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2013 DIGILAW 2178 (RAJ)

Panchu Ram v. State of Rajasthan

2013-12-04

SANDEEP MEHTA

body2013
Hon'ble MEHTA, J.—The instant misc. petition has been preferred by the petitioner assailing the order dated 15.2.2013 passed by the learned Additional Sessions Judge, Prabatsar in revision whereby, the learned revisional Court upheld the order dated 25.1.2012 passed by the learned ACJM, Makrana in Cr. Original Case No. 46/12 taking cognizance against the petitioner for the offences under Sections 376, 323 and 379 of the IPC. 2. Briefly stated the facts of the case are that the respondent No. 2 (hereinafter referred to as the `prosecutrix') aged 47 years at the relevant time, submitted a complaint in the court of the learned ACJM, Makrana on 20.4.2011. It was alleged in the complaint that after the death of the prosecutrix's husband, she took a house on rent near the Shiv Temple at the village Boravar. It was alleged that the accused knew the prosecutrix from before and thus, 7 to 8 years prior to filing of the complaint, he approached the prosecutrix and took her into his confidence. He lured her with a promise that he would marry her and started to exploit her sexually under this assurance. The prosecutrix further alleged that she conceived due to the illicit sexual relations established by the accused with her. The accused managed to have the child aborted by administering some medicine to her. Thereafter also, the accused continued the sexual exploitation of the prosecutrix against her wishes. The prosecutrix alleged that she used to do labour jobs for earning her livelihood and got some ornaments prepared from her own savings. It was alleged that on 25.12.2010 the accused came into her residential premises, assaulted her and carried away her ornaments forcibly. It was also alleged that the accused married the prosecutrix and thereafter, left her alone at the village Boravar and went back to his village Dabariya. She further alleged that the accused refused to keep her with him in the matrimonial home. It was further alleged that the accused forcibly entered the house of the prosecutrix on 2.4.2011 in the night at about 11.30 PM and committed forcible rape upon her resistance. The prosecutrix went to the Police Station for reporting the matter but the Police officers did not accept the report. On this, the prosecutrix was forced to approach the Court for filing the complaint. The prosecutrix went to the Police Station for reporting the matter but the Police officers did not accept the report. On this, the prosecutrix was forced to approach the Court for filing the complaint. The complaint thus submitted by the prosecutrix was forwarded to the Police for investigation under the provisions of Section 156(3) Cr.P.C. The investigation agency thoroughly investigated the matter and arrived at the following conclusions: (1) That the house where the incident allegedly occurred belonged to one Shami Mohd. (2) The accused petitioner had taken the house on rent and the prosecutrix lived with the petitioner in the house as his mistress. (3) Numerous witnesses examined during the investigation and stated that the prosecutrix was living consensually with the petitioner for the last numerous years. (4) The witnesses Ehsan and Rafiq, who were also co-tenants in the same premises were examined u/Sec. 161 Cr.P.C. and these witnesses did not corroborate the allegations levelled by the complainant. (5) That the accused and the complainant stayed together in a live-in relationship and that the accused got the ornaments prepared for the prosecutrix. (6) The brother of the accused expired about two years prior to the incident whereupon the accused went back to his village and started living with his sister-in-law Bhanwari. The prosecutrix became enraged due to this and filed the false report with the intention of teaching a lesson to the accused and for extorting money. (7) The FIR filed by the prosecutrix was patently false. 3. The notice of the Final Report was given to the prosecutrix, who filed a protest petition against the same and examined herself and Harkaran and Hanumana Ram under Section 200/202 Cr.P.C. 4. The learned Magistrate proceeded to accept the protest petition and took cognizance against the accused for the offences under Sections 376, 323 and 379 of the IPC. Being aggrieved of the order dated 25.1.2012, the petitioner preferred a revision which too, has been rejected as stated above. Hence, the instant misc. petition has been preferred by the petitioner seeking quashing of the order taking cognizance and all subsequent proceedings sought to be taken against him. 5. Shri Kartik Singh Lodha learned counsel for the petitioner submitted that ex-facie, even if the allegations levelled by the complainant are accepted to be true on their face value, then too, no offence is disclosed against the petitioner. 5. Shri Kartik Singh Lodha learned counsel for the petitioner submitted that ex-facie, even if the allegations levelled by the complainant are accepted to be true on their face value, then too, no offence is disclosed against the petitioner. He submitted that the prosecutrix is a 47 years old lady. As per her admitted case, she stayed with the petitioner in a consensual live-in relationship for a period nearly 7 to 8 years. All during this period, she never raised any objection or raise any complaint to any quarter that the accused was exploiting her sexually. Learned counsel submitted that in this view of the matter, it is evident that the whole case as set up by the learned prosecutrix is nothing but a bundle of lies. He contended that even if the allegations levelled by the prosecutrix are accepted to be true at their highest, then also, none of the offences for which the cognizance has been taken against the petitioner, can be said to be made out. He contended that the complaint is highly belated and is full of exaggerated and false allegations and therefore, the misc. petition should be accepted and the order taking cognizance and all subsequent proceedings should be quashed. He relied upon decisions rendered by Hon'ble Supreme Court in the case of Prashant Bharti vs. State of NCT of Delhi reported in AIR 2013 SC 2753 , Deepak Gulati vs. State of Haryana reported in 2013 Cr.L.R. (SC) 607 and Pradeep Kumar Verma vs. State of Bihar reported in 2007 Cri. L.J. 4333. 6. Learned Public Prosecutor supported the arguments advanced by the learned counsel for the petitioner and stated that the Police after investigating the matter did not find the case made out against the petitioner and thus, she submitted that the misc. petition should be accepted. 7. Learned counsel appearing for the complainant prosecutrix (respondent No. 2) vehemently opposed the submissions advanced by the learned counsel for the petitioner and urged that the petitioner, by misusing his position and taking advantage of the hapless situation of the prosecutrix, who had been widowed, gave her a fraudulent assurance to marry her and then exploited her sexually over a period of ten years. Learned counsel urged that there is a specific allegation of the prosecutrix in her complaint, her statement recorded during investigation as well as under Section 202 Cr.P.C. that the accused forced himself on to her and exploited her sexually. Learned counsel further submitted that after the relations between the prosecutrix and the accused broke up in December 2010, the accused and the prosecutrix started living separately. However, the accused again broke into the house of the complainant and committed forcible rape upon her on 2.4.2011 and thus, the order taking cognizance should not be interfered with. 8. Heard and considered the arguments advanced at the bar and perused the orders impugned and the documents filed alongwith the petition. 9. The following facts can be noted as admitted according to the material available on record and as per statement of the prosecutrix recorded under Section 161 Cr.P.C. (1) The prosecutrix is a 47 years' old lady. (2) She was married to Kishna Ram. (3) After the death of Kisna Ram, she married one Dunga Ram. (4) She gave birth to three children from her relationship with Dunga Ram. (5) Due to some family litigation, the prosecutrix and Dunga Ram came to Boravar and started living in rented premises. (6) At that time, they needed a witness in the ongoing litigation. Panchu Ram the petitioner herein stood witness on their behalf. During this process, the prosecutrix and the petitioner developed intimacy. (7) As per the prosecutrix, Dunga Ram was displeased with the intimacy of the prosecutrix and the petitioner and thus, he took his children with him and went back to Village Dabariya. (8) The prosecutrix and the petitioner started residing together as husband and wife and lived together at Boravar for about 10 to 12 years. The prosecutrix admitted in her statement recorded under Section 161 Cr.P.C. that the petitioner got various ornaments prepared for her. Both of them used to reside as tenants in the house of one Shafi Teli, resident of Boravar and used to do labour jobs for earning their livelihood. (9) The prosecutrix further alleged that two years back, Panchu Ram's brother Sukh Ram expired on which, Panchu Ram contacted relations with his widow Bhanwari. He also started assaulting the prosecutrix and took away the ornaments. (10) She further alleged that 5 days after Deepawali, Panchu Ram came to Boravar and committed forcible rape upon her. (9) The prosecutrix further alleged that two years back, Panchu Ram's brother Sukh Ram expired on which, Panchu Ram contacted relations with his widow Bhanwari. He also started assaulting the prosecutrix and took away the ornaments. (10) She further alleged that 5 days after Deepawali, Panchu Ram came to Boravar and committed forcible rape upon her. Thereafter, he went away. She further alleged that Panchu Ram was not giving to her any subsistence amount. (11) The witnesses Habib, Ehsan and Rafiq stated that Panchu Ram and the prosecutrix lived together as husband and wife in the premises owned by Shafi. 10. The Investigating Officer after collecting all the above facts came to a conclusion that the prosecutrix lived with the petitioner as his mistress for nearly 10-12 years. No grievance of coercion, duress or exploitation was ever raised by her or before any person or authority before filing the complaint. 11. Accordingly, the Final Report was submitted by the Investigating Officer in the court concerned. The prosecutrix filed a protest petition and examined herself and two more witnesses in support of her case. Her statement was recorded by the Magistrate under Section 200 Cr.P.C. She conveniently omitted the fact of her marriage with Dunga Ram. However, she admitted the fact that she lived together with the petitioner in the rented premises and had relations with him over a prolonged period. Though she did not state the specific period of relationship but from the material available on record, it is evident that the relationship continued for nearly 10 years. In this view of the matter, this Court is of the opinion ex-facie, the allegation of the prosecutrix that the accused gave her a false promise to marry and then after obtaining her consent on the assurance of marriage, committed rape with her, is patently false and unworthy of credence. If at all, the prosecutrix was aggrieved of her alleged exploitation by the accused, then she need not have waited for a period of nearly 10 years before initiating the prosecution. The prosecutrix was having a subsisting marriage with Dunga Ram as per her statement recorded by the Investigating Officer and thus could not have entered into a valid marriage with the petitioner. Thus she was well aware of the nature and consequences of her relations with the accused. The prosecutrix was having a subsisting marriage with Dunga Ram as per her statement recorded by the Investigating Officer and thus could not have entered into a valid marriage with the petitioner. Thus she was well aware of the nature and consequences of her relations with the accused. It appears that the spark of the relations between the two eroded with the passage of time and thereafter, the prosecutrix and the accused started living separately. Thus whatever relations were established between the prosecutrix and the accused over the period of 10 long years were consensual and there was no element of fraud, coercion or exploitation involved in the whole transaction. 12. The prosecutrix tried to concoct a story regarding the accused having committed forcible rape on her on 2.4.2011. If there was any semblance of truth in the said allegation, then there was ample opportunity for her to have filed the report immediately. Instead she waited for a period of nearly 18 days and then filed the complaint in the Court. The testimony of the witnesses examined during the course of the investigation shows that the premises where the prosecutrix claims that the rape was committed on her were taken on rent by the petitioner. The facts of the case at hand are almost akin to the case of Prashant Bharti vs. State of NCT of Delhi reported in AIR 2013 SC 2753 wherein the Hon'ble Apex Court whilst considering almost a similar set of facts quashed the proceedings of the case registered against the accused for the offences under Sections 354, 328, 376 of the IPC. The Hon'ble Apex Court in thee aforesaid case took note of the fact that the prosecutrix was married from before and therefore, the assertion made by her that the accused established physical relations with her on the assurance that he would marry her was per-se improbable and unacceptable. It was concluded by the Hon'ble Apex Court that there was no possibility of the accused being in a position to induce the prosecutrix into a physical relationship under the assurance of marriage. The Hon'ble Apex Court also held that the complainant prosecutrix was in a relationship of adultery with the accused while she was lawfully married to another person. 13. Same is the situation in the case at hand. The Hon'ble Apex Court also held that the complainant prosecutrix was in a relationship of adultery with the accused while she was lawfully married to another person. 13. Same is the situation in the case at hand. As per the statement of the prosecutrix recorded by the Investigating Officer, she was married to Dunga Ram and during her subsisting marriage with him, she established and main-tained physical relationship with the accused over a prolonged period of 10 years. Thus, this Court is of the opinion that ex-faice, the order taking cogni-zance against the petitioner which has been affirmed in revision, amounts to a gross abuse of the process of the Court and deserves to be quashed. 14. Resultantly, the misc. petition is allowed. The order dated 25.1.2012 passed by the learned ACJM, Makrana taking cognizance against the petitioner for the offences under Sections 376, 323 and 379 of the IPC is hereby quashed. 15. Stay petition is also disposed of.