GOBIND MAHTO Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) PRESENT criminal revision is directed against the order impugned dated 9.7.2008, passed by the Additional Sessions Judge, IXth, F.T.C., Giridih in S.T. No.308 of 2007, by which the prayer of the petitioners for their discharge for the alleged offence under Section 316 of the Indian Penal Code was rejected.

(2.) PROSECUTION story in short was that the informant -opposite party No.2 herein, presented a written report before the Birni Police alleging, inter alia, that in the night of 3.5.2004 at about 7.00 p.m. while her husband Khublal Dusadh was away from the house to answer the call of nature, petitioners Gobind Mahto and Degan Mahto along with one unknown entered into her house. Petitioner Gobind Mahto and the said unknown person held her hands firmly, whereas petitioner Degan Mahto removed the silver chain forcibly from her neck, worth Rs.1500/ - on the point of dagger. In the mean time, her husband arrived and raised alarm. When she (informant) tried to catch hold the petitioner Degan Mahto it was alleged that he inflicted kick on her abdomen in retaliation as a result of which, she fell down. Other witnesses arrived at the scene on alarm and spotted the accused persons running away from the place of occurrence. It was further alleged that on account of kick, inflicted by the petitioner Degan Mahto, she aborted the pregnancy in the same night after about an hour which she was bearing for four months. On the subsequent day, she produced blood stained cloths at the police station with the written report. The Birni Police registered Case No.24 of 2004 for the alleged offence under Sections 452/323/379/316/34 of the Indian Penal Code on the basis of such written report. But the investigating officer after investigation of the case submitted final form before the Court exonerating the criminal liability of the petitioners upon finding the allegation untrue. On receipt of the notice, the informant filed a protest petition against the submission of final form by the investigating officer, which was numbered as Complaint Case No.1263 of 2004 and the learned Chief Judicial Magistrate after making inquiry and recording the statement of the witnesses under Section 202 of the Code of Criminal Procedure, took cognizance of the offence under Section 316 and allied Sections of the Indian Penal Code against the petitioners.

(3.) LEARNED counsel further submitted that the judicial process should not be attracted on the instance of the complainantinformant to harass the innocent persons. It was highly improbable that a woman having undergone immediate abortion would rush to the police station within twelve hours with dead foetus and blood stained clothes. Therefore, allegation of abortion caused to the informant, at the instance of the petitioner Degan Mahto, was absurd, improbable and without any medical evidence on the record.