Court No. - 72
Case :- APPLICATION U/S 482 No. - 27367 of 2017 Applicant :- Ramvali And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Akhilesh Srivastava,Saksham Srivastava Counsel for Opposite Party :- G.A.,Bhupendra Pal Singh,Yogesh Kumar Srivastava
Hon'ble Saumitra Dayal Singh,J.
1. Rejoinder affidavit filed today. Taken on record.
2. Heard Sri Saksham Srivastava, learned counsel for the applicants; Sri Yogesh Kumar Srivastava, learned counsel for the opposite party no.2 and Sri Sanjay Kumar Singh, learned AGA for the State.
3. The present 482 Cr.P.C. application has been filed to quash the charge sheet dated 02.06.2017 as well as the entire proceedings of Case No. 1508 of 2017 (State Vs. Ramvali & Anr.), arising out of Case Crime No. 42 of 2017, under Sections- 452, 376, 511, 506 I.P.C., Police Station- Vijaygarh, District- Aligarh, pending in the court of learned Additional Chief Judicial Magistrate, Court No.9, Aligarh.
4. Learned counsel for the applicants submits that prior to the present case being lodged, brother of applicant no.1 had lodged an FIR against the husband of opposite party no.2 namely Vishnu alleging commission of offence under Sections 354, 324, 506 IPC. While husband of opposite party no.2 had been charge-sheeted therein, subsequently, only by way of counter blast, a mala fide proceedings (present prosecution) came to be lodged against the applicants at the instance of opposite party no.2 alleging commission of offence under Sections 452, 376, 511, 506 IPC.
5. Plain reading of the FIR reveals that, it has been alleged that on 03.05.2017 at about 09:00 pm, the applicants entered the house of opposite party no.2. The applicant no.2- Pushpendra held the opposite party no.2 by her mouth while the applicant no.1- Ramvali attempted to commit rape on her by pushing her to the ground. They allegedly tore open her clothes and Pushpendra took off his clothes and lay on top of her. However, upon alarm being raised by opposite party no.2, Rajendra Prasad Sharma, Vinod Kumar and others intervened. There upon the applicants fled from the spot. During investigation opposite party no.2 appears to have supported the FIR allegation in her statement recorded under Section 161 Cr.P.C.
6. However, she refused to get herself medically examined, yet, in her statement recorded under Section 164 Cr.P.C., she altered her stand and stated rape had been committed on her both by Pushpendra/ Applicant no. 2 and Ramvali/ Applicant no.1. Again changing her earlier stand, she now stated upon alarm being raised by her, it was her mother and two other persons who intervened. Thereupon, the applicants fled from the spot. Besides the aforesaid material alteration in her statement as to the incident, role of the applicants and also the circumstances in which, the applicants allegedly fled from the spot, upon being questioned by the learned Magistrate, she specifically stated that she did not suffer any injury. On further query as to why she had changed her stand from FIR version to her statement recorded under Section 164 Cr.P.C., she clarified, she had changed her stand upon advice given by her husband. The learned Magistrate appears to have put these further questions to her in view of the apparent discrepancies in her statement recorded by him with the statement recorded by the police during investigation. Copy of the statement recorded under section 164 Cr.P.C. annexed as Annexure-3 to the application has not been denied in the counter affidavit.
7. In such undisputed facts and circumstances, learned counsel for the applicants submits that the present prosecution is nothing but a mala fide prosecution containing inherently improbable false allegations motivated by the earlier FIR lodged by the brother of applicant no.1 against the husband of opposite party no.2.
8. In absence of any medical evidence either as to commission of rape or as to any injury suffered by opposite party no.2, though according to her version in the FIR as also her statement recorded under Section 164 Cr.P.C., she had resisted the attempt to rape by the applicants, the allegations made are inherently improbable especially because the incident is alleged to have taken place inside the house of the opposite party no.2. Further, the opposite party no.2 having changed her stand from attempt to rape by one Pushpendra to rape committed by both the applicants, the inherent improbability in the fact allegation stands heightened as it now becomes wholly unbelievable that no injury would have been suffered by opposite party no.2.
9. In such circumstances, the inherent falsity of the case is further established by the allegation that, upon alarm being raised by opposite party no.2, two outsiders namely Rajendra Prasad Sharma and Vinod Kumar (according to the F.I.R.) had intervened whereafter, the applicants suddenly fled from the spot after committing the offence whereas in her statement recorded under Section 164 Cr.P.C., she named her mother as also the said Rajendra Prasad Sharma and Vinod Kumar as the persons who intervened.
10. Learned counsel for the opposite party no.2 and learned AGA on the other hand would submit that, at present, keeping in mind the alleged commission of offence under Section 376 IPC read with Section 511 IPC and the statement recorded under Section 164 Cr.P.C. as also other statement recorded under Section 161 Cr.P.C., it is not for this Court to draw any inference or to record finding of fact as that may be pre-mature exercise.
11. Having heard learned counsel for the parties and having perused the record, there exists settled principle in law for exercise of jurisdiction under Section 482 Cr.P.C. Undisputedly in State of Haryana & Ors. Vs. Bhajan Lal & Ors., 1992 SCC (Cri.) 426, the Supreme Court held as below:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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."
12. Seen in that light, it cannot be overlooked that there are inherent improbabilities existing in the present case in light of the submissions noted above. While according to the FIR version and statement recorded under section 161 Cr.P.C. an attempt to rape had been committed by Pushpendra, according to the prosecutrix's statement recorded under Section 164 Cr.P.C., rape had been committed by both the applicants, inside her house. However, there is no recovery of any personal effect or other recovery to establish such occurrence nor there is medical evidence as to commission of such a heinous offence.
13. The occurrence in the nature as described is not such as may have taken place in a flash of a moment. It would have taken some time for the offence to have been completed. Therefore, it is wholly unbelievable that there is absolutely no evidence in the shape of any recovery of clothes or other items or semen or other matter either belonging to the applicants or the opposite party no.2 to support the fact allegations, keeping in mind the fact that according to the consistent case of opposite party no.2, the applicants fled in hurry, upon alarm being raised by opposite party no.2. Also, it is wholly improbable that no injury would have been suffered by the prosecutrix though rape had been committed on her by two men after she had been forcibly overpowered.
14. Denial of medical examination by the opposite party no.2 also points towards that inherent improbability in the present case inasmuch as though opposite party no.2 claims to have resisted the rape by two men, she neither got herself medically examined nor there have been claimed to exist / suffered any injury by her.
15. In this light, numerous inherent irreconcilable improbabilities are found existing in the fact allegations made in the FIR read with the statement recorded under Section 164 Cr.P.C. They are material and such as point towards the patent falsity of the fact allegations, arising from mala fides that may perhaps be related to the pre- existing litigation between the parties wherein the brother of applicant no.1 had lodged an FIR alleging commission of offence under Sections 354, 324, 506 IPC, against the husband of opposite party no.2
16. This aspect becomes clear from the fact that before the learned Magistrate, the opposite party no.2 candidly admitted that she had exaggerated the allegations levelled against the applicants at the suggestion of her husband. The clear intent of opposite party no.2 is to therefore to take revenge for the earlier prosecution lodged by the brother of applicant no.1. Therefore, the prosecution is clearly malicious besides being inherently improbable.
17. In view of the above, the present application is allowed and the entire proceedings of Case No. 1508 of 2017 (State Vs. Ramvali & Anr.), arising out of Case Crime No. 42 of 2017, under Sections- 452, 376, 511, 506 I.P.C., Police Station- Vijaygarh, District- Aligarh, pending in the court of learned Additional Chief Judicial Magistrate, Court No.9, Aligarh against the applicants are hereby quashed.
Order Date :- 30.5.2019 Abhilash