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2018 DIGILAW 2249 (JHR)

Basudeo Yadav v. State Of Jharkhand

2018-10-10

RONGON MUKHOPADHYAY

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JUDGMENT Rongon Mukhopadhyay, J. - Heard Mr. Pratik Sen, learned counsel for the petitioner. No one appears on behalf of the opposite party no. 2. 2. In this application the petitioner has prayed for quashing of the entire criminal proceedings including the order dated 22.02.2006 passed by the learned Judicial Magistrate, Deoghar by which cognizance has been taken for the offence punishable under Sections 452, 323 and 376 of the Indian Penal Code. 3. It has been stated by the learned counsel for the petitioner that initially Mohanpur P. S. Case No. 105 of 2001 was instituted at the behest of the opposite party no. 2 on the allegation of rape in which the police had submitted final form and on a complaint petition preferred by the opposite party no. 2 cognizance was taken for the offences punishable under Sections 452, 323/34 of the Indian Penal Code. 4. Learned counsel submits that after the matter was remanded by the learned revisional court cognizance was also taken under Section 376 of the Indian Penal Code. Learned counsel submits that even the husband of the complainant has not supported the prosecution case and has merely stated that the complainant was insulted by the petitioner. It has been stated by the learned counsel for the petitioner that a fresh complaint was instituted by the opposite party no. 2 that to after three years. It has further been stated that there is a case and counter case between both the sides as Mohanpur P.S. Case No. 104 of 2001 was instituted by the petitioner against the opposite party no. 2. Learned counsel further adds that there is a land dispute between the parties which has resulted in a false case being instituted against the petitioner and considering the evidence of the witnesses of the complainant apart from the medical report of the doctor which does not suggest an act of rape or violation upon the opposite party no. 2 the criminal proceedings deserves to be quashed and set aside. 5. The opposite party no. 2 had initially instituted Mohanpur P. S. Case No. 105 of 2001 in which it was alleged that the petitioner had committed rape upon the complainant and thereafter fled away. The police had investigated the case and having found the allegation to be false submitted final form. 5. The opposite party no. 2 had initially instituted Mohanpur P. S. Case No. 105 of 2001 in which it was alleged that the petitioner had committed rape upon the complainant and thereafter fled away. The police had investigated the case and having found the allegation to be false submitted final form. A complaint petition was filed and after conducting an enquiry cognizance was taken for the offences punishable under Sections 452, 323 and 341 of the Indian Penal Code. 6. Being aggrieved by the fact that no cognizance was taken under Section 376 of the Indian Penal Code the petitioner had preferred a revision application in which pursuant to the remand by the revisional court vide order dated 22.02.2006 cognizance was also taken under Section 376 of the Indian Penal Code. 7. It appears from a perusal of the order dated 22.02.2006 that the report of the doctor was also produced by the complainant before the learned court below at the time of enquiry. Although the doctor had opined that there was no sign of rape upon the complainant but he has also not ruled out the possibility of rape since certain injuries were also found on the person of the complainant. Moreover, the victim was examined after more than twelve hours from the time of occurrence which also led to possibility about the sign of physical intercourse having evaporated. 8. Admittedly, there is no eye-witness to the occurrence but all the witnesses of the complainant are hearsay who have however categorically supported the case of the complainant with respect to the rape committed by the petitioner upon the complainant. The complainant in her solemn affirmation has categorically supported the allegation of rape against the petitioner. The same prompted the learned court below to reconsider the earlier order of cognizance while taking cognizance also under Section 376 of the Indian Penal Code vide order dated 22.02.2006. 9. At this juncture, it would not be proper to look into the defence of the accused and whether the petitioner has been falsely implicated on account of the land dispute existing between the parties or not as the same can be tested in course of trial. 10. 9. At this juncture, it would not be proper to look into the defence of the accused and whether the petitioner has been falsely implicated on account of the land dispute existing between the parties or not as the same can be tested in course of trial. 10. As has been stated above, a prima facie case under Section 376 of the Indian Penal Code apart from the offence under Section 341, 323 and 452 of the Indian Penal Code having been made out against the petitioner, I am not inclined to entertain this application which accordingly stands disposed of with a liberty to the petitioner to raise all his points at the appropriate stage.