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2012 DIGILAW 505 (PAT)

BIRENDRA KUMAR v. STATE OF BIHAR

2012-03-23

VIKASH JAIN

body2012
ORDER : 1. The present petition has been filed for quashing the ORDER :dated 01.12.2009 passed by Judicial Magistrate Ist Class, Biharsharif, Nalanda in Complaint Case No. 1060-C of 2009 by which cognizance has been taken under section 376/34 I.P.C. 2. According to the complainant Munni Devi, the three accused persons Mithlesh Kumar, Birendra Kumar i.e. the present petitioner and Tinku Kumar entered the house of the complainant on 21.08.2009, and thereafter each of the three accused persons including the petitioner committed rape upon the complainant under threat of shooting her if she resisted. 3. It is further stated that on being raised, alarm the four witnesses came to the spot and they are said to have seen the accused persons running away from the complainant’s house. 4. Learned counsel for the petitioner however submits that the entire case is a false and fabricated one and intended only to falsely implicate the petitioner. 5. He relies first of all on the complainant’s statement on oath which is in conflict with the complaint itself. It is clearly stated in paras 4 and 15 of the statement on oath that rape was committed by only two persons namely Mithlesh and Tinku. It is also stated in para 1 thereof that the date of occurrence was 30th August at 8 p.m. He therefore submits that there are crucial contradictions with regard to the date of occurrence and also with regard to the petitioner’s role in the offence. He has also invited attention to para 9 of the statement on oath wherein it has been noted by the learned Magistrate that after giving the answer as to the names of witnesses who arrived, she was smiling. It is quite evident therefore that a person who has complained of a heinous crime having been committed on her would hardly be expected to be smiling while deposing before the learned Magistrate. All this goes to show that the whole incident is nothing but a figment of her imagination. 6. Learned counsel for the petitioner has also attributed reason and motive for filing of the false complaint with reference to the statement of the complainant’s daughter, Khushboo Kumari, whose deposition appears at annexure-4 to this petition. All this goes to show that the whole incident is nothing but a figment of her imagination. 6. Learned counsel for the petitioner has also attributed reason and motive for filing of the false complaint with reference to the statement of the complainant’s daughter, Khushboo Kumari, whose deposition appears at annexure-4 to this petition. In para 2 of her statement on oath, Khushboo Kumari has stated that her mother had a paramour named Munni Sao, who used to misbehave with the deponent herself and whom her mother had been trying to protect against the allegations of kidnapping the deponent. It was therefore in ORDER :to shield Munni Sao that the complainant had filed the false complaint against the petitioner. 7. Learned counsel for the opposite party, on the other hand has submitted that this is the stage when cognizance has been taken on a prima facie case being found against the petitioner and the petitioner’s guilt or innocence is a matter to be proved in the course of trial on the basis of evidence to be led. 8. After hearing the parties and upon a consideration of the materials on record, I am of the opinion that in the facts and circumstances of the case, continuance of the prosecution of the petitioner would amount to an abuse of process of Court. No doubt it is true that Courts will ordinarily not interfere at the stage when cognizance has been taken and a prima facie case is found on the uncontroverted allegations contained in a complaint, yet in the present case there are material conflicts and contradictions in the very complaint itself which do not inspire confidence in its genuineness as far as concerns the present petitioner. This is most apparent from para 15 of the statement on oath of the complainant wherein she herself has categorically stated that only two persons namely Mithlesh and Tinku had committed rape and it is thus clear that at least in so far as this petitioner is concerned, there is no allegation that he had committed rape upon the complainant. Equally, the demeanor of the complainant before the learned Magistrate at the time of deposition as observed in para 9 thereof cannot also be lost sight of. Equally, the demeanor of the complainant before the learned Magistrate at the time of deposition as observed in para 9 thereof cannot also be lost sight of. The statement of the complainant’s daughter also lends support to the petitioner’s submission with regard to the motive for the complainant that it is in ORDER :to protect her paramour Munni Sao that the petitioner had been implicated. 9. Taking the facts in their totality and a holistic view of the matter, this Court is of the view that there is very little substance in the complaint to justify continuance of the prosecution against the petitioner which if allowed would amount to an abuse of process of the Court. 10. In the interest of justice, therefore, the impugned ORDER :dated 01.12.2009 passed in Complaint Case No. 1060 (C) of 2009 is hereby quashed as regards the present petitioner only and the petition stands allowed.