Tag Archives: fake rape

SUPREME COURT quashes #FAKE #Rape Case filed to avoid #REPAYMENT of debt (#bounced #cheque !!)

A woman and her husband (and probably her son) borrow money and promise to repay by cheque ! That cheque is bounced / dishonored for want of funds ! so the lender files a case under Negotiable instruments act (a cheque bounce case). Promptly the woman files a #fake #Rape case on the poor lender, who has to run upto Supreme court to get the case quashed !!

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.577 OF 2017

(ARISING OUT OF SLP(CRL.) No.287 OF 2017)

VINEET KUMAR & ORS.                    …. APPELLANTS

VERSUS

STATE OF U.P. & ANR.                   …. RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

 

  1. 1. This appeal has been filed against the judgment dated 16.12.2016 of the High Court of Judicature at Allahabad dismissing the Application filed by the appellants under Section 482 Cr.P.C. Appellants had filed Application under Section 482 Cr.P.C. for quashing the judgment and order dated 03.08.2016 passed by Additional Chief Judicial Magistrate-IV, Moradabad summoning the appellants for an offence under Section 452, 376(d) and 323 IPC, as well as order dated 22.10.2016 passed by the District Sessions Judge, Moradabad dismissing the Criminal Revision filed by the appellants. The appellants shall hereinafter be referred to as accused and respondent No.2 as complainant. The facts of the case as emerged from the records need to be noted for deciding the issues raised in this appeal.
  2. 2. The accused have made several financial transactions with complainant, Smt. Rekha Rani, her husband, Akhilesh Kumar and her son, Ankur in the months of May, 2015. Accused No.3 gave Rs.9 lakh to husband and son of the complainant for business purposes. An amount of Rs.7 lakh 50 thousand was given in cash to complainant and her husband by accused No.1. Further, husband of complainant received Rs.3 lakh 60 thousand in cash and Rs.2 lakh 40 thousand by cheque dated 29.05.2015 from accused No.1.
  3. 3. An agreement dated 29.05.2015 was signed by the husband of the complainant and accused No.1 acknowledging the payment of Rs.3 lakh 60 thousand in cash and Rs.2 lakh 40 thousand by cheque. A cheque of Rs.6 lakh was handed over by the husband of the complainant to accused No.1 to ensure the re-payment. Another agreement between the complainant and accused No.1 was entered into on 01.06.2015 wherein it was acknowledged that complainant and her husband had taken Rs.7 lakh 50 thousand in cash from accused No.1. Earlier, husband of complainant took Rs.6 lakh from accused No.1. Parties entered into an agreement agreeing with certain conditions. Third agreement was entered into between the son of complainant and accused No.1 on 31.08.2015 wherein son of complainant acknowledged that his parents have taken an amount of Rs.14 lakh 50 thousand. Complainant and her husband gave cheques of Rs.6 lakh and Rs.8 lakh 50 thousand to accused No.1 drawn on Prathama Bank, Kanth Branch, District Moradabad for recovery of the amount given by the accused. Agreement noticed that the amount was borrowed with promise to return the amount. The agreements were written on Non-Judicial Stamp Papers which were not registered but contained signatures of the parties mentioned therein.
  4. 4. Accused No.3 filed a complaint under Section 138 of Negotiable Instruments Act being Complaint No.1587/2015 against husband and son of the complainant with the allegation that amount of Rs.9 lakh was paid to the opposite parties who had issued a cheque of Rs.9 lakh with the assurance that the amount will be repaid by 22.08.2016. It was stated by accused No.3 in the complaint that after lapse of time when the amount was not paid, the cheque was deposited which was returned back by the Bank with remark “No Sufficient Balance”. When the opposite parties were contacted in this regard, the opposite parties told not come to them. After giving a notice on 05.09.2016, complaint was filed on 21.09.2015. Accused No.1 had also filed an Application on 29.09.2015 under Section 156(3) Cr.P.C. against the complainant, her husband and son. Cheque given by son of the complainant of Rs.6 lakh to accused No.2 was also dishonoured. Complaint filed by accused No.1 under Section 138 of Negotiable Instruments Act was registered as Complaint No.3280/2015. Complaints against complainant, her husband and son were filed in the month of September, 2015 alleging dishonoured of cheque and complaint of non-payment of amount given to the complainant and her husband and son. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  5. 5. On 30.10.2015 complainant filed an Application under Section 156(3) Cr.P.C. against all the three accused alleging commission of offence under Section 376(d),323 and 452 IPC. In the application allegation was made against the accused that on 22.10.2015 at about 7.30 p.m. all the three accused came to the house of the complainant. At that time she was alone in the house. It was alleged that all the three accused started misbehaving with her. They beat her with stick, fist and kick. Thereafter, accused, Vineet and Nitendra raped her one by one while Sonu stood outside the room. When Sonu told them about arrival of complaint’s husband, all the three accused fled away. It was further alleged that she went to the Police Station on the same day but the Police did not register FIR. An order dated 03.11.2015 was passed by the Additional Chief Judicial Magistrate-IV, Moradabad for registration and investigation to the concerned Police Station. On 06.11.2015, the First Information Report was registered being No.251/2015 at Police Station Kanth, District Moradabad under Section 376(d), 323, 452 IPC against the accused. After registration of the case, crime was investigated by Investigating Officer(IO). The IO recorded the statements of complainant, her husband and mother-in-law. Complainant in her statement repeated her allegation. It was further stated that she went along with her husband to Police Station but report was not lodged. On next day, she went to Government Hospital, Moradabad with her husband for medical examination. Doctor conducted medical examination to external injuries but refused to her internal examination. Husband and father-in-law of the complainant also recorded statements. They stated that before they arrived at the house, accused had already fled away. IO asked the complainant “as to whether now she is ready to get done medical examination”, husband of the complainant answered “no, now there is no benefit out of medical examination. Now, I don’t want to get my wife’s medical examination done as much time has been elapsed“. When the husband was also asked some questions to get her wife medically examined following answers were given by the husband:
    • “Question – Now get the medical examination of hour wife done so that D.N.A. etc. proceeding could be done?
    • Ans.- This occurrence is of 22.10.2015 in the evening at 19.30 hrs. and since then till now I have also have sexual intercourse with my wife several times. Thus, now there is no benefit out of medical examination and instead I myself will be positive.”
  6. 6. Before the IO, complainant, her husband, father-in-law and mother-in- law all stated that at the time of occurrence there was no electricity.
  7. 7. The accused also recorded statement of various persons in support of the claim of the accused that at the time alleged by the complainant they were not present and till 9 p.m. they were with their friends in Dushehara Mela. IO recorded the statement of certain persons who stated that accused were with them till 9 p.m. on 22.10.2015.
  8. 8. Although, the complainant and her husband refused medical examination when they are so asked by IO on 07.11.2015, but she got her medical examination done on 20.11.2015. Pathology Report (filed at page 50 of paper book) stated as : “No spermatozoa alive or dead are seeing the received smears within sealed envelope”.
  9. 9. On 24.11.2015 complainant got her statement recorded under Section 164 Cr.P.C. In the statement the age of complainant was recorded as 47 years. In the statement the complainant repeated her allegations.
  10. 10. After statement under Section 164 Cr.P.C. was recorded, IO carried out detailed investigation by recording statements of brother of complainant’s husband and his wife. Along with the complainant, the brother of her husband as well as his wife were also staying in the same house at the relevant time. The IO recorded the statement of Nikesh Kumar, brother of complainant’s husband. It is useful to extract below the statement of brother of complainant’s husband as recorded by the IO: “Statement of Shri Nikesh Kumar son of Subhash Chandra Vishnoi resident of Mohalla Vishanpura, Kasba Kanth is present. Upon enquiry has stated that on 22.10.15 there was Dushehara Mela. I alongwith my children had gone to see Mela(Fair) and had returned back to my house at 5.00-5.30 p.m. Rekha Rani is my real Bhabhi (sister-in-law). There has been monetary transaction between Akhilesh and Vineet. Time to time my brother used to borrow a sum of Rs.Two lakh, four lakh from Vineet and used to invest the same in his business and then used to return. Now there has been inter-se dispute among them owing to monetary transaction. On this dispute my sister- in-law Rekha has instituted case against Vineet and others. It is not good to mention such shameful facts and my sister-in-law has not done good. There are young children in the family and there would be wrong effect of these facts. I have spade my brother Akhilesh and father have also scolded him. Now he is saying that mistake has been committed and whatever has occurred has occurred. I and my wife have gone to Court. Moradabad and have submitted our affidavit in the Court. We have mentioned the correct fact therein. We will tell the same fact in the Court that no such occurrence has taken place in our house. My Bhabhi Rekha has lodged a case in the Court out of anger which is a false case.”
  11. 11. The wife of Nikesh Kumar, Smt. Bina Vishnoi also made the following statement before the IO which is the part of the Case Diary: “Statement of Smt.Bina Vishnoi w/o Nikesh Kumar resident of Mohalla Vishanpura Kasba and P.S. Kanth is present. Upon enquiry, she has stated that on 22.10.15 there was Dushehara festival and we after seeing Dushehara Mela had returned back and came at our house at about 5.00 p.m. I had opened my shop. I have a grocery shop. Most of transaction takes place in the evening. Rekha is my elder real Jethani. My Jeth Akhilesh has monetary transaction with Vineet and others. He used to borrow money Rs. Two lakh, four lakh from Vineet to invest the same in his business and the returns the same. Now what has happened I do not know and inter-se dispute has cropped up among them and my Jethani has taken such a wrong step which does not happens in our house. Our family and the family of Vineet are the respected family of Mohalla and we have business and trade of lakh of rupees. We have spade an scolded them. Our children are also growing to be young. When you people visit it has effect on them. Now they are realising the mistake. No occurrence of rape etc. has happened in our house and in this regard the complete Mohalla will tender evidence. I have even appeared in the Court and submitted an affidavit and will tell the true fact in the Court.
    • Question- On 22.10.15 in the evening at 7.30 p.m. you were present at your room/shop the whether you have heard any cry or had seen Vineet coming or going?
    • Ans. – On 22.10.15 since 5.00 p.m. we were at our house and no one had come in our house and Rekha has informed us. No such occurrence of rape could take place in our house. You could enquire from our all neighbours.”
  12. 12. The affidavits were also given by Nikesh Kumar and Smt. Bina Vishnoi who were residing in the same house. Smt. Bina Vishnoi is also running a shop of General Store in one portion of the house. She stated that on the date of occurrence Rekha Rani was in her parental house to celebrate Dushehara and was not present at her house.
  13. 13. IO after completion of investigation and after taking into consideration the materials collected during the investigation came to the conclusion that no such incident took place on 22.10.2015 as alleged by the complainant. Final Report No.40/15 was submitted by the IO on 29.11.2015 which is to the following effect: “The First Information Report in the above mentioned incident was registered on 6.11.2015 and the investigation was taken up by me. After recording the statement of the witnesses and inspection of the place of occurrence the allegation was found to be false by me. Therefore this final report No.40/15 is being submitted for your consideration.”
  14. 14. After submission of Final Report on 29.11.2015 Police has also submitted a further report before the Additional Chief Judicial Magistrate for initiating proceeding under Section 182 Cr.P.C. against the complainant. Respondent No.2 moved Protest Petition dated 07.01.2016. It was allowed by the Addl.CJM on 28.05.2016. An Application under Section 482 Cr.P.C. was filed before the High Court. It was allowed and order dated 28.05.2016 was set aside directing the Magistrate to pass fresh order. The Magistrate passed again order dated 03.08.2016 summoned the accused. Revision was filed before the Sessions Judge against the order dated 03.08.2016 which was dismissed by order dated 22.10.2016.
  15. 15. The accused filed Application under Section 482 Cr.P.C. to quash the order dated 03.08.2016 and the order passed by the Sessions Judge. It was prayed by the accused that orders were passed without appreciating the evidence and material on records, they deserve to be set aside and the Protest Petition be rejected. The High Court refused the prayer for quashing the orders by making the following observations: “From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submission made at the Bar relates to the dispute question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C. at this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in case of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.)426, State of Bihar Vs. R.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceuticals Works Ltd. Vs. Mohd. Saraful Haq and another (par 10) 205 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage.”
  16. 16. Aggrieved by the above judgment of the High Court this appeal has been filed.
  17. 17. Learned counsel for the appellants contended that criminal proceedings initiated by the complainant in the facts of the present case was malafide and falsely initiated to save complainant, her husband and son from making repayment of the amount taken by them with regard to which complaint under Section 138 of Negotiable Instruments Act by the accused were already filed and pending. After registration of case on Application filed by the complainant under Section 156(3) Cr.P.C., the IO conducted thorough investigation by recording the statements of complainant, her husband as well as husband’s brother and brother’s wife. Various affidavits were also received by the IO and after conducting investigation there was sufficient materials to come to the conclusion that a story of alleged rape was wholly false and no such incident had taken place as alleged by the complainant. He has submitted a Final Report in the case which ought to have been accepted by the learned Magistrate. It is contended that Protest Petition has been allowed without adverting to the material collected by the IO. The fact that the Application under Section 156(3) Cr.P.C. itself was filed after 8 days of alleged rape, there is no medical report to prove the alleged rape, these were sufficient to discard the allegations made by the complainant. Summoning of the accused of such serious offence cannot be a mechanical exercise in the facts and circumstances of the case and material collected during investigation which were part of the Final Report were required to be adverted to by the Court while rejecting the Final Report. Learned counsel submits that prosecution in the present case is a clear abuse of the process of the Court and deserves to be set aside in exercise of jurisdiction under Section 482 Cr.P.C. by the High Court.
  18. 18. Learned counsel appearing for the respondent No.2 refuting the submission made by the learned counsel for the appellants contended that no error has been committed by the Courts below in summoning the accused, there was statement under Section 164 Cr.P.C. of the complainant where she reiterated her case of rape by accused No.1 and 3. It is submitted that at this stage the Court was not required to marshal the evidence and examine the charge on merit and the High Court has rightly refused to exercise jurisdiction under Section 482 Cr.P.C. to quash the criminal proceedings.
  19. 19. We have considered the submissions made by the parties and perused the records.
  20. 20. Before we enter into the facts of the present case it is necessary to consider the ambit and scope of jurisdiction under Section 482 Cr.P.C. vested in the High Court. Section 482 Cr.P.C. saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
  21. 21. This Court time and again has examined scope of jurisdiction of High Court under Section 482 Cr.P.C. and laid down several principles which govern the exercise of jurisdiction of High Court under Section 482 Cr.P.C. A three-Judge Bench of this Court in State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699,held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. In paragraph 7 of the judgment following has been stated:  “7….In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.”
  22. 22. The judgment of this Court in State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, has elaborately considered the scope and ambit of Section 482 Cr.P.C. Although in the above case this Court was considering the power of the High Court to quash the entire criminal proceeding including the FIR, the case arose out of an FIR registered under Section 161, 165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. This Court elaborately considered the scope of Section 482 CR.P.C./ Article 226 in the context of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements of this Court, this Court enumerated certain Categories of cases by way of illustration where power under 482 Cr.P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice. Paragraph 102 which enumerates 7 categories of cases where power can be exercised under Section 482 Cr.P.C. are extracted as follows:
    • “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.” http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  23. 23. A three-Judge Bench in State of Karnataka vs. M. Devenderappa and another, 2002 (3) SCC 89, had occasion to consider the ambit of Section 482 Cr.P.C. By analysing the scope of Section 482 Cr.P.C., this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. Following was laid down in paragraph 6: “6……All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.” Further in paragraph 8 following was stated: “8…..Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal.”
  24. 24. In Sunder Babu and others vs. State of Tamil Nadu, 2009 (14) SCC 244, this Court was considering the challenge to the order of the Madras High Court where Application was under Section 482 Cr.P.C. to quash criminal proceedings under Section 498A IPC and Section 4 of Dowry Prohibition Act, 1961. It was contended before this Court that the complaint filed was nothing but an abuse of the process of law and allegations were unfounded. The prosecuting agency contested the petition filed under Section 482 Cr.P.C. taking the stand that a bare perusal of the complaint discloses commission of alleged offences and, therefore, it is not a case which needed to be allowed. The High Court accepted the case of the prosecution and dismissed the application. This Court referred to the judgment in Bhajan Lal case (supra) and held that the case fell within Category 7. Apex Court relying on Category 7 has held that Application under Section 482 deserved to be allowed and it quashed the proceedings.
  25. 25. In another case in Priya Vrat Singh and others vs. Shyam Ji Sahai, 2008 (8) SCC 232, this Court relied on Category 7 as laid down in State of Haryana vs. Bhajan Lal(supra). In the above case the Allahabad High Court had dismissed an Application filed under Section 482 Cr.P.C. to quash the proceedings under Section 494, 120-B and 109 IPC and Section 3 and 4 of Dowry Prohibition Act. After noticing the background facts and parameters for exercise of power under Section 482 Cr.P.C. following was stated in paragraphs 8 to 12:
    • “8. Further, it is pointed out that the allegation of alleged demand for dowry was made for the first time in December 1994. In the complaint filed, the allegation is that the dowry torture was made sometime in 1992. It has not been explained as to why for more than two years no action was taken.
    • 9. Further, it appears that in the complaint petition apart from the husband, the mother of the husband, the subsequently married wife, husband’s mother’s sister, husband’s brother-in-law and Sunita’s father were impleaded as party. No role has been specifically ascribed to anybody except the husband and that too of a dowry demand in February 1993 when the complaint was filed on 6-12-1994 i.e. nearly after 22 months. It is to be noted that in spite of service of notice, none has appeared on behalf of Respondent 1.
    • 10. The parameters for exercise of power under Section 482 have been laid down by this Court in several cases.
    • 11. “19. The section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely,
    • (i) to give effect to an order under the Code,
    • (ii) to prevent abuse of the process of court, and
    • (iii) to otherwise secure the ends of justice.
    • It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. 20. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.” [See Janata Dal v. H.S. Chowdhary, Raghubir Saran (Dr.) v. State of Bihar and Minu Kumari v. State of Bihar, SCC p. 366, paras 19-20.] 12. The present case appears to be one where Category 7 of the illustrations given in State of Haryana v. Bhajan Lal is clearly applicable.
  26. 26. From the material on records, following facts are disclosed from the sequence of events which preceded the registration of FIR on 06.11.2015. The complainant, her husband and son had taken different amounts totalling Rs.22 lakh 50 thousand in the month of May, 2015 for business/shop purposes from the accused. Three agreements were written on Non-Judicial Stamp Papers on 29.05.2015, 01.06.2015 and 31.08.2015 wherein complainant, her husband and son have acknowledged receipt of the money in cash as well as by cheque. Cheques of Rs. 6 lakh, Rs.14 lakh 50 thousand were given to accused for ensuring the repayment. Cheques were drawn on the Prathama Bank, Kanth Branch, District Moradabad. Cheques were deposited in the Bank which were returned with endorsements “No Sufficient Balance”. After cheques having been dishonoured, complaints under Section 138 of Negotiable Instruments Act were filed by the accused against the husband and son of the complainant which were registered in the month of September/October and were pending before alleged incident dated 22.10.2015.
  27. 27. The complainant alleges rape by the accused on 22.10.2015 at 7.30 p.m. at her house and alleges that on the same day she went to the Police Station but FIR was not registered. She states that after sending an application on 26.10.2015 to the SSP, she filed an Application under Section 156(3) Cr.P.C. before the Magistrate. There is no medical report obtained by the complainant except medical report dated 20.11.2015. IO on 07.11.2015 when asked the complainant to get medical examination done, complainant and her husband refused. The incident having taken place on 22.10.2015 at 7.30 p.m. nothing was done by the complainant and her husband till 26.10.2015 when she alleges the Application was sent to SSP.
  28. 28. During investigation, IO has recorded the statements of brother of complainant’s husband as well as Smt. Bina Vishnoi, the wife of husband’s brother who were residing in the same house and have categorically denied that any incident happened in their house. Both, in their statements and affidavits have condemned the complainant for lodging a false report.
  29. 29. IO collected affidavits of several persons including affidavits of Nikesh Kumar and Smt. Bina Vishnoi and on collecting the entire material and visiting the spot IO had come to the conclusion that no such incident took place and submitted a Final Report dated 29.11.2015. On 29.11.2015 itself, the IO has submitted another report for prosecution of complainant under Section 182 Cr.P.C. for giving false information to the Police.
  30. 30. After submission of Final Report and submissions of Report under Section 182 Cr.P.C. dated 29.11.2015 complainant filed a Protest Petition on 07.01.2016.
  31. 31. It is true that in the statement under Section 164 Cr.P.C, the complainant repeated her allegation. Complainant has also recorded her age in the statement as 47 years.
  32. 32. The Magistrate in allowing the Protest Petition only considered the submission made by the State while summoning the accused in paragraph 6 which is to the following effect: “6. In compliance with the order passed by the Hon’ble High Court and from the perusal of evidence and entire case diary this Court comes to the conclusion that the complainant is required to be registered as police complainant and there are sufficient grounds to summon the accused Vinit Kumar, Sonu and Nitendra for their trial under Section 376D, 323 and 352 of Indian Penal Code.”
  33. 33. Learned Sessions Judge has also affirmed order taking note of statement under Section 164 Cr.P.C.
  34. 34. There was sufficient material on record to indicate that there were financial transactions between the accused and complainant, her husband and son. On dishonour of cheques issued by the complaint’s husband and son proceedings under Section 138 of Negotiable Instruments Act were already initiated by the accused. All family members of the complainant were living in the same house. Brother of husband and his wife, in their statements before the IO have admitted monetary transactions of his brother with the accused. The statements before the IO of both the Nikesh Kumar and Smt. Bina Vishnoi have already been extracted above, which were part of the Case Diary and was material which ought to have been looked into which was submitted by the IO in the Final Report.
  35. 35. The fact is that no medical examination was got done on the date of incident or even on the next day or on 07.11.2015, when IO asked the complainant and her husband to get done the medical examination. Subsequently it was done on 20.11.2015, which was wholly irrelevant. Apart from bald assertions by the complainant that all accused have raped, there was nothing which could have led the Courts to form an opinion that present case is fit a case of prosecution which ought to be launched. We are conscious that statement given by the prosecutrix/complainant under Section 164 Cr.P.C. is not to be lightly brushed away but the statement was required to be considered along with antecedents, facts and circumstances as noted above. Reference to the judgment of this Court in Prashant Bharti vs. State(NCT of Delhi), 2013 (9) SCC 293, is relevant for the present case. In the above case the complainant lady aged 21 years lodged an FIR under Section 328 and 354 IPC with regard to the incident dated 15.02.2007. She sent a telephonic information on 16.02.2007 and on her statement FIR under Sections 328 and 354 IPC was registered against the appellant. After a lapse of five days on 21.02.2007 she gave a supplementary statement alleging rape by the appellant on 23.12.2006, 25.12.2006 and 01.01.2007. Statement under Section 164 Cr.P.C. of the prosecutrix was recorded. Police filed charge-sheet under Section 328, 324 and 376 IPC. Charge-sheet although mentioned that no proof in support of crime under Section 328/354 could be found. However, on the ground of statement made under Section 164 Cr.P.C. charge-sheet was submitted. Paragraph 10 of the judgment which notes the charge-sheet is as follows: “ 10. On 28.6.2007, the police filed a chargesheet under Sections 328,354 and 376 of the Indian Penal Code. In the chargesheet, it was clearly mentioned, that the police investigation, from different angles, had not yielded any positive result. However, the chargesheet was based on the statement made by the complainant/prosecuterix before the Metropolitan Magistrate, New Delhi under Section 164 of the Code of Criminal Procedure, which was found to be sufficient for the charges alleged – against the appellant-accused. A relevant extract of the chargesheet depicting the aforesaid factual position, is being reproduced below:- “I the Inspector, tried my best from all angles to recover the intoxicating substance/Pepsi/Pepsi glass and undergarments worn at the time of the rape. But nothing could be recovered and for this reason, the blood sample of accused could not be sent to FSL. As from the investigation so far conducted, no proof could be found in support of the crime under Section 328/354 IPC and even the position of accused Prashant Bharti is not available at Lodhi Colony at the date and time as his mobile phone ill. However, prosecuterix Priya Porwal made statement on 21.2.2007 and on 27.2.2007 under Section 164 Cr.P.C. which is sufficient in support of his challan for the offence under Section 376 IPC.” (emphasis supplied)”
  36. 36. Writ petition was filed by the accused for quashing the FIR which was dismissed by the High Court on 27.08.2007. Thereafter, charges were framed on 01.12.2008. Dissatisfied with the framing of charges Criminal Revision Petition was filed which was dismissed by Delhi High Cort on 16.01.2009. The order of Additional Sessions Judge has been extracted by this Court in paragraph 14 which is quoted below: “14. Dissatisfied with the action of the trial Court in framing charges against him, the appellant-accused filed Criminal Revision Petition no. 08 of 2009, whereby he assailed the order dated 1.12.2008 passed by the Additional Sessions Judge, New Delhi. The Delhi High Court dismissed the revision petition on 16.1.2009, by inter alia observing as under:- “12. Truthfulness or falsity of the allegations, essentially pertains to the realm of evidence and the same cannot be pre-judged at this initial stage. I do not find any illegality or infirmity in the impugned order. Consequently, this Revision Petition is dismissed in limine while making it clear that anything herein shall not be construed as an opinion on merits at trial.””
  37. 37. The appeal was filed against the aforesaid judgment of the High Court by the accused contending that there was sufficient material collected in the investigation which proved that allegations were unfounded and the prosecution of the appellant was an abuse of process of the Court. In paragraph 23 this Court noted several circumstances on the basis of which this Court held that judicial conscience of the High Court ought to have persuaded it to quash the criminal proceedings. This Court further noticed that Investigating Officer has acknowledged, that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 Cr.P.C. In paragraphs 24 and 25 of the judgment following was stated: “24. Most importantly, as against the aforesaid allegations, no pleadings whatsoever have been filed by the complainant. Even during the course of hearing, the material relied upon by the accused was not refuted. As a matter of fact, the complainant/prosecutrix had herself approached the High Court, with the prayer that the first information lodged by her, be quashed. It would therefore be legitimate to conclude, in the facts and circumstances of this case, that the material relied upon by the accused has not been refuted by the complainant/prosecutrix. Even in the charge sheet dated 28.6.2007, (extracted above) the investigating officer has acknowledged, that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 of the Cr.P.C. 25. Based on the holistic consideration of the facts and circumstances summarized in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar’s case (supra) stand – satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the accused-appellant, in exercise of the inherent powers vested with it under Section 482 of the Cr.P.C. Accordingly, based on the conclusions drawn hereinabove, we are satisfied, that the first information report registered under Sections 328, 354and 376 of the Indian Penal Code against the appellant-accused, and the consequential chargesheet dated 28.6.2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1.12.2008, deserves to be quashed. The same are accordingly quashed.”
  38. 38. Thus, above was the case where despite statement under Section 164 Cr.P.C. by prosecutrix the Court referring to material collected during investigation had held that the case was fit where the High Court ought to have quashed the criminal proceedings.
  39. 39. Inherent power given to the High Court under Section 482 Cr.P.C. is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in State of Haryana vs. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C. to quash the proceeding under Category 7 as enumerated in State of Haryana vs. Bhajan Lal, which is to the following effect: “(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.” Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the judgment of the State of Haryana vs. Bhajan Lal, but did not advert to the relevant facts of the present case, materials on which Final Report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where High Court ought to have exercised its jurisdiction under Section 482 Cr. P.C. and quashed the criminal proceedings. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  40. 40. In the result, appeal is allowed, the judgment of the High Court dated 16.12.2016 as well as the order of Additional Chief Judicial Magistrate dated 03.08.2016 and the order of the Sessions Judge dated 22.10.2016 including the entire criminal proceedings are quashed.

 

…………………J.

( A. K. SIKRI ) …………………J.

( ASHOK BHUSHAN )

New Delhi, March 31,2017.


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************

 

#498a wife files #RAPE #case on #brother-in-law etc. All courts upto HC acquit accused. Raj HC Mar 17

Wife files rape / molestation S376 on her own brother in law and another person. The prosecution witnesses themselves do NOT corroborate her version !! On the day of the alleged rape, her own husband is at home, all family members are at home, but still she claims that some thrid parties had to come to help her !! The sessions court notices that she has filed 498a and tried to compromise with her husband and co !! HC even refuse leave to appeal !!

Sadly though the police seem to filed charge sheet on such a patently fake case

Key observations at HC are
* “…..Learned trial Court has also noticed serious contradictions and inconsistencies in the statements of prosecutrix and further found that the other prosecution witnesses have not corroborated her version. …also taken note of …compromise which was arrived at between prosecutrix and her in-law’s family pursuant to a case registered by her …under Section 498A IPC..” !!
* “….Her version is not supported by other prosecution witnesses….”
* “… A glaring fact, that at the time of occurrence of incident, other family members including husband of the prosecutrix, were present but on her raising alarm, neighbours came at the site but none of the family members responded to her alarm, also creates serious doubts about the occurrence of alleged incident…..”
* “…There is yet another aspect of the matter that husband of the prosecutrix himself has appeared in the witness box as defence witness and has completely disowned the entire incident….”

==========================================

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B.

Crml Leave To Appeal No. 41 / 2017

State of Rajasthan —- Appellant

Versus

1. Ganesh S/o Mangilal, B/c Brahman

2. Prem Singh S/o Malsingh, B/c Rajput Both R/o Village Jinrasar, Tehsil Sujangarh, District Churu —-Respondents


For Appellant(s) : Mr. L.R. Upadhyay,
P.P., for the State


HON’BLE MR. JUSTICE P.K. LOHRA

Order

31/03/2017

Appellant-State has preferred this Leave to Appeal under Section 378(iii) & (i) Cr.P.C. to assail impugned judgment dated 04.10.2016, passed by Additional Sessions Judge, Sujangarh, District Churu (for short, ‘learned trial Court’) in Sessions Case No.24/2014. By the impugned judgment, learned trial Court has acquitted accused-respondents for offence punishable under Sections 450, 354 & 376/511 IPC. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The facts, apposite for the purpose of this appeal, are that prosecutrix Ms. ‘A’, wife of Ranvir Singh Rajput, submitted a written report Ex.P/1 before Police Station, Sujangarh stating therein that she entered into matrimony with Ranvir Singh Rajput five years back and since then she is being harassed by her husband and in-laws. Attributing ill-intention on the part of her brother-in-law (Jeth) Prem Singh, she has alleged commission of aforesaid offences against him and other accused Ganesh in the night of previous day i.e. on 14.09.2014. As per version of the prosecutrix, at about 10.30 p.m. when she was sleeping, both the accused persons came and tried to molest her and on her raising alarm, some of the neighbours came there and the accused persons fled away.

On the basis of the report, FIR No.295/2014 was registered for offence under Sections 456, 354A, 354B read with Section 34 IPC. After investigation, Police submitted charge-sheet against the accused persons for offences under Sections 457, 354 and 376/511 read with Section 34 IPC.

The matter was, later on, committed to the Court of Sessions for trial. Learned trial Court, after hearing arguments on charge, framed charges against the accused-respondents for offence under Sections 376/511, 450 and 354 IPC. In order to prove charges against the accused-respondents, prosecution examined eight witnesses and exhibited eight documents. Subsequent to that, statements of accused under Section 313 Cr.P.C. were recorded. In defence, accused persons examined two witnesses, namely, D.W. 1 Ranvir Singh and D.W. 2 Mahendra Singh. Upon conclusion of the trial, learned trial Court heard final arguments and by the impugned judgment acquitted the accused persons for the aforesaid offences with a definite finding that prosecution has failed to prove charges beyond all reasonable doubts. Learned trial Court has also noticed serious contradictions and inconsistencies in the statements of prosecutrix and further found that the other prosecution witnesses have not corroborated her version. That apart, learned trial Court has also taken note of some relevant facts including the compromise which was arrived at between prosecutrix and her in-law’s family pursuant to a case registered by her against them for offence under Section 498A IPC. While recording finding favouring the cause of accused- respondents, learned trial Court has also taken note of the evidence of D.W. 1 Ranvir Singh, husband of the prosecutrix, and other witnesses.

I have heard learned Public Prosecutor, perused the impugned judgment and thoroughly scanned the record of the case.

After threadbare examination of the testimony of prosecutrix P.W.1 Ms. ‘A’ and the statements of other prosecution witnesses, there remains no quarrel that a cumulative reading of entire evidence is insufficient to prove guilt against the accused persons for the aforesaid offences.

While it is true that prosecutrix P.W. 1 has castigated the accused-respondents for the offences but then in view of serious pitfalls in her statements, it is not possible to treat her testimony of sterling worth so as to record finding of guilt against the accused-respondents beyond all reasonable doubts. Moreover, her version is not supported by other prosecution witnesses. A glaring fact, that at the time of occurrence of incident, other family members including husband of the prosecutrix, were present but on her raising alarm, neighbours came at the site but none of the family members responded to her alarm, also creates serious doubts about the occurrence of alleged incident. There is yet another aspect of the matter that husband of the prosecutrix himself has appeared in the witness box as defence witness and has completely disowned the entire incident.

Therefore, in totality of circumstances, in my considered opinion, learned trial Court has not committed any manifest error in appreciation of evidence and the conclusions drawn by the learned trial Court cannot be categorized as perverse or inherently improbable. The legal position is no more res-integra that an appellate Court, while considering a verdict of acquittal, can very well re-appreciate the evidence but then upon reappreciation of evidence, if the appellate Court comes to the conclusion that two views are possible and the view taken by the learned trial Court is a probable one then it is not desirable to substitute its view for upsetting the verdict of acquittal passed by the learned trial Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

As observed supra, I have not been able to find any perversity in the appreciation of evidence and conclusions drawn by the learned trial Court, therefore feel dissuaded to grant leave in the matter.

Consequently, leave to appeal craved for is declined and the appeal is accordingly dismissed.

(P.K. LOHRA) J.

Bharti/4


*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting



 

Filing false 498a, fake rape on BIL is cruelty !! Husband granted divorce by Bombay HC 

WIFS files fake 498 year, domestic violence, section 125 cocktail on husband… Claims that husband’s brother was about to rape her… The husband’s family is terrified… Husband’s father testifies about the terror… Husband tries to get her back, she refuses and files 498a t… However at the divorce hearing,  she claims that she is ready to live back with a husband to frustrate him …. The family court refuses to grant divorce  to the husband…finally, the honourable  High Court, sees through the wife’s game, and declares that she has treated the husband and his family with cruelty. Husband is granted divorce.

====================

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

FAMILY COURT APPEAL NO. 47 OF 2016

APPELLANT :- Vinay S/o Vasantrao Bagde, aged about 37years, Occ. Private Job, resident of Panchadeep Nagar, Wardha Road, Nagpur.
…VERSUS…

RESPONDENT :- ig Sou.Durga W/o Vinay Bagde, aged about 41 years, Occ. Service, resident of C/o Tanajirao Ukey, 187-B, Vina Nagar, Indore, (Madhya Pradesh)


Mr.Masood Shareef & Mr.A.J.Mirza, counsel for the appellant.

Mr.Anil Bambal, counsel for the respondent.


CORAM : SMT. VASANTI A NAIK & V.M.DESHPANDE, JJ.
DATED : 08-09.02.2017
O R A L J U D G M E N T
(Per Smt.Vasanti A Naik, J.)
The family court appeal is ADMITTED and heard finally at the stage of admission with the consent of the learned counsel for the parties.

  1. By this family court appeal, the appellant-husband (hereinafter referred to as ‘the Husband’ for the sake of convenience) 08-902FCA47.16-Judgment 2/17 challenges the judgment of the Family Court, Nagpur, dated 03.02.2016 dismissing a petition filed by him against the respondent-Wife (hereinafter referred to as ‘the Wife’) for a decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act.
  2. The husband had filed a petition under Section 13(1)(i-a) of the Hindu Marriage Act for a decree of divorce on the ground of cruelty. The marriage was solemnized between the parties on 08.03.2002 at Indore (M.P.), according to Buddhist rights and custom. It is pleaded in the petition by the husband that the wife started residing in the joint family of the husband at Nagpur along with father aged 71 years, his mother aged 60 years and his elder brother who was suffering from mental disorder. It is pleaded that the husband learnt that the wife was elder to him by four years and the said fact was concealed by her at the time of the marriage. It is pleaded that the wife was suffering from epilepsy and the said fact was also not disclosed. It is pleaded that though the husband and his family members treated the wife well and with affection, the wife did not behave properly. It is pleaded that the wife was admitted by the husband in a college to further educate her a per her wish. It is pleaded that in January-2010, the father of the wife came to Nagpur and demanded a sum of Rs.2,00,000/- from the father of the husband and since the husband had showed his inability to pay Rs.2,00,000/- for the construction of the house of the father of the wife, 08-902FCA47.16-Judgment 3/17 the wife became angry and collected her clothes, documents and ornaments and left for Indore along with her father. It is pleaded that the wife is residing along with her parents and her son Bhavesh from 02.02.2010 in her parental home. It is pleaded that though the husband asked the wife to join his company, the wife did not join the same. It is pleaded that the wife filed a false complaint against the husband and his family members under Section 498-A of the Indian Penal Code and the members of the family of the husband had to secure bail. It is pleaded that the wife had harassed the husband and his family members, mentally and financially by filing a false report against them. It is pleaded that the wife also filed the proceedings under Section 125 of the Code of Criminal Procedure and the proceedings under the Protection of Women from Domestic Violence Act, at Indore. It is pleaded that though the wife was not desirous to cohabit with the husband and indeed wanted a divorce, she had filed the proceedings only with a view to harass the husband and his family members. Some other vague allegations are also levelled against the wife to point out that the wife had treated the husband with cruelty.

  3. The wife filed the written statement and denied the claim of the husband. The wife denied all the adverse allegations levelled against her by the husband in her written statement. The wife pleaded that the behaviour of the husband and his family members changed drastically after some days of the marriage. The wife pleaded that the husband was a heavy drunkard and was merciless by nature. It is pleaded that the husband had treated the wife like an animal and she was mercilessly beaten up by the husband under the influence of liquor.

The wife pleaded that she was not permitted to come out of the house and to speak with anyone. It is pleaded by the wife that the father of the husband used to instigate the husband to give illtreatement to the wife till their illegal demand was fulfilled. It is pleaded that the husband and his parents always insulted the father and mother of the wife and stated that her father and mother were Bhikari. It is pleaded that on 28.01.2010, the husband was admitted in the hospital and, hence, the father and the mother of the wife had come from Indore to meet him.

It is pleaded that on 02.02.2010 the husband abused them in filthy language and after insulting them, threw the sarees and suitcases of the wife and her parents out of the house. It is pleaded that the wife was required to lodge a complaint in Sonegaon Police Station on 02.02.2010, after she left the house. It is pleaded that she was residing in the house along with her parents at Indore, after she left the matrimonial home on 02.02.2010. The wife sought for the dismissal of the Hindu Marriage Petition.

  1. The Family Court framed the issues and the parties tendered oral evidence. The husband examined himself and also examined his father and a maidservant who had worked in his house for some time during the stay of the wife. The wife examined herself and closed the evidence on her side. On an appreciation of the material on record, the Family Court dismissed the petition filed by the husband after recording a finding that the husband was unsuccessful in proving that the wife had treated him with cruelty.
  • Shri Shareef, the learned counsel for the husband, submitted that the Family Court was not justified in dismissing the petition filed by the husband. The learned counsel relied on the judgment in the proceedings launched against the husband and his family members for an offence punishable under Section 498-A of the Indian Penal Code.

  • By taking this Court through the said judgment, it is pointed out that the wife had levelled false and baseless allegations against the husband and his family members in the first information report as well as in the written statement in this petition. It is stated that after the complaint was filed by the wife in the police station at Indore, the husband and his family members were harassed both, mentally and financially and were required to secure bail. It is submitted that it could be proved on the basis of the judgment passed in the proceedings under Section 498-A of the Penal Code as also from the evidence tendered by the parties in this case that the wife had levelled false and baseless allegations against the husband and his family members. It is stated that though the husband had admittedly fractured his leg on 29.01.2010 and he was resting in the bed on 02.02.2010, the wife has levelled a false allegation that the husband threw her sarees and her suitcases as also her parents out of the matrimonial home on 02.02.2010. It is stated that it is apparent from the admissions by the wife in her cross-examination that the husband had an injury to his leg on 02.02.2010 and, hence, the case of the wife that she and her parents were thrown out of the matrimonial home on 02.02.2010 along with her sarees and her suitcases is false and baseless. It is submitted that the wife had never lodged a complaint against the husband during her stay in the matrimonial home till 02.02.2010 and on 02.02.2010, though it is stated that she had filed a complaint in the police station at Nagpur, the copy of the complaint is not placed on record. It is submitted that though the wife had left the matrimonial home on 02.02.2010, the complaint for an offence punishable under Section 498-A of the Penal Code is filed by her in the police station at Indore in the second week of July. It is submitted that if the wife was really ill-treated by the husband, she would have immediately lodged a report after she left the matrimonial home on 02.02.2010. It is submitted that this aspect of the matter is not considered by the Family Court in the right perspective to hold that the wife had treated the husband with cruelty. It is submitted that the wife has not only filed a false complaint against the husband but, has also filed a false complaint against his old parents and his elder brother, who was suffering from mental ailment. The learned counsel relied on the judgment reported in 2015(1) Mh.L.J. 900 (Manoj Pate v. Vijaya Pate) to substantiate his submission.

    1. Shri Bambal, the learned counsel for the wife, has supported the judgment of the Family Court. It is submitted that the Family Court has rightly dismissed the petition filed by the husband after observing that the husband has failed to prove that the wife had treated him with cruelty. It is stated that in his cross-examination, the husband had admitted that in the mediation proceedings, the husband had agreed to take back the wife to the matrimonial home. It is stated that the said admission of the husband in the cross-examination would disentitle the husband to a decree of divorce on the ground of cruelty. It is submitted that the husband has not properly pleaded about the mental agony caused to him and his family members due to the filing of a false complaint by the wife for an offence punishable under Section 498-A of the Penal Code. Though the learned counsel admitted that the wife had improved her case in regard to the harassment by the husband and his family members in her evidence tendered in the criminal proceedings, it is stated that the husband has not stated in his examination-in-chief that the evidence of the wife in the criminal proceedings has caused mental agony to him. It is stated that merely because the husband and his family members are acquitted in the criminal proceedings, it cannot be said that the report filed by the wife was false and baseless.
  • On hearing the learned counsel for the parties and on a perusal of the judgment of the Family Court and the Record & Proceedings, it appears that the following points arise for determination in this family court appeal. I) Whether the husband is successful in proving that the wife had treated him with cruelty? II) Whether the husband is entitled to a decree of divorce on the ground of cruelty? III) What order?

  • To answer the aforesaid points for determination, it would be necessary to consider the pleadings of the parties. The pleadings of the husband in respect of the ground of cruelty are very brief. The husband had pleaded that the wife had not disclosed to him before the marraige that she was older than him by four years. It is stated that the wife suffered from epilepsy but, this fact was also not disclosed to him and his family members. It is stated that the wife did not perform her duties in the matrimonial home properly and did not treat his parents well.

  • Apart from the aforesaid allegations, the husband has pleaded that after leaving the matrimonial home on 02.02.2010, the wife had lodged three proceedings against the husband at Indore, where she resided with her parents. According to the husband, the wife had filed the proceedings 08-902FCA47.16-Judgment 9/17 against him for maintenance under Section 125 of the Code of Criminal Procedure, she had filed proceedings against him under the provisions of the Protection of Women from Domestic Violence Act, seeking a direction that she should be provided with a violence-free atmosphere in the matrimonial home and had also filed a false complaint against the husband, his parents and his elder brother in the police station at Indore for an offence punishable under Section 498-A of the Penal Code. According to the husband, he and his family members had to secure bail in view of the lodging of the false police complaint against them, at Indore. The husband has pleaded that the husband and his family members were harassed mentally and financially due to the filing of the false complaint against them. The husband pleaded that the filing of the false, frivolous and vexatious proceedings against the husband and his family members has caused great harassment to them.

    1. The wife denied the claim of the husband and had pleaded that she had left the matrimonial home on 02.02.2010 as the husband threw her sarees, suitcases and also threw her and her parents out of the matrimonial home on the said date. The wife had pleaded that the husband was a heavy drunkard and he used to beat her and treat her like an animal after he was in an inebriated state. The wife denied that that she had filed a false complaint in the police station at Indore.
  • In our view, the Family Court has rightly held that the husband was unsuccessful in proving that the wife was four years older than him and that she had not disclosed this fact prior to the solemnization of the marriage as there is no cogent evidence in this regard. The Family Court has also rightly disbelieved the case of the husband that the wife suffered from epilepsy as there are no medical reports in this regard. The Family Court rightly held that to prove that the wife was suffering from epilepsy, some cogent evidence, in the nature of medical reports should have been placed on record by the husband to show that the wife suffered from epilepsy. The allegations levelled by the husband against the wife in regard to her ill-behaviour in the matrimonial home and that she did not perform her duties, are extremely vague and general. No specific instances are provided by the husband in the petition to show that in what manner, the wife was treating the husband and his family members with cruelty.

  • It would now be necessary to consider whether the husband is successful in proving that the wife had treated him and his family members with cruelty by lodging a false complaint in respect of an offence punishable under Section 498-A of the Penal Code. We have perused the first information report lodged by the wife in the police station at Indore, that is Exhibit 44. In the first information report filed by the wife in the police station at Indore, she had stated that the 08-902FCA47.16-Judgment 11/17 husband used to be under the influence of liquor and used to treat the wife like an animal. The wife had pleaded that the husband and his family members had demanded a sum of Rs.50,000/- from her parents.

  • The wife had stated in the complaint that her father-in-law used to abuse her and her mother-in-law asked her not to return to the matrimonial home till she fulfilled the demand. The wife had stated that the elder brother of the husband also was not behaving properly with her. The wife had stated in the complaint that her belongings were thrown out of the house by the husband on 02.02.2010 and that she and her parents were driven out of the matrimonial home. Similar pleadings find place in the written statement of the wife in this case also. We have perused the judgment in the criminal proceedings. On a perusal of the same, it appears that the wife has improved her case while tendering the evidence in those proceedings and has levelled extremely serious allegations against the husband and his family members. It appears from the jdugment in the criminal proceedings that the wife had stated in her evidence in the criminal proceedings that the elder brother of the husband always threatened that he would rape her. The wife has stated that the elder brother of the husband had caught hold of her hand on several occasions in her bedroom. The wife has further stated in those proceedings, as we can find from the judgment in the criminal proceedings that the husband used to dump her in the refridgerator and also used to throw her down the staircase. No doubt, this is not the case of the wife in the present proceedings. This was also not the case of the wife in the first information report lodged by her in the police station at Indore. The wife had left the matrimonial home on 02.02.2010 and lodged the police complaint at Indore several months later, in the second week of July-2010. Had the husband and his family members really treated the wife with such cruelty as is contemplated by the provisions of Section 498-A of the Penal Code, the wife would have filed a complaint against her husband and her in-laws immediately after leaving the matrimonial home. At least, there should have been some material for proving that she had made any complaint in regard to such inhumane behaviour by the husband and his family members during her stay in the matrimonial home for nearly eight years. In the instant case, the husband has examined the maidservant, who was working in the house for some time during the stay of the wife in the matrimonial home. The said witness has supported the case of the husband that the wife was never treated badly in the matrimonial home. In the cross-examination, though a tricky question was put to the maidservant as to why she did not ask the husband to refrain from drinking, the maidservant had stated that she had never seen the husband in an inebriated condition and, hence, there was no reason to tell him so. Except the bare words of the wife in her examination-in-chief that she was beaten by the husband when he was in an inebriated state and she was treated like an animal, there is nothing on record to support her case. The complaint allegedly filed by her in the police station at Nagpur on the date on which she had left the matrimonial home is not placed on record by her. In fact, the wife admitted in her cross-examination that she had infomred in the police station at Nagpur on 02.02.2010 that no action should be taken against her husband as there was an injury to his leg.

    It is unbelievable that a husband who had fractured his leg on 29.01.2010 and was confined to the bed on 02.02.2010 would throw all the belongings of the wife along with her suitcases out of the house and also throw her and her parents out of the house. This is surely an exaggeration and the statement is unbelievable. It may be true that there must be some fight between the husband on one hand and the wife and her parents on the other on 02.02.2010, as a result of which the wife has left the matrimonial home but, the case of the wife that the husband who had fractured his leg and was on the bed, had thrown her belongings out of the house and also threw her and her parents out of the matrimonial home, appears to be false and baseless. It is apparent from a reading of the evidence of the parties that the wife has failed to prove that on 02.02.2010, the husband threw the belongings of the wife along with her suitcases out of the house and had also driven the wife and her parents out of the matrimonial home. Admittedly, when the husband had fractured his leg and was unable to move about, as is admitted by the wife in the cross-examination, the husband could not have thrown the wife, her parents and the wife’s belongings out of the matrimonial house on 02.02.2010, as pleaded by the wife. On the said day i.e., 02.02.2010, the husband’s parents were not in the matrimonial home as they had gone to Madhya Pradesh. On an appreciation of the evidence on record, we find that the evidence of the husband is more weighty than the evidence of the wife. The case of the wife about the manner in which she had left the matrimonial home on 02.02.2010 is unbelievable. It appears that the wife has not pointed out the true and correct facts to the court. There was no complaint by the wife against the husband for nearly eight years. It is not her case that she had informed her parents or relatives about the behaviour of the husband either by communications or orally during her stay in the matrimonial home for 8 years. If the husband was really treating her like an animal, there would have been some material on record to show that the husband was really beating the wife after getting drunk. There is no complaint by the wife about the husband even to her parents or her relatives till she left the matrimonial house on 02.02.2010. After staying in the company of the husband for more than eight years, the wife has for the first time, lodged a complaint against the husband in July, 2010 after leaving the house on 02.02.2010. We find that the filing of the complaint against the husband and his parents appears to be an afterthought. The husband and his family members are acquitted in the criminal trial. We find that the wife had levelled false allegation against her husband and her in-laws in the complaint filed by her in the police station at Indore in July, 2010 and it appears that the said complaint was filed with a view to intimidate the husband and his family members. The father of the wife was a police officer in Indore. If the wife really wanted to stay in the company of the husband, as she has stated in the written statement, the wife should not have filed a false complaint against the husband and his family members. It has come in the evidence of the parties that the mother of the husband was staying away from the matrimonial home, as she was working in a school in Madhya Pradesh. Though the mother of the husband was not residing in the matrimonial home, the complaint was lodged by the wife against her mother-in-law also. The complaint was lodged by the wife against the old father-in-law, who was more than 70 years of age. The wife has also made serious allegations against the brother-in-law in the criminal proceedings though in the present proceedings the wife had not levelled any allegation against him. We find that extremely serious allegations were levelled by the wife against the husband and his family members in the evidence tendered by her before the criminal court as could be seen from the judgment of the trial court in the criminal proceedings. If the husband was treating the wife like an animal, how could the wife express her desire in the written statement and her evidence to return to the matrimonial home, without putting the husband to terms. We find that the wife had filed a false complaint against her husband and her in-laws. The husband has clearly pleaded and proved that the filing of the false complaint by the wife against him in respect of the offence punishable under section 498-A of the Penal Code has caused mental and financial harassment to the husband and his family members. It appears that the husband and his family members were required to secure orders for bail after the wife lodged the false report against the husband and his family members. It is held by this Court time and again that filing of false complaints by the wife against the husband for the offence punishable under section 498-A of the Penal Code, would tantamount to cruelty. Though the husband has stated in his cross-

    examination that in the mediation proceedings he was ready to take back the wife to the matrimonial home, he has stated in his examination-in-chief as also in his cross-examination that he was not ready to cohabit with the wife. The father of the husband has stated in his cross-examination that since the wife has caused great mental trauma to them in view of the filing of the false proceedings under section 498-A of the Penal Code, the wife should not return to the matrimonial home. The father of the husband has expressed a fear that if the wife is permitted to return to the matrimonial home, they would constantly be under fear that she would again lodge a false complaint against the husband the family members thereby putting them in serious difficulty. The Family Court did not consider the aspect in respect of filing of the false complaint by the wife in the right 08-902FCA47.16-Judgment 17/17 perspective while dismissing the petition filed by the husband. The husband is successful in proving that the wife had treated him with cruelty.

    1. Hence, for the reasons aforesaid, the family court appeal is allowed. The judgment of the Family Court is set aside. The petition filed by the husband for a decree of divorce under section 13(1)(i-a) of the Hindu Marriage Act is allowed. The marriage solemnized between the parties on 08/03/2002 is dissolved by decree of divorce. No costs.
      JUDGE
      JUDGE

    APTE/KHUNTE

    My husband #Raped me ! Wife get’s #husband #arrested and thrown in #Jail: Uttr HC #Bail

    #Joke of the Day – it is on us 😦 !
    * Lots of really well meaning friends & mentors have been advising me (off late) that I should take things easy * They suggest that I should post jokes & stuff like that, should discuss movies etc. and NOT keep talking of Dowry, DV, sec 125 all the time. * As we all know, positive vibes are important
    * I wholeheartedly thank them for their warmth and care ! I really appreciate all of you for taking time and spending money to advise me.. THANKS a million bhayOn & BehnOn
    * upto this part is real serious, so **thank you seriously**

    * But ladies and gentlemen there is something called fate, something called “Karma” and that will always follow me. *Today I decided that I WILL post something #funny on FB and finally this is what I get
    * A wife files a #RAPE case on HER OWN husband and the HUSBAND IS ARRESTED and is in Jail !! Yes #Wife, Yes #rape on her own #husband and husband is in Jail !! Initially she files a Sections #498A/323/313/494/504 cocktail on that poor fella but he gets bail !! So she ADDS #Sec376ipc #RAPE on him to have him arrested !! The fella has to run up to #Uttaranchal #HIGHCOURT to get his bail after approx one and a half months of jail !!

    —— Please join me in thanking our system for this ——
    —– Willimprove my sense of humour in comming days !! —–

     
    IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ORIGINAL JURISDICTION
    Dated: Nainital: February 06, 2017
    First Bail Application No.161 of 2017
    Order on the bail application of accused
    Criminal Side
     
    Sunil Nodiyal ……Applicant
    Versus
    State of Uttarakhand …….Respondent
    ________________________________________________
     
    Hon’ble Sudhanshu Dhulia, J. (Oral)
     
    Heard Mr. Lalit Sharma, Advocate for the applicant, Mr. K.S. Rautela, Government Advocate assisted by Mr. Siddhartha Bisht, Brief Holder for the State and Mr. B.S. Bhandari, Advocate for the complainant.
     
    This is the first bail application. The applicant is in jail having been implicated in Case Crime No. 237 of 2016, which has been registered under Sections 420/120B/498A/323/313/494/504/376 of IPC, at Police Station Nehru Colony, District Dehradun.
     
    Earlier an FIR under Sections 498A/323/313/494/504 of IPC was lodged against the applicant at Police Station Nehru Colony, District Dehradun wherein the present applicant was granted limited protection by this Court in a writ petition. Thereafter another Section 376 of IPC has been added.
     
    The claim of the applicant is that the complainant has married with the applicant, therefore the offence under Section 376 of IPC is not made out against the applicant and purely in order to arrest the applicant, Section 376 of IPC has been added. The applicant is in jail since 24.12.2016.
     
    Considering the overall evidence which is presently available before this Court, prima facie, the applicant has been able to make out a case for bail. The bail application is accordingly allowed.
     
    Let the applicant be enlarged on bail in the aforesaid crime on his executing a personal bond and two reliable sureties each of the equal amount to the satisfaction of the Magistrate concerned/court concerned.
     
    It is made clear that any observations made by this Court are only for the purposes of deciding the bail application and shall not be taken into consideration at all in any other proceedings.
     
    (Sudhanshu Dhulia, J.) Vacation Judge
     
    06.02.2017
     
    Avneet/

    Woman can’t cry rape after knowingly marrying an already married man ! Delhi HC

    A woman files a #FakeRape #ipc376 case (combined with a cocktail of sections on cheating ( #ipc420) and other matters viz 193/468/471/506 IPC ) against a man. She claims that he payed a fraud on her and married her without disclosing his earlier marriage.

    The poor fellow is arrested , is convicted of rape by the lower court and has suffered approx 4 years of imprisonment, by the time the case reaches the Hon Delhi HC on appeal.

    The Hon Delhi HC dissects that evidence and brings out the fact that the accused and the complainant(woman’s ) husband were friends and they were on visiting terms and she knew very well about his prior marriage !! The rape and other charges are dismissed. Though the accused is charged with a minor offense under sec 465 IPC, he is released as he has already suffered 4 years of imprisonment !!

    ===============================================

    IN THE HIGH COURT OF DELHI AT NEW DELHI

    Reserved on: 15th November, 2016

    Decided on: 9th January, 2017

    CRL.A. 1187/2013

    RAJ KUMAR                                        ….. Appellant
    Represented by:     Mr. Mukesh Vatsa and Mr. Anuj Chaturvedi, Advocates.

    versus

    STATE (GOVT OF NCT OF DELHI)              ….. Respondent
    Represented by: Mr. Hiren Sharma, APP for the State with ASI Devender Kumar, PS Uttam Nagar.

    CORAM:

    HON’BLE MS. JUSTICE MUKTA GUPTA

    1. 1. Convicted for offences punishable under Sections 420/468/376 IPC Raj Kumar challenges the impugned judgment dated July 17, 2013 and the order on sentence of even date directing him to undergo rigorous imprisonment for a period of seven years and to pay a fine of `50,000/- for offense punishable under Section 376 IPC and rigorous imprisonment for a period of five years and to pay a fine of `25,000/- each for offenses punishable under Sections 420 IPC and 468 IPC.
    2. 2. Assailing the conviction, learned counsel for Raj Kumar contends that from the evidence on record, it can be inferred that the prosecutrix knew about the previous marriage of the appellant, thus, there was no deception. There are inconsistencies in the testimony of the prosecutrix. The appellant is an illiterate person and did not know English. The affidavit was in English and his signatures were obtained under the influence of some stupefying substance. The prosecutrix admitted in her testimony that she was neighbour of the appellant and the deceased husband of the prosecutrix was friend of the appellant, thus, it cannot be said that the prosecutrix did not know about the previous marriage of the appellant. In the complaints, there were allegations only with respect to outraging her modesty and the allegation of rape was afterthought and a material improvement. Lastly, DW- 1 sister-in-law of the prosecutrix, stated that the prosecutrix was fully aware that the appellant was a married man and she even attended his wedding.
    3. 3. Per contra learned APP for the State contends that the factum of marriage stands proved from the testimony of the prosecutrix and PW-5 Pandit Deepak Shastri, who is an independent witness to the marriage and deposed that he performed the marriage of the appellant and the prosecutrix as per Hindu rites and customs and also brought the record to fortify the same. Since the appellant married the prosecutrix during subsistence of his first marriage and established relationship with the prosecutrix, he is guilty of offence punishable under Sections 420, 468 and 376 IPC. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
    4. 4. The prosecution case is that a complaint was filed before the Metropolitan Magistrate with an application under Section 156(3) Cr.P.C. by the prosecutrix on the basis of which FIR No. 151/2010 under Sections 193/376/420/468/471/506 IPC was registered at PS Uttam Nagar. After the charge-sheet was filed, the prosecutrix, who was examined as PW-1, deposed in Court that earlier she was married to Madan Lal who died in the year 2000 and from that wedlock three children were born who were living separately after their marriages and she was living alone. In the year 2006, she met Raj Kumar, the appellant herein, in a religious procession after which he started visiting her at her house. Raj Kumar told her that he was unmarried and expressed his desire to marry her and to support her. Raj Kumar kept on visiting her for about one year whereafter, the prosecutrix agreed to marry him. The prosecutrix was living at Uttam Nagar in a rented house. Thereafter, she shifted to Mangolpuri and after around one month of her shifting, Raj Kumar married her on July 22, 2008 in Arya Samaj Mandir. The marriage was solemnized in the presence of two witnesses namely Sunil Kumar PW-6 and Kusum Lata who had also signed the certificate of marriage Ex. PW-1/A. Raj Kumar lived with the prosecutrix as her husband in the rented house at Mangolpuri for about a month and they had sexual relationship also during that period. After one month, they shifted to Uttam Nagar where also they lived for about three months and had sexual relationship as husband and wife. After three months, Raj Kumar left from there saying that he was going to submit some papers for his job as he was working in Delhi Jal Board at Ashok Vihar. However, Raj Kumar did not return home for about two months. One day in the evening, he came to the house followed by his wife, Madhu and her brother. Madhu, claiming herself to be appellant’s legally wedded wife, started quarreling with the prosecutrix, snatched the money and gold ring given to the prosecutrix by the appellant and went away. The appellant left the next day and did not return thereafter. The prosecutrix stated that she had no knowledge that the appellant was married and had two children. The appellant played fraud upon her and developed sexual relationship on the basis of fraud. During her cross examination, she stated that the appellant had given an affidavit Ex. PW-1/C that he was a bachelor as on July 22, 2008. She had filed a petition under Section 9 of Hindu Marriage Act. She denied the suggestion that Raj Kumar was married to Madhu in the year 1988 when she and her family members attended the marriage or that she had given ‘muh dikhai’ to Madhu, PW-7 on the next day of marriage.
    5. 5. PW-5, Pandit Deepak Shastri, Arya Samaj Mandir stated that he had issued the certificate of marriage Ex. PW-1/A after performing the marriage of Raj Kumar with the prosecutrix as per Hindu rites and ceremonies. He also stated that as per their record, one advocate Kusum Lata had brought them. Raj Kumar had given an affidavit that he was unmarried at that time. The prosecutrix had also given an affidavit to the effect that she was a widow and had handed over the death certificate of her husband.
    6. 6. PW-6, Sunil Kumar who was the son-in-law of the elder sister of the prosecutrix was a witness to the marriage of Raj Kumar with the prosecutrix. He corroborated the testimony of the prosecutrix and PW-5, Deepak Shastri. However, since he was not cross-examined, his testimony cannot be looked into.
    7. 7. PW-7, Madhu, wife of Raj Kumar, stated that she was married to Raj Kumar about 24 years ago and two children were born from the wedlock. The prosecutrix had attended their marriage. After the marriage, they used to reside at Ranjit Nagar near Shadipur Depot and the prosecutrix used to reside in their neighbourhood.
    8. 8. PW-13, Ms. Deepa Verma, Asst. Director (Documents) FSL prepared the FSL report Ex. PW-13/A and opined that:  “the person who wrote the red enclosed signatures stamped and marked S1 to S61 also wrote the red enclosed signatures similarly stamped and marked Q1 to Q3”
    9. 9. Thus from the evidence on record adduced by the prosecutrix it is proved that Raj Kumar performed marriage with the prosecutrix during the subsistence of his earlier marriage and executed a false affidavit that he was a bachelor when he performed the marriage with the prosecutrix. Though from the aforesaid discussion the ingredients of offence punishable under Section 494 IPC are established, as Raj Kumar married the prosecutrix during the subsistence of his marriage with Madhu, thus committed offence punishable under Section 494 IPC, however, since he has not been charged with Section 494 IPC, thus this Court need not delve into it.
    10. 10. However, the issue remains whether the prosecutrix had knowledge of the marriage of Raj Kumar with Madhu or not. As regards, offences punishable under Sections 420/376 IPC the claim of the prosecutrix is that she was unaware of the marriage of Raj Kumar with Madhu and thus by deception Raj Kumar solemnized marriage with her and established sexual relationship with her. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
    11. 11. The prosecution itself has examined Madhu wife of Raj Kumar as PW-7 who deposed that after her marriage with Raj Kumar she used to reside at Ranjit Nagar near Shadipur Depot and the prosecutrix used to reside in their neighbourhood. She further deposed that prosecutrix and her husband were on visiting terms with them and the prosecutrix attended her marriage with Raj Kumar. Further Ms. Sharda sister-in-law i.e. sister of the deceased husband of the prosecutrix was examined as DW-1. She deposed that Raj Kumar and the deceased husband of the prosecutrix were friends and on visiting terms. She further deposed that even she was on visiting terms with Raj Kumar and his family and the prosecutrix was fully aware that Raj Kumar was a married man and had even attended his wedding with her family and gave gifts to Madhu, wife of Raj Kumar. In cross- examination by the learned Additional Public Prosecutor nothing could be elicited. Further though in his statement under Section 313 Cr.P.C. Raj Kumar denied performing any marriage with the prosecutrix and stated that he was being falsely implicated, he entered the witness box as DW-2. He deposed that initially he was on friendly terms with the husband of the prosecutrix and her family, however thereafter he shifted from New Ranjit Nagar to Jahangir Puri. After the death of Madan Lal, he helped the prosecutrix financially. He further deposed that one day the prosecutrix, her son Mukesh and son-in-law Sunil made him consume a lot of liquor and sign some documents and also took some photographs. Thereafter the above- noted false case of rape was foisted on him.
    12. 12. In her cross-examination though the prosecutrix denied that she was living at New Ranjit Nagar till 1999 but admitted that her residential address at New Ranjit Nagar was B-261 and that Raj Kumar was also living in New Ranjit Nagar though she did not know the correct address. She also admitted that the distance between her house and house of Raj Kumar was 100 meters. Thus, from this admission of the prosecutrix that she knew the appellant and his family who was residing in his neighbourhood which fact is duly supported by the testimony of DW-1 the sister of the deceased husband of the prosecutrix, the prosecution has not been able to prove that the prosecutrix did not know about the factum of marriage of Raj Kumar with Madhu when she performed marriage with Raj Kumar and he committed sexual intercourse with her on the false pretext of a legal wedding. Thus Raj Kumar is entitled to be acquitted in respect of offences punishable under Sections 420/376 IPC.
    13. 13. Section 468 IPC provides for a punishment when forgery is committed with intention that the documents so forged would be used for the purpose of cheating. In the present case, though from the deposition of the expert PW- 13 Deepa Verma it has been proved that the affidavit was duly signed by the appellant wherein he disclosed himself to be a bachelor thereby proving forgery, however, since the element of cheating was missing for the reason the prosecutrix was aware of the marital status of Raj Kumar, ingredients of Section 468 IPC are not fulfilled. Thus Raj Kumar is entitled to be acquitted for offence punishable under Section 468 IPC but liable to be convicted for offence punishable under Section 465 IPC which is a minor offence of Section 468 IPC and punishable with imprisonment upto two years.
    14. 14. Consequently, acquitting Raj Kumar for offence punishable under Sections 420/468/376 IPC he is convicted for offence punishable under Section 465 IPC. Raj Kumar has already undergone more than four years of imprisonment, which is more than the sentence prescribed for an offence punishable under Section 465 IPC. The Superintendent, Tihar Jail is thus directed to release Raj Kumar forthwith, if not required in any other case.
    15. 15. Appeal is disposed of.
    16. 16. Copy of this order be sent to Superintendent Central Jail Tihar for updation of the Jail record.
    17. 17. TCR be returned.

    (MUKTA GUPTA) JUDGE

    JANUARY 09, 2017

    ‘ga’/ ‘vn’


    *****************************disclaimer**********************************
    This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


    CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
    *******************************************************************************