RAM CHANDRA DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) The present application under Section 482 Cr.P.C. has come to be filed by the petitioner-Ram Chandra Das seeking to quash the order of cognizance dated 18.06.2005 passed in C.T.(G.R.) Case No.133 of 2005 corresponding to Baripada Town P.S. Case No.25 of 2005 pending in the court of learned S.D.J.M., Baripada.

(2.) It is submitted on behalf of the petitioner that though the petitioner was one of the accused in the aforesaid case for the offence under Sections 376(2)(g), 201, 506 of the I.P.C., since he remains absconder, the trial of two other co-accused persons, namely, Malaya Mohapatra @ Baba @ Pramiya Mohapatra and Babaji @ Sushanta Patra had been taken up by the Additional Sessions Judge, Baripada and by judgment dated 05.08.2006 the co-accused persons had been acquitted. Learned counsel for the petitioner placed reliance on Annexure-1, the order of acquittal of co-accused persons as well as the judgment of this Court in the case of Rajkishore Singh and another V. State of Orissa, 2003 25 OCR 445, wherein this Court has been pleased to quash the proceeding against the petitioners who were absconders for an offence under Sections 302/201/109/34 of the I.P.C. and held that, though the acquittal of the co-accused persons shall not be a ground for quashing the proceeding or order of cognizance in respect of absconding co-accused persons, but after perusing the evidence led in the trial of the co-accused persons found that no case have been made out against the accused and directed quashing the said proceeding.

(3.) In the case at hand, the allegation appears to be very serious where the prosecutrix/informant alleged to have been raped on the night of 13.02.2005 by one Malaya Mohapatra @ Baba @ Pramiya Mohapatra. The further allegation was that Tukuna @ Ashok Giri thereafter committed rape on her at the cremation ground and while the said two accused persons were returning by a motor cycle along with the victim, other three persons reached at the spot and forcibly took away the victim from their clutches after giving threatening to them. One of the accused Susanta Patra @ Babaji committed rape on her while the other two persons watched. Hearing her shout, when the villagers reached the spot, other accused persons ran away from the spot from where the police recovered the prosecutrix and the F.I.R was duly lodged. Thereafter, the investigation was carried out and charge sheet was submitted against all the accused persons including the present petitioner. The two main accused persons, namely, Malaya Mohapatra @ Baba @ Pramiya and Bababi @ Sushanta Patra, who are alleged to have committed the crime of rape, faced trial and in course of such trial, the prosecutrix (P.W.9) in her cross-examination stated that the police had compelled her to write the F.I.R. according to their directions since they threatened to book her under the Immoral Traffic Act. Further she has admitted in her crossexamination that though she was sent for medical examination, she refused to be examined by the doctor as there was no such occurrence for which her medical examination could not be done. She has further stated in her cross-examination that she has been compelled by the police to give such statement in the court while recording her statement under Section 164 Cr.P.C. The father of the victim (P.W.7) in his evidence has stated that on the date of the alleged occurrence at about 8 P.M. his daughter (victim) asked for money in order to purchase 'GUPCHUP' and to witness Saraswati Puja and went away. At about 9 P.M. when he found his daughter absent, he searched for her but could not get her and on the same night at about 2 A.M. his daughter reached the house with the police staff. To his further queries, she stated that she was caught by some persons, but unable to say their names. Most importantly, P.W.7 did not say anything regarding the allegation of rape on his daughter by the accused persons. The trial court also took note of the evidence of P.W.11, the doctor, who was requisitioned to examine the victim before whom the victim gave an undertaking in writing that she was not willing to be examined by him, nor she gave her consent for conducting an X-ray examination for determination of her age and such fact was intimated to the I.I.C. Town P.S., Baripada vide Ext.11 issued by P.W.11, the doctor. By such communication, the doctor intimated the I.O. regarding the unwillingness of the victim for her medical as well as X- ray examination. Apart from the same, Ext.12 also indicates that the victim herself in presence of her mother and father had given the undertaking that she is not willing for her medical examination as well as for ossification test. Consequently, considering the evidence of the prosecutrix (P.W.9) and the parents of the prosecutrix (P.Ws.7 & 8) as well as the evidence of P.W.11 (the doctor), the trial court came to conclude that there is no clear, cogent and convincing evidence on record to entangle the accused persons with the crime and there was no medical evidence in support of the prosecution case regarding commission of rape on the prosecutrix. Since the prosecutrix herself has not made any allegation against the accused persons with relation to the crime, the trial court found no justification to come to any conclusion other than that the prosecution has not established the case against the accused persons beyond all reasonable doubt and accordingly, acquitted the accused persons who faced the trial, from all charges.