Criminal Miscellaneous Writ Petition seeking quashing of an FIR alleging rape and kidnapping. Bench dismissed the petition, holding the accusation discloses cognizable offences supported by the victim's recorded statement, making quashing inapplicable.
FIR dated 10.12.2018 retained; petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 1546 of 2019 Petitioner :- Pushpendra Kumar @ Pushpendra And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Subhash Gosain, Akhilesh Kumar Singh Counsel for Respondent :- G.A., Vinay Kumar Tripathi
Hon'ble Manoj Misra,J. Hon'ble Vivek Varma,J.
Heard Sri Subhash Gosain, learned counsel for the petitioners, learned A.G.A. for the State-respondent nos.1, 2 and 3, Sri Vinay Kumar Tripathi, learned counsel for fourth respondent, and perused the record.
The instant petition seeks quashing of the FIR dated 10.12.2018 registered as Case Crime No.0656 of 2018, under Sections 376-D, 506, 342, 120-B I.P.C. and Section 66 of Information Technology Act, 2000, Police Station Govardhan, District Mathura.
The impugned FIR has been lodged by the father of the victim Nikki. It is alleged in the FIR that elder daughter of informant, namely, Bharti - one of the accused persons, on 01.12.2018 told the informant that she has a test at Allahabad and her other friends are going with her therefore she is taking her younger sister - Nikki- victim with her and may be permitted to go with her. Hence, both sisters were permitted to go. It is stated that thereafter both sisters left together. Thereafter, the accused Pushpendra Kumar @ Pushpendra – petitioner no.1; his brother Sonveer Singh @ Sonu – petitioner no.2; and Anil Kumar @ Ranveer (petitioner no.3) joined and took them to village Sakrava and there they all had drinks and kept informant's younger
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daughter, namely, Nikki wrongfully confined and Bharti pressurized her to have physical relationship with all of them to which Nikki- victim refused, upon which Bharti told her that she is unnecessarily being afraid; and she will demonstrate it to her by doing it herself. Thereafter, it is alleged that Bharti removed her clothes and indulged in physical relationship with Pushpendra in front of her younger sister - Nikki who was forced to witness all that. Even then, when Nikki -victim did not agree she was threatened by Pushpendra and, thereafter, on gun point all three men folk, one after the other, raped Niki. Thereafter, they all took her to a Hotel at Allahabad where also all three male accused persons committed sexual assault on her. It is alleged that during this period when the informant tried to contact Bharti to know her whereabouts she did not let Nikki-victim talk to her parents. It is stated that on 06.12.2018, at night, at about 2 a.m., Nikki was dropped in a shocked state at Govardhan Bus stand with threat that if she discloses any thing her video - photographs would be made viral and her family would be exterminated. It is stated that some how the victim- Nikki managed to return back and told everything to the informant and also informed that photographs and video has also been taken. It is alleged that under pressure that video-photos may not be made viral, immediately, report was not lodged but, when, despite demand, video- photos were not returned, the informant had no option to lodge the report on 10.12.2018.
Thereafter statement of victim- Niki was recorded under section 164 CrPC and she supported the entire prosecution case in detail and leveled allegations even against her sister as to how she colluded with other accused persons.
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The quashing of the FIR has been sought by the petitioners by alleging that admittedly both sisters are adults; that co-accused Bharti had married Pushpendra Kumar -petitioner no.1 in Arya Samaj Mandir; that as it was inter caste marriage they had to approach this court for protection; that the allegations are false and unbelievable as no elder sister would do like this; and that on parental pressure the FIR has been lodged. It has been submitted that the allegations are nothing but false and malicious.
On 11.01.2019 protection order was passed and parties were required to be present.
We have heard both sides counsel and have perused the record. We find that the statement of victim Nikki recorded by the Magistrate under Section 164 Cr.P.C. supports the prosecution case and that there is no statement in the petition that any fraud was played upon the Magistrate at the time of recording of her statement or that her statement was not that what has been recorded. Hence, we do not propose to direct for fresh recording of her statement. More so, when there is no such prayer of the petitioner. In her statement Nikki has leveled specific allegations of sexual assault on her and it has also been specifically stated by her that she was taken to a hotel at Allahabad where all three men had forced themselves upon her. She has alleged that photographs – video has also been obtained and the accused have threatened to upload it on net.
Interestingly, in the petition it is not denied: (a) that Nikki was not with the accused; and (b) that Nikki did not return alone to her parent house as alleged. Further, there is no claim that Nikki had married any of the accused persons. The marriage alleged is
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between accused Bharti and Pushpendra. It appears that they had approached the court for protection and in that connection they came to Allahabad. What was Nikki doing with them and what happened with her is narrated in the FIR which finds support from statement under section 164 Cr.P.C. and, therefore, now, it is a matter of trial. It is well settled legal principle that where the victim states that she has not consented, burden is on the other side to prove that she was a consenting party. In the present case, it has been alleged that not only one person has sexually assaulted the victim but there were three persons. Further, since, as per allegations, even the elder sister (Bharti) is responsible, a prima facie case is made out not against the present petitioner but against Bharti also. Whether the allegations are true or false is not to be considered at this stage.
Under the circumstances, as allegations made in the FIR discloses commission of cognizable offences and have been supported by the statement of the victim- Nikki recorded under Section 164 Cr.P.C., we decline to quash the FIR.
The petition is dismissed . The interim order is discharged. Order Date :- 30.1.2019 Ajeet
2 issues framed by the court
Whether the FIR alleging rape and sexual assault should be quashed as being false, malicious, and based on parental pressure.
Whether the victim's recorded statement under Section 164 Cr.P.C. supports a prima facie case making quashing inapplicable.
4 provisions across 4 enactments
Pushpendra Kumar @ Pushpendra
Sonveer Singh @ Sonu
Anil Kumar @ Ranveer
State Of U.P.
Manoj Misra
Vivek Varma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
