Uttarakhand High Court
Dhanesh Kumar vs State Of Uttarakhand And Another on 25 September, 2020
Author: R.C. Khulbe
Bench: R.C. Khulbe
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No.1786 of 2019
(U/s 482 Cr.P.C.)
Dhanesh Kumar ...............Applicant
Versus
State of Uttarakhand and Another ... Respondents
Mr. B.M. Pingal, learned counsel for the applicant.
Mr. Kuldeep S. Rawal, AGA with Mr. Rohit Dhyani, B.H. for the State.
Mr. Bhuwnesh Joshi, learned counsel for respondent no.2.
Hon'ble R.C. Khulbe, J.
This application is filed under Section 482 Cr.P.C. for quashing the summoning order dated 25.05.2019 and entire proceedings of Special S.T. No.85/2019 (Case Crime No.852 of 2018), State Vs. Dhanesh, under Sections 376, 511, 506 IPC and Sections 7/8 of the POCSO Act, pending before the FTC/Addl. Sessions Judge/Special Judge, POCSO, Haridwar.
2. Facts of the case that the informant Deep Chand submitted an information with Police Station Laksar, District Haridwar, on 11.9.2018, against the present applicant with the allegations that when his daughter went in the field to collect grass, meanwhile, the applicant Dhanesh Kumar came behind and caught her with the intention to commit sexual intercourse.
3. After investigation, charge sheet was submitted against the applicant under Sections 376/511, 506 IPC and Sections 7/8 of the POCSO Act. Accordingly, the cognizance was taken. Aggrieved by it, the present application has been filed under Section 482 Cr.P.C. seeking to quash the entire proceedings before the court below.
4. Heard learned counsel for the parties and perused the record.
25. From the perusal of the record, it is clear that the prosecutrix has died on 19.02.2019. There is no medical examination of the victim available on record. As per the FIR, it was an attempt only, and as per the statements recorded under Section 164 Cr.P.C. the prosecutrix stated that at the time of incident, her sister and sister-in-law were present. Although during the course of investigation, the Investigating Officer recorded the statement of prosecutrix under Section 161 Cr.P.C. but there is no document on record to show that the Investigating Officer recorded the statements of the above-said witnesses. The prosecutrix has died and there is no medical evidence available on record. The concerned Judge summoned the applicant only on the basis of charge sheet while there is no prima facie evidence available on record to show that the applicant tried to commit sexual offence against the prosecutrix.
6. In this regard, Hon'ble Single Judge of the Allahabad High Court, in the case of Jodhi @ Ayodhya v. State of U.P. in Criminal Appeal No.821 of 2007 decided on 13th August, 2014, in the same set of facts, has held as under: -
"In these circumstances, the statement of the prosecutrix has not been corroborated by any other witness regarding attempt to commit rape. Although there is no rule that corroboration is essential before there can be a conviction solely on the testimony of the prosecutrix. In the instant case, the prosecutrix had died after the examination-in-chief and no cross examination has been conducted. Under these circumstances, the corroboration of the statement of the victim was required. The witnesses of facts examined by the prosecution have specifically stated that they have not seen the accused that he was opening 'Nara'. They have also not stated anywhere that the accused had attempted to commit rape upon the victim. In these circumstances, it is not proved that the appellant had attempted to commit rape upon the prosecutrix.3
Therefore, conviction for the offence punishable under Sections 376/511 I.P.C. cannot be sustained."
7. Moreover, the Hon'ble Supreme Court in the case of State of Haryana and others v. Bhajan Lal & others, reported in 1992 Supp (1) SCC 335, have considered, in detail, the provisions of Section 482 Cr.P.C., and the power of the High Court to quash criminal proceedings or FIR. The Hon'ble Supreme Court summarized the legal position by laying the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint: -
1. "Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or, where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."4
8. Considering the facts of the present case, in light of the aforesaid judgments, I am of the view that the no prima facie case is made out against the applicant.
9. Accordingly, the present application filed under Section 482 Cr.P.C. allowed. Entire proceedings, pending before the court below qua the applicant, as mentioned in paragraph no.1 of this judgment, are hereby quashed.
10. Inform the court below.
(R.C. Khulbe, J.) 25.09.2020 Balwant/Sukhbant