Jammu & Kashmir High Court
Narinder Kumar And Others vs . State Of J&K And Others on 3 May, 2019
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
CRMC No. 653/2018, IA No. 01/2018
Date of order: 03.05.2019
Narinder Kumar and others vs. State of J&K and others
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge.
Appearing counsel:
For Petitioner (s) : Mr. Parvinder Singh, Advocate.
For Respondent (s) : Mr. Raman Sharma, Dy. AG vice
Mr. Amit Gupta, AAG for respondent Nos.1 & 2.
Mr. Vikas Magotra, Advocate for respondent No.3.
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Heard.
2. Through the instant petition filed under Section 561-A Cr.P.C, petitioners seek quashing of FIR No.55/2018 dated 31.08.2018 registered with Police Station, Arnia vis-a-vis petitioners for offence under Section 376 RPC alleged to have been attributed to them.
3. In this petition, it has been stated that the family of petitioner No.1 is known to the family of respondent No.3 being the resident of same village i.e. Talhar, Suchatgarh, Jammu and the family of respondent No.3 is interested to marry her with petitioner No.1. Respondent No.3, namely, prosecutrix (name withheld) D/o Sh. Des Raj has lodged false and frivolous complaint against the petitioners and on the said complaint an FIR No.55/2018 with the Police Station, Arnia was registered against the petitioners in which they have been named as accused. The petitioners obtained the copy of the FIR and came to know that the same pertains to offence under Section 376 RPC. It is further stated that the perusal of FIR reveals that respondent No. 3 has made false allegations against the petitioners. It is further stated in the CRMC No. 653/2018 Page 1 of 12 petition that the allegations against petitioners are that "petitioner No.1 has committed rape on the respondent No.3 on the night intervening 30/31.08.2018 at the residence of the Aunt (Mami) of respondent No. 3 at Kalyana and on 31.08.2018 petitioner No.1 absconded with petitioner No.4; respondent No. 3 ran after them, because on the next day they had to go to court for solemnizing marriage, but she could not locate petitioner No.1, the accused have done all this with common intention. That the accused are threatening respondent No. 3 that in case she takes some action against the accused, they will kill her. The accused have committed the offence with common intention, the action may be taken against them". It is important to submit that no specific allegation has been leveled against petitioner Nos.2 and 3, it is only alleged in the FIR that they are extending threats to the respondent No.3 that in case respondent No.3 takes any action against the petitioners, she will be put to dire consequence. Whereas these are only allegations, but there is no truth in these allegations and the motive behind these allegations is to pressurize the petitioners to get petitioner No.1 married with respondent No.3.
4. It is further stated that prior to the registration of the said FIR under challenge, a false complaint was lodged with the Police Station by respondent No. 3 against petitioner No.1, in which, a compromise was arrived at between petitioner No.1 and respondent No.3 at Police Station in presence of SHO which was signed by petitioner No.1, respondent No.3, father of petitioner No. 1, mother of respondent No. 3 and other two witnesses. The petitioners have been unnecessarily involved in the FIR, the quashment of which is sought through the medium of the present petition under Section 561-A Cr.P.C., only with a view to harass, humiliate and pressurize the petitioners. The CRMC No. 653/2018 Page 2 of 12 fact remains that before lodging of FIR No.55/2018 filed against the petitioners by respondent No. 3 (prosecutix), there was matter relating to the marriage of petitioner No.1 with respondent No. 3 and the same has been resolved with the execution of compromise arrived at between the parties at Police Station, Arnia in presence of the concerned SHO and there is no question for extending threat to the respondent No. 3 by the petitioners. As per the story projected by the respondent No.3, while lodging the FIR, that the offence has been committed upon her at her Aunt's house at Kalyana which falls under the jurisdiction of R. S. Pura, Police Station and not under Police Station Arnia, but respondent No.3 has deliberately done so because she is well aware that no offence has been committed by the petitioner No.1 and she can put pressure upon petitioner No.1 through the police of their area.
5. It is further stated that petitioner No.1 is self employed, running well established business of poultry and has been unnecessarily embroiled in the present FIR and if the same is not quashed by exercising powers under Section 561-A Cr.P.C, the same may have an adverse effect on the future career of petitioner No. 1 and other petitioners.
6. It is further stated that FIR No. 55/2018 dated 31.08.2018 is liable to be quashed and the same has been challenged amongst other on the following grounds:-
"a) That the FIR No. 55/2018 dated 31.08.2018 is liable to be quashed, vis-à-vis the petitioners as the allegations leveled against the petitioners apart from being vague and baseless, also lack substance for the reason that the matter pertains to the marriage of the petitioner No. 1 with the respondent No. 3 and what to talk of committing rape and extending threat to her.
b) That a bare perusal of the FIR reveals that the same is based upon a breach of promise to marry committed by the petitioner No. 1, which has been given a different colour by CRMC No. 653/2018 Page 3 of 12 the respondent No. 3 only to harass and humiliate the petitioners amongst the society at large as well as in the business community of the petitioner with whom he is conducting business.
c) That the allegations even if they are taken on face value though not admitted, would not constitute an offence under the Penal Laws for the reason that the conduct of the respondent No. 3 has also not been above board in the sense that the respondent No. 3 was all alone a consenting party to the alleged actions. It is not concealable that a boy and a girl of marriage age, even though they are familiar to each other would be allowed to spend a night together by the real Aunt (Mumi) of the girl at her residence before marriage. Similarly the other allegations are also on shaky foundation for the reason that no specific date and time has been mentioned in the application or in FIR by the respondent No. 3. The case at best even if the allegations contained in the FIR are believed to be true would constitute a breach of the promise to marry.
d) That the process of law is, therefore, sought to be abuse by the respondent No. 3 by resorting to unfounded and false allegations against the petitioners, whose future career are also likely to be jeopardized, if the FIR vis-a-vis the petitioners is not quashed.
e)That in our Indian society it not possible that a brother can involve his sister to commit rape on a girl with whom he is going to marry, it is very unnatural.
f) That viewed from any angle the FIR filed against the petitioners and the proceedings being conducted are totally illegal and unwarranted and therefore are required to be quashed out-rightly."
7. The status report in the case stands filed, relevant extract of which reads as under:-
"That on 31.08.2018 complainant prosecutrix D/o Des Raj R/o Talhar lodged a written report at Police Station, Arnia to the effect that Narinder Kumar S/o Madan Lal has committed rape with her during the intervening night of 29/30.08.2018 at the residence of her Aunt at Kalyana on the pretext of solemnizing marriage but fled away in the morning on 30.08.2018 along with his uncle Ashwani Kumar, as it was decided for solemnizing marriage in the course on the next day. In the complaint it was also mentioned that all this happened in connivance with Janko Devi and Deepika and even they threatened her if she reports the matter to police. Upon this instant case was registered at Police Station, Arnia, CRMC No. 653/2018 Page 4 of 12 During investigation I/O visited the spot, prepared the site plan, recorded the statement of witnesses, seize Palazzo (Lower) of the victim, thereafter medical examination of the victim was got conducted through Doctors at R. S. Pura.
Seized item was resealed through Executive Magistrate 1st Class Arnia and sent to director FSL Jammu for chemical analysis. Statement of victim under Section 164-A was recorded in the learned JMIC R. S. Pura."
8. I have considered the rival contentions of learned counsel for both the parties. The counsel for petitioners has relied upon 2014 (8) SCC 913 case titled State of Karnataka by Nonavinakere Police Vs. Shivanna @ Tarkari Shivanna; 2019 ACR 219 case titled Dhruvaram Murlidhar Sonar (Dr.) Vs. State of Maharashtra and others; and decision of this Court in case CRMC No. 512 /2017 date of decision 14.12.2018 case titled Sunil Kumar Vs. State of J&K and anr.
9. This petition has been filed on 11.10.2018 but prior to that statement of victim under section 164-A Cr.P.C has been recorded before JMIC on 06.06.2018. In her statement recorded under Section 164-A Cr.P.C., victim has stated that she is resident of Talhar. Her father has already died. She has two sisters, one brother and mother in the home. She knows the accused Narinder Kumar from one and half years, who is residing just near to her house. The said Narinder Kumar used to talk with her on phone and used to say that he likes her and wanted to solemnize marriage with her. She was not agreeing but accused used to talk with her forcibly. Accused, Narinder Kumar had also taken her to Katra 2 to 3 times and he also used to take her to the house of his relatives and used to have sexual intercourse with her forcibly. He used to say during this period that he would solemnize marriage with her and she is his wife. He also used to say that he will solemnize marriage with her even if his family would not agree. On 21.08.2018 in the morning at 11.00 a.m, she had gone with accused Narinder Kumar to Katra without informing her family. At Katra, the accused CRMC No. 653/2018 Page 5 of 12 Narinder Kumar has taken one room and kept her for whole night and committed sexual inter course with her on the assurance that he will solemnize marriage with her. On the next date, accused Narinder Kumar brought her back at R. S. Pura and she went to her house. On reaching at home, she told her mother that accused had taken her to Katra where Narinder Kumar has forcibly committed sexual intercourse with her. That immediately thereafter her mother had gone to the house of Narinder Kumar and asked the family of the accused Narinder Kumar for marriage as they have been insulted in the whole village because whole village had come to know that accused Narinder Kumar has taken her forcibly. Even her mother asked the family of Narinder Kumar that she was ready to give every type of dowry; but the family of Narinder Kumar did not agree. The family of Narinder Kumar asked them to take two lakh rupees and keep quite but accused Narinder Kumar stated before his family that he would solemnize marriage with her. Thereafter, a Panchayat was also held in the village who asked Narinder Kumar to solemnize marriage with her and the family of Narinder Kumar would give Fargati to him. On 27.08.2018, her family and family of Narinder Kumar came to Tehsil office and prepared the document in which it was written that Narinder Kumar would solemnize marriage with her and in case of failure, he would be liable for punishment. All this had happened in the evening at 5.00 P. M. on 27.08.2018. Thereafter, she, Narinder Kumar and her mother and other relative had gone to the house of her Mammi at Kooliyan, R. S. Pura. It was settled on 27.08.2018 that accused will solemnize court marriage in the R. S. Pura court. Accused, Narinder Kumar left the house of his Mammi in the morning for preparing the document of court marriage. After court hour, the accused came back to the house of her Mammi around 2.30.P.M. and stated that he could not find the documents. He stated CRMC No. 653/2018 Page 6 of 12 that his family has ensured that they would send the document to the house of her Mammi. They kept waiting till night but the documents were not received from the family of the accused. In the night she and accused Narinder Kumar slept separately. In the mid night accused came to her and forcibly committed rape with her and when she tried to stop Narinder Kumar, he said that they would live together for whole life as he is going to solemnize marriage with her. After that she asked the accused Narinder Kumar that they can solemnize marriage after running from the house. On this Narinder Kumar took his bag and took her near to the gate but he ran away leaving her at the gate. She raised hue and cries and her mother and Mammi woke up and she told everything to them. They searched for Narinder Kumar for whole day and when Narinder Kumar could not be found, then on 31.08.2018 they lodged the report with the Police Station. After that, family of Narinder was called in the police station and his father Madan Lal told that they have given FARGATI to him; so they have no knowledge about Narinder Kumar.
10. From bare perusal of this statement, it is evident that there is no accusation against petitioner Nos.2 to 4; mere fact that petitioner Nos. 2 to 4 are mother, sister and uncle of accused Narinder Kumar, they cannot be involved in case without any substantial evidence.
11. So far as accused Narinder Kumar is concerned; the sequence of events narrated by victim clearly reflects that he has committed sexual intercourse with victim on the pretext that he will solemnize marriage with her. But his intention was very deceitful from very beginning as is evident from statement of victim, as he never intended to solemnize marriage with her. The statement of victim would clearly reveal that she initially objected to have sexual intercourse on that relevant day at night, but accused-Narinder Kumar gave assurance and promised to CRMC No. 653/2018 Page 7 of 12 solemnize marriage with her, then she has consented. Consent has been obtained in misconception of fact, so it cannot be considered as consent in terms of section 90 of RPC.
12. In Anurag Soni Vs. State of Chhattisgarh CRIMINAL APPEAL No. 629 of 2019 (Arising out of SLP(Criminal) No.618/2019) DOD 09/04/2019, it is held as under:-
"14. Considering the aforesaid facts and circumstances of the case and the evidence on record, the prosecution has been successful in proving the case that from the very beginning the accused never intended to marry the prosecutrix; he gave false promises/promise to the prosecutrix to marry her and on such false promise he had a physical relation with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and, therefore, her consent can be said to be a consent on misconception of fact as per Section 90 of the IPC and such a consent shall not excuse the accused from the charge of rape and offence under Section 375of the IPC. Though, in Section 313 statement, the accused came up with a case that the prosecutrix and his family members were in knowledge that his marriage was already fixed with Priyanka Soni, even then, the prosecutrix and her family members continued to pressurise the accused to marry the prosecutrix, it is required to be noted that first of all the same is not proved by the accused. Even otherwise, considering the circumstances and evidence on record, referred to hereinabove, such a story is not believable. The prosecutrix, in the present case, was an educated girl studying in B. Pharmacy. Therefore, it is not believable that despite having knowledge that that appellant's marriage is fixed with another lady - Priyanka Soni, she and her family members would continue to pressurise the accused to marry and the prosecutrix will give the consent for physical relation. In the deposition, the prosecutrix specifically stated that initially she did not give her consent for physical relationship, however, on the appellant's promise that he would marry her and relying upon such promise, she consented for physical relationship with the appellant accused. Even considering Section 114A of the Indian Evidence Act, which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. As observed hereinabove, from the very inception, the promise given by the accused to marry the prosecutrix was a false promise and from the very beginning there was no intention of the accused to marry the prosecutrix as his marriage with Priyanka Soni was already fixed CRMC No. 653/2018 Page 8 of 12 long back and, despite the same, he continued to give promise/false promise and alluded the prosecutrix to give her consent for the physical relationship. Therefore, considering the aforesaid facts and circumstances of the case and considering the law laid down by this Court in the aforesaid decisions, we are of the opinion that both the Courts below have rightly held that the consent given by the prosecutrix was on misconception of fact and, therefore, the same cannot be said to be a consent so as to excuse the accused for the charge of rape as defined under Section 375 of the IPC. Both the Courts below have rightly convicted the accused for the offence under Section 376 of the IPC.15. Now, so far as the submission on behalf of the accusedappellant that the accused had marriage with Priyanka Soni on 10.06.2013 and even the prosecutrix has also married and, therefore, the accused may not be convicted is concerned, the same cannot be accepted. The prosecution has been successful by leading cogent evidence that from the very inspection the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust. But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception.
As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase nowadays. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As observed by this Court in a catena of decisions, while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, the rape tantamounts to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. Therefore, merely because the accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellant accused for the offence punishable under Section 376 of the IPC. The appellantaccused must face the consequences of the crime committed by him.
16. In view of the above and for the reasons stated above, we are of the opinion that both the Courts below have rightly convicted the appellant accused under Section 376 of the IPC. We also maintain the conviction of the appellant accused under Section 376 of the IPC. However, in the facts and circumstances of the case and the request made by the learned counsel appearing on behalf of the appellant accused, the sentence of 10 years' RI awarded by the courts below is hereby reduced to seven years RI, the minimum which was prescribed at the relevant time of commission of offence CRMC No. 653/2018 Page 9 of 12 under Section 376 of the IPC. Consequently, the present appeal is partly allowed to the aforesaid modification in the sentence only."
13. The argument of counsel for petitioners that even sexual intercourse, if it has taken place was consensual one, is not tenable at this stage; because from the facts of cases, it is evident that petitioner no.1 has committed sexual intercourse on pretext of marriage, whereas he had no intention to solemnize marriage right from beginning. In petition, it has been admitted that petitioner no.1 has relation with prosecutrix since long, but there is no explanation as to why marriage could not be performed. Rape has an enduring effect on the lives of the victims. However, in most cases it is not just the victim that experiences the calamitous consequences of sexual violence, but family also suffer same. In a patriarchal society like in India where the women have very low status the people closely connected to the victim, especially the family members are also affected as a result of the negative social reactions. Victims of sexual violence experience a wide range of physical and psychological problems. Rape causes the greatest distress and humiliation to the victim.
14. The law cited by counsel for petitioners is not applicable in present set of facts & circumstances of the case. Law is clear that firstly facts are to be seen and then law made on facts by Apex court or any other High Courts is to be applied.
15. Even in the case of Dr. Dhruvaram Murlidhar Sonar (supra), upon which reliance has been placed by the learned counsel appearing on behalf of the petitioners, in paragraph 20, Apex Court has observed that there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later CRMC No. 653/2018 Page 10 of 12 falls within the ambit of cheating or deception, Apex Court observed and held as under:
"20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC."
16. Further, petitioner has himself allowed the investigation to be completed and then has filed present petition. Exercise of power under Section 561- A Cr.P.C. is the exception and not rule-Inherent jurisdiction of High Court under this section may be exercised:-1. To give effect to an order under the Code.2. To prevent abuse of the process of Court.3. To otherwise secure the ends of justice.
17. Perusal of this section makes it clear that the provisions of the Code are intended to limit or affect the inherent powers of the High Courts. Obviously the inherent power can be exercised only for any of the three purposes specifically mentioned in the section. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases which may possibly arise. Under CRMC No. 653/2018 Page 11 of 12 section 561-A Cr.P.C., High court does not conduct a trial or appreciate evidence or act as a court of appeal or revision. This power has to be exercised sparingly with circumspection and in the rarest of rare cases. While exercising powers under Section 561-A of the Cr. P.C., the Court has to keep in mind that it should not ordinarily embark upon any legal investigation conducted in case of cognizable offence. In present case, all the grounds taken in petition are pertaining to appreciation of facts, which this court cannot appreciate in petition u/s 561-A Cr.P.C. All the pleas raised and those as have been argued with regard to petitioner no.1 may be good for discharge, but not for quashment of investigation, which has culminated into report under section 173 Cr.P.C, in which offence under section 376 RPC has been proved against petitioner no.1.
18. In view of above, this petition is partly allowed and impugned FIR so far as it pertains to petitioner Nos.2 to 4 only, is quashed. Petition is dismissed qua petitioner No.1.
(Sanjay Kumar Gupta) Judge Jammu 03.05.2019 Meenakshi NARINDER KUMAR SHARMA 2019.05.03 14:47 I attest to the accuracy and integrity of this document CRMC No. 653/2018 Page 12 of 12