S.J.MUKHOPADHAYA, ACJ - (1.) In this Cr. Misc. Petition, the petitioner Kali Vishwakarma has prayed for quashing the order dated 5th December, 2003, passed in Sessions Trial No. 313 of 1996, arising out of Dhanbad P.S. Case No. 369 of 1996, registered under Sections 376/307/448/34 of the Indian Penal Code, whereby the learned Additional Sessions Judge-XIII, Dhanbad, has rejected the application, filed by the petitioner under Section 311 of the Code of Criminal Procedure for recalling the witnesses for further cross-examination.
(2.) The prosecution case, as per the First Information Report, in brief, is that the petitioner having trespassed the house of the prosecutrix asked her to flee away with him, to which she (the prosecutrix) refused. It is further alleged that the petitioner, on refusal by the prosecutrix, committed rape on her and again asked her to flee away along with him, to which she refused. Thereafter, the petitioner took out a match-box from his pocket and threw a burning match-stick on the prosecutrix, due to which her clothes started burning. On the alarm, raised by her, the petitioner and his companion, namely, Ramesh Yadav, fled away. Having heard the Hulla, the neighbourers came there and took her to Hospital, where she gave her Fard-beyan.
(3.) Annexure 2 is the purported joint compromise petition, filed on behalf of the prosecutrix and her father on one side and both the accused on the other side. In the said compromise petition it is stated that due to misunderstanding, the informant party had deposed before the Court. I n the said petition it has also been stated that now good relations are prevailing between the parties and, as such, the informant party does not wish to pursue the case and are ready to depose afresh in the Court, if required. 3-A. Based on the said compromise, a petition was filed on behalf of the petitioner under Section 311 of the Code of Criminal Procedure on the same day, the compromise petition was filed i.e. 25th November, 2003. The learned court below while found that sections 376 and 307 of the Indian Penal Code are not compoundable, though Section 448 of the Indian Penal Code is compoundable, also found that the aforesaid prosecution witnesses have already been cross-examined and nothing has been produced to invoke the power of the court under Section 311 of the Code of Criminal Procedure. The learned court below, accordingly, by the impugned order dated 5th December, 2003 held that Section 448 of the Indian Penal Code being compoundable, the compromise petition can be accepted to that extent but it cannot be accepted in any manner so far as compromise for the offences under Sections 376 and 307 of the Indian Penal Code are concerned, as they are not compoundable. Having rejected the said application, the learned court below fixed 9th December, 2003 as the date for defence and argument.;