ALOK Vs. STATE OF ORISSA

JUDGEMENT

(1.) - The petitioner, who had been originally cited as a witness in S.T. No. 8/45 of 1993 against one Suban Ho prosecuted under section 376, Indian Penal Code has invoked the power of this Court under section 482 of the Code of Criminal Procedure being aggrieved by the order of taking cognizance against him as an accused in the case under the very same charge. P.W. 4 lodged information before the police as the victim girl alleging that she was serving in the house of one Niladri Mahanta and was taking his cattle for grazing in the jungle and usually Suban Ho, the present petitioner, and her cousin Mathu he also accompany her for grazing cattle of different persons. On 22.8.1992 when they were all inside the jungle, accused Suban Ho chased her to catch hold her for which she ran away in apprehension and at that time the petitioner caught hold of her, but left her as Suban Ho reached. Suban Ho forcibly laid her on the ground and raped her. F.I.R. was lodged at the police station by the victim girl in the company of P.W. 1 and P.W. 3 the Ward Member. After investigation charge-sheet was submitted against Suban Ho citing the petitioner as one of the witnesses. The witnesses so far examined in the case are P.WS. 1 to 5. Besides, P.WS. 1 and 3, P.Ws. 2 and 5 are the post occurrence witnesses to whom P.W. 4 is stated to have narrated the incident. P.W. 4 having named the petitioner in her evidence in Court as also a person who had raped her and P.W s. 1,2,3 and 5 also having Vade such statement in support of her, the learned Assistant Sessions Judge passed order on 8.7.1993 taking cognizance against the petitioner under section 376, I.P.C. and directed the police to produce him in court.

(2.) Mr. Sahu, learned counsel for the petitioner, urges that prior to depositions of the witnesses in court, their consistent version throughout the investigation and the statement of the victim girl in the F.I.R. never implicated the petitioner as a person who had raped P.W. 4 and that such statements at the evidence stage being a matter of afterthought, it is tell-talc that the petitioner is being attempted to be roped in on false accusation. It has been submitted the power under section 319, Cr. P.C. is not intended to be exercised in such circumstances and that the power is vested in the court only to be exercised sparingly and in exceptional circumstances.

(3.) On a reference to the L.C.R. as also the case diary the submissions of the learned counsel are amply borne out. P.W. 4 nowhere alleged any culpable conduct on the part of the petitioner either in the F.I.R. or in her statement before the police She however suddenly made such a statement during her evidence in court. A mere glance at her evidence shows the prevaricating stands she has taken. In her examination-in-chief she stated that after Suban He had raped her she was raped by the petitioner In the cross-examination, however, she stated that the petitioner raped her first and then Suban Ho committed the crime. She also stated that she had stated before the police that both the petitioner and Suban Ho had committed rape on her though such statement is not borne out on record. P.Ws. 1 and 3 though are signatories to the F.I.R. and in their statement before the police they never implicated the petitioner, yet they made such statements in the court. The statements of P.Ws. 2 and 5 also suffer the same effect. A perusal of the statements leads one to the clear conclusion that the development at the evidence stage to implicate the petitioner as an accused is a belated attempt to rope him in. The very fact that the petitioner had been cited as a witness in the charge-sheet goes to show of the police having come to the conclusion after investigation of the petitioner being only a witness and to be never an offender himself. In (Suresh V. State) it was held relying on an earlier decision of this Court in (Sk. Mangul v. State that the power under section 319, Cr. P.C. is an exceptional one and must be used in rare cases only when compelling circumstances exist. The power is extraordinary and should be used sparingly. In Tribikram Misra v. State of Orissa and another, a Division Bench decision, invoking of power under section 319, Cr. P.C. and taking cognizance against a person later on when the immediate postoccurrence charge-sheet witnesses did not implicate him and subsequent attempt was made to implicate him by some of the witnesses, was deprecated. The decisions apply with full force to the facts of the present case. The learned Assistant Sessions Judge was not alive to this position of law and has a cognizance against the petitioner in a mechanical manner. In that view of the matter the petition succeeds and the order impugned is quashed. Petition allowed.