ORDER
L. Mohapatra, J.
1. This application filed under Section 482 Cr.P.C. is directed against the order dated 26.6.2006 passed by the learned J.M.F.C. Narasinghpur in 2 I.C.C. No. 86 of 2004 taking cognizance of offences under Sections 302, 201, 420 and 34 of the Indian Penal Code.
2. Petitioner No. 1 is the Sarpanch of Nidhiguda Gram Panchayat and petitioner No. 2 is the son of petitioner No. 1. Petitioner No. 3 is the brother of petitioner No. 1. On 21.6.2003 opposite party No. 2 lodged a written F.I.R. before the Officer-in-charge of Narasinghpur Police Station alleging therein that on 26.3.2003 at about 8 P.M. petitioner No. 2 called the deceased Pabitra Kumar Sahoo (husband of the informant) on the plea that his father, petitioner No. 1, was calling him for some work. The deceased accompanied with petitioner No. 2 but never returned till late in the night and on the next day his dead body was found floating in a well near Balanath temple. It is the case of the informant that the deceased had given Rs. 3,000/- to petitioner No. 1 for arranging a house under Indra Awas Yojana and petitioner No. 1 in order to avoid refund of money killed the deceased with help of other two petitioners. Investigation was taken up on the said F.I.R. and final report was submitted on the ground that death of the deceased was due to drowning which was accidental and the case is a mistake of fact. After submission of final report, notice was sent to opposite party No. 2 and she filed a protest petition. On the protest petition, inquiry under Section 202 Cr.P.C. was taken up and on examination of the materials placed before the learned Magistrate, cognizance was taken.
3. Shri Nayak, the learned Counsel appearing for the petitioners submitted that the allegations made in the complaint are false and fabricated. He challenges the impugned order solely on the ground that the post mortem report clearly gives a picture of accidental death by drowning and therefore after investigation, police had submitted final form. If the post mortem report is accepted, then the entire complaint is to be thrown out on the ground of false and fabricated allegations. According to Shri Nayak, the cause of death being material for the case and the doctor conducting the postmortem having found that the death was accidental due to drowning, no offence under Section 302 I.P.C. is made out and accordingly the order taking cognizance on the basis of the statements recorded during inquiry under Section 202 Cr.P.C. is liable to the quashed.
Shri Mishra, the learned Counsel appearing for the informant as well as the learned Counsel for the State submitted that while considering the protest petition, the learned Magistrate is to confine himself to the materials available in the said complaint and cannot look into the police papers for the purpose of taking cognizance and therefore, the learned Magistrate was justified in taking cognizance of the offences on the basis of the materials available in the protest petition.
4. Shri Nayak, the learned Counsel appearing for the petitioners drew attention of the Court to the post mortem report and submitted that the opinion of the doctor conducting post mortem examination is that the deceased died due to drowning. It was also contended that no injury having been found on the body of the deceased, the entire prosecution allegation is proved to be false. It was further contended by the learned Counsel that no doctor having been examined in course of inquiry under Section 202 Cr.P.C, the Court has to look into the postmortem examination report available in the police papers and form an opinion as to whether it is a case of accident or suicide or homicide.
5. It is a fact that in the post mortem examination report there is no mention of any kind of injury on the body of the deceased and the opinion of the doctor is that the deceased died due to drowning. However, the evidence adduced in course of inquiry under Section 202 Cr.P.C. appears to be otherwise. P.W.1 examined on behalf of the complainant during inquiry under Section 202 Cr.P.C. has stated to have seen a car bearing registration No. OR-08-G-1228 parked near the well and he had also seen three petitioners standing there. He had also seen that the boot of the car was opened but had not seen the dead body in the vehicle. P.W.6 had seen the petitioners assaulting the deceased and he had also seen the accused Mana Sahu pressing neck of the deceased. This evidence clearly prima facie proves commission of offence under Section 302 of the Penal Code. The only material available in favour of the petitioners is the post mortem report on which much reliance is placed by the learned Counsel for the petitioners.
The learned Counsel appearing for the informant relied upon the inquest report and submitted that in course of inquest some injuries were found by the I.O. and that could not be ignored.
6. I have perused the inquest report, which indicates that there was scaling of skin at some places. The photographs taken immediately after recovery of the dead body are available in the record. The photographs clearly show that the deceased had injuries on his body specifically face and part of the arms and chest. It is not understood as to how the injuries escaped the notice of the doctor conducting post mortem when they are visible from the photographs. I, therefore entertain a doubt regarding correctness of the post mortem report. In view of the discussions made above, I do not find any justification to quash the order taking cognizance.
CRLMC is accordingly dismissed.