Court No. - 49
Case :- APPLICATION U/S 482 No. - 8002 of 2018 Applicant :- Anshul Gupta And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Gaurav Kakkar Counsel for Opposite Party :- G.A.,Satyendra Narayan Singh,Sudhir Kumar Agarwal
Hon'ble Saumitra Dayal Singh,J.
Heard Sri Gaurav Kakkar, learned counsel for the applicants, Sri Satyendra Narayan Singh and Sri Sudhir Kumar Agarwal, learned counsel for the private opposite party and learned AGA for the State, as also perused the record.
The present 482 Cr.P.C. application has been filed to quash the charge sheet dated 18.10.2017 as well as the entire proceedings of Case No. 168/9 of 2017, arising out of Case Crime No. 818 of 2017, under Sections- 376, 354-B, 386, 506, 452 I.P.C.
and 7/8 of the Protection of Children from Sexual Offences Act, 2012, Police Station- Nai Mandi, District- Muzaffar Nagar, pending in the court of Addl. District and Sessions Judge, Court No. 8, Muzaffar Nagar.
The opposite party no.2 (hereinafter referred to as the victim) is the legally wedded wife of Sachin Jain and that marriage is continuing. The opposite party no.3 (hereinafter referred to as the minor victim) is the daughter of opposite party no.2 and Sachin Jain.
On 15.07.2017 an FIR was lodged by the victim against the applicants Anshul Gupta, Ankit Tandon and his friend Nitin Gupta in Case Crime No. 818 of 2017 under Section 376, 354-B, 386, 506, 452 IPC and 7/8 of the Protection of Children from Sexual Offences Act, 2014, against an order dated 28.06.2017 passed under Section 156(3) Cr.P.C. by the victim.
In the FIR it was disclosed that the victim started a partnership business with the accused Nitin Gupta for trading in ladies suits and hand bags. Her husband was also disclosed to have made some investment in that business. It is then alleged that the accused Nitin Gupta used to offer the victim, beverages (juice and cold-drinks) laced with some intoxicant. Upon consuming the same, the victim felt dizzy and sleepy such that she could not recollect the events that transpired thereafter. The victim having thus lost her senses, Nitin Gupta prepared her obscene photographs and threatened to upload them over the world wide web and Whatsapp, through the internet.
In such background facts, the victim further alleged that the said Nitin Gupta committed rape on her at her home when she was alone and that Anshul Gupta (brother of Nitin Gupta) prepared a video recording of that crime. It is further alleged that thereafter the said Nitin Gupta repeatedly raped her on different dates.
It was further alleged that though the victim wanted to break free from abuse by Nitin Gupta, he continued to threaten her on her mobile phone. Also, he used to hold out threats to the victim’s sister Ms. Monica, on her mobile and Whatsapp number.
Thereafter, further allegations had been made against the said Nitin Gupta, Anshul Gupta, Ankit Tandon and another unknown person of having tried to kidnap the daughter of opposite party no.2/ Ms. Ashmita/ minor victim and of further demanding Rs. 15,00,000/- by way of blackmail to not upload the obscene photographs and video recordings of the opposite party no.2 over the internet. Certain monies are also alleged to have been paid to Nitin Gupta and his brother Anshul Gupta, by the husband of the victim.
During investigation the statement of the victim was recorded under Section 161 Cr.P.C., wherein she supported the FIR allegations. She further stated that the accused Nitin Gupta had threatened to kidnap the minor victim and that he used to sexually harass her as well. She further added that on 23.05.2017 the said Nitin Gupta had visited her house alongwith his friend Ankit Tandon and boasted that the said Ankit Tandon is a good friend of a well known political figure namely, Akhilesh Yadav. It was further stated that the accused tried to kidnap the minor daughter of victim. Thereafter, the allegation of blackmail was specified. Certain questions were also put by the Investigating Officer to the victim to which she had answered.
It also appears that the statement of the minor victim was also recorded at the same time wherein she also narrated the events as alleged in the F.I.R. chiefly with respect to the attempt to kidnap her.
Thereafter, also admittedly, the statements of the victim as also the minor victim were also recorded under Section 164 Cr.P.C. on 25.7.2017. In those statements also, they reiterated the prosecution case as alleged in the FIR and as recorded by the police under Section 161 Cr.P.C.
In such circumstances, on 18.10.2017, a charge sheet was submitted against the accused under Sections 376, 354-D, 386, 504, 452 I.P.C. and 7/8 of the Protection of Children from Sexual Offences Act for the offence committed on the victim and the minor victim.
It is thereafter that an application is claimed to have filed by the opposite party no.2 on 9.11.2017 before the S.S.P., Muzaffar Nagar wherein she allegedly did a volte-face. She now stated that earlier, the FIR had been lodged and statement had been made by her, under pressure from her husband. Mainly, it was alleged that the husband of the victim threatened to kill the minor victim, if she did not lodge the FIR. No other reason was given. The said application was however supported by a notarized affidavit of the said victim.
Acting upon such an application, the Senior Superintendent of Police, on his part, issued a direction for further investigation in terms of Section 173(8) of the Cr.P.C.
Upon such direction being issued, the opposite party no.2 was further examined by the police under Section 161 Cr.P.C on 15.12.2017. Consistent with her application filed before the S.S.P., Muzaffar Nagar, she allegedly stated that the FIR had been lodged by her upon being pressured by her husband and that the accused Nitin Gupta was her business partner. She further allegedly stated that her relationship with Nitin Gupta was consensual.
Further statement of the minor victim was also again recorded on 26.12.2017. However, she stood by her statement on 23.5.2017 that the accused Nitin and others had come to the residence of her maternal grandmother and tried to abduct her and that the accused had threatened the victim to accompany them or they would forcibly take away the minor victim. The minor victim further stated that upon alarm being raised the accused had fled, holding out threats.
The statement of certain other witnesses also appear to have been recorded during such further investigation.
Considering the above circumstances, the police then opined that the accused Nitin Gupta and the victim were in a consensual relationship which had always affected the matrimonial relationship of the victim with her husband and there were certain disputes with regard to money between the parties. However, the charge sheet was maintained as before.
In such circumstances, the applicants have been summoned.
Learned counsel for the applicant submits that the allegation in the FIR had been made by the victim upon being pressured by her husband Sachin Jain and it was under that influence only that she had made her statement during the original investigation as also under Section 164 Cr.P.C.
However, in the proceeding of Criminal Writ Petition No. 18508 of 2017 filed by the Nitin Gupta and three others, the victim had appeared before this Court and stated that she had been threatened by her husband and his family members to make allegations against the accused.
In these proceedings also, the victim has filed an affidavit supporting the application on behalf of the accused. He further asserts that a further statement of the victim, under Section 164 Cr.P.C., dated 13.12.2017 had been recorded during investigation pursuant to another FIR wherein she allegedly stated that the earlier FIR (giving rise to present prosecution) had been lodged by her against Nitin Gupta, under the influence of her husband.
Learned counsel for the applicant thus submits that as on date, the victim has completely disowned the allegations made in the FIR and her statement earlier recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. Her stand has also been recorded by this Court in Criminal Writ Petition No. 16508 of 2017 in the order dated 6.9.2017, where upon the arrest of the accused had been stayed. Also, the affidavit in the present application also falsifies the prosecution case.
He therefore, submits that at present there is no credible evidence or material existing against the applicants as may allow for the prosecution to continue any further.
Opposing the aforesaid submissions, learned AGA has submitted that the offence is clearly made out on the basis of entire material existing on record. He submits that at this stage it is not open to the defence to pick out one or two pieces of evidence or statement and or to pick out a circumstance here or there to assert with any success that the prosecution deserves to be quashed.
Elaborating his submission, learned AGA further submits that at this stage the prosecution may be quashed only if no offence is made out from a plain reading of the F.I.R. alongwith the material that may have come on record or if there is a bar in law or if the allegations are so inherently improbable or patently false and malicious or such nature as may indicate to the Court that the prosecution story is wholly improbable or unsustainable or if there is no legal evidence to support the prosecution story.
In the above light, it has been submitted that at present sufficient material exists in the shape of the narration of the offence committed by the accused contained: (i) in the FIR lodged by the victim; (ii) first statement made by the victim under Section 161 Cr.P.C. and; (iii) statement of the victim made under Section 164 Cr.P.C. He therefore, submits that in view of such material existing on the record, there is no occasion to quash the prosecution, at this stage.
Sri Satyendra Narayan Singh assisted by Sri Sudhir Kumar Agrawal, learned counsel appearing on the strength of Vakalatnama of Sachin Jain has also opposed the application on similar grounds.
Having heard learned counsel for the parties, it is seen once the opposite party no.2 had made her statement, both under section 161 Cr.P.C. and also under section 164 Cr.P.C. supporting the FIR allegations, further alleged statement recorded under Section 161 Cr.P.C. offering a completely different version of the events, is untenable and irrelevant and in any case superfluous at this stage.
The fate of the alleged retraction, if it may be, made by the victim (under her subsequent statement made under section 161 Cr.P.C.), would have to be examined during trial in light of all other evidence that may be led. At present, in view of the statement of the victim recorded under section 164 Cr.P.C., the apparently conflicting statement made under section 161 Cr.P.C. is inconsequential, at this stage, for the present purposes.
Also, the testimony of the minor witness both during original investigation as also during further investigation is consistent and clear. It, in any case brings out the commission of offence by all the accused as alleged in the F.I.R., against the minor victim. No ground exists to quash the charge sheet on that count against the accused notwithstanding the alleged retraction of her statement made by the victim.
At present, there is no reason to doubt that the accused had tried to abduct the said minor victim as alleged in the FIR. Also, there is a strong suspicion that the occurrence of such an event would have been preceded by the earlier allegations viz-a-viz the victim as narrated in the FIR and it further appears that the said event would have occurred only as a consequence of the earlier events alleged by the victim in her FIR and original statements recorded under Section 161 Cr.P.C. and also under Section 164 Cr.P.C.
At this stage, there is no explanation offered and no explanation could have been entertained as to why the accused tried to kidnap or abduct the minor victim unless there was any provocation for the same, which according to the prosecution story exists as narrated in the FIR.
Thus, prima facie case exists against all the accused. Even with reference to the material that has been shown to the Court, it cannot be said that no offence is made out or that and there is a legal or other bar that may warrant any interference, at this stage.
As to the fluctuating stand of the victim (including her affidavit in the present proceedings), suffice it to state that her version recorded at the first four stages namely filing of application under Section 156(3) Cr.P.C.; lodging of the FIR; statement recorded under Section 161 Cr.P.C. and; statement recorded under Section 164 Cr.P.C., were all consistent and categorical.
Thus, the arguments advanced by learned counsel for the applicants are totally factual and do not merit any interference and on behalf of the applicants at this stage.
The present application lacks merit and is accordingly dismissed.
Order Date :- 30.4.2018 Lbm/-