Court No. - 49
Case :- APPLICATION U/S 482 No. - 32026 of 2018 Applicant :- Mukhtar Ahmad Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sheshadri Trivedi,Ajay Kumar Pandey,Sri Satish Trivedi , (Senior Advocate) Counsel for Opposite Party :- G.A.,Anil Kumar Singh,Gaurav Kumar Singh
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Satish Trivedi, learned Senior Advocate assisted by Sri Sheshadri Trivedi, learned counsel for the applicant, Sri Anil Kumar Singh, learned counsel for the opposite party no.2 and learned AGA for the State.
2. Learned counsel for the applicant has submitted that the occurrence is of 26.04.2018 whereas an FIR was registered on 30.4.2018 alleging commission of offence under Sections 363, 366 IPC against Mohd. Sajid, Himanshu, Alok Kumar Pandey and Soman. However, the applicants were not named in that FIR. Thereafter, upon certain writ petition being filed by the opposite party no.2 with respect to the deficiencies in the police investigation, it appears that the victim was recovered on 4.5.2018. She was then produced before this Court in proceeding of Criminal Misc. Writ Petition No.11548 of 2018, on 8.5.2018.
3. At that stage, the victim appears to have stated that she wanted to accompany her father. She was thus released. Also, earlier she had been produced in court on 7.5.2018. Upon the proceedings before this court, the victim was then produced before the C.J.M., Allahabad for recording her statement under Section 164 Cr.P.C. In that statement, the victim appears to have made specific allegations against the applicants - of having abducted her and committing repeated rape on her while consistently shifting their location. There are also allegations of beating the victim while she was allegedly confined by the accused.
4. Learned Senior Advocate for the applicants states, the applicant was not named in the FIR and the victim had also not named the applicant in her statement recorded under Section 161 Cr.P.C dated 5.5.2018.
5. Second, it has been stated that the injury report does not corroborate the allegation of any physical violence being practised on the victim.
6. Third, it has been stated that the person who has claimed to be the eye witness of the abduction first surfaced two months after the FIR was lodged.
7. Thus it has been submitted that the applicant had been falsely implicated only on account of the fact that the present applicant had defeated the nephew of the opposite party no.2 at a local election. Earlier also there existed political rivalries between the parties due to which the applicant had been falsely implicated. In such circumstances, reliance has been placed on the decision of the Hon'ble Supreme Court in the case of Vineet Kumar Vs. State of U.P. & Anr. reported in 2017 AIR (SC) 1884 to submit that the prosecution cannot be allowed to proceed solely on account of the statement recorded under Section 164 Cr.P.C. inasmuch as that statement appears to be completely false in the entirety of the facts and circumstances of the case as have been mentioned above.
8. Learned counsel for the opposite party no.2 on the other hand submitted that facts of the present case are wholly distinguishable from the case of Vineet Kumar Vs State of U.P. (supra). He would submit that the victim was recovered only when this Court intervened and pass specific orders/directions to the state authorities compelling them to act against the applicants and their family members who have a long criminal history. It is also submitted that the statement of the victim had been recorded under Section 164 Cr.P.C. while she was in the custody of this Court inasmuch as by order dated 7.5.2018 this court had directed that the statement of the victim be been recorded by the Chief Judicial Magistrate, Allahabad. Consequently, her statement was recorded under section 164. Therefore, at present, there does not exist any material to doubt the correctness of the statement of the victim recorded under section 164 Cr.P.C. Then, the existence of political rivalry has been denied. It is further stated that in any case it can never be a ground to quash a criminal prosecution.
9. Further, it has been submitted that the other inconsistencies or doubts that have been raised by the applicant cannot be examined at this stage inasmuch as only a charge sheet has been submitted on the basis of material collected during police investigation and other aspects of the case may remain a matter to be examined by the learned Magistrate or Court concerned, during the enquiry and/or trial that may follow.
10. Learned AGA Sri Ratnesh Nandan Singh has referred to the injury report wherein it has been observed that though there was no sign of internal injuries, however, final opinion had been reserved and pending FSL report and that sexual violence cannot be ruled out. On the legal aspect, it has been submitted that at this stage the statement of the victim appears to be clear and categorical in so far as allegation of gang rape is concerned and no interference is warranted at this stage.
11. Having considered learned counsel for the parties it does appear that in her statement recorded under Section 164 Cr.P.C. the victim has made specific and clear allegations of gang rape amongst others against the applicant. Whether the injury report supported the allegation of violence as urged in the statement recorded under Section 164 Cr.P.C. is an ancillary or connected issue. However, even if that allegation is found to be unsupported by medical evidence, still, in view of long confinement of the victim it would be premature to interfere at this stage and quash the prosecution, when in her statement recorded under section 164 Cr.P.C. the victim appears to have clearly accused the applicant and others of repeated gang rape committed on her. As to the principle emerging from the judgment in the case of Vineet Kumar Vs State of U.P. (supra), in that case also, the Supreme Court cautioned against drawing conclusions as to fact or as to to truthfulness or otherwise of the allegations made. Looking into the facts that all of complainant's family was residing together; had a long pre- existing financial relationship where substantial amounts of money had been been credited by the accused, of which repayment was being pressed by the accused persons from the victim and her family and proceedings under section 138 Negotiable Act were also pending in that regard; the victim refused to get the medical examination conducted for the reason given by the victim's husband of having established physical intimacy with the victim many times since the assault was made on her and other facts noted in that case, the Supreme Court observed, that this court (High Court) ought to have exercised its jurisdiction under section 482 Cr.P.C. in the interest of justice.
12. No such glaring fact exists in the present case. In fact, here it is undisputed that the victim remained abducted for a sufficiently long time; she was recovered by the police upon intervention of this court; she has been medically examined and her statement recorded under section 164 Cr.P.C. clearly implicates the applicant with the heinous offence of rape. Thus, in such facts, interest of justice lies in allowing the present proceedings to continue, for the truth to emerge and be established.
13. From the noted facts of the present case, it thus appears at the present juncture there does not exist any material on the basis of which it may not be concluded that the charge-sheet has wrongly been submitted against the applicant.
14. Accordingly, the application lacks merit and is hereby
dismissed.
Order Date :- 18.9.2018 Gaurav Pal