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MANISH SINGH RATHAUR @ SHYAMU SINGH AND (4) ORS. versus THE STATE OF U.P.& ANOTHER.

High Court of Judicature at Allahabad

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Manish Singh Rathaur @ Shyamu Singh And (4) Ors. v. The State Of U.P.& Another. - U/S 482/378/407 No. - 1929 of 2002 [2007] RD-AH 18605 (4 December 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

This petition under Section 482 Cr.P.C. has been filed by the accused persons of case crime No.44 of 2002 under Sections 323, 363, 366, 368, 376 I.P.C. Police Station Kotwali, District Barabanki to quash the charge-sheet filed in the said case and also to quash the proceedings pending in the court of C.J.M.

The relevant facts are briefly that the complainant Krishna Pal Singh lodged a report on 17.1.2002 stating therein that on 16.1.2002 at about 7.30 p.m. he alongwith his daughter Bindiya (name changed), aged about 22 years was going to his village from the bus-station and when the complainant and his daughter reached the Government Girls College, the accused Manish alias Shyamu alongwith his two companions alighted from the Maruti Car and Manish told that he was going to complainant's village and asked the complainant to sit in his car; that after the complainant's daughter sat in the car and the complainant was entering into the car, the accused Manish pushed him outside the car and took his daughter with him.

In Statement under Section 164 Cr.P.C. dated 24.1.2002 victim Bindiya supported the contents of the F.I.R. and stated that when her father started sitting in the car Manish pushed him outside the car and took her with him. She also sated that she started weeping and requested Manish to set her free; that in order to suppress the voice of her weeping the accused Manish started his tap recorder in loud sound and put a handkerchief on her mouth, whereby she became unconscious. When the consciousness restored, she found herself in a room in the night. Thereafter Manish committed rape upon her against her wishes; that in the next morning on 17.1.2002 the maternal uncle and maternal aunt of Manish threatened her to sign over a paper; that under a threat of killing her father they took her to the court and managed her court marriage with Manish; that they also took some photographs; that the parents of Manish also compelled her; that she was brought to Malamau, where she made an attempt to run from the Maruti Car of the accused persons, but the mother of Manish had foiled her attempt by catching her hold and thus they prevented her escape. Manish again committed rape upon her against her wishes; that in the next morning before the police could reach there, all the accused had left the house. The police took her in its custody.

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I have heard the learned A.G.A. and have perused the record. None was present on behalf of the petitioners. Hence petitioners' counsel could not be heard.

The petition is supported by the affidavit of the victim and not by the affidavit of any of the petitioners.

The affidavit shows that the petition is filed on the ground that the victim Km. Bindiya was 22 years old at the time of incident that she went with the petitioner Manish on her own accord and have married him on 17.1.2002 with her own will; that the report by her father was lodged falsely against the petitioner Manish; that she gave her statement under Section 164 Cr.P.C. under the threat of her father; that after her statement under Section 164 Cr.P.C.her father sent her with the petitioner Manish and since then she was residing with Manish; that she moved an application (complaint case No.340 of 2002) against her father for offence under Sections 195, 504, 506 I.P.C. and gave a statement under Section 200 Cr.P.C. in support of the said complaint; that no offence under Sections 323, 363, 366, 376 I.P.C. is made out against the petitioners and that the pendency of the case against the petitioners would be an abuse of the process of the court.

The petitioners in support of their claims filed charge-sheet (annexure no.1), a copy of the F.I.R. (annexure no.2), a copy of the order granting bail to the petitioners no.2 to 4 (annexure no.3), a copy of the marriage held at Arya Samaj (annexure no.4), a copy of statement of Km. Bindiya recorded under Section 164 Cr.P.C. (annexure no.5), a copy of the complaint case No.340 of 2002 under Sections 195, 504, 506 I.P.C. (annexure no.6), a copy of the letter sent to S.S.P. Kanpur and a copy of the statement of Smt. Bindiya (name changed) recorded under Section 200 Cr.P.C.

It is clear that the alleged marriage of the victim Km. Bindiya with petitioner Manish, if any, was held on 17.1.2002 thus during the continuance of the offence of abduction and while the victim was in the clutches of the accused Manish. When the victim is in the clutches of the accused and where the marriage of the accused with the victim is held during the continuance of the alleged offence of abduction, such marriage cannot be deemed to be a marriage with the free consent of the victim. The prosecutrix Km. Bindiya is the prime witness of the prosecution but she was in the clutches of the accused. So long as she was in the custody of the accused, any thing stated by her in favour of the accused, cannot be deemed to be stated out of her own free will. The burden lies upon the accused to prove that such statement was not given under the undue pressure, coercion, misrepresentation or undue influence etc..

In a statement dated 24.1.2002, given under section 164 Cr.P.C., she has already depicted the mode in which she was abducted on 16.1.2000 by the petitioner Manish and his two companions. She also stated therein that her voice

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of weeping was suppressed by Manish by starting the tape recorder and that she was made unconscious by Manish by keeping handkerchief on her mouth and when her consciousness restored, she found herself in a room where Manish committed rape upon her against her consent. There is nothing before me to disbelieve such statement recorded under Section 164 Cr.P.C.

The alleged complaint of case No.340 of 2002 was moved in court while she was in the clutches of the accused Manish, hence the contents of the said complaint cannot be relied upon at this stage.

In the like manner, the contents of her statement recorded under Section 200 Cr.P.C. cannot be relied upon at this stage because such statement was given while she was in the clutches of the accused Manish.

I, therefore, find myself unable to rely upon the contents of the complaint or the contents of her statement recorded under Section 200 Cr.P.C. The affidavit, which is filed in support of this petition, was sworn by the victim while she was in the clutches of the petitioners. Therefore, no reliance can be placed upon such affidavit.

Beside it, this Court cannot embark upon the jurisdiction of the trial court in a petition under Section 482 Cr.P.C.. The charge-sheet has been submitted by the police. The statement of the victim recorded under Section 164 Cr.P.C. constitute the cognizable offence under Sections 323, 363, 366, 376 I.P.C. The F.I.R., therefore, cannot be quashed. The plea that Km. Indu went with the petitioner Manish on her own free will and married with Manish on her free will is only a defence plea. It needs evidence. Hence it cannot be taken into account in a petition under Section 482 Cr.P.C.

The petition under section 482 Cr.P.C. is devoid of merit. It deserves to be dismissed.

The petition is hereby dismissed.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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