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2012 DIGILAW 751 (HP)

Manjeet Singh v. State of H. P

2012-10-29

KULDIP SINGH

body2012
Judgment Kuldip Singh, Judge . 1. This is a petition under Section 482 Cr.P.C. for quashing FIR No.110 dated 10.08.2011, registered at Police Station, Aut, District Mandi, under Sections 365, 376, read with Section 34 IPC. 2. It has been stated that on 27.01.2011 Labh Singh respondent No.4 filed an application under Section 97 Cr.P.C. before Sub Divisional Magistrate, Chachiot at Gohar that the respondent No.5 Hima Devi is his legally wedded wife and has been wrongly confined by Deep Kumar at Dehra. On 24.12.2010, Hima Devi left the house by saying that she was going to purchase medicines for her daughter. Hima Devi did not return to his house. 3. On 03.01.2011 report was made to police Chowki, Bali Chowki about missing of Hima Devi. It was stated before Sub Divisional Magistrate on 27.01.2011 that Labh Singh came to know that his wife has been wrongly confined by Deep Kumar at Dehra. The Sub Divisional Magistrate on the affidavit of Labh Singh issued search warrant of the wife of Labh Singh against Deep Kumar, but no action was taken by the police against Deep Kumar. 4. On 10.08.2011, FIR No.110 was got registered at Police Station, Aut against the petitioners by respondent No.5 Hima Devi stating that she is legally wedded wife of Labh Singh. On 25.05.2011 at about 1.00 a.m., accused entered her house and forcibly carried the complainant with them. The accused committed theft amounting to `35,000/- and gold ornament weighing about 3 grams approximately. The accused dragged the complainant, who was carrying a child of her husband in the womb. 5. The accused took the complainant in a vehicle to their house. She was kept there for about 2 ½ months. She gave birth to a daughter in the house of accused No.1. The accused No.1 committed repeated sexual intercourse with complainant till 04.08.2011 in his house. On 04.08.2011, the complainant gave message to her father to come to the house of accused. Thereafter father of the complainant went to the house of accused and brought the complainant. 6. It has been stated that as per Labh Singh his wife respondent No.5 had left the house on 24.12.2010, but according to police respondent No.5 had been forcibly taken away by the accused in the mid-night on 25.05.2011 from her house. The statements of husband and wife are contradictory to each other on material particulars. 6. It has been stated that as per Labh Singh his wife respondent No.5 had left the house on 24.12.2010, but according to police respondent No.5 had been forcibly taken away by the accused in the mid-night on 25.05.2011 from her house. The statements of husband and wife are contradictory to each other on material particulars. This shows that on 27.01.2011 when respondent No.4 Labh Singh filed an application under Section 97 Cr.P.C. before Sub Divisional Magistrate, the complainant Hima Devi was not with her husband. But, strangely the complainant has taken the stand that she was taken away from her house on 25.05.2011. This shows either the affidavit of the husband of the complainant submitted before Sub Divisional Officer was false or the statement given by complainant to the police on 10.08.2011 was false. The FIR lodged implicating the petitioners is false and liable to be quashed. 7. There is no evidence on record that complainant was recovered after 24.12.2010 by the police or by the husband of the complainant and she was residing in the house of her husband on 25.05.2011. Only on the basis of concocted and false story of the complainant and her husband, the police has registered the case implicating the petitioners. The petitioner No.1 is elder brother of petitioner No.2 and they have joint family. It was not possible to keep complainant in joint family for about 2 ½ months. There is no allegation that complainant was not allowed to move from the house of petitioners for about 2 ½ months. The respondent No.5 has executed an affidavit that she has solemnized marriage with petitioner No.2 on 13.04.2009 and she has given birth to a female child on 18.07.2010. 8. The respondents No.1 to 3 have filed joint reply. It has been stated that petition is not maintainable as challan in FIR No.110/2011 dated 10.08.2011 under Sections 365, 376, 34 IPC after investigation has been filed in the Court. It has been stated that on 03.01.2011 a missing report was lodged by Labh Singh respondent No.4, husband of respondent No.5. D.D. No.5 dated 03.01.2011 was entered in daily diary at Police Post, Bali Chowki. It is wrong that respondent No.6 Deep Kumar lodged missing report. A warrant under Section 97 Cr.P.C. issued by Sub Divisional Magistrate, Chachiot was received in Police Post, Bali Chowki, on 16.03.2011. D.D. No.5 dated 03.01.2011 was entered in daily diary at Police Post, Bali Chowki. It is wrong that respondent No.6 Deep Kumar lodged missing report. A warrant under Section 97 Cr.P.C. issued by Sub Divisional Magistrate, Chachiot was received in Police Post, Bali Chowki, on 16.03.2011. The respondent No.5 Hima Devi was found in the house of petitioner No.2 Sohan Singh. The respondent No.5 was produced before Sub Divisional Magistrate, Chachiot, on 18.03.2011. She was set free after recording her statement. 9. The respondent No.5 Hima Devi again left the house of respondent No.4 and a missing report was lodged in Police Post, Bali Chowki, on 07.05.2011 vide D.D.No.7. On 25.05.2011, the petitioners entered in the house of respondent No.4 Labh Singh and picked up respondent No.5 Hima Devi and committed rape upon her up to 04.08.2011. It was alleged that petitioners had taken away `35,000/-and 3 grams gold with them. The respondent No.5 made a written complaint to the Superintendent of Police, thereupon FIR No.110 dated 10.8.2011 has been registered under Sections 365, 376, 34 IPC. The respondent No.5 during investigation has stated that she has been raped against her will from 25.05.2011 to 04.08.2011. She gave birth to a female child in the house of petitioner No.2. The petitioners have filed no rejoinder to the reply of respondents No.1 to 3. 10. A copy of FIR No.110 dated 10.08.2011 under Sections 454, 365, 376, 34 IPC registered at Police Station, Aut, has been placed on record. The FIR has been registered on the basis of written complaint of prosecutrix. The prosecutrix has stated that she is the legally wedded wife of Labh Singh. On 25.05.2011 at about 1.00 a.m., accused entered in the house of the complainant and carried the complainant with them. The accused also committed theft of `35,000/- and gold jewellery weighting 3 grams approximately. The prosecutrix was carrying pregnancy of her husband. The prosecutrix was kept by accused in their house for about 2 ½ months. The prosecutrix gave birth to a daughter in the house of accused Sohan Singh, who committed forcible sexual intercourse with prosecutrix continuously till 04.08.2011 in his house. The husband of the prosecutrix was not in the house when accused took her away. On 04.08.2011 prosecutrix gave message to her father to come to the house of accused and requested him to carry her to home. The husband of the prosecutrix was not in the house when accused took her away. On 04.08.2011 prosecutrix gave message to her father to come to the house of accused and requested him to carry her to home. Thereafter father of the prosecutrix came to the house of accused and she was taken away. 11. Heard. The learned counsel for the petitioners has submitted that on 27.01.2011 Labh Singh respondent No.4 had filed an application under Section 97 Cr.P.C. that Hima Devi left his house on 24.12.2010, thereafter she did not return. He lodged a report before Police Chowki, Bali Chowki, on 03.01.2011. However, on the complaint of Hima Devi, FIR No.110 has been registered at Police Station, Aut, on 10.08.2011. Hima Devi has stated that she was taken forcibly by the accused on 25.05.2011. She was kept in the house by petitioner No.2 and petitioner No.2 committed forcible sexual intercourse with her. She gave a message to her father on 04.08.2011 and thereafter her father brought her from there. 12. It has been submitted that Labh Singh, husband of Hima Devi, on one hand, has stated that Hima Devi went out of the house on 24.12.2010, whereas, Hima Devi has stated in the FIR that she was taken forcibly on 25.05.2011. There is no evidence on record that Hima Devi was recovered after 24.12.2010 and she started living with her husband before 25.05.2011. The submission has been made that the husband and wife have taken contradictory stands, this falsifies the prosecution case. The FIR against the petitioners is false. 13. In the reply of respondents No.1 to 3, it has been stated that on 03.01.2011 a missing report was lodged by Labh Singh at Police Post, Bali Chowki. A warrant under Section 97 Cr.P.C. was received in Police Post, Bali Chowki, on 16.03.2011. The respondent No.5 was found in the house of petitioner No.2 Sohan Singh. The respondent No.5 was produced before Sub Divisional Magistrate, Chachiot, on 18.03.2011. The respondent No.5 was set free. The respondent No.5 again left the house of respondent No.4 and a missing report was lodged in Police Post, Bali Chowki, on 07.05.2011 vide D.D.No.7. It is, thus, clear that there is material on record that after 24.12.2010 and before 25.05.2011, the respondent No.5 in pursuance of warrant under Section 97 Cr.P.C. was recovered and she started living with respondent No.4. 14. It is, thus, clear that there is material on record that after 24.12.2010 and before 25.05.2011, the respondent No.5 in pursuance of warrant under Section 97 Cr.P.C. was recovered and she started living with respondent No.4. 14. In FIR No.110 dated 10.08.2011, the prosecutrix has levelled allegations against petitioners that on 25.05.2011 when prosecutrix was in her house, accused and others entered into the house at 1.00 a.m. and forcibly carried the prosecutrix with them. They also committed theft of `35,000/- and gold jewellery approximately 3 grams. She has further stated that thereafter for about 2 ½ months she was kept in the house where petitioner No.2 committed forcible sexual intercourse with her repeatedly till 04.08.2011. 15. In State of Haryana and others Versus Bhajan Lal and others 1992 Supp (1) SCC 335, it has been held that following categories of cases can be stated by way of illustrations wherein power under Article 226 or inherent powers under Section 482 of the Code could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice:- “(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. (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 aspecific 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 malafide 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.” 16. It cannot be said that on the basis of allegations made in the FIR on their face value, no case is made out against the petitioners. The respondents 1 to 3 in the reply have stated that on completion of investigation, challan has been submitted in the Court. The petitioners took several opportunities for filing rejoinder, but no rejoinder has been filed. There is no whisper in the petition that on the basis of challan filed against the petitioners in the Court, no offence as stated in the FIR is made out. The petitioners have failed to make out a case for quashing of FIR. 17. In view of above, the petition fails and is accordingly dismissed. The pending application, if any, is also disposed of in view of disposal of main petition.