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2013 DIGILAW 1573 (MP)

Surekha Singh v. State of Madhya Pradesh

2013-12-19

N.K.GUPTA

body2013
ORDER Since all the criminal revisions are connected with the common order dated 28-1-2013 passed by the 7th Additional Sessions Judge, Bhopal, therefore, those are decided with this common order. 2. The 7th Additional Sessions Judge, Bhopal vide order dated 28-1-2013 in ST No. 76/2013 discharged the respondent Nos. 2 to 4 of Cr. R. No. 309/2013 (hereinafter they would be referred as “accused”) from the charge of Section 376 of IPC and trial was directed under Section 228 of Cr. P.C. to the CJM, Bhopal for trial of the offence under Sections 493, 420 and 120-A of IPC. Being aggrieved with the discharge of the accused persons from the charge of offence under Section 376 of IPC, the applicant of Cr. R. No. 309/2013 and the State have preferred the present revisions whereas the applicants (accused) of Cr. R. No. 589/2013 have preferred the revision against the impugned order that no offence under Sec. 420 or 493 or 120-A of IPC is made out against them. 3. The prosecution case, in short, is that the prosecutrix had lodged an FIR that on 16-7-2012 she was introduced to the accused Satyendra Kumar Vyas and a sagai was done between them and thereafter on 7-8-2012 a marriage took place between the prosecutrix and the accused Satyendra Kumar Vyas. Thereafter she remained in her parental house and the accused Satyendra Kumar Vyas was often visiting her in that house. He had physical relations with the prosecutrix from time to time. He got an affidavit of the prosecutrix executed, which was duly notarized before the Notary R. N. Tripathi. Thereafter the prosecutrix was residing with the accused persons in the house situated at Sant Asharam Nagar, Bhopal. On 21-8-2012 one woman namenly Apekchha came to the house and she intimated that she was married wife of accused Satyendra Kumar Vyas and she had two children. She was residing with her parents, however no divorce took place between Apekchha and accused Satyendra Kumar Vyas. After sometime Apekchha came back on 10-9-2012 and abused the prosecutrix and directed her to leave the house. Thereafter the prosecutrix had lodged an FIR. 4. She was residing with her parents, however no divorce took place between Apekchha and accused Satyendra Kumar Vyas. After sometime Apekchha came back on 10-9-2012 and abused the prosecutrix and directed her to leave the house. Thereafter the prosecutrix had lodged an FIR. 4. Learned counsel for the accused did not appear in all three matters though notices of the revisions filed by the applicant Surekha and State were served upon the accused persons and they were represented in the revision petition filed by themselves, and therefore hearing was done in the absence of learned counsel for the accused persons. However, I have heard the learned counsel for the remaining parties. 5. The main question in the case is as to whether prima facie the offence under Section 376 of IPC shall be made out or not. In this connection the learned 7th Additional Sessions Judge, Bhopal has mentioned that it is apparent that the accused Satyendra Kumar Vyas committed intercourse with the prosecutrix due to her consent, and therefore no offence under Section 376 of IPC is made out. At the most, offence under Section 493 of IPC may constitute. In this connection, if the provision under Sections 375 and 376 of IPC is perused, then it would be apparent that a woman gives her consent to a man to whom she believes to be her husband and she was lawfully married with him, then the offence committed by that man may come within the purview of Section 376 of IPC. The provision of Section 375 (Fourthly) of IPC may be read as under :- “With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.” On the plain reading of the aforesaid provision, it would be apparent that the accused Satyendra Kumar Vyas gave an apprehension that the prosecutrix was her wedded wife and thereafter she permitted him for the intercourse, and therefore prima facie Satyendra Kumar Vyas has committed the offence under Section 376 of IPC. In this connection the law laid down by Hon'ble the Apex Court in the case of “Bhupinder Singh v. Union Territory of Chandigarh” ( (2008) 8 SCC 531 ) may be read. In this connection the law laid down by Hon'ble the Apex Court in the case of “Bhupinder Singh v. Union Territory of Chandigarh” ( (2008) 8 SCC 531 ) may be read. Paras 15 and 16 of the said judgment reads as under : “15. Clause “Fourthly” of Section 375, IPC reads as follows : “375. Rape - A man is said to commit “rape”, who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions : xxx xxx xxx Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. xxx xxx xxx 16. Though it is urged with some amount of vehemence that when complainant knew that he was a married man, Clause “Fourthly” of Section 375, IPC has no application, the stand is clearly without substance. Even though, the complainant claimed to have married the accused, which fact is established from several documents, that does not improve the situation so far as the accused-appellant is concerned. Since, he was already married, the subsequent marriage, if any, has no sanctity in law and is void ab initio. In the event, the appellant-accused could not have lawfully married the complainant. A bare reading of clause “Fourthly” of Section 375, IPC makes this position clear.” 6. In the light of the aforesaid judgment, where the prosecutrix of that case had the knowledge that her husband was already married, still Hon'ble the Apex Court found that the accused was guilty for the offence under Section 376 of IPC. In the present case, the prosecutrix did not know that the accused Satyendra Kumar Vyas was already married and therefore in the present case the prosecutrix gave her consent due to her marriage performed with the accused Satyendra and hence the crime of accused falls within the purview of Section 375 (Fourthly) of IPC and offence under Section 376 of IPC is prima facie constituted. The parents of accused Satyendra Kumar Vyas were residing with Satyendra Kumar Vyas and the prosecutrix and they did not inform about the actual position, and therefore they participated in the criminal conspiracy done by the accused Satyendra Kumar Vyas. The parents of accused Satyendra Kumar Vyas were residing with Satyendra Kumar Vyas and the prosecutrix and they did not inform about the actual position, and therefore they participated in the criminal conspiracy done by the accused Satyendra Kumar Vyas. Under such circumstances, the charge of offence under Section 376 of IPC shall also be framed against the remaining accused persons with the help of Section 120-B and Section 34 of IPC. 7. On the basis of the aforesaid discussion, it would be apparent that the learned Additional Sessions Judge has committed an error of law in discharging the accused persons from the charge of offence under Section 376 of IPC, and therefore the order passed by the 7th Additional Sessions Judge, Bhopal appears to be perverse. 8. So far as the revision filed by the accused persons is concerned, they have one more opportunity to argue the matter before the trial Court relating to charges under Sections 420, 493 and 120-A of IPC, and therefore if that matter is discussed here, then it would cause prejudice to them before the trial Court, hence the revision filed by the accused persons cannot be accepted at this stage. 9. On the basis of the aforesaid discussion, it is a fit case in which the revisions filed by the applicant Surekha Singh and the State may be accepted. Consequently, their criminal revisions i.e. Cr. R. No. 309/13 and Cr. R.No. 437/13 are hereby allowed and the impugned order passed by the learned 7th Additional Sessions Judge, Bhopal is hereby set aside. The revision filed by Satyendra Kumar Vyas etc. is hereby dismissed with a direction that they shall raise all such objections before the trial Court at the time of framing of charges. 10. The learned 7th Additional Sessions Judge, Bhopal is directed to call the case file of ST No. 76/2013 from the Magisterial Court and after hearing the learned counsel for the parties, a fresh order be passed for framing of charges and thereafter charges shall be framed according to law. 11. Parties are directed to appear before the 7th Additional Sessions Judge, Bhopal on 20-1-2014 so that trial may be proceeded before the 7th Additional Sessions Judge, Bhopal. 12. 11. Parties are directed to appear before the 7th Additional Sessions Judge, Bhopal on 20-1-2014 so that trial may be proceeded before the 7th Additional Sessions Judge, Bhopal. 12. A copy of this order be sent to the learned 7th Additional Sessions Judge, Bhopal as well as Sessios Judge and CJM, Bhopal so that case file which must be in the Magisterial Court may be sent to the learned 7th Additional Sessions Judge, Bhopal within the stipulated period. Order accordingly.