IN THE HIGH COURT OF JHARKHAND, RANCHI
W.P.(Cri) No. 231 of 2007
1. Pronob Dey
2. Proveen Dey................................................................Petitioner(s)
Versus
1. The State of Jharkhand
2. Suman Kumari ...........................................................Respondent(s)
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Coram: The Hon'ble Mr. Justice D.K. Sinha
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For the Petitioner(s) : Mr. Rajesh Kumar, Advocate
For the State : Mr. Praveen Kumar, J.C. to G.P.-II
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7/24.11.2008
Petitioners have invoked the extra-ordinary writ
jurisdiction under Article 226 of the Constitution of India for
directions commanding upon the respondents to arrange Test
Identification Parade of the petitioners in Jagarnathpur P.S. Case
No.105 of 2007 which was instituted for the alleged offence under
Sections 376/34 of the Indian Penal Code or in alternative to issue
appropriate directions in the interest of justice to the petitioners.
2. Prosecution story, relevant to the facts of case, is that
the informant Suman Kumari respondent No.2 herein in her
statement, recorded in the night of 8.6.2007 at about 1:30 a.m.
before the police officer, narrated that on 7.6.2007 at about 12:30
p.m. she had come to her brother’s house situated in Hatia Railway
Colony, B-Type near Kali Temple with her younger sister Laxmi
Kumari. At about 10:30 p.m. on the same day she and her sister
Laxmi Kumari had come to Hatia Railway Station with Butru
Munda and Banti Kachchap and while returning, they were held
up by four named and two unknown accused persons who
appeared suddenly before them and started assaulting Butru and
Banti. When she intervened as to why they were assaulting them,
the culprits then caught hold both the informant and her sister and
began to drag them towards the field nevertheless on the way her
sister Laxmi Kumari escaped. All the accused persons then
committed gang rape on her after forcibly removing her garments.
Consequent to which she became unconscious and only on the
alarm raised by her sister Laxmi Kumari witnesses from the Colony
arrived at the scene but the accused escaped. Alleged occurrence
took place at about 11:30 p.m. The police on her statement
registered Jagarnathpur P.S. Case No.105 of 2007 on 8.6.2007 at
about 5:00 a.m. against four named accused persons and two
unknown.
3. Learned counsel Mr. Rajesh Kumar submitted that the
petitioners were neither named in the F.I.R. nor any material
appeared in course of investigation of the case. The statement of the
prosecutrix was recorded under Section 164 of the Code of
Criminal Procedure wherein though she admitted having subjected
to gang rape by six boys but she did not implicate the petitioners in
any manner.
4. Counter-affidavit has been filed on behalf of the
respondent-State duly deposed by D.S.P., Hatia. The deponent in
his statement, as contained in paragraph-7, has clearly stated that
the Investigating Officer after investigation of the case submitted
chargesheet against Parvesh Lohara and Mangru @ Manoj
Kachchap for the alleged offence under Sections 376/34 of the
Indian Penal Code pending investigation against Sunil Dey and
Konak Dey and that arrest warrants have been issued against them.
Yet it was nowhere mentioned in the counter-affidavit that any
material was found against the petitioners and that the
investigation pending under Section 173(8) of the Code of Criminal
Procedure, was directed only against Sunil Dey and Konak Dey.
5. By filing supplementary affidavit the petitioners
contended that some of the accused against whom chargesheet was
submitted were put on trial after framing of charge in Sessions Case
No.30 of 2008 wherein the prosecutrix Suman Kumari was
produced and examined as P.W.-1, Xerox copy of which has been
annexed (Annexure-4), but she neither named nor claimed to
identify the two strangers and even she declined to identify the
accused in the dock who were chargesheeted in the instant case for
the alleged offence of gang rape.
6. The learned counsel Mr. Rajesh Kumar pointed out
with reference to interlocutory application (I.A. No.2061 of 2008) in
which the petitioners have sought certain amendment in
paragraph-1 of the main writ petition in the following manner:
“That this writ application is being filed for quashing of
First Information Report in Jagarnathpur P.S. Case No.105
of 2007 dated 8.5.2007 (G.R. Case No.2095 of 2007) for an
offence alleged under Section 376/34 of the Indian Penal
code as the petitioners are totally innocent and as their
names have not come in the First Information Report as
well as 164 Cr.P.C. statement of the so called victim girl.”
7. Mr. Praveen Kumar, J.C. to G.P.-II fairly conceded
that under the given situation appropriate order may be passed.
8. Having regard to the facts and circumstances of the
case, I find that though the offence of gang rape was alleged against
four named accused persons and two strangers on the statement of
the prosecutrix Suman Kumari but at different stages in her
statement under Sections 161, 164 of the Code of Criminal
Procedure and finally her statement before the Trial Court she did
not implicate the petitioners in any manner and therefore,
according to the apprehension of the petitioners expressed in the
writ petition that they are being terrorized by the Investigating
Officer pending investigation under Section 173(8) of the Code of
Criminal Procedure, I do not find any material to implicate the
petitioners and therefore, the petition needs consideration.
9. This writ petition is accordingly allowed and under
the given circumstances, I find it appropriate to observe that no
offence is made out against the petitioners much less the offence
alleged in Jagarnathpur P.S. Case No.105 of 2007, corresponding to
G.R. Case No.2095 of 2007 pending before the Chief Judicial
Magistrate, Ranchi and needless to say that no coercive step
accordingly, is required to be taken against the petitioners in the
instant case.
10. Consequently, I.A. No.2061 of 2008 also stands
disposed of.
(D.K. Sinha, J.)
S.B./A.F.R.