SOHAN KUMAR DAS Vs. STATE OF BIHAR

JUDGEMENT

(1.) The instant Criminal Appeal has been filed against the order dtd. 1/2/2020, passed by learned Vth Additional District and Sessions Judge Darbhanga, in Sessions Case No. 437 of 2014 whereby and where under the petition of appellant filed under Sec. 340 read with Sec. 195 of Criminal Procedure Code (in short Cr.P.C.) was rejected from which being aggrieved and dissatisfied the present appeal has been brought.

(2.) It is submitted by learned counsel for the appellant that on a written report submitted by one namely, Md. Suleman about kidnapping of his daughter an FIR of Bahadurpur P.S. Case No. 277 of 2010 under Ss. 363/366 (A) of Indian Penal Code (in short I.P.C.) was registered against the appellant and others and during the investigation in the said criminal case the so-called victim girl was recovered and she recorded her statement under Sec. 164 of Cr.P.C. before the Judicial Magistrate on 28/9/2010 of which a copy has been filed as Annexure No. 1. Further submission is that the said victim stated in her statement under Sec. 164 of Cr.P.C. that she left her house because of her mother used to abuse and assault her and asked her to go with the appellant and she further stated that she wanted to live with the appellant. But when the said victim was examined during the trial as PW-2 she stated that she had given false statement before the Magistrate knowingly and therefore the appellant made the prayer before the Trial Court that victim (PW-2) of appellant's case was liable to be prosecuted for the offence punishable under Sec. 193 of I.P.C. as she had given false evidence in judicial proceeding before Judicial Magistrate and the copy of his petition submitted under Sec. 340 read with Sec. 195 of Cr.P.C. has been filed as Annexure 2. Further submission is that the learned Trial Court without considering the materials available on the record and valid documentary evidence which were sufficient to substantiate the alleged offence of 193 of I.P.C having been committed by the so-called victim of Bahadurpur P.S. Case No. 277 of 2010, arbitarily rejected the prayer of the appellant. Further argument is that the said victim made two contradictory statements in two judicial proceedings before different courts and in the instant matter one statement of the so-called victim made before the Judicial Magistrate is admittedly false and moreover when two contradictory statements are made in two Judicial proceedings then definitely one should be deemed to be false however, in such a situation it is difficult to decide which of such two statements is false but in such a situation the person making such statements can be charged alternatively under Sec. 221 (1) of Cr.P.C. but in the instant matter the so-called victim who made two contradictory statements, herself accepted that her previous statement made before the Judicial Magistrate was false.

(3.) On the contrary, the learned counsel appearing for the informant of Bahadurpur P.S. Case No. 277 of 2010 submits that though two contradictory statements were made by informant's daughter (so-called victim) but the statement made by victim before the Judicial Magistrate under Sec. 164 of Cr.P.C. was not recorded freely by her and the same was recorded under pressure and threat and just after four days from the recording of her statement she filed an application before the Chief Judicial Magistrate Darbhanga, wherein she narrated that she was forcefully taken to village Harpatti, where she was subjected to rape and further narrated that her statement under Sec. 164 Cr.P.C. was recorded on 28/9/2010 under threat and copy of the said application has been filed as Annexure-1 before this Court and moreover the prayer made by the appellant under Sec. 195/340 of Cr.P.C. before the trial court was not maintainable as the alleged offence, if presumed, to have been committed, then a written complaint must be filed by the Court concerned before which in the judicial proceeding such offence was committed but in this regard the concerned Judicial Magistrate did not file any written complaint under Sec. 195/340 of Cr.P.C.