SUNIL PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioners who are the F.I.R. named accused of Ram Nagar P.S. Case No. 116 of 2004 have prayed for the quashing of order dated 18.5.2006 passed therein by the learned Additional Chief Judicial Magistrate, Bagaha (West Champaran) whereby having differed from the police report he has directed for issuance of process against the petitioners for offence under Sections 341, 323, 376 and 504 I.P.C.

(2.) IT appears that one Gayanti Devi, impleaded as O.P. No. 2 herein, gave her fardbeyan at 6.15 A.M. on 24.8.2004 inter alia alleging that at about 4.00 A.M. while she alongwith her daughters, Rita Devi and Sunder Pati Devi, was going to attend the call of nature, co -villagers Sunil Pandey, Chhotey Pandey and Sandeep Pandey came and caught hold of them and whereas the daughters managed to escape from their clutches and were followed by Sandeep Papdey, she herself was allegedly raped by Sunil Pandey and Chhotey Pandey taking turns. It is said that after the occurrence she went home weeping and narrated the incident to her husband and in the meantime Sandeep Pandey, Raj Keshwar Pandey, Baliram Pandey, Rajeshwar Pandey, wife of Sita Ram Pandey and wife of Raj Keshwar Pandey, came over hurling abuses and resorted to assault with fists and slaps as a result whereof her two daughters and husband Mahesh Pandit sustained injuries. It has been alleged that 5 -6 days prior thereto the accused persons had thrown brickbats at their house and also resorted to torturing them in various ways. It further appears that although the case was registered under Sections 341, 323, 504 and 376 l.P.C, the police after due investigation submitted a charge - sheet only under Sections 341, 323, 504/ 34 l.P.C. However, the learned Magistrate differing from the police report took cognizance of offences under Sections 341, 323, 504 and 376 l.P.C.

(3.) IT has been submitted on behalf of the petitioners that the learned Magistrate had not applied his mind to the fact that the so -called victim had filed an application dated 2.11.2004 before the learned Additional Chief Judicial Magistrate stating therein that she had not lodged any case of rape against any accused persons and rather the fact was that at the time of planting of paddy seedlings, as per prevailing custom, there were throwing of mud between the cultivators and labourers causing some injuries to O.P. No. 2. and that there had been some exchange of abuses and that taking advantage of the occasion some people with vested interests had brought her and her husband to the Police Station where her thumb impression on a blank -sheet of paper was taken whereafter she was taken to Bettiah for treatment and on the aforesaid premise she requested the learned Magistrate to record her statement.