Jammu & Kashmir High Court
Mohd. Mushtaq And Another vs Senior Superintendent Of Police on 14 September, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
h475
S.No.43
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRM(M) No.675/2021
Mohd. Mushtaq and another ...Petitioner(s)
Through:- Mr. Irfan Khan, Advocate
V/s
Senior Superintendent of Police, Udhampur and others ...Respondent(s)
Through:- Mr. Sumeet Bhatia, GA for R-1 to 3
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The petitioner has challenged FIR No.75/2021 for offence under Sections 34, 109, 458, 376 and 506 IPC registered with Police Station, Udhampur as also the charge-sheet emanating therefrom, which is stated to be pending before the Court of learned Principal Sessions Judge, Udhampur.
2. As per the prosecution case, on 11th February, 2021, a complainant was filed by respondent No.4 herein before the Chief Judicial Magistrate, Udhampur and on the basis of the order passed by the learned Chief Judicial Magistrate, the impugned FIR came to be registered. As per the FIR, the complainant/respondent No.4 happens to be the legally wedded wife of petitioner No.1. It is alleged that petitioner No.1 used to misbehave with his wife after marriage and respondent No.4 kept on tolerating the said behavior. It is alleged that on 6th February, 2021 at 2 about 300 hours, the petitioners along with two unknown persons came from Jammu in a vehicle and entered into matrimonial house of the complainant at Bali Tehsil Udhampur, where she was residing with her two minor children. It is further alleged that the petitioners alongwith unknown persons entered into the room of the complainant and gave a beating to her. She was asked by the petitioners to take off her clothes whereafter she was subjected to sexual assault by both the petitioners. The complainant/ respondent No.4 raised a hue and cry and some villagers came on spot and the petitioners along with unknown persons ran away from the spot.
3. The investigation of the case was conducted by the police, during which statements of the prosecutrix under Section 164 Cr. P.C. was recorded, and after investigation, offences under Sections 458/109/376- D/506/34 IPC stand established against the petitioners. However, two unknown accomplices of the petitioners could not be identified and the investigation in this regard is stated to be still going on. The challan has been filed against the petitioners before the Court of Principal Sessions Judge, Udhampur. Vide order dated 8th October, 2021, the learned Sessions Judge, Udhampur has framed the charges for offences under Sections 34, 109, 458, 376, 506 IPC against the petitioners and trial of the case is going on.
4. The petitioners have challenged the impugned FIR and the challan on the grounds that the particulars of the vehicle given by the complainant in the FIR, is a Scooty and not Echo Car, as claimed by the complainant 3 and as such, the very foundation of the case appears to be false. It has been further contended by the learned counsel for the petitioners that petitioner No.1 happens to be the husband of the prosecutrix, as such, he cannot be roped in for committing the offence of sexual assault upon the complainant. It has further been submitted that in the statement recorded under Section 164-A Cr. P.C, the prosecutrix has stated that she is ready to withdraw the FIR against the petitioners, in case her sister-in-law withdraws case against her brother. According to the petitioners, this shows that allegations against the petitioners are false. It has also been contended that petitioner No.2 is posted in Indian Reserve Police and at the time of occurrence, he was at Seri Panditan, Amb Gharota, as is clear from call detail record of his mobile phone.
5. The official respondents have filed status report, in which they have reiterated the contents of the charge-sheet and they have further submitted that the charges against the petitioners have been framed and as such, this Court in exercise of its jurisdiction under Section 482 Cr.P.C. cannot quash the impugned challan.
5. I have heard learned counsel for the parties and perused the material on record.
6. A perusal of the record shows that the statement of the prosecutirx under Section 164 Cr. P.C. has been recorded and in her statement she has clearly stated that on the fateful night the petitioners came to her residence at Bali and they were accompanied by two more unknown persons, who 4 were wearing veils. She has further stated that petitioner No.2 committed rape upon her while petitioner No.1, her husband, kept on watching and kept on further stating that she is to be taught a lesson. She also stated that her children raised a hue and cry and on hearing it, people from neighborhood came on spot, which included Fisha, his wife, Tara and Noor Jahan. These people saw the petitioners running away from the spot but, the other two persons could not be identified. She has further stated that while going away, the petitioners gave a warning to her that if she does not leave their house, she will be taught a lesson. She also stated that in case her sister-in-Law, Ghulam Fatima withdraws the case lodged against her brother, then she would not pursue the instant case.
6. From the foregoing statement of the prosecutrix, it is clear that she has made specific allegations against the petitioners that they came to her house on the fateful night, she was undressed and thereafter sexually assaulted by petitioner No.2, while petitioner No.1 kept on watching and he told her that she has to be taught a lesson. The contents of the impugned FIR, therefore, get substantiated from the statement of the prosecutrix recorded under Section 164 Cr.P.C. Then there are statements of other witnesses, who, according to the prosecutrix, saw the petitioners running away from the spot. They have also supported the version of occurrence given by the prosecutrix. In these circumstances, it cannot be stated that there is no material on record to support the allegations made in the impugned FIR.
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7. It has been contended by the petitioners that the particulars of the vehicle in which the assailants were alleged to have come on spot show that it is a Scooty and, as such, it was not possible for the assailants to come on spot in the said vehicle. The veracity of this contention can be gone into during trial of the case and not in these proceedings. The prosecutrix has clearly stated that the petitioners and their accomplices came in a vehicle. She may have given incorrect registration number of the vehicle, which can be ascertained only during trial of the case and not in these proceedings. At this stage, in the face of overwhelming material on record in support of the prosecution story, the same cannot be disbelieved.
8. So far as contention of the petitioners that the prosecution story appears to be false because the prosecutrix has stated that she is ready to withdraw the case in case Ghulam Fatima withdraws her case against her brother, is concerned, the same alone cannot be a basis to conclude that case filed by the prosecutrix is frivolous. There can be no doubt about the fact that there is a marital discord between petitioner No.1 and the prosecutrix. A discord between rival parties is a double edged weapon. While it can lead to filing/lodging of a false case, it can also prompt a person to commit a crime. The question whether the prosecutrix has filed a false case against the petitioners or whether because of the matrimonial discord, the petitioners have committed the alleged offence against the prosecutrix, can be determined only during trial of the case and not in these proceedings.
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9. It has also been contended by the learned counsel for the petitioners that petitioner No.2 is a member of belt force and as per call detail record of his cell phone, he was at Seri Panditan, Amb Gharota at the time of alleged occurrence. The question, at which place the petitioner No.2 was at the time of the alleged occurrence, can also be determined during trial of the case and not during these proceedings. The plea of alibi raised by petitioner No.2 is by way of defense, which can be proved by him during trial of the case and this Court cannot hold a mini trial to determine its veracity.
10. Apart from the above, learned Principal Sessions Judge, Udhampur has vide order dated 8th October, 2021, on the basis of the material collected by the Investigating Agency, framed charges under Sections 34, 109, 458, 376, 506 IPC against the petitioners. The said order is not under challenge before this Court. The petitioners have not placed on record any unimpeachable material other than the one collected by the Investigating Agency during investigation of the case to persuade this Court to take a view different from the one taken by the learned Principal Sessions Judge, Udhampur while framing charges against the petitioners.
11. For all the aforesaid reasons, I do not find any merit in this petition. The same is, accordingly, dismissed.
(Sanjay Dhar) Judge Jammu 14.09.2022 Vinod.
Whether the order is speaking: Yes Whether the order is reportable: Yes