Court No. - 65
Case :- MATTERS UNDER ARTICLE 227 No. - 6409 of 2019 Petitioner :- Tarachand And 3 Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- Girja Shankar Prajapati,Sandeep Kumar Counsel for Respondent :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Girja Shankar Prajapati, learned counsel for the petitioners and Sri G.P. Singh, learned A.G.A. appearing for the State and perused the record.
This writ petition has been filed for setting aside the impugned order dated 25.6.2019 passed by Additional Session Judge/Fast Track Court No. 2, Bulandshahar in Criminal Revision No. 455 of 2018 (Smt. Maya Devi vs. State of U.P. and others) whereby revision has been allowed and order of the trial court dated 03.11.2018 has been rejected and the matter has been remanded back to the trial court for reconsideration.
It has been argued by the learned counsel for the petitioners that the impugned order dated 25.6.2019 has been erroneously passed by the revisional court whereby allowing the revision, the order of the trial court dated 3.11.2018 has been set aside and it is directed that in the light of the direction given in the body of the said judgment, the trial court shall reconsider the matter and pass fresh order in accordance with law. It is argued by him that the husband of the victim in his statement under section 161 Cr.P.C. which is annexed at page-49, has clearly stated that there was money dispute between the accused-petitioners and him as an amount of Rs.5,00,000/- was borrowed by the accused-petitioner no. 1 which was not being returned and in order to create pressure upon him, this case was registered with the help of an advocate. It is further argued that the said statement clearly shows that the petitioners who are all brothers, have been falsely implicated by the opposite party no. 2 and yet impugned order has been erroneously passed, which needs to be quashed.
Learned A.G.A. vehemently opposed the prayer for quashing the impugned order.
I have gone through the FIR. In the FIR it is recorded by the opposite party no. 2 that the accused-petitioners used to come to her husband and gradually they had started keeping evil eye on her. The opposite party no. 2 had apprised about this to her husband regarding which her husband had protested the petitioners which led to enmity between them. On 15.2.2017 at about 12.00 noon when husband of the opposite party no. 2 had gone out and the children had also gone to school, all of a sudden the accused- petitioners came to the house of the opposite party no. 2 and molested her and committed rape upon her one by one and thereafter when the husband of the opposite party no.2 returned and knocked the door all the four accused fled from her house with country made pistol in their hands and had threatened that if any action was taken, they would all be killed. The revisional court in its order has mentioned that it is revealed from the order of the Magistrate that he had accepted the final report because the Investigating Officer had collected evidence to the effect that there was money dispute between the accused applicant Tara Chand and the husband of the victim and prior to that there was some dispute between them pertaining to some land. But the trial court had ignored that the victim had stated that she was raped by the accused-petitioners after entering her house. The said statement was made by her under section 161 and 164 Cr.P.C. The Magistrate ought to have seen as to whether a prima-facie case was made out at this stage or not against the accused-petitioners and merely because there was money dispute between the accused-petitioner and husband of opposite party no.2 could not be a ground of disbelieving the statement of the victim who has levelled serious allegation of rape. Even in the medical examination report it is recorded that it may be a case of sexual assault and further it is recorded by the Magistrate in order to remove his doubt could have registered the case as complaint case and could have conducted enquiry on his own. In these circumstances, the revisional court has allowed the revision and has set aside the order of the trial court dated 3.11.2018 whereby final report was accepted and protest petition was rejected. I do not see any infirmity in the said order because direction for reconsideration of the matter has been given by the learned revisional court on the basis of statement of the victim who has supported the prosecution version and it has been recorded that the protest petition could have been registered as complaint case, if that was so required.
In view of the aforesaid, the writ petition deserves to be dismissed and is accordingly dismissed.
Order Date :- 26.8.2019 AU