop of the allegation that the accused Vijay Lal had supported the version of the principal accused Bijay Bhuiya that the mother of the complainant was admitted in the hospital and relying upon the version of this petitioner she stayed in the house of Kameshwar Bhuiya, finding no way out where she was ravished, therefore, he can not be exonerated from the criminal liability of abetting the principal accused to commit rape on the complainant. In view of such prima facie finding, without prejudice to the merit of the case I find that primafacie case for the offence under section 376 IPC is attracted exclusively against the principal accused Kameshwar Bhuiya whereas prima facie offence under sections 376/109 of the Indian Penal Code would be relevant against the other two petitioners namely Radhiya Bhuiya and Vijay Lal. With such observation this Criminal revision is allowed calling upon the petitioners to stand charge in the manner indicated above.