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2012 DIGILAW 126 (UTT)

Vineet Panwar v. State of Uttarakhand

2012-03-22

SERVESH KUMAR GUPTA

body2012
JUDGMENT : By means of this petition, prayer has been made to quash the order of cognizance dated 3.1.2009, passed by the Chief Judicial Magistrate, Uttarkashi in Criminal Case No. 8/2009, State v. Vineet Panwar & Smt. Babli Devi, whereby the accused applicants have been summoned to stand trial for the offences punishable under Section 376 & 120B IPC. 2. Briefly stated facts of the case are that on the complaint dated 4.7.2008, moved by Jay Pal Singh under Section 156(3) CrPC, an FIR was lodged on 29.7.2008 with PS Kotwali Uttarakashi against the accused applicants. It has been averred that on 22.1.2008, Samma Devi, a divorced daughter of Jay Pal Singh, aged about 27 years, had gone to Magh Mela, Uttarkashi along with her real aunt Smt. Babli Devi (accused applicant no. 2). On that day, in the evening, Smt. Babli Devi told that they would stay in the night at the house of Vineet Panwar, accused applicant no. 1, in village Gyansu. Both of them came there and stayed in the intervening night of 22/23.1.2008. Samma Devi & her aunt Smt. Babali Devi were sleeping on the same cot in a room, while accused, an unmarried policeman, was sleeping outside. Vineet Panwar came in the room where Samma Devi was sleeping along with her aunt and reclined on the same cot. Samma Devi resisted his action, but Smt. Babli Devi allured her to establish the physical relation with Vineet Panwar by promising that if anything unusual happens in the future, then Vineet Panwar would take care of her (Samma Devi). Thus, they together spent the night and on the next day Samma Devi along with her aunt Smt. Babli Devi returned to their own house. In May 2008, when Samma Devi came to know that she had conceived, then she disclosed the entire episode to her father. Thereafter Vineet Panwar was called, who allegedly came at the house of the prosecutrix, but he refused to marry Samma Devi and held out a threat if any adverse action is taken. 3. After investigation, police submitted the chargesheet against Vineet Panwar and Smt. Babli Devi, whereupon the impugned order of cognizance has been passed asking the accused applicants to stand trial for the offences stated above. 4. 3. After investigation, police submitted the chargesheet against Vineet Panwar and Smt. Babli Devi, whereupon the impugned order of cognizance has been passed asking the accused applicants to stand trial for the offences stated above. 4. It has been contended on behalf of the petitioners that the learned Magistrate has passed the impugned order of cognizance in a very routine and casual manner by filling in the blanks on a typed proforma. On having a look upon the impugned order, the submission of the learned Counsel seems to be true. But this alone by itself cannot be a ground for throwing out the chargsheet submitted by the police. However, learned Counsel further contended that the FIR was lodged on 29.7.2008 and medical examination of Samma Devi was done on 4.8.2008. At that time, prosecutrix was having fetus, gestating for more than six months, in her womb. She continued to hide this fact and kept it as a secret. She did not disclose it even to her parents for such a long span of time. Even when she made this fact know to her parents, and Vineet Panwar refused to marry her subsequent thereto, the FIR could not be lodged for further two months. It could be lodged only on 29.7.2008. No plausible explanation has been furnished for such a long delay, which creates serious doubt about the whole prosecution story. 5. Moreover, Samma Devi was allegedly allured with the promise of marriage, which was basically made by her own aunt, and it was not endorsed by the accused Vineet Panwar. Rather, as has been alleged, Vineet Panwar promised to bring her (from her parental house) in case of any adverse development after the sexual intercourse. Furthermore, it is an admitted fact that Samma Devi was a major on the alleged date of her rape. 6. All the more, it has also been contended on behalf of the petitioners that Samma Devi was a married lady as is revealed by Family Register, certified copy of which (dated 7.8.2008) has been filed as Annexure 10 to the petition, wherein name of her husband has been shown to be Vijendra Singh. This fact has not been denied by Samma Devi by filing the counter affidavit, even though the case on behalf of the complainant is being assiduously contested before this Court. This fact has not been denied by Samma Devi by filing the counter affidavit, even though the case on behalf of the complainant is being assiduously contested before this Court. The only counter affidavit has been filed by the Sub-Inspector Ajay Krishna Pasbola on behalf of the State, wherein no comment has been made regarding the said Annexure 10. 7. Learned Counsel for the petitioners relied upon a precedent of Hon’ble Apex Court rendered in case of Vijayan v. State of Kerela, reported in (2009) 3 SCC (Cri) 585. In that case almost identical facts existed. The prosecutrix was forcibly put to sexual intercourse by the accused, but she kept this fact secret continuously for seven months only because the accused had promised to marry her after the commission of the alleged crime. But when the accused did not honour his promise and refused to marry her, then she revealed the incident. In the said case, Hon’ble Apex Court has held as under: “The present case wholly depends upon the testimony of the prosecutrix. The incident in the present case took place seven months prior to the date of lodging the complaint as a realization dawned upon her that she has been subjected to rape by the appellant-accused. No complaint or grievance was made either to the police or to the parents prior thereto. The explanation for delay in lodging the FIR is that the appellant-accused promised her to marry therefore the FIR was not filed. In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony.” 8. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony.” 8. Learned Counsel for the petitioners argued that the instant case is on better footing than the case referred to, by him inasmuch as in the said case, the Hon’ble Apex Court acquitted the accused, while the allegation against him was that he forcibly committed rape upon the prosecutrix. But in the case in hand, the prosecutrix Samma Devi consented and willingly submitted herself for sexual advancement to Vineet Panwar just on the promise that he would carry & take care of her if anything unusual turns up subsequently. Even in her statement under Section 161 CrPC (Annexure 5 to the petition) as well as in the statement under Section 164 CrPC (Annexure 1 to the counter affidavit filed by Sub-Inspector of Police), the prosecutrix has nowhere said that before or at the time of establishing physical relations, accused had promised to marry her. She has stated only this much in both of her statements that accused had promised to carry her, which cannot be equated with a promise to marry her. 9. It is also pertinent to mention that accused applicant Vineet Panwar had sought information under Right to Information Act regarding his presence on 22.1.2008, 5.6.2008 & 6.6.2008 in Police Line, Roshnabad, Haridwar and also obtained attested copies of the General Diary of the said dates. In response to his said application, information, as sought by Vineet Panwar, was supplied to him, which has been annexed as Annexure No. 11 to the petition. It appears that in Annexure 11, due to oversight, he could not annex the entire information supplied to him by the concerned Public Information Officer. But this much has also been averred in the pleadings that on 22.1.2008, 5.6.2008 and on 6.6.2008, he was very much present in the Police Line Roshnabad, Haridwar, which has not been specifically denied in the counter affidavit filed on behalf of the State. 10. So, in view of the above narrated facts and circumstances of the case and the legal proposition (supra), this petition has force and it is liable to be allowed. 11. Resultantly, the petition is allowed. 10. So, in view of the above narrated facts and circumstances of the case and the legal proposition (supra), this petition has force and it is liable to be allowed. 11. Resultantly, the petition is allowed. Impugned order of cognizance dated 3.1.2009 as well as the entire proceedings of Criminal Case No. 8/2009, State v. Vineet Panwar & Smt. Babli Devi, under Section 376 & 120B IPC, pending before the Chief Judicial Magistrate, Uttarkashi are hereby quashed. 12. Registry is directed to inform the court concerned accordingly.