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2021 DIGILAW 313 (MP)

Ramesh v. State of M. P.

2021-03-04

VIVEK RUSIA

body2021
JUDGMENT : Vivek Rusia, J. 1. The applicant has filed the present petition under Section 482 of Code of Criminal Procedure (hereinafter referred as "Cr.P.C.) seeking quashment of FIR No. 268/2019 dated 20.06.2019 registered at Police Station - Kotwali, District Dhar for the offence punishable under Section 376, 376 (2) (n), 294 of Indian Penal Code (for short "I.P.C.) and Section 3/4 of Protection of Children From Sexual Offence, Act, 2012 (for short "POCSO"). 2. After filing, this petition Final Report (Chalan) has been filed under Section 173 of Cr.P.C. for the offence punishable under Section 376, 376 (2) (n), 323, 294, 506, 450 of I.P.C. and Section 3/4 and 5(l)/6 of POCSO Act. 3. The facts of the case, in short, is that the respondent No. 2 (hereinafter referred as "Prosecutrix") submitted a written complaint to Mahila Thana Palasiya, Indore disclosing the commission of the offence as under: "At present she is pursuing the studies of M.A. In the year 2013, she was studying in B.Sc. first year and the present applicant being a resident of Village Kalmani, Tehsil Dahi, District Dhar was also pursuing the study in the same college. Since he belongs to his caste and community, therefore, she has started communicating with him. In the month of January 2014, when she was aged about 17 years, the applicant was residing at Deendayalpuram, Dhar on rent and she was also living in the rented house, the applicant called her in his room and because of friendship she went into the room, where the applicant disclosed her that he is in love with her and near about 12:00 pm he forcefully made sexual relation against her wishes. When she started weeping, the applicant assured her that she would marry, thereafter he continued to make physical relations with her. In the year 2016, after completing graduation, she started living at Moosakhedi, Indore, there also on the pretext of marriage, he made physical relation with her. Thereafter, the applicant got an appointment in SAF and went for training but he used to come on Sunday and continue to make physical relations with her. Thereafter on her persuasion, they married on 28.12.2018 before the Notary, thereafter, he stopped contacting her. On the telephone, he has misbehaved with her by filthy language and threatened her. Thus, he raped her, therefore, she wants action against her. 4. Thereafter on her persuasion, they married on 28.12.2018 before the Notary, thereafter, he stopped contacting her. On the telephone, he has misbehaved with her by filthy language and threatened her. Thus, he raped her, therefore, she wants action against her. 4. The prosecutrix gave consent for medical examination. She was medically examined but no sign of force was found. The final opinion was kept pending awaiting the FSL report. The police have registered an FIR against the applicant on 20.06.2019 for the offence punishable under Section 376, 376 (2) (n), 294 of I.P.C. and Section 3/4 of Protection of Children From Sexual Offence Act, 2012. The applicant was arrested on 07.09.2019 and thereafter, he was enlarged on bail by this Court. The Forensic Science Laboratory, Rau has submitted a report dated 10.07.2019 and according to which semen was not found on nails, underwear and pubic hair but found on slide. 5. The police recorded the statement of the prosecutrix, her mother Rajibai and her father Chamar Singh. The statement under Section 164 of Cr.P.C. before the Magistrate was also recorded in which she has reiterated the same as in the written complaint. After completing the investigation, Final Report (Chalan) has been filed on 09.11.2019 for the offence under Section 376, 376 (2)(n), 323, 294, 506, 450 of I.P.C. and Section 3/4 and 5L/6 of POCSO Act. 6. Learned counsel for the applicant submits that the applicant is a constable and presently posted at 24th Battalion SAF, Jaora, District Ratlam. Even if the allegations made by the prosecutrix are accepted in their entirety no case against the applicant under Section 376, 386(2) (n), 294 of I.P.C. and Section 3/4 of POCSO Act, 2012 is made out. The applicant had performed the marriage with the prosecutrix on 28.12.2018 by observing the necessary religious steps and the certificate has been issued by Akhil Vishwa Gayatri Pariwar, which is filed as Annexure P/3 in this petition and at the time of marriage she was major and capable to give consent, hence, no case under Section 376 of I.P.C. is made out. Learned counsel for the applicant has placed reliance over the judgment passed by Apex Court in the case of Dr. Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra & Ors. and judgment passed by a coordinate bench of this Court in the case of Umesh Lilani Vs. Learned counsel for the applicant has placed reliance over the judgment passed by Apex Court in the case of Dr. Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra & Ors. and judgment passed by a coordinate bench of this Court in the case of Umesh Lilani Vs. The State of M.P. (M.Cr.C. No.16158/2019 dated 18.07.2019). Hence, the Final Report (Chalan) is liable to be quashed. 7. Learned Panel Lawyer for the respondent/State as well as counsel for the complainant/prosecutrix opposes the prayer of the applicant by submitting that the applicant made physical relations with the prosecutrix when she was below 18 years, therefore, consent given by the prosecutrix is immaterial. The offence under Protection of Children From Sexual Offence has also been registered against the applicant. It is a matter of trial whether the applicant has performed the marriage with the prosecutrix by following Satyapati which is required under the custom. The allegations against the applicant are serious in nature and which prima facie constitute offence under Section 376, 376 (2) (n), 294 of I.P.C. and Section 3/4 POCSO Act. Hence, no case for quashment of FIR is made out. So far as the judgment of Dr. Dhruvaram Murlidhar Sonar (supra) passed by the Apex Court is concerned, admittedly, the prosecutrix therein was major at the time of the alleged commission of the offence and the case before this court in the case of Umesh Lilani (Supra) also the prosecutrix was aged about 28 years at the time of the offence and it was within her knowledge that the applicant therein was already married and cannot perform marriage with her and even though she made a consensual relationship with him. I have heard the learned counsel for the parties and perused the Final Report (Chalan) 8. According to the applicant, the allegation levelled by the prosecutrix taken to be gospel truth even then no case under Section 376 (2) (n) of I.P.C. is made out against him. 9. The prosecutrix has admitted that she was having a love affair with the present applicant and thereafter they performed the marriage. From the perusal of the FIR and statement of prosecutrix recorded under Section 161 and 164 of Cr.P.C. it is evident that the applicant and prosecutrix initially were in a friendly relationship from 2014 to 2018 and thereafter they got married in Arya Samaj. From the perusal of the FIR and statement of prosecutrix recorded under Section 161 and 164 of Cr.P.C. it is evident that the applicant and prosecutrix initially were in a friendly relationship from 2014 to 2018 and thereafter they got married in Arya Samaj. The prosecutrix alleges that after the marriage, the applicant has started avoiding her and whenever she tried to contact him he used to abuse her by filthy language. If any dispute has occurred between the husband and wife after marriage, then its a purely matrimonial dispute for the prosecutrix has the remedy to approach the family court but not to level the allegation of rape against the husband i.e. the applicant. Therefore, an offence under Section 376 of I.P.C. is not made out against the applicant in view of the judgment of Dr. Dhruvaram Murlidhar Sonar (supra) passed by the Apex Court and this court in the case of Umesh Lilani (Supra). 10. So far as the charge under Section 3/4 of POCSO Act is concerned. According to the prosecutrix, in the year 2014 when the first time the applicant made physical relations with her, was 17 years of age. The police have collected a mark sheet of the prosecutrix and according to which her date of birth is 10.09.1996 and in January 2014, she was 17 years, 3 months and 22 days i.e. less than 18 years. But in the support of the allegation about forcefully sexual relation against her wish in January 2014, there is no other evidence is available to corroborate the prosecutrix. As per the list of witnesses, there are only three witnesses i.e. prosecutrix, her mother Rajibai and father Chamar Singh and even father and mother have not stated that prosecutrix had ever told them that the applicant had made the sexual relationship with her. On the contrary, they made the statement that the applicant was having a friendship with their daughter and he used to visit their house and gave an offer to marriage with their daughter for which they did agree. They have also admitted about the marriage of the applicant and prosecutrix on affidavit. So far as the allegation of commission of penetrative sexual assault is concerned. In January 2012, except for the statement of the prosecutrix, no other evidence is available on record to support the prosecution case. They have also admitted about the marriage of the applicant and prosecutrix on affidavit. So far as the allegation of commission of penetrative sexual assault is concerned. In January 2012, except for the statement of the prosecutrix, no other evidence is available on record to support the prosecution case. At the relevant point in time, she did not make any complaint to her parents as well as to the police. The first time she made a complaint about the alleged incident in the complaint to the police 13.06.2019 i.e. after five and a half years. After becoming major she had consensual sexual relationship with the applicant and thereafter they performed the marriage also. The Apex Court, in the case of Dr. Dhruvaram Murlidhar Sonar (Supra) has held as under: 20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. 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 may 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, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC. 11. So far as section 294, 506 and 450 of I.P.C. are concerned. There is no ingredient in the statement as well as in the FIR. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC. 11. So far as section 294, 506 and 450 of I.P.C. are concerned. There is no ingredient in the statement as well as in the FIR. According to her, the applicant abused her on the telephone Whereas section 294 of I.P.C. apply whoever recites or utter any obscene words in or near any public place, therefore, uttering obscene words on the telephone does not constitute an offence under Section 294 of I.P.C. So far as house-trespass to the commit such an offence is concerned, there is no such allegation that the applicant has committed house-trespass, thus, Section 450 of I.P.C. is not made out. As per the definition of criminal trespass the offender had an intention to commit an offence for entering upon a property in possession of the complainant. Once it has been held that Section 376, 376 (2) (n) of I.P.C. and Section 3/4 and 5L/6 of POCSO Act is not made out, section 450 of IP.C. is also not made out. 12. In view of the above discussion, the present petition filed under Section 482 of Cr.P.C. is hereby allowed. The FIR No. 268/2019 dated 20.06.2019 registered at Police Station Kotwali, Dhar District Dhar for the offence punishable under Section 376, 376 (2) (n), 294 of I.P.C. and Section 3/4 of POCSO Act, 2012 as well as the Final report submitted on 09.11.2019 are hereby quashed. Certified copy as per rules.