Surinder Singh vs Ut Of J&K And Another
2021 Latest Caselaw 1006 j&K

      HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                          AT JAMMU

                                                Reserved on: 23.08.2021
                                                Pronounced on: 02.09.2021


                                                CRM(M) No. 188/2020
                                                CrlM Nos. 1549/2020.
                                                611/2020 & 612/2020
                                                c/w
                                                Bail App. No. 273/2020
                                                CrlM No. 1822/2020



Surinder Singh                                            ...Petitioner/Applicant(s)


                   Through :-            Mr. Sunil Sethi, Sr. Advocate with
                                         Mr. Navyug Sethi, Advocate
                   v/s   <




UT of J&K and another
          't
                                                                 .....Respondent (s)

                   Through :-              Mr. Jamroh Singh, GA for R-1
                                           Mr. Bari Abdullah, Advocate for R-2


CORAM: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                   JUDGMENT

1. The petitioner has filed the present petition under section 482

Cr.PC for quashing of the FIR No. 0095 of 2020 dated 03.07.2020 registered

with Police Station, Ramban for commission of offence under section 376 IPC.

2. It is stated in the petition that the petitioner is serving as a Sepoy

in 17 RR (Rashtriya Rifles) and is posted in District Kishtwar. The parents of

the complainant forced the parents of the petitioner to agree for marriage with

the complainant. On 13.12.2019, the complainant along with her parents

visited the residence of the petitioner, where the parents of the petitioners

without his consent told that the petitioner is going to be engaged with the

complainant and later on their marriage will be solemnized. The petitioner

neither gave any consent nor was prepared for such marriage. It is further

stated that in order to pressurize the petitioner to marry the complainant,

baseless complaint dated 26.06.2020 was lodged with the Superintendent of

Police, Ramban alleging therein that on 17.12.2019 and 08.01.2020, the

complainant was subjected to rape by the petitioner on the false promise of

marriage without indicating the details pertaining to time, place where she was

subjected to alleged rape by the petitioner. Pursuant to the said complaint, the

FIR impugned was registered. It is further stated that the allegation leveled in

the FIR do not make out any offence under section 376 IPC, further the

Hon'ble Apex Court has made a distinction between a promise which is

unfulfilled and a promise which is false from the very beginning. It is further

submitted that the petitioner neither has any relationship with the complainant

nor had any sexual relationship with her and further he never assured the

complainant of any marriage, as he himself was not in favour of marrying the

complainant.

3. The respondent No. 1 has filed the response, in which it has been

stated that on 03.07.2020 an application was received by the Police Station,

Ramban duly endorsed by the Senior Superintendent of Police, Ramban

wherein it was stated that on 13.12.2019, the engagement of the complainant

was performed with the petitioner and subsequently on 17.12.2019 and

08.01.2020, the petitioner entered into the house of the complainant with

criminal intention and committed rape upon the complainant without her

consent and accordingly, FIR was registered. During the course of the

investigation, the statement of the complainant was recorded. In her statement,

she has stated that she was raped by the petitioner on 17.12.2019 and

08.01.2020 and the petitioner had further threatened her that he had made her

video on 17.12.2019 and he will make it viral. It is further stated in the

response that the age of victim/complainant was 17 years 9 months and 7 days

on 17.12.2019 i.e. the date of alleged first occurrence. Further, as she was

given some substance in juice, as a result of which she lost her consciousness,

so the offence under section 328 IPC and section 4 POSCO Act were also

added during investigation.

4. Thereafter, pursuant to application made by the prosecutrix for

recording her statement afresh, her statement was recorded again, in which she

has stated that due to some misunderstanding, she had lodged the FIR against

the petitioner. The said statement has been placed on record by the respondent

No. 1.

5. Mr. Sunil Sethi, learned senior counsel for the petitioner has

vehemently argued that at the most the whole case of the prosecutrix is

indulging into sexual relationship on the basis of promise to marry and further

the prosecutrix/ complainant has completely exonerated the petitioner, so the

continuation of the criminal proceedings would be an exercise in futility.

6. Mr. Bari Abdullah, learned counsel for the respondent No. 2 too

submitted that the FIR is required to be quashed taking into consideration the

subsequent statement made by the respondent No.2.

7. Per contra, Mr. Jamrodh Singh, learned GA has vehemently

argued that even if the contention of other side is taken to be correct that there

was sexual relationship on the promise of marriage, even then the FIR cannot

be quashed because of the reason that the prosecutrix was minor on 17.12.2019

i.e. the date of first alleged occurrence. He further argued that there are two

statements of the prosecutrix and the same can only be appreciated during the

course of trial.

8. Heard learned counsel for the parties and perused the record.

9. From the record, it is evident that FIR for commission of offence

under section 376 IPC was registered against the petitioner and during the

course of investigation the prosecutrix was found to be minor on the first date

of alleged occurrence. She was given some substance by the petitioner due to

which she got unconscious and accordingly, the offences under section 328

IPC and Section 4 of POSCO Act were also added. As the

complainant/prosecutrix was minor, so contention of the petitioner that no FIR

can be lodged under section 376 IPC on the basis of allegations with regard to

indulging in sexual relationship on the promise of marriage, is not tenable.

There are two statements of the prosecutrix, in the first statement, the

prosecutrix has implicated the petitioner but in the subsequent statement she

has taken u-turn and has simply stated that due to misunderstanding, she had

lodged the FIR.

10 The law is well settled that this Court cannot appreciate the

evidence while deciding the petition for quashing FIR under section 482

Cr.PC. Reliance is placed on the judgment of Apex Court in Rajeev Kourav

v. Baisahab, (2020) 3 SCC 317, the relevant paras are reproduced as under:

"8. It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge-sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence

alleged against the accused, the Court cannot quash a criminal proceeding.

10. We do not agree with the submissions made on behalf of Respondents 1 to 3. The conclusion of the High Court to quash the criminal proceedings is on the basis of its assessment of the statements recorded under Section 161 CrPC. Statements of witnesses recorded under Section 161 CrPC being wholly inadmissible in evidence cannot be taken into consideration by the Court, while adjudicating a petition filed under Section 482 CrPC."

11. Thus, it is evident that the prosecutrix was minor at the time of

alleged occurrence and her consent, if any, has no relevance at all. It is not a

case in which there is no evidence against the petitioner but there is evidence

on record with regard to the commission offence by the petitioner, though the

prosecutrix in her subsequent statement has resiled from her statement made

earlier. There are two statements, those are required to be appreciated during

the course of trial by the trial court and not by this Court in a petition under

section 482 Cr.P.C .

12. Viewed thus, there is no merit in this petition. The same is as

such, dismissed.

Bail App. No. 273/2020

In view of order passed by this Court dated 21.04.2021, no order

is required to be passed in this bail application, the bail application is,

accordingly disposed of.

(RAJNESH OSWAL) JUDGE

JAMMU 02.09.2021 Karam Chand/Secy.

                       Whether the order is speaking:                   Yes/No
                       Whether the order is reportable:                 Yes/No