Jammu & Kashmir High Court
Sarv Bandhu & Ors. vs State And Ors. on 14 September, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A Cr.P.C. No.452/2014 & connected MPs
Date of decision:14.09.2017
Sarv Bandhu & ors. v. State & anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the Petitioner(s) : Mr. Ajay Vaid, Advocate.
For the Respondents(s) : Mr. S.S. Nanda, Sr. AAG for respondent
No.1.
Mr. D. S. Saini, Advocate for respondent No.2.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. Through the medium of instant petition filed under Section 561-A Cr.P.C., petitioners have invoked inherent power of this Court for seeking quashment of FIR No.209/2014 registered against them with Police Station R. S. Pura, Jammu, under Sections 376/ 452 & 323 RPC and all criminal proceedings initiated thereto.
2. Learned counsel for the petitioners has stated in petition that in the year 1947, during partition, the father of petitioner no.1 along with his mother migrated to Jammu and thereafter the father of the petitioner no.1 was allotted land measuring 8 Acres on 24.01.1951. During allotment the name of mother of petitioner no.1 was also shown in the Form 'A' as the wife of Late Duni Chand. The name of the mother of the petitioner no.1 was also entered as wife of deceased Duni Chand in the Ration Card and voter list 561-A Cr.P.C. No.452 of 2014 Page 1 of 22 since 1947. In 1983 deceased parents of petitioner no.1 adopted petitioner no.1 according to Hindu rites and customs, when the petitioner no.1 was about 1 year old. Since then the petitioner no.1 is residing in the house of his adopting parents. That one Smt. Kaushalya Devi was maid of the adopting father of the petitioner no.1. She, all of sudden, about 23 years after the death of adopting father of the petitioner no.1, late Sh. Duni Chand, with malafide intentions started claiming herself to be a legally wedded wife of Duni Chand and started interfering into the properties of Late Sh. Duni Chand.
3. Learned counsel also submitted that petitioner no.1 filed a suit challenging the alleged marriage of Smt. Kaushalya Devi with Late Sh. Duni Chand. The said suit is pending subjudice before learned Sub Judge Jammu. That the aforesaid Kaushalya Devi executed a deed of adoption on 13.12.2013 which was registered before learned Sub Registrar R.S. Pura on 13.12.2013 whereby she adopted Geeta Devi as her daughter. The father of petitioner no.1 died on 27.06.1990. On the basis of said adoption deed and the illegal claim of Kaushalya Devi i.e. adopting mother of Geeta Devi (Respondent no.2 herein), they started interfering into the property of the petitioner no.1 inherited by him from his adopting father Late Sh. Duni Chand. Petitioner no.1 also challenged the adoption deed dated 13.12.2013 by filing a suit, which is also pending subjudice before learned Sub Judge Jammu. It is relevant to mention here that prior to filing of aforesaid two suits the petitioner no.1 also filed a suit for permanent prohibitory injunction restraining the defendants - Kaushalya Devi, Geeta Devi (respondent no.2 herein) and Ashok Kumar from interfering into the peaceful possession of the plaintiff (petitioner no.1 herein) in the suit land i.e. property inherited from Late Sh. Duni Chand. The said suit is also pending before learned Sub Judge Jammu, who vide his order dated 05.08.2013 has passed interim direction restraining the defendants from interfering into the suit property. The defendants in the said suit have appeared but have not filed their 561-A Cr.P.C. No.452 of 2014 Page 2 of 22 written statement in the suit mentioned above till date. That when respondent no.2 and her alleged adopting mother - Smt. Kaushalya Devi could not succeed in getting the property of Late Sh. Duni Chand, they started blackmailing them by filing criminal cases against petitioner no.1. That one complaint was filed by respondent no.2 against the petitioner no.1 before Police Station R.S. Pura under section 504 RPC, which after investigation, was found baseless and fabricated and the case was closed. Thereafter the respondent no.2 filed another fabricated complaint under Sections 107 & 151 Cr.P.C against the petitioner no.1 which is pending disposal before Executive Magistrate R.S. Pura. Petitioner no.1 did not succumbed to the pressure of criminal cases also. That now respondent no.2 has filed a false and fabricated complaint under Sections 323 & 452 RPC against petitioner no.1 and other petitioners before the Police Station R.S. Pura.
4. The petitioners challenge the FIR No.209.2014 registered under Sections 376/323/354/452 and 147 RPC, inter alia, on the following grounds:-
a) That the impugned FIR has been lodged by respondent no.2 just to blackmail the petitioner no.1 in order to achieve her nefarious designs of depriving petitioner no.1 of the property inherited by him from late Sh. Duni Chand. In the FIR, it has been alleged that the petitioners approached respondent no.2 and pressurized her to compromise the cases. It is relevant to mention herein that petitioner no.1 has filed the afore stated suits which are sure to succeed on its merits. The claim of respondent no.2 over the property of petitioner no.1 is unwarranted and unsustainable, therefore, there is no occasion for the petitioners to ask respondent No.2 to settle the disputes. The complaint is malafide.
b) That petitioner no.2 namely Om Parkash being natural father of petitioner No.1, is party to the aforesaid suits. Petitioner No.3 namely Arjun Kumar is the real brother of petitioner no.1 and petitioner Nos.4 & 5 namely Bushan Lal and Goldy are relatives of petitioner no.1. Petitioner No.5 is 15 years old only. Except petitioner no.1, rest of the petitioners have no concern with the property of petitioner no.1. It is, therefore, unsustainable that 561-A Cr.P.C. No.452 of 2014 Page 3 of 22 petitioners could have requested the complainant for settlement/compromise of the cases. The natural father of petitioner no.1 is 75 years old and it is unsustainable that he could have assaulted or threatened the complainant.
c) That it is alleged in the FIR that when the complainant was being assaulted on the road side she was saved by other persons of the locality but the FIR is absolutely vague and no witness has been cited by the complainant in the FIR, which shows that the case is frivolous.
d) That the complainant has further alleged that she was beaten by one of the accused on the road side. In case, a lady is inflicted a blow with hammer, it can cause serious injury but there is no injury on the body of the complainant, which also shows that the complaint is frivolous and concocted.
e) That the complainant has further alleged that the petitioners after confronting her on the road side came to her house and beaten her there after trespassing the house. This fact is also unsustainable. In case the complainant was not relenting for any settlement when confronted earlier therefore on the same day immediately after the previous occurrence the accused would not have gone to her house proceeding her for a settlement. The petitioner No.5, who is only 15 years old and a minor is being involved in the case that he tried to outrage her modesty. The complainant is more than 40 years old and has two grown up children and is levelling charges against the petitioners with malafide intention in order to pressurize the petitioner no.1 and blackmail him to have share in the property of Late Sh. Duni Chand i.e. adopting father of the petitioner no.1.
f) That the rights of the petitioner no.1 and his property has been well protected by the interim order passed by learned Sub Judge Jammu wherein till date the defendants have not filed any objection despite expiry of stipulated period of 90 days, there was no occasion for the petitioners to persuade the respondent no.2 for settlement of the dispute. Assuming respondent no.2 was having strong defense in the cases filed by petitioner no.1 and liable to be dismissed, only then petitioner no.1 could have resorted for measures for settlement of dispute. But when the rights of petitioner no.1 with respect of the aforesaid property are unblemished and petitioner no.1 is sure to succeed in his suits, there is no occasion for him to approach the complainant who is failing in the civil suit and till date has 561-A Cr.P.C. No.452 of 2014 Page 4 of 22 not filed her objections, adopted illegal methods of getting the petitioners involved in a false and fabricated criminal case. The FIR registered against the petitioners and consequential criminal proceedings initiated by respondent no.1 against the petitioners are illegal an deserves to be set aside.
5. On the basis of afore mentioned submissions, learned counsel for the petitioners prays for quashing of FIR No.209/2014 registered against the petitioners with Police Station R.S. Pura, Jammu and all proceedings arising thereto.
6. Respondent-State has filed objections stating therein that on 09.11.2014 at 1930 hrs, the complainant namely Geeta Devi along with her husband namely Ashok Kumar lodged a written report in the Police Station, R.S.Pura, alleging therein that she is the resident of village Dangrey, Tehsil R.S. Pura, District Jammu and a civil suit between her mother Kaushalya Devi Wd/O Duni Chand and accused persons namely Arjun, Sarav Bandu sons of Om Parkash, Om Parkash S/o Puran chand, all residents of Dangrey is pending disposal before the court of law in regard to the land dispute as the accused persons have grabbed the land of her mother. The said complainant has also alleged that she is assisting her mother in the said civil suit and due to the said reason the above mentioned persons/accused are having personal grudge with her. It is submitted that many times said accused persons asked the complainant to compromise but she refused for the same. On this enmity, today on 09.11.2014 at 6 pm when her husband had gone to Chakrohi, she was standing outside her house on the road, the above said persons/accused started to beat her with fists and blows on her chest. On raising hue and cry, some inhabitants rescued her from the clutches of accused persons and she went inside the house. Her mother went in the house of neighbored Girdhari Lal and told him to inform the husband of the complainant on mobile to reach immediately at house. That in the meanwhile the above accused persons with a criminal intention entered into the house of complainant and accused namely Bhushan Lal 561-A Cr.P.C. No.452 of 2014 Page 5 of 22 caught hold of her from arms, while Arjun, Sarav Bandu and Goldy thrashed her and she fell down on the floor. The said accused persons torn her clothes from the chest and also tried to rape her. When she tried to escape from their clutches, Sarav Bandu and Arjun attacked her with some object and seriously injured her. It is submitted that when the above accused persons did not succeed to rape with her, they attacked her with the intention to kill her.
7. It is further stated that on this report a case FIR No. 209/2014 offence under Sections 452/323 RPC was registered against the accused persons and investigation of the case was entrusted to ASI Kuldeep Kumar. The medical checkup of the complainant was got conducted from the PHC R.S. Pura. The report of the same is still awaited. The IO visited on spot and prepared the site plan. The statements of Kaushalya Devi M/o Geeta Devi (Complainant), Suman Devi W/o Parshotam Kumar, Sanjeev Kumar S/o Dev Raj were recorded under section 161 Cr.P.C. During the course of investigation, the complainant and her husband were questioned at Government Medical College, Jammu and during questioning the complainant disclosed that on the day of occurrence when she was standing outside her house on the road, the accused persons (1) Om Parkash S/o Puran Chand (2) Arjun S/o Om Parkash (3) Sarav Bandu S/o Om Parkash (4) Bhushan Lal S/o Tara Chand (5) Goldy S/o Bhushan Lal all residents of Dangrey Tehsil R.S. Pura, District Jammu with the criminal intention started to beat her as her husband was not at home. On raising hue and cry, some persons of the locality came on the spot and rescued her from the clutches of above said persons. That when she went inside her house and her mother went to the house of neighbor namely Girdhari Lal to inform the husband of the complainant regarding the incident. In the meanwhile the accused persons namely (i) Arjun S/o Om Parkash (ii) Sarav Bandu S/o Om Parkash (iii) Bhushan Lal (iv) Goldy S/o Bhushan Lal entered into the house of complainant. Bhushan Lal caught hold the complainant from her 561-A Cr.P.C. No.452 of 2014 Page 6 of 22 breast and others torned her clothes. The said accused persons also started to beat her, while Sarav Bandu opened her Salwar and put his hand in her vagina and bleeding started from her vagina. Later the accused persons namely Sarav Bandu and Goldy raped her turn by turn and when she cried both the accused persons attacked on her head due to which she got serious injury. It is submitted that in the meanwhile the mother of complainant came back to house and on seeing her, the above said accused persons fled away from the spot. It is submitted that on the basis of statements and investigation conducted so far, the offence under section 376/452/354/147/323 RPC have been proved against the accused persons
(i) Bhushan Lal S/o Tara Chand (2) Goldy S/o Bhushan Lal (3) Arjun and (4) Sarav Bandu sons of Om Parkash all residents of village Dangrey, Tehsil R.S. Pura, District Jammu. During the course of investigation, the statement of the complainant was also recorded before the court of law under section 164-A Cr.P.C. It is submitted that in the meanwhile the above said accused persons were bailed out in case FIR No.209/2014 offence under sections 452/323. It is further submitted that investigation is still going on and all the best efforts are being taken to conclude the matter to its logical end.
8. It is also stated in the objections that during the course of investigation, petitioners no.1 and 3 to 5, prima facie, were found involved in committing offence under sections 376/452/354/147/323 RPC in case FIR No.209/2014 and their arrest is required to complete the investigation but the said accused persons are evading their arrest under the garb of interim order dated 02.01.2015. The respondent-State seeks the indulgence of this Hon'ble Court to modify/vacate order dated 02.01.2015 in order to complete the investigation to its logical end.
9. Respondent No.2 has also filed objections contending therein that the adoptive father of respondent was a displaced person of 1947 from PoK occupied area of J&K State and due to Indo-PoK conflict of 1947, he has to 561-A Cr.P.C. No.452 of 2014 Page 7 of 22 leave his native place and as such became a refugee. Being refugee of 1947, said Duni chand was allotted land measuring 72 Kanals and 04 marlas in village Dangrey, Tehsil R.S. Pura, District Jammu. That after the death of said Duni Chand, the petitioners no.1 and 2 with the assistance of petitioners no.3 to 5 in conspiracy with revenue staff and other persons hatched a conspiracy and manipulated a forged adoption deed alleged to have been executed by deceased Duni Chand and Smt. Kaushayla Devi with a view to grab the property left by Late Duni Chand. Petitioner no.1 also succeeded in getting the mutation of inheritance attested in his favour with regard to some property of Late Duni Chand on the basis of said forged adoption deed. It is stated that petitioner no.1 happens to be son of petitioner no.2, Om Parkash S/o Puran Chand, R/o Village Dangrey. Said Duni Chand was brother of Puran Chand and both the brothers have got separate allotments of land in their favour. Smt. Kaushalya Devi W/o Late Duni Chand has challenged the mutation being mutation no. 161 dated 20- 03-1992 before District Collector Jammu in appeal which was transferred to Assistance Commissioner Revenue (hereinafter referred to as ACR) for disposal. The mother of respondent namely Smt. Kaushayla Devi moved application in the office of Sub Registrar R.S. Pura for getting the certified copy of alleged adoption deed but the office of Sub Registrar reported that the said adoption deed was not traceable in records.
10. It is further submitted that in order to grab the property of late Duni Chand, petitioner no.1 has filed few civil suits against the adoptive mother of the respondent and her husband which are pending in the court of Sub Registrar Jammu. The respondent's mother also filed criminal complaint for forgery and other offences in the court of learned CJM, Jammu and the said complaint has been referred to the Crime Branch, Jammu under section 156(3) of Cr.P.C. for registration of a case against petitioners no.1 and 2, which is under investigation before Crime Branch, Jammu.
561-A Cr.P.C. No.452 of 2014 Page 8 of 2211. That the petitioners have threatened the respondent, her husband and her mother Smt. Kaushalya Devi to withdraw the appeal and criminal cases filed by her and also to vacate the house and portion of land belonging to deceased Duni Chand and the mother of the respondent. At few occasions, petitioner no.1 also abused and beat the respondent and spitted on her face in the open market for which the respondent has initiated criminal proceedings against him. That the petitioners on 09.11.2014 attacked the respondent on the road in front of her house and beat her and the respondent was saved from the clutches of the accused and respondent went to her house. The mother of the respondent went to the house of one Girdhari Lal to tell him regarding the beatings of respondent and requested him to inform respondent's husband who was away to Chakroi Bazar along with his younger son to the doctor. The accused persons again forcibly trespassed into the house of the respondent where the respondent is living alongwith her mother Smt. Kaushayla Devi, her husband and children in the house left by late Duni chand. Petitioner/accused Bushan Lal caught hold both the arms of respondent and accused/petitoners namely Arjun Kumar, Sarav Bandhu and Goldy threw the respondent on soil and torned the clothes of respondent and forcibly committed rape on her and also molested the breast of respondent. When respondent tried to save her, the petitioners hit her on the head with some object with the intention to kill her. That the respondent was admitted in R.S. Pura Hosptial wherefrom she was referred to Govt. Medical College Jammu for further specialized treatment and the respondent remained admitted in Govt. Medial College, Jammu from 10-11-2014 to 18.11.2014.That the statement of the respondent after her discharge from the Govt. Medical College, Jammu in terms of section 164-A Cr.P.C was recorded on 21.11.2014 by learned Munsiff, Judicial Magistrate, R.S.Pura, Jammu.
12. It is also submitted that the petitioners by enclosing the copy of FIR and copies of civil litigation pending between petitioner no.1 and respondent, 561-A Cr.P.C. No.452 of 2014 Page 9 of 22 her mother and husband tried to show the Court that the offence was under
section 452 read with section 323 of RPC concealing the true facts of occurrence from the Court and got an order dated 22.11.2014 by virtue of which this Court directed that in connection with FIR No.209/2014 of Police Station R.S.Pura, the petitioner shall not be arrested on furnishing bail for an amount of Rs.10,000/- and the personal bond of like amount. That order dated 22.11.2014 passed in the petition has been obtained by concealing the true occurrence from the Hon'ble Court whereas the fact is that the petitioners in FIR No.209/2014 have committed the offences under Sections 376, 452, 147, 354 and 323 RPC, which are very heinous offences non bail able and triable by Special Court. That the petitioners have filed the present petition in order to circumvent the normal criminal trial which is not permitted under law. The petitioners have committed heinous offences, which are against the society at large. The investigation of the case is in progress but the police has not arrested the petitioners despite the fact that this Court has clarified order dated 22.11.2014 by its subsequent order dated 02.01.2015. That the evidence collected so far by the police, prima facie, establishes offences under Sections 376, 354, 452, 147 & 323 RPC, therefore, the present petition is not maintainable under law.
13. Heard learned counsel for both the sides, gone through the file and considered the law on the subject. Counsel for petitioner has argued that FIR has been lodged for settling civil litigation and as a counterblast to civil suits filed by him. Whereas counsels for respondent state and private respondent have stated that scope of 561-A is limited and cannot be allowed to exercise, when ingredients of offence is made out as held in 2008 (4) SCC 471 case titled CBI v K.M.Sharan. That inherent power 561- A Cr.P.C. has to be used in rarest of rare case as held in 2017 AIR SC 373 in case titled State of Tehalgana v Habib Abdullah Jeelani & ors.
14. I have considered the whole aspects of the matter and law on the subject.
561-A Cr.P.C. No.452 of 2014 Page 10 of 2215. Before dealing with the facts of the present case, it would be appropriate to note the law laid down by the Supreme Court in the decision reported as (2013) 3 SCC 330 Rajiv Thapar & Ors. Vs. Madan Lal Kapoor while laying down the guidelines for quashing of a FIR and the proceedings pursuant thereto in exercise of its power under Section 482 Cr.P.C. by the High Court, the Supreme Court delineated the steps to be taken to determine the veracity of prayer as under:
"29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far- reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to 561-A Cr.P.C. No.452 of 2014 Page 11 of 22 quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant;
and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising there from) specially when it is clear that the same would not conclude in the conviction of the accused."
16. Following the decision in Rajiv Thapar's (supra) Supreme Court in the decision reported as (2013) 9 SCC 293 Prashant Bharti Vs. State (NCT of Delhi) dealing with a similar fact situation noting the facts of the complaint therein, material collected in investigation and placed by the accused therein quashed the FIR holding as under:
561-A Cr.P.C. No.452 of 2014 Page 12 of 22"23. The details in respect of each aspect of the matter, arising out of the complaints made by Priya on 16-2-2007 and 21-2- 2007 have been examined in extensive detail in the foregoing paragraphs. We shall now determine whether the steps noticed by this Court in the judgment extracted hereinabove can be stated to have been satisfied. Insofar as the instant aspect of the matter is concerned, the factual details referred to in the foregoing paragraphs are being summarised hereafter:
23.1. Firstly, the appellant-accused was in Sector 37, Noida in the State of Uttar Pradesh on 15-2-2007. He was at Noida before 7.55 p.m. He, thereafter, remained at different places within Noida and then at Shakarpur, Ghaziabad, Patparganj, Jorbagh, etc. From 9.15 p.m. to 11.30 p.m. on 15-2-2007, he remained present at a marriage anniversary function celebrated at Rangoli Lawns at Ghaziabad, Uttar Pradesh. An affidavit to the aforesaid effect filed by the appellant-accused was found to be correct by the investigating officer on the basis of his mobile phone call details. The accused was therefore not at the place of occurrence, as alleged in the complaint dated 16-2-2007.
23.2. Secondly, verification of the mobile phone call details of the complainant/prosecutrix Priya revealed, that on 15-2-2007, no calls were made by the appellant-accused to the complainant/prosecutrix, and that, it was the complainant/prosecutrix who had made calls to him. 23.3.
Thirdly, the complainant/prosecutrix, on and around the time referred to in the complaint dated 16-2-2007, was at different places of New Delhi i.e. in Defence Colony, Greater Kailash, Andrews Ganj and finally at Tughlaqabad Extension, as per the verification of the investigating officer on the basis of her mobile phone call details. The complainant was also not at the place of occurrence, as she herself alleged in the complaint dated 16-2-2007.
23.4. Fourthly, at the time when the complainant/prosecutrix alleged that the appellant-accused had misbehaved with her and had outraged her modesty on 15-2-2007 (as per her complaint dated 16-2-2007), she was actually in conversation with her friends (as per the verification made by the investigating officer on the basis of her mobile phone call details).
23.5. Fifthly, even though the complainant/prosecutrix had merely alleged in her complaint dated 16-2-2007 that the accused had outraged her modesty by touching her breasts, she had subsequently through a supplementary statement 561-A Cr.P.C. No.452 of 2014 Page 13 of 22 (made on 21-2-2007), levelled allegations against the accused for the offence of rape.
23.6. Sixthly, even though the complainant/prosecutrix was married to one Manoj Kumar Soni, s/o Seeta Ram Soni (as indicated in an affidavit appended to the Delhi Police format for information of tenants and duly verified by the investigating officer, wherein she had described herself as married), in the complaint made to the police (on 16-2-2007 and 21-2-2007), she had suggested that she was unmarried. 23.7. Seventhly, as per the judgment and decree of the Civil Judge (Senior Division), Kanpur (Rural) dated 23-9-2008, the complainant was married to Lalji Porwal on 14-6-2003. The aforesaid marriage subsisted till 23-9-2008. The allegations made by the complainant dated 16-2-2007 and 21- 2-2007 pertain to occurrences of 23-12-2006, 25-12-2006, 1-1- 2007 and 15-2-2007 i.e. positively during the subsistence of her marriage with Lalji Porwal. Thereafter, the complainant Priya married another man Manoj on 30-9-2008. This is evidenced by a "certificate of marriage" dated 30-9-2008. In view of the aforesaid, it is apparent that the complainant could not have been induced into a physical relationship based on an assurance of marriage.
23.8. Eighthly, the physical relationship between the complainant and the accused was admittedly consensual. In her complaints Priya had however asserted, that her consent was based on a false assurance of marriage by the accused. Since the aspect of assurance stands falsified, the acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376IPC. Especially because the complainant was a major on the date of occurrences, which fact emerges from the "certificate of marriage" dated 30-9- 2008, indicating her date of birth as 17- 7-1986. 23.9. Ninthly, as per the medical report recorded by AIIMS dated 16-2-2007, the examination of the complainant did not evidence her having been poisoned. The instant allegation made by the complainant cannot now be established because even in the medical report dated 16-2-2007 it was observed that blood samples could not be sent for examination because of the intervening delay. For the same reason even the allegations levelled by the accused of having been administered some intoxicant in a cold drink (Pepsi) cannot now be established by cogent evidence.
23.10. Tenthly, the factual position indicated in the charge- sheet dated 28-6-2007, that despite best efforts made by the 561-A Cr.P.C. No.452 of 2014 Page 14 of 22 investigating officer, the police could not recover the container of the cold drink (Pepsi) or the glass from which the complainant had consumed the same. The allegations made by the complainant could not be verified even by the police from any direct or scientific evidence, is apparent from a perusal of the charge-sheet dated 28-6-2007.
23.11. Eleventhly, as per the medical report recorded by AIIMS dated 21-2-2007 the assertions made by the complainant that the accused had physical relations with her on 23-12-2006, 25-12-2006 and 1-1-2007, cannot likewise be verified as opined in the medical report, on account of delay between the dates of occurrences and her eventual medical examination on 21-2-2007. It was for this reason, that neither the vaginal smear was taken, nor her clothes were sent for forensic examination.
24. Most importantly, as against the aforesaid allegations, no pleadings whatsoever have been filed by the complainant. Even during the course of hearing, the material relied upon by the accused was not refuted. As a matter of fact, the complainant/prosecutrix had herself approached the High Court, with the prayer that the first information lodged by her, be quashed. It would therefore be legitimate to conclude, in the facts and circumstances of this case, that the material relied upon by the accused has not been refuted by the complainant/prosecutrix. Even in the charge-sheet dated 28-6- 2007, (extracted above) the investigating officer has acknowledged, that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 CrPC.
25. Based on the holistic consideration of the facts and circumstances summarised in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar case [Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330 : (2013) 3 SCC (Cri) 158] stand satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the appellant-accused, in exercise of the inherent powers vested with it under Section 482 CrPC. Accordingly, based on the conclusions drawn hereinabove, we are satisfied that the first information report registered under Sections 328, 561-A Cr.P.C. No.452 of 2014 Page 15 of 22 354 and 376 of the Penal Code against the appellant-accused, and the consequential charge-sheet dated 28-6-2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1-12-2008, deserves to be quashed. The same are accordingly quashed."
17. In present case, facts of the matter is that on 09.11.2014 at 1930 hrs, the complainant namely Geeta Devi along with her husband namely Ashok Kumar lodged a written report in the Police Station, R.S.Pura, alleging therein that she is the resident of village Dangrey, Tehsil R.S. Pura, District Jammu and a civil suit between her mother Kaushalya Devi Wd/O Duni Chand and accused persons namely Arjun, Sarav Bandu sons of Om Parkash, Om Parkash S/o Puran chand, all residents of Dangrey is pending disposal before the court of law in regard to the land dispute as the accused persons have grabbed the land of her mother. The said complainant has also alleged that she is assisting her mother in the said civil suit and due to the said reason the above mentioned persons/accused are having personal grudge with her; that many times said accused persons asked the complainant to compromise but she refused for the same. On this enmity, today on 09.11.2014 at 6 pm when her husband had gone to Chakrohi, she was standing outside her house on the road, the above said persons/accused started to beat her with fists and blows on her chest. On raising hue and cry, some inhabitants rescued her from the clutches of accused persons and she went inside the house. Her mother went in the house of neighborer Girdhari Lal and told him to inform the husband of the complainant on mobile to reach immediately at house; that in the meanwhile the above accused persons with a criminal intention entered into the house of complainant and accusd namely Bhushan Lal caught hold of her from arms, while Arjun, Sarav Bandu and Goldy thrashed her and she fell down on the floor. The said accused persons torn her clothes from the chest and also tried to rape her. When she tried to escape from their cluthes, Sarav Bandu and Arjun attacked her with some object and seriously injured her. It is submitted that when the above accused persons did not succeed to rape with 561-A Cr.P.C. No.452 of 2014 Page 16 of 22 her, they attacked her with the intention to kill her.On this report a case FIR No. 209/2014 offence under Sections 452/323 RPC was registered against the accused persons and investigation of the case was entrusted to ASI Kuldeep Kumar. There is no allegation of gang rape in the initial version.
18. The medical check-up of the complainant was got conducted from the PHC R.S. Pura. The IO visited on spot and prepared the site plan. The statements of Kaushalya Devi M/o Geeta Devi (Complainant), Suman Devi W/o Parshotam Kumar, Sanjeev Kumar S/o Dev Raj were recorded under section 161 Cr.P.C. During the course of investigation, the statement of complainant u/s 164-A Cr.P.C was got recorded, wherein she stated that on the day of occurrence when she was standing outside her house on the road, the accused persons (1) Om Parkash S/o Puran Chand (2) Arjun S/o Om Parkash (3) Sarav Bandu S/o Om Parkash (4) Bhushan Lal S/o Tara Chand (5) Goldy S/o Bhushan Lal all residents of Dangrey Tehsil R.S. Pura, District Jammu with the criminal intention started to beat her as her husband was not at home. On raising hue and cry, some persons of the locality came on the spot and rescued her from the clutches of above said persons; when she went inside her house and her mother went to the house of neighbor namely Girdhari Lal to inform the husband of the complainant regarding the incident; meanwhile the accused persons namely (i) Arjun S/o Om Parkash (ii) Sarav Bandu S/o Om Parkash (iii) Bhushan Lal (iv) Goldy S/o Bhushan Lal entered into the house of complainant. Bhushan Lal caught hold the complainant from her breast and others torn her clothes; the said accused persons also started to beat her, while Sarav Bandu opened her Salwar and put his hand in her vagina and bleeding started from her vagina. Later the accused persons namely Sarav Bandu and Goldy raped her turn by turn and when she cried both the accused persons attacked on her head due to which she got serious injury. On the basis of statements, the offence under section 376/452/354/147/323 RPC was found proved against the accused persons namely (i) Bhushan Lal S/o Tara Chand (2) Goldy S/o 561-A Cr.P.C. No.452 of 2014 Page 17 of 22 Bhushan Lal (3) Arjun and (4) Sarav Bandu sons of Om Parkash all residents of village Dangrey, Tehsil R.S. Pura, District Jammu Bare perusal of FIR lodged by complainant and her husband, it is evident that there was no allegations of gang rape by petitioners. But in statement recorded under section 164-A RPC on 21.11.2014, which was recorded after 9 days of alleged occurrence, the victim has improved her statement and leveled gang rape against accused persons/petitioners. She has stated in the statement that " the said accused persons also started to beat her, while Sarav Bandu opened her Salwar and put his hand in her vagina and bleeding started from her vagina. Later the accused persons namely Sarav Bandu and Goldy raped her turn by turn and when she cried both the accused persons attacked on her head due to which she got serious injury. That in the meanwhile the mother of complainant came back to house and on seeing her, the above said accused persons fled away from the spot. The medical examination of victim has been conducted on 10.11.2014, which shows no evidence of vaginal /farcical tears, no bleeding was present. Medical report is thus negative with regard to gang rape. Had all the petitioners committed gang rape on victim; it is not probable that victim would have not sustained any injury on body or private part. As already discussed ,medical evidence is negative.
Further there are multiple litigations pending between parties. All the civil cases have been filed by accused Sarvabandu. Petitioner Sarvabandu has filed one suit for permanent injunction against the mother of victim Koshyala Devi, victim and her husband Ashok Kumar thereby restraining them from interfering into possession of land measuring 33 kanals under various khasra numbers situated at Dangi R.S. Pura on ground that after death of father of plaintiff ,the mother of victim Koushyala Devi claiming to be wife of deceased has started interfering. In suit it has been stated that being adoptive son of Duni Chand he is in possession of land and 561-A Cr.P.C. No.452 of 2014 Page 18 of 22 defendants mother of victim Koshyala Devi , victim and her husband Ashok Kumar.
19. Another suit has been filed by petitioner's mother Smt. Sardo Devi and petitioner no.1 thereby challenging the alleged marriage of Smt. Kaushalya Devi with Late Sh. Duni Chand the father of petitioner no.2 Sarva Bandu and with consequential relief restraining them from claiming any right on properties of late father. In this suit it has been alleged that Smt. Sardo Devi the mother of petitioner no.1was married with Duni Chand in 1942; they were resident of Mirpur ; that petitioner Srava Bandu is their adopted son as he was adopted in 1983 when he was 1 yrs old, so entitled to all properties; that after 1947 they migrated to Jammu and deceased was allotted land measuring 8 acres on 24.1.1955. Said Duni Chand died in 1990; that name of wife of deceased has been entered in Form A , ration card and voter list. That after death all properties of Duni chand has been entered on his name by virtue of mutation of inheritance. That defendant no.1 Kousyhala Devi was kept as maid by deceased and his wife in 1975; after death said maid left the house. In July 2013 defendants started interfering so plaintiff no.2 has filed suit.
20. One more suit has been filed by petitioner.no.1 herein against victim, her mother and one Smt. Dhakho Devi for declaration that deed of adoption dated 13.12.2013 executed between defendant Koushyla Devi and Smt. Dhaklo Devi ( natural mother) of victim with regard to adoption of victim (Geeta Devi), is null and void.
21. Bare perusal of this adoption deed, it is evident that when this deed was made adopted child Geeta Devi ( victim) was of 30 years.
22. Further it has been specifically averred in petition that one complaint was filed by against the petitioner no.1 before Police Station R.S. Pura under section 504 RPC, which after investigation, was found baseless and 561-A Cr.P.C. No.452 of 2014 Page 19 of 22 fabricated and the case was closed. Thereafter the respondent no.2 filed another fabricated complaint under Sections 107 & 151 Cr.P.C against the petitioner no.1 which is pending disposal before Executive Magistrate R.S. Pura. These facts have not been denied by respondent no.2 herein.
23. In this way, it is evident that family of victim including victim were keeping hostile attitude towards the petitioners. Petitioner 2 is 75 years of age, petitioner no.5 is 55 years old and petitioner no.3 is minor. The allegation of gang rape has been alleged first time in her statement recorded u/s 164-A Cr.P.C after 11 days of lodging of FIR. The contention of gang rape is not supported with any other attending circumstances.
24. In AIR 2017 SC 1884 in case titled Vineet Kumar v State of UP, Hon'ble Apex Court relying upon the judgment in Prashant Bharti (supra ) and Rajiv Thaper ( supra) has quashed a charge sheet under section 376 IPC holding as under:
---------------------------------------Apart from bald assertions by the complainant that all accused have raped, there was nothing which could have led the Courts to form an opinion that present case is fit a case of prosecution which ought to be launched. We are conscious that statement given by the prosecutrix/complainant under Section 164 Cr.P.C. is not to be lightly brushed away but the statement was required to be considered along with antecedents, facts and circumstances as noted above. Reference to the judgment of this Court in Prashant Bharti vs. State(NCT of Delhi), 2013 (9) SCC 293, is relevant for the present case. In the above case the complainant lady aged 21 years lodged an FIR under Section 328 and 354 IPC with regard to the incident dated 15.02.2007.
She sent telephonic information on 16.02.2007 and on her statement FIR under Sections 328 and 354 IPC was registered against the appellant. After a lapse of five days on 21.02.2007 she gave a supplementary statement alleging rape by the appellant on 23.12.2006, 25.12.2006 and 01.01.2007. Statement under Section 164 Cr.P.C. of the prosecutrix was 561-A Cr.P.C. No.452 of 2014 Page 20 of 22 recorded. Police filed charge-sheet under Section 328, 324 and 376 IPC. Charge-sheet although mentioned that no proof in support of crime under Section 328/354 could be found. However, on the ground of statement made under Section 164 Cr.P.C. charge sheet was submitted. 37. The appeal was filed against the aforesaid judgment of the High Court by the accused contending that there was sufficient material collected in the investigation which proved that allegations were unfounded and the prosecution of the appellant was an abuse of process of the Court. In paragraph 23 this Court noted several circumstances on the basis of which this Court held that judicial conscience of the High Court ought to have persuaded it to quash the criminal proceedings. This Court further noticed that Investigating Officer has acknowledged that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 Cr.P.C. In paragraphs 24 and 25 of the judgment following was stated: "24. Most importantly, as against the aforesaid allegations, no pleadings whatsoever have been filed by the complainant. Even during the course of hearing, material relied upon by the accused was not refuted. As a matter of fact, the complainant/prosecutrix had herself approached the High Court, with the prayer that the first information lodged by her, be quashed. It would therefore be legitimate to conclude, in the facts and circumstances of this case, that the material relied upon by the accused has not been refuted by the complainant/prosecutrix. Even in the charge sheet dated 28.6.2007, (extracted above) the investigating officer has acknowledged, that he could not find any proof to substantiate the charges. The chargesheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 of the Cr.P.C. 25. Based on the holistic consideration of the facts and circumstances summarized in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar's case (supra) stand - satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on 561-A Cr.P.C. No.452 of 2014 Page 21 of 22 the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the accused-appellant, in exercise of the inherent powers vested with it under Section 482 of the Cr.P.C. Accordingly, based on the conclusions drawn hereinabove, we are satisfied, that the first information report registered under Sections 328, 354and 376 of the Indian Penal Code against the appellant-accused, and the consequential chargesheet dated 28.6.2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1.12.2008, deserves to be quashed. The same are accordingly quashed." 38. Thus, above was the case where despite statement under Section 164 Cr.P.C. by prosecutrix the Court referring to material collected during investigation had held that the case was fit where the High Court ought to have quashed the criminal proceedings
25. Keeping in view all facts of case and law on the point, I am of considered opinion that present criminal prosecution launched u/s 376/ 452 & 323 RPC , is manifestly attended with mala fide and has been 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. Further it has been launched to settle out civil dispute which are already pending before various civil court against complainant and her family.
26. Hence FIR No.209/2014 registered against petitioners with Police Station R. S. Pura, Jammu, under Sections 376/323/354/452 and 147 RPC and all criminal proceedings initiated thereto, are quashed. Petition stands allowed in the afore mentioned terms.
(Sanjay Kumar Gupta)
Jammu Judge
14.09.2017
Narinder
561-A Cr.P.C. No.452 of 2014 Page 22 of 22