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Rajasthan High Court · body

2019 DIGILAW 2544 (RAJ)

Rekha Mirchandani v. State of Rajasthan

2019-09-20

PANKAJ BHANDARI

body2019
ORDER : Pankaj Bhandari, J. 1. Petitioner-Kum. Rekha Mirchandani (hereinafter to be referred as "prosecutrix") has preferred Writ Petition No. 503/2018 seeking fair, proper and impartial investigation in FIR No. 101/2018 registered with Police Station Shyam Nagar, Jaipur City (South), Petitioner-Akshay Gangani (hereinafter to be referred as "accused") has preferred Writ Petition No. 287/2018 seeking quashing of FIR No. 101/2018 registered at Police Station Shyam Nagar, Jaipur City (South). Since both the petitions pertain to same FIR, are being decided by this common order. 2. Counsel for the prosecutrix contends that a hand written report was submitted at Police Station Shyam Nagar, Jaipur on 27.02.2018 upon which FIR No. 101/2018 was registered. Statement of prosecutrix was recorded under Section 164 Cr.P.C. 3. It is contended that prosecutrix and her parents got to know accused on Bharat Matrimonial site, in pursuance thereto both the parties met with each other. Five days prior to the date of engagement it came into the knowledge of prosecutrix's family that accused is having bad habits. However, the accused ensured that in future he will leave all bad habits and relying upon the same, prosecutrix got engaged with accused on 21.10.2017. It is alleged in the FIR that accused came to Jaipur for pre-wedding video shoot and had sexual relations with prosecutrix without consent between 21.12.2017 to 24.12.2017. It is contended that police has come to the conclusion that offence is made out still police has not arrested the accused and is not filing the challan before the Court. 4. Counsel for prosecutrix has placed reliance on judgment of Madhya Pradesh in M.Cr.C. No. 12272/2012 (Sandeep and others vs. Neelam and another) decided on 12.09.2018. 5. Counsel for accused contends that parties had a consensual relationship and even after the alleged date of incident prosecutrix was continuously messaging and chatting with accused and his father. Counsel has shown to the Court the messages exchanged between prosecutrix and accused. It is contended that the accused stayed at Hotel in Jaipur from 21.12.2017 to 23.12.2017 alongwith prosecutrix and also went to Udaipur. 6. Counsel for accused contends that if the prosecutrix would have been raped at Jaipur, there was no reason for her travelling with him to Udaipur. Infact prosecutrix had booked tickets of Double Sleeper berth in Sleeper Bus from Jaipur to Udaipur. 6. Counsel for accused contends that if the prosecutrix would have been raped at Jaipur, there was no reason for her travelling with him to Udaipur. Infact prosecutrix had booked tickets of Double Sleeper berth in Sleeper Bus from Jaipur to Udaipur. It is also contended that as per FIR prosecutrix informed her parents and her family members about the alleged sexual relationship and that parents of prosecutrix had pardoned the conduct of accused. It is contended that motive of lodging FIR is to cancel the marriage and extract illegal advantage from the accused family. 7. Counsel for accused has placed reliance on Prashant Bharti v. State of NCT of Delhi ( AIR 2013 SC 2753 ) and Vineet Kumar and Ors. vs. State of U.P. and Anr. ( AIR 2017 SC 1884 ) and Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra and Ors. (Criminal Appeal No. 1443/2018) decided on 22.11.2018. 8. I have considered the contentions and have perused the FIR and statements of the prosecutrix recorded under Section 164 Cr.P.C. 9. In the FIR it is mentioned that initially the family members of the prosecutrix refused for engagement as the boy was habitual of drinking and smoking. In the FIR it is also mentioned that an affidavit was given by accused that he is not habitual of having liquor and that in future he will not have liquor, beer or cigarette or any other form of intoxication. The fact that the accused used to drink or smoke was thus in the knowledge of the prosecutrix. Inspite of this, engagement took place on 21.10.2017. Thereafter, accused came to Jaipur for pre-wedding video shoot and stayed at Jaipur in Pride Hotel. As per FIR, the Room No. 208 in Pride Hotel was booked from 21.12.2017 to 23.12.2017. As per FIR both went to Udaipur and as per the allegations accused had sexual relations with the prosecutrix at Jaipur as well as Udaipur. It is also mentioned in the FIR that accused was receiving vulgar messages from girls which dispute took place between accused and prosecutrix. It is alleged in the FIR that from different sources family of prosecutrix has come to know that the accused is having sexual relations with many girls. He is habitual of having liquor and cigarette and for this reason a break-up took place between accused and prosecutrix. 10. In Dhruvaram Murlidhar Sonar Vs. It is alleged in the FIR that from different sources family of prosecutrix has come to know that the accused is having sexual relations with many girls. He is habitual of having liquor and cigarette and for this reason a break-up took place between accused and prosecutrix. 10. In Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra and Ors.(supra) Apex Court held that if the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There might be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused. The Apex Court in that case quashed the proceedings, as the Court came to the conclusion that the prosecutrix had taken a conscious decision after active application of mind to the things that had happened. There was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. 11. Admittedly, the prosecutrix accused were engaged and thereafter they had a pre-wedding shoot at Jaipur and Udaipur. A consensual relationship developed between the two and the same cannot be said to be forceful act done without consent of the prosecutrix. The fact that she had sexual relations at Jaipur and thereafter went with the accused to Udaipur also goes to show that she was a consenting party. Yet another important fact which has been brought to the notice of the Court is that even after lodging of FIR prosecutrix continued to communicate with the accused wherein she mentioned that she wants to hold the hand of the accused permanently and wants to walk with every phase of the life with the accused. This was even after recording of statement under Section 164 Cr.P.C. 12. It is also apparent that family of the prosecutrix was aware that the accused is in a habit of smoking and drinking liquor and for this reason, even prior to the engagement they obtained affidavit from the accused that in future he will not indulge in smoking and drinking. The prosecutrix had taken a conscious decision and had participated in the sexual act, the same was thus consensual act and cannot be said to be due to misconception. The prosecutrix had taken a conscious decision and had participated in the sexual act, the same was thus consensual act and cannot be said to be due to misconception. The allegations made in the complaint even if they are taken of their face value do not make out a case against the accused as the prosecutrix was a consenting party and even after having sexual relations at Jaipur she moved with the accused to Udaipur where also she indulged in sexual relations with the accused and even after lodging of FIR and recording of statement under Section 164 Cr.P.C. she still communicated with the accused. The offence of rape is thus not made out. Hence, the proceedings against the petitioner, who after engagement had consensual sexual relationship with the prosecutrix would tantamount to abuse of process of the Court and would cause grave injustice to the accused. 13. Consequently, Criminal Writ Petition No.287/2018 filed by petitioner-Akshay Gangani seeking quashing of FIR No.101/2018, registered at Police Station Shyam Nagar, Jaipur City (South) deserves to be and is accordingly allowed. FIR No.101/2018 is quashed. Criminal Writ Petition No.503/2018 filed by petitioner seeking fair investigation deserves to be and is accordingly dismissed. Stay application in Criminal Writ Petition No. 287/2018 stands disposed. 14. Copy of this order be placed in the connected file.