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2016 DIGILAW 670 (ORI)

Jagannath Behera v. Sanjukta Denga

2016-08-22

B.K.NAYAK

body2016
JUDGMENT B.K. NAYAK, J. - In this application under Section 482, Cr.P.C., the petitioners pray for quashing the proceedings in I.C.C. Case No. 29 of 2015 of the Court of the learned J.M.F.C., Ranpur and also the order dated 13.03.2015 passed therein taking cognizance of the offences under Sections 294/323/452/302/506/34 of the I.P.C. 2.Initially, opposite party no. 1 filed a complaint petition (Annexure-1) before the learned J.M.F.C. Ranpur alleging the commission of offences under Sections 452/304/302/34 of the I.P.C. The said complaint was registered as I.C.C. Case No. 29 of 2014 and the learned J.M.F.C. forwarded the same under Section 156(3) of the Cr.P.C. to Ranpur Police Station, where the complaint was treated as F.I.R. and on the basis thereof, Ranur P.S. Case No. 137 of 2014, corresponding to G.R. Case No. 137 of 2014 was registered and investigation was taken up. During investigation, the witnesses were examined and a report from the Sum Hospital, where the deceased Padma Charan Denga, aged about 70 years, succumbed to death in course of treatment, was called for, whereupon the Medical Superintendent of the said Hospital reported that the deceased expired on 24.10.2013 at 5.30 P.M. in the Casualty of natural cause of cardio respiratory failure. Therefore, no Medio Legla Case (MLC) was registered at the Hospital. During investigation, the police also found that the son of the deceased (husband of the complainant) is a rowdy person, always engaged in quarrel with his father (deceased) and also once assaulted him whereupon the petitioners intervened and got the matter compromised, but the son of the deceased was not satisfied and instigated his wife to file the complaint. After taking the dead body from Sum Hospital, he cremated the dead body without informing the police, and complaint was filed nearly five months thereafter, i.e., on 11.03.2014 without lodging any report before the police. On completion of investigation, having found that no case is made out against the petitioners, the police submitted final form stating the case to be false one. Opposite party N. 1 (complainant) filed protest petition on 21.02.2015, which was registered as I.C.C. No. 29 of 2015 and the learned Magistrate conducted enquiry under Section 202, Cr.P.C. and by his order dated 13.03.2015 took cognizance of the offences and stated above. Opposite party N. 1 (complainant) filed protest petition on 21.02.2015, which was registered as I.C.C. No. 29 of 2015 and the learned Magistrate conducted enquiry under Section 202, Cr.P.C. and by his order dated 13.03.2015 took cognizance of the offences and stated above. In the original complaint petition, it is alleged that the complainant’s family had been ex-communicated from the village by the petitioners, who were also terrorizing the family members of the complainant and collecting fine from them. The husband of the complainant and her husband’s brother stayed outside in connection with their services in the Army and Border Security Force respectively and that on 23.10.2013 at about 5.00 P.M., the accused persons trespassed into the house of the complainant and abused her father-in-law (deceased) in filthy language and demanded Rs. 10,000/- as fine or else the complainant’s family members would not be allowed to stay in the village and that when the deceased denied to give the money the accused persons dealt fist blows and kicks to the deceased, who became senseless and, thereafter, they went away. The complainant and others took the deceased to Sum Hospital for treatment and on 24.10.2013 the deceased died in the hospital. 3.Learned counsel for the petitioners submitted that, though the complainant alleged the occurrence to have taken place on 23.10.2013 and the deceased succumbed to his injuries on 24.10.2013, neither she nor any other family members having lodged any report with the police immediately after the alleged occurrence, filing of the complaint nearly five months after the alleged occurrence in an after thought meant to harass the petitioners. It is also stated that because of the report of the Medical Superintendent of Sum Hospital and Institute of Medical Sciences that the death of the complainant’s father-in-law occurred due to natural cause of cardio respiratory failure, the learned J.M.F.C. has gone wrong in taking cognizance of the offences including the offence under Section 302, I.P.C. It was also submitted by him that after registration of the complaint as F.I.R. the police during investigation came to find that the complainant’s husband (son of the deceased) was not pulling on well with the deceased and also once assaulted him when the petitioners had intervened, which had enraged the complainant’s husband and that at his instigation the false complaint was filed by the complainant against the petitioners. Learned counsel for the complainant (opposite party no. Learned counsel for the complainant (opposite party no. 1) submits that merely because the police has submitted final form, there is no bar for the Judicial Magistrate for taking cognizance on the basis of protest petition and the result of the enquiry under Section 202, Cr.P.C., and that in the instant case, the complaint petition, initial statement of the complainant and the statements of witnesses recorded during enquiry under Section 202, Cr.P.C. prima facie make out the offences and, therefore, the learned J.M.F.C. has rightly taken cognizance. 4.The allegations in the complaint as well as the protest petition and the initial statement of the complaint and the statement of the witnesses recorded during enquiry under Section 202, Cr.P.C. reveal that on the date of occurrence (23.10.2013) the accused persons entered into the house of the deceased, abused him, demanded Rs. 10,000/- and the deceased having refused to pay, they dragged him by putting napkin (Gamuchha) on his neck, assaulted him by fist and kick blows and thereafter left by giving threats. It further appears from the complaint petition and the statements of witnesses that due to the assault the deceased fell down lost his sense and that he was taken to the hospital, where he died the next day, i.e., on 24.10.2013. There is, however, a discrepancy in the statements of witnesses as to the time of death. Some say that the deceased died in the hospital at about 12.00 noon whereas another witness and the son of the deceased state that the deceased died in the midnight of 24.10.2013. However, the report of the Medical Superintendent of the Institute of Medical Sciences & Sum Hospital sent to the IIC., Ranpur Police Station, the genuineness of which has not been disputed by the complainant, reveals that the deceased attended the casualty of the Hospital on 24.10.2013 at 2.32 P.M. with uncontrolled hypertension, diabetes, with haemmorgic stroke and in low condition and he expired on the same day at about 5.30 P.M. in the Casualty due to natural cause of cardio respiratory failure. The report also reveals that no MLC case was registered as per the OPD Register. Most of the so called eye-witnesses including the complainant have stated that due to assault the deceased lost his sense. The report also reveals that no MLC case was registered as per the OPD Register. Most of the so called eye-witnesses including the complainant have stated that due to assault the deceased lost his sense. In case due to assault the deceased lost his sense at 5.00 P.M. on 23.10.2013, it is not understood as to why the complainant and her family members waited till 24.10.2013 to take the deceased to hospital. When the deceased attended Casualty in the Sum Hospital, the doctors detected uncontrolled hypertension, diabetes with haemmorgic stroke, but strangely, however, they did not find any mark of assault or injury on the body. Had hypertension, diabetic condition of the deceased aggravated and he suffered a stroke because of the assault and became senseless, the complainant and other family members of the deceased would have reported the said fact to the attending doctor, so that MLC case would have been registered. The fact that the deceased was taken to hospital one day after the occurrence and no MLC was registered in the OPD, strengthens the version of the petitioners that the low condition of the deceased was not the result of any assault by the petitioners. It also does not stand to reason that the husband of the complainant, who is serving in the defence, came back on 25.10.2013, and took the dead body from the hospital, went to the Police Station and submitted a written report and on the advice of the police took the body and cremated it at Swarga Dwar, Puri, without insisting for post-mortem examination of the deceased. Neither the complaint petition nor the statements of witnesses indicate that soon after the alleged occurrence the deceased was taken to hospital on that very day, i.e., 23.10.2013, though all of them state that the deceased died on 24.10.2013 in the hospital with divergence regarding the time of such death. 5.The principle that at the stage of cognizance the Court is required not to shift or assess the evidence/statement of the witnesses in detail with a view to find out if it is sufficient for conviction of the accused but is only to find out whether prima facie case regarding commission of offences is made out or not, cannot be said to be without exception. Also where the police on investigation submits a final form, the learned Magistrate is not debarred completely from going through the police report and the case diary before proceeding to consider the question of cognizance on protest. Where the uncontroverted documents and circumstances create grave doubts about the truth of the prosecution case or make the prosecution story inherently improbable, merely because the witnesses during enquiry state in unison about the commission of alleged offences, the same cannot be accepted as making out a prima facie case for the purpose of taking cognizance. 6.The instant case is of such nature that the facts alleged and discovered create grave doubts about the alleged occurrence. Because of some suppressions and grave discrepancies in the statements of the witnesses recorded during enquiry and the uncontroverted report of the Medical Superintendent of Institute of Medical Sciences & Sum Hospital that the death of the deceased was due to natural cause and that the case was not reported to be a Medico Legal Case, and that no F.I.R. was lodged promptly even though the deceased allegedly became senseless on being assaulted by the petitioners, and that a belated complaint was lodged nearly five months after the alleged occurrence, it is manifest that the complaint case against the petitioners is malicious and motivated one, and allowing the same to continue would tantamount to abuse of the process of Court and travesty of justice. Hence, the CRLMC is allowed and the proceedings in I.C.C. Case No. 29 of 2015 of the Court of the learned J.M.F.C. Ranpur is quashed. The CRLMC is thus disposed of. CRLMC disposed of.