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2012 DIGILAW 495 (ORI)

Bholanath Rout v. State of Orissa

2012-11-12

S.K.MISHRA, V.GOPALA GOWDA

body2012
JUDGMENT S. K. MISHRA, J. -In this appeal, the appellant assails the judgment passed by learned Single Judge in W.P. (Crl.) No. 541 of 2010 on dated 30.09.2011 refusing the prayer of the appellant to entrust the investigation of a criminal case bearing Khaira P.S. Case No. 74 of 2010 to an independent agency. 2. On 19.06.2010 one Bholanath Rout of village Kabar, which situates within the jurisdiction of Khaira Police Station in the district of Balasore, lodged a written report before the O.I.C., Khaira Police Station alleging that on 18.06.2010, at about 9.30 P.M., he received a telephonic call from cell No. 8984374205 from an unknown person. The said unknown person threatened that he would kidnap the informant's daughter and finish her. He did not disclose his name even though the informant insisted on it. On the next date, at about 6.30 A.M., he took food with his daughter, Swarnaprava, aged about 15 years and left for Suakathi Mines at Keonjhar where he works. On the same time, at about 12.10 P.M., he received telephonic call from his wife, who informed him that at 12.00 noon, Lipu Nayak and Babu kidnapped Swarnaprava on a motorcycle. About 5 to 10 minutes thereafter, the miscreants threatened his wife saying that they would rape and murder her daughter. They abused her in obscene language and threatened to murder her. At about 3.30 P.M., one Khiradri informed the wife of the informant over telephone that Swarnaprava lost her senses and requested her to take to her house. Immediately, the mother of Swarnaprava arranged a vehicle and took Swarnaprava to Khaira hospital where she was declared dead. It was alleged in the FIR that the miscreants took a pair of golden Kanaphula, a locket and a pair of silver paunji from Swarnaprava, which she was wearing. Furthermore, it is alleged that Laxmidhara Jena and his wife instigated the miscreants to kidnap Swarnaprava. On receipt of the FIR, the OIC, Khaira Police Station registered P.S. Case No. 74 of 2010 under Sections 363, 294, 507, 379/34 of IPC. Subsequently, on the direction of Superintendent of Police, Balasore, the offence under Section 364 of the IPC was added to it. On receipt of the FIR, the OIC, Khaira Police Station registered P.S. Case No. 74 of 2010 under Sections 363, 294, 507, 379/34 of IPC. Subsequently, on the direction of Superintendent of Police, Balasore, the offence under Section 364 of the IPC was added to it. After death of Swarnaprava, Khaira P.S. U.D. Case was registered and, on the next date, the Investigating Officer went to Khaira P.H.C. where the dead body of the deceased was lying and conducted inquest in presence of witnesses. During inquest, injury on the right breast was noticed and froth on the nostrils was found. The vagina of the deceased was found inflamed with blood like substance on it. After completion of inquest, the Investigating Officer sent the dead body of the deceased to the C.H.C., Soro for autopsy. Dr. D.K. Sarangi conducted autopsy over the dead body. As per the post mortem, no external injury was found on the dead body and the cause of death could not be ascertained. However, viscera were collected from the dead body and were sent for chemical examination. After receipt of the viscera report, the doctor could not ascertain the cause of death. 3. Learned Single Judge, while disposing of the writ petition (criminal) filed by the petitioner, relied upon the statement of Khiradri recorded under Section 161 of the Code of Criminal Procedure, 1973, hereinafter referred to as "the Code' for brevity, and the autopsy' report and held that there is no sign of forcible intercourse on the deceased and, hence, the learned Single Judge held that the investigation was proper and does not warrant any change of the investigating agency. In the meantime, charge-sheet has already been submitted against the accused persons. 4. In course of hearing, learned counsel for the appellant argues that in view of the inquest report, which indicates that there were injuries on the right breast of the dead body and vagina was found to be inflamed with blood like substance, the doctor has not conducted autopsy properly on the dead body of the deceased. Further, it is submitted that the informant lodged in the FIR that the miscreants kidnapped the deceased and informed her mother over telephone that they would rape and kill her daughter and after kidnapping she died. Further, it is submitted that the informant lodged in the FIR that the miscreants kidnapped the deceased and informed her mother over telephone that they would rape and kill her daughter and after kidnapping she died. The Investigating Officer ought to have registered a case under Section 302 of the IPC, besides other offences, but it was not done. Accordingly, learned counsel for the appellant submits that some foul play is there and the Investigating Agency has not properly investigated into the case In order to shield the accused persons from graver offences. Learned Government Advocate, on the other hand, submits that the investigating agency has properly investigated the case and that the learned Single Judge after giving due weightage to the statement made under Section 161 Cr.P.C. has come to a right conclusion and, therefore, the order passed by the learned Single Judge need not be interfered. 5. We have gone through the materials available on record. It is seen that the learned Single Judge has not given any weightage to the averments in the FIR and the statement of the witness like mother of the deceased. The appellant has claimed that the investigation is not proper in this regard. It is further borne out from the record that the investigating agency has not properly investigated into the case by giving, due weightage to the materials coming forth in the shape of statement of the informant and his wife. That being the case, this Court is of the opinion that the case should be re-investigated by an independent agency like the Crime Branch. Accordingly, we allow the writ appeal, set aside the order passed by the learned Single on 30.09.2011 in W.P. (Crl.) No. 541 of 2010 and direct that the Crime Branch should take up the investigation of the case afresh and after a detailed investigation should place the final form as expeditiously as possible. It is further direct that till the investigation by the Crime Branch is pending, the trial of criminal case, arising out of Khaira P.S.Case No. 74 of 2010 dated 19.06.2012, shall remain stayed. Writ Appeal is accordingly disposed of. I agree. Appeal allowed.