- (1.) This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the impugned order dated 28-1-2003 passed in Criminal Revision No. 153 of 2002 whereby the learned Sessions Judge, Deoghar set aside the order dated 3-8-2002 by which learned Chief Judicial Magistrate had taken cognizance against the petitioners under Sections 323, 354, 448 and 504, IPC and directed further inquiry and also for quashing the subsequent order dated 21-6-2003 passed in P.C.R. Case No. 366 of 2002 whereby and whereunder the learned Chief Judicial Magistrate, Deoghar took cognizance against the petitioners under Sections 323, 354, 448 and 504, IPC.
(2.) Prosecution case in brief is that the complainant-opposite party No. 2 filed a complaint case being P.C.R. Case No. 366/ 2002 alleging therein that the complainant- opposite party No. 2 resides separate from her in-laws in old house with her husband. The husband of the complainant-opposite party had gone to field to sow paddy seedlings and at about 9 A.M. on 17-6-2002 when her husband was out of field after seedlings work, the petitioners-accused came at the house of the complainant and began to talk with the complainant in most filthy languages and on protest by the complainant-opposite party not to use such language then accused persons caught her and threw her on the ground and petitioner Rajendra Yadav removed the Sari and Saya of the complainant-opposite party and committed rape on her. She protested but in vain because petitioner Janardan Yadav has put towel on the mouth of the complainant-opposite party, so she could not raise alarm. After commission of rape by Rajendra Yadav, Janardan Yadav also committed rape on her. Petitioner-accused showed pistol and gave threatening of dire consequences. In the meantime Purbi Devi came at the house of the complainant and saw the occurrence and on hulla witnesses reached there and saw the petitioners-accused running away from that place. Thereafter the complainant-opposite party and witnesses went to the house of accused Bhagloo Yadav and narrated the incidence to the accused Bhagloo Yadav, who is the father of accused Janardan Yadav but he too abused the complainant-opposite party and witnesses. In the meantime petitioner Mohan Thakur came there and assaulted the complainant-opposite party with slaps and threatened her. The complainant- opposite partly went to Mohanpur P.S. on 17-6-2002 at 2 P.M. to inform the police and complainant narrated the occurrence to Officer Incharge, who assured to institute a case against the accused-petitioners. Thereafter she again went to Mohanpur P.S. on 20-6-2002 to find out the exact position of the case but no case had been instituted by the police and, therefore, she has filed this complaint case.
(3.) Learned counsel for the petitioners submitted that a palpably false case has been instituted against the petitioners. According to the learned counsel for the petitioners, it cannot be expected that in broad daylight a woman in a village would be raped and she would not raise any alarm and even when her husband was out and persons residing in the nearby area must have heard the noise. Had there been any such occurrence then she would have raised alarm. It is laughable to say that after the accused persons were talking to her in the most filthy language and immediately thereafter they committed rape and when they were armed with pistol, they did not exhibit the arm at the first instance to frighten her but at the time of leaving the place one of them showed revolver to frighten her. It was also pointed out that she and her husband went to police station and officer on duty assured her to take action against the responsible persons but she nowhere alleges that Darogaji sent her to doctor for medical examination and complainant is silent on this point. It is enough to come to a finding that allegation is false because when she went to P.S. and stated about rape on her then officer on duty would have definitely sent her to hospital for examination and when this was not done it means that she had not actually gone to the P.S. and she did not like to be examined by any police officer or so because falsity of the matter will come to light. It was also pointed out that two persons are alleged to have committed rape on her and out of two persons one is said to have assaulted the complainant-opposite party with fists and slaps. It was also pointed out that the CJM has already taken cognizance under Sections 323, 448. 354 and 504 of the Indian Penal Code and after perusing the evidence on record there was no material before the Revisional Court to direct further enquiry in the matter and further that when the actual victim was examined and whose statement was supported by other witnesses examined under Section 202 Cr. P.C., the learned CJM found the case to be a case under Section 354, IPC and not under Section 376, IPC and on further enquiry two more witnesses were examined, but they were definitely not the eye witnesses. Hence there was no further material against the petitioners for the cognizance to be taken under Section 376, IPC instead of 354, IPC, although there is direct allegation of rape against two persons. When after examination of so many witnesses, the learned CJM took cognizance under Sections 323, 448, 354, IPC and not under Section 376, IPC then learned Court of revision should not have interfered with the order of the CJM and should not have gone merely on the statement of complainant-OP in the complaint petition.;