IMPORTANT POINTS
Truthfulness or falsity of statements of witnesses cannot be determined u/s 482, CrPC.
When materials on record prima facie make out a case triable by Sessions court, power u/s 482 CrPC should not be exercised.

Judgment

Jagdish Singh Khehar, J.

Leave granted.

2. Saraswati Kumari, the daughter of the appellant (also the complainant) in this case is stated to have gone to attend a “mela” (festival) along with her brother -Sunny Devol, and her cousin brother -Devender Razak, on 21.10.2007. Saraswati Kumari did not return from the “mela”. Her dead body was however recovered on 22.10.2007. Madan Razak, the father of Saraswati Kumari, identified her body at police station, Bibhutipur, on 23.10.2007.

3. The record of this case reveals, that a Chawkidar - Bindeshwari Paswan, lodged a first information report bearing no. 180 of 22.10.2007, when the body of a half naked girl-child was recovered. A perusal of the report reveals, that the child of about 13/14 years, whose body was recovered, was not identified (and was referred to as – unknown girl, in the first information report). The first information report also reveals, strangulation marks, as also, the presence of semen and blood on the genitals of the deceased. The aforesaid first information report dated 22.10.2007 further indicated that froth was emerging from the mouth of the deceased.

4. Consequent upon the identification of his daughter Saraswati Kumari, Madan Razak, the appellant-complainant addressed a letter dated 23.10.2007 to the Station House Officer, Bibhutipur, seeking custody of the dead body, so as to enable him to cremate the same at his residence. The dead body was accordingly released to the father - Madan Razak, for cremation.

5. The next chronologically relevant fact took place only on 6.11.2007, when the complainant Madan Razak addressed two letters, a communication to the Collector, Smastipur, and another, to the Superintendent of Police, Smastipur. In the letter addressed to the Collector, Smastipur, he referred to the first information report bearing no.180 of 22.10.2007, and sought compensation of Rs.2,00,000/- (Rupees two lakh only) on account of the brutal rape and murder of his daughter – Saraswati Kumari. In the second communication to the Superintendent of Police, Smastipur, he identified the persons who had allegedly forcibly kidnapped his daughter – Saraswati Kumari, whilst she was returning from the “mela” on 21.10.2007. He requested for action against all the five identified accused.

6. Based on the complaint made by Madan Razak, statements of a number of witnesses were recorded by the police. However no action was taken. Based on the factual position disclosed by the complainant in his communication dated 6.11.2007, he filed a private complaint bearing no. 970/2007 dated 5.12.2007, before the Additional Chief Judicial Magistrate, Rasoda. The above complaint was marked for investigation by the above Court. Investigation was accordingly conducted jointly for the allegations contained in FIR No. 180 of 22.10.2007, and the private complaint bearing no. 970/2007 dated 5.12.2007. The daily case report with reference to the complaint, referred to above, depicting the investigation made by the Sub-Divisional Police Officer, Rosada, reveals the names of the witnesses whose statements were recorded under Section 161 of the Code of Criminal Procedure, as also, the details of the investigation.

7. The above daily case report inter alia highlights, the statement of Krishnamurti Mahto, the then Sarpanch of village panchayat Bariya, who had visited the spot from where the dead body of Saraswati Kumari was recovered, but could not identify her. Likewise, the statement of Chander Shekar, Sub-Sarpanch, village Yogia, who had also gone to the place from where the body was recovered, but had also failed to identify the deceased. To the same effect, the statement of Arvind Kumar Das was recorded. He too could not identify the deceased. All these witnesses whose statements were recorded under Section 161 of the Code of Criminal Procedure were named by Madan Razak, as the persons who had kidnapped Saraswati Kumari on 21.10. 2007. In addition, it was pointed out, that they were teacher