BIJAYA DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) This is an application under Section 482, Cr. P.C. for quashing the order of the learned Judicial Magistrate First Class, (Rural), Cuttack taking cognizance under Sections 376/294/506/34, IPC and in issuing summons to the accused persons.

(2.) The short fact of the prosecution case is that on 11-4-1975 at about 1-30 p.m., informant Latika Ojha (Opp. Party No. 2 herein) lodged a complaint alleging therein that on 10-4-1993 evening at about 6-30 p.m. she had been to the area near the pond to attend the call of nature and after attending the call of nature, while she was going towards the pond, accuseD/- etitioner No-1 Bijaya Das caught held of her, squeezed her breasts and laid her down on the ground, made her naked, torned the blouse and forcibly committed rape on her. When she tried to shout, she was gagged by the saree, but somehow she was able to throw her voice and at that point of time, Adhikari Antaryami Das reached the spot. Seeing him, accused Bijaya left her and ran away. Thereafter, her mother-in-law also reached the spot and she narrated the incident to her. When her father-in-law heard about the incident, he went to the house of Bijaya Das to ask him about the incident, but at that the accused's father Biswambar Das, petitioner No. 2 and other accused persons came to her house being armed with deadly weapons like Bhujali, thenga etc. and started shouting. Bijaya Das was holding a Katari. The accused persons were asking the informant and her family members to come out from the house, so that they will finish them up and burn their house. It is alleged that earlier also at 7'O clock accused Bijaya Das and her elder mother came to their house, abused them and then went to the house of witness Antaryami Das, She however stated that earlier on 11-4-1995, she lodged a complaint. But out of shame did not mention about the commission of rape. The allegation is corroborated by the statements of eye-witness Adhikari Antaryami Das recorded under Section 161, Cr. P.C. The police conducted the investigation, observing the formalities and having found a prima facie case, submitted the charge-sheet, on consideration of which the learned Magistrate has taken cognizance, which is sought to be questioned.

(3.) The contention of the learned counsel for the petitioners is that there is absolutely no material against the petitioners to implicate them in the alleged offence under Section 376/506, IPC and therefore, the learned Magistrate could not have taken cognizance of the offences and issued process. It is alternatively contended that accepting the allegations and the materials collected during the investigation and accepting it on its face value, no case of rape is made out against the petitioners, inasmuch as, even if a case of rape can be attributed as against petitioner No. 1, all the other accused persons could not have been entangled for rape. It is the submission of the learned counsel that so far as petitioner Nos. 2 to 6 are concerned, there is only allegation that they had abused, threatened and assumed the informant's family members and therefore cognizance under Section 378, IPC could not be taken. It is contended that taking cognizance against all the accused persons under Section 378, IPC, is patently illegal, inasmuch as, otherwise also offences alleged could not have been clubbed together since they are two different and distinct incidents, one of rape and the other, the protest made by the Victim's family members and subsequent threat and alleged assault by the accused persons.