Vinod S/O Tukaram Nikhade vs State Of Mah. Thr. Pso Ps Chimur, ...
2023 Latest Caselaw 7996 Bom

                                                 1               3 apl 664.20.odt


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            NAGPUR BENCH, NAGPUR

                      CRIMINAL APPLICATION (APL) NO. 664/2020

          Vinod s/o Tukaram Nikhade,
          Aged about 47 yrs., Occ. Agriculturist,
          R/o. Nandara (Tukum), Post-Masal,
          Tah. Chimur, Dist. Chandrapur.
                                                                           ..... APPLICANT.

                                        VERSUS
1.        The State of Maharashtra,
          through Police Station Officer,
          Chimur Police Station, Tah. Chimur,
          Dist. Chandrapur.
2.        Varsha w/o Devidas Kosare,
          Aged about 29 yrs., Occ. Housewife,
          R/o. Mouza Tukum Masal,
          Tah. Chimur, Dist. Chandrapur.
                                                              ..... NON-APPLICANTS.
------------------------------------------------------------------------------------------------

Mr. S.M. Patrikar, Advocate for applicant.

Mr. V.A. Thakare, Addl. Public Prosecutor for non-applicant No.1/State. Mr. Mayuri Kulkarni, Advocate (appointed) for non-applicant No.2.

     CORAM                                       : VINAY JOSHI AND
                                                   VALMIKI SA MENEZES JJ.

     JUDGMENT RESERVED ON                         : 24.07.2023
     JUDGMENT PRONOUNCED ON                       : 08.08.2023

JUDGMENT : (PER VINAY JOSHI, J.)

               Heard.

2.             Admit.

3. This is an application in term of Section 482 of the Code of

Criminal Procedure ('Code') seeking to quash First information Report

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('FIR') as well as charge-sheet relating to Crime No. 293/2019 for the

offence punishable under Sections 376, 354, 506, 109, 509 read with

Section 34 of the Indian Penal Code registered with Police Station

Chimur, Tah. Chimur, Dist. Chandrapur.

4. It is applicant's case that the entire allegations of sexual

assault are against co-accused Sudhakar. Besides vague reference about

applicants conversation with victim at the instance of co-accused Sudhir,

there is nothing against him. Learned counsel appearing for the

applicant would submit that, the material collected by the Police fells

short to make out prima facie case against the applicant. Continuation

of such prosecution amounts to abuse of the process of the Court, and

therefore, the quashing is sought.

5. Learned APP as well as learned counsel appearing for the

informant resisted the application. It is submitted that the victim in her

statement recorded under Section 164 of the Code, has specifically

stated about sexual assault on the part of the applicant. It is submitted

that, the Court cannot embark upon the appreciation of evidence while

considering application under Section 482 of the Code. At this stage,

the Court is not required to conduct the mini trial. With these

contentions, application is prayed to be rejected.

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6. The prosecution case can be stated in brief that, at the instance

of report lodged by victim married lady aged 28 years, the crime has

been registered. It is victim's case that co-accused Sudhakar was

running a Pan stall in the village. In the month of January 2019, co-

accused Sudhakar accosted her in the way, gave her lift on two wheeler.

After few days, the applicant who is neighbouring agriculturist, said to

the victim that co-accused Sudhakar loves her (victim) and asked her

(victim) to comply his wishes.

7. Victim stated that in the month of February 2019, Sudhakar

came to her field and under pretext of demanding drinking water,

caught hold her hands, but somehow, she rescued herself. She stated

that on 25.05.2019, Sudhakar came to her field, caused her to lay down,

and had forcible sexual intercourse with her. On 27.05.2019 also once

again he had forcible sexual intercourse with her in the field. At that

time, victim's mother-in-law arrived, on which Sudhakar fled. Victim

stated that on 28.05.2019, she had disclosed the things to her husband,

and then she gathered courage and filed report.

8. It reveals from the FIR dated 14.07.2019 that the entire

allegations of forcible sexual assault are against co-accused Sudhakar.

The report bears a reference that somewhere in the month of January

2019, the applicant asked victim to satisfy the wishes of Sudhakar.

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9. Victim's statement was recorded by learned Judicial Magistrate

on 29.07.2019 in terms of Section 164 of the Code. This time, she

added that in the month of March 2019, when Sudhakar committed

forcible sexual intercourse, applicant Vinod also had sexual intercourse

with her. She added that at that time, both of them took her

photographs.

10. Apparently, the FIR is totally silent about the sexual assault

made by applicant Vinod. Learned counsel appearing for applicant took

us through supplementary statement of victim dated 16.08.2020 which

was recorded after victim's statement under Section 164 of the Code. In

the said later statement victim said nothing about sexual assault on the

part of the applicant, but reiterated the contents of FIR. In other words,

in the supplementary statement, she merely stated about the sexual

assault by co-accused Sudhakar only. The role assigned to the applicant

was only to the extent of communication with the victim about the

wishes of Sudhakar.

11. Learned counsel appearing for the applicant would submit that

in the FIR as well as supplementary statement, victim said nothing

against the applicant and thus, the victim's statement recorded by the

Magistrate is nothing, but an exaggeration as regards to the role of

applicant. There is no denial that in FIR dated 14.07.2019 and

supplementary statement dated 16.08.2020, victim has not stated

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anything against the applicant about sexual assault. However, in her

statement before Magistrate, she added a role of applicant about sexual

assault which was neither in FIR nor in subsequent statement.

12. Learned counsel appearing for the applicant would submit

that, statement recorded by the Police under Section 161 of the Code is

wholly inadmissible, and therefore, it cannot be taken into consideration

while adjudicating application filed under Section 482 of the Code. In

this regard reliance is placed on the decision of the Supreme Court in

case of Rajeev Kourav Vs. Baisahab and others, (2020) 3 SCC 317. In

the said decision, it is observed that statement recorded under Section

161 of the Code being inadmissible, it cannot be taken into

consideration. In the light of said decision, even if the supplementary

statement recorded by the Police dated 16.08.2020 is kept aside, still the

FIR dated 14.07.2019 which can be used for the purpose of

corroboration, speaks nothing about sexual assault by applicant. Since

the FIR is totally silent on sexual assault on the part of the applicant,

being distinct facts, above decision would not assist the informant in any

manner.

13. Learned counsel appearing for the informant has submitted

that in reported case of Hazrat Deen Vs. State of Uttar Pradesh and

another, 2022 SCC Online SC 1781, the Supreme Court has considered

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the statement of victim under Section 164 of the Code against her FIR.

In the said decision, victim girl did not say about sexual assault in the

FIR, however after attaining majority, her statement under Section 164

of the Code was recorded where she made allegation pertaining to the

offence of rape. In case at hand, there is material discrepancy in the FIR

and statement under Section 164 of the Code. Pertaining to note that in

the said case, the victim was minor and therefore, in that context, her

statement under Section 164 of the Code recorded after attaining

majority has weighed. The case in hand differs on facts since the victim

is well grown up married lady aged 28 years. Besides that even after

statement under Section 164 of the Code, her further supplementary

statement was recorded on 16.08.2020 wherein she is totally silent

about the act of the applicant and thus, the said ratio would not help the

informant in any manner.

14. The learned counsel appearing for applicant by placing

reliance on the decision of the Supreme Court in case of Central Bureau

of Investigation Vs. Aryan Singh etc., 2023 SCC Online SC 379 would

submit that powers under Section 482 has to be exercised sparingly and

at this stage, the Court cannot hold mini trial. Learned counsel

appearing for the informant by placing reliance on the decision of Delhi

High Court in case of Neha Monga Vs. State & Ors. and other connected

matters, 2012 SCC Online Del 5641 would submit that at the stage of

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quashing or discharge, the Court is not expected to make a roving

inquiry into the pros and cons of the matter. In the said decision, the

names of rapist were not stated in FIR, but disclosed in the subsequent

statement. In said decision, there was reference about sexual assault,

but names were disclosed later on. In the case before us, the applicant

was neighbouring agriculturist meaning thereby, well known to the

victim. She has not stated anything against the applicant about sexual

assault and thus, the facts are quite distinct. Apart from the name, total

non-discloser of sexual assault by the applicant at first opportunity is

very fetal to the prosecution case.

15. We are well aware about the self-imposed limitations in

exercising of inherent powers under Section 482 of the Code of Criminal

Procedure. These powers can be used sparingly under two

circumstances i.e. to prevent the abuse of the process of the Court and

to secure the ends of justice. Though at this juncture, meticulous

evaluation of material is not warranted, but certainly the Court invests

power to scan the material for the purpose of finding out prima facie

case. The Court is required to consider whether sufficient material is

available to proceed further for which the accused is to be tried or not.

It is settled position that inherent powers should not be exercised to

stifle legitimate prosecution, but can be exercised to save accused from

undergoing agony of criminal trial in undeserving prosecution.

8 3 apl 664.20.odt

16. Learned counsel appearing for the applicant would submit that

the statement recorded under Section 164 of the Code has no

evidentiary value and therefore, much weight cannot be adhered on the

canvas of prior and subsequent statement about absence of reference of

sexual assault. The law is well settled that the statement recorded

under Section 164 of the Code can never be used as substantive

evidence of truth of the facts, but may be used for corroboration and

contradiction. For this purpose, one can refer to the decision of the

Supreme Court in case of R. Shaji Vs. State of Kerala, (2013) 14 SCC

266 and State of Karnataka Vs. P. Ravikumar alias Ravi and others,

(2018) 9 SCC 614. A statement given by witness under Section 164 of

the Code is like a previous statement given during investigation under

Section 161 of the Code. It is not a substantive evidence because, it was

not recorded in the presence of the accused. It can be used to

corroborate the statement of witnesses or can be used to contradict the

witness.

17. The entire material is to be assessed to find out whether prima

facie case is made out. As referred above, FIR as well a the subsequent

statement is totally silent about sexual assault on the part of the

applicant. The learned counsel appearing for the applicant took us

through the statement of mother-in-law of victim to contend that the

applicant had consensual relationship with Sudhakar. The victim's

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mother-in-law stated that on 17.05.2019 she saw victim and Sudhakar

embracing each other in the field. She intervened, on which Sudharkar

ran away and she dragged the victim to her house. Be that as it may,

besides improved allegation in the statement under Section 164, there is

no supporting material against applicant.

18. The ultimate object of justice is to find out truth and punish

the guilt as well as to protect the innocent. Experience reveals that long

and protracted criminal trials lead to rancour, acrimony, bitterness in the

relationship. The Supreme Court in reported case of Zandu

Pharmaceutical Works Ltd. Vs. Mohd Sharaful Haque, (2005) 1 SCC 122

has observed in para 8 as below:-

"8...... 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."

19. Taking over all view of the matter, besides one statement, the

victim herself was consistent about the sexual assault by co-accused

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Sudhakar only. In the circumstances, there exist no prima facie material

against applicant to proceed further. Facing criminal trial is of serious

consequence. Continuation of such trial amounts to abuse of the process

of the Court. Having regard to the entire material, we find that no

prima facie case exist to put the applicant on full-fledge trial. In views

of the decision of the Supreme Court in case of Umesh Kumar Vs. State

of Andhra Pradesh and another, (2013) 10 SCC 591, if at subsequent

stage, additional material is found, the Trial Court can well resort to the

provisions of Section 216 of the Code, as the order passed under Section

482 cannot term as a final decision.

20. In view of above, application is allowed. We hereby quash and

set aide FIR as well as charge-sheet relating to Crime No. 293/2019

registered with Police Station Chimur, Tah. Chimur, Dist. Chandrapur. for

the offence punishable under Sections 376, 354, 506, 109, 509 read

with Section 34 of the Indian Penal Code as regards to the applicant

Vinod Tukaram Nikhade only.

21. Application stands disposed of in above terms.

22. Fees for appointed learned counsel for non-applicant No. 2 be

paid as per Rules.

         (VALMIKI SA MENEZES, J.)                  (VINAY JOSHI, J.)
Gohane