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2018 DIGILAW 164 (RAJ)

Harshit Chaplot @ Tappu v. State of Rajasthan

2018-01-12

SANDEEP MEHTA

body2018
JUDGMENT Sandeep Mehta, J —By way of this revision, the petitioner Harshit Chaplot @ Tappu has approached this Court for challenging the order dated 12.08.2015 passed by the learned Additional Sessions Judge No.2, Nimbaheda, District Chittorgarh in Sessions Case No.38/2015 (14/2015) whereby charge was ordered to be framed against the petitioner for the offence under Section 376) 1) IPC and the order dated 24.09.2015 whereby the said charge was read over to him. 2. Shri Kaushal Gautam learned counsel representing the petitioner vehemently urged that ex-facie, the material placed on record by the investigation agency alongwith the charge-sheet is not of such unimpeachable quality so as to justify the order framing charge against the petitioner. He contended that the prosecutrix Smt. 'A' was a major married woman. In the FIR as well as in her statement recorded during investigation, she admitted that she was already married to one Iqbal Khan and that owing to her husband's ill behaviour, she developed an extramarital love affair with the present petitioner about 4 years prior to lodging of the FIR which was presented to the Superintendent of Police, Chittorgarh on 09.02.2015. He further urged that the case set up by the prosecutrix that the accused petitioner procured sexual favours from her and exploted her by extending a fraudulent allurement of marriage is totally unbelievable because she was a married woman and thus, there was no scope of her marrying the petitioner during her subsisting marriage with Iqbal Khan. With these submissions, learned counsel Shri Gautam implored the Court to set aside the impugned orders as being grossly illegal. 3. Per contra, learned Public Prosecutor and Shri Zafar Khan, learned counsel representing the complainant vehemently opposed the submissions advanced by the petitioner's counsel. They urged that the petitioner gave a patently false allurement of marriage to the prosecutrix Smt. 'A' and thereby, fraudulently induced her to establish physical relations with him. The promise of marriage made by the petitioner to the prosecutrix was never meant to be fulfilled. The prosecutrix fell into for the trap laid by the accused and got her flourishing marriage with Iqbal Khan terminated on 30.01.2015 by getting a divorce deed executed. 4. The petitioner, who was continuously exploiting the lady called her to Chittorgarh Court on 03.02.2015 with a blatant by false assurance that he would get the marriage documents executed. The prosecutrix fell into for the trap laid by the accused and got her flourishing marriage with Iqbal Khan terminated on 30.01.2015 by getting a divorce deed executed. 4. The petitioner, who was continuously exploiting the lady called her to Chittorgarh Court on 03.02.2015 with a blatant by false assurance that he would get the marriage documents executed. In good faith, she went to the Chittorgarh Court and kept waiting for the accused. The accused reached the court and asked her to buy a stamp of Rs.100/-. A make believe marriage document was got typed on the stamp paper and then the accused went away from the court premises saying that he would return shortly but never returned. It was thus contended that the intention of the accused was fraudulent right from the inception and he was never desirous of marrying the proecutrix. All the promises which were given by the accused were fraudulent and were aimed at procuring undue sexual favours from the lady. The accused never intended to stand by his assurance and ditched the prosecutrix after calling her to the court for preparing the marriage document. They thus implored the Court to reject the revision. 5. I have heard and considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record. 6. As per the admitted case set up by the proecutrix Smt. 'A' aged 27 years, she was married with Iqbal Khan about 12 years prior to filing of the FIR and two children were born to her from her wedlock with Iqbal. Inher statement recorded under Section 161 Cr.P.C., she categorically stated that her marriage with Iqbal was on the rocks and both used to quarrel frequently. As per her own case, she came into contact with the petitioner about four years prior to lodging of the FIR and relationship developed into intimacy without any kindly allurement ever being offered by the petitioner. She, as well as the petitioner continued to establish voluntary carnal/ sexual relations for a prolonged period of about four years. She also came into close contact with the petitioner's family members and used to exchange sundries with them. She left her husband about 2 years ago and took up in a separate residence. She, as well as the petitioner continued to establish voluntary carnal/ sexual relations for a prolonged period of about four years. She also came into close contact with the petitioner's family members and used to exchange sundries with them. She left her husband about 2 years ago and took up in a separate residence. The petitioner, used to sleep over at the house of the prosecutrix where both often indulged in voluntary physical relations. She alleged that when she resisted the advances of the accused, an assurance was given that he would accept her as his wife. The petitioner allegedly advised the prosecutrix to divorce her husband Iqbal on which, she got the divorce document executed on 30.01.2015. But the accused resiled from his promise and ditched her. On going through the said statement, it is apparent that at no point of time, during the prolonged period of four years prior to the lodging of the FIR, did the prosecutrix make any aspersion regarding the accused having given her a false promise/ allurement of marriage. She admitted that her marriage with Iqbal was on the rocks. She came into contact and developed intimacy with the petitioner and both used to indulge in carnal relations frequently. She also became intimate with the petitioner's family members. Thus, no allurement or promise was given by the petitioner during the said period of four years prior to lodging of the FIR which could have induced or lured the prosecutrix into establishing sexual relations with the petitioner unless she herself craved the same. It is for the first time in the month of January, 2015 that the prosecutrix alleged that she was told by the petitioner to divorce her husband. The divorce documents were prepared and executed on 30.01.2015. While being examined under Section 164 Cr.P.C., the prosecutrix alleged that she came into contact with Harshit about four years ago. Her husband came to know of these activities and thus stopped coming to Bhadesar and left the prosecutrix and went away to his own village Vallabh Nagar. Thereafter, illicit liaison of the prosecutrix with the petitioner started and continued in an unfazed manner till the year 2015. Her husband came to know of these activities and thus stopped coming to Bhadesar and left the prosecutrix and went away to his own village Vallabh Nagar. Thereafter, illicit liaison of the prosecutrix with the petitioner started and continued in an unfazed manner till the year 2015. The aspersion of the prosecutrix that the petitioner asked her to divorce her husband so that both could marry each other is palpably false because in the marriage affidavit dated 03.02.2015 which the prosecutrix herself presented to the I.O., it is clearly mentioned that "her husband had harassed and humiliated her and had also stopped fulfilling his matrimonial obligations and that, she had broken off all the ties with him for the previous seven years. Thereafter, she came into contact with Harshit who had taken good care of her and her children and had also undertaken to provide for their subsistence. She put a proposal of marriage to Harshit which he accepted." 7. In view of the categoric assertions made by the prosecutrix in her voluntarily drawn affidavit, it is apparent that the allegation set out by her in the written report and her statements recorded under Sections 161 and 164 Cr.P.C. that it was the petitioner who gave her a false allurement of marriage with the oblique motive of getting sexual favours is palpably false and fabricated. The facts available on record clearly indicate that the situation was totally reverse and it seems to be the prosecutrix who entrapped the petitioner in her charms. The entire material available on record does not give rise to even a slender indication of guilt of the accused for the offence under Section 376(1) IPC so as to justify his prosecution for the same. Thus, this Court is of the firm opinion that the trial court was totally unjustified in directing framing of charge against the petitioner for the offence under Section 376(1) IPC. The impugned orders dated 12.08.2015 and 24.09.2015 are grossly bad in the eye of law as well as on facts as the same are not based on appropriate appreciation and evaluation of the admitted factual aspects available on record and hence the same are liable to be set aside. 8. Accordingly, the instant revision deserves to be and is hereby allowed. 8. Accordingly, the instant revision deserves to be and is hereby allowed. The impugned orders dated 12.08.2015 and 24.09.2015 passed by the learned Additional Sessions Judge No.2, Nimbaheda, District Chittorgarh whereby charge was framed against the petitioner for the offence under Section 376(1) IPC is set aside. The petitioner is discharged from the offence. Record be returned to the trial court.