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Madhya Pradesh High Court · body

2021 DIGILAW 377 (MP)

Devendra Kumar Sharma v. State of M. P.

2021-03-16

G.S.AHLUWALIYA

body2021
JUDGMENT : Gurpal Singh Ahluwalia, J. Heard on the question of admission. 1. This application under Section 482 of Cr.P.C. has been filed for quashing F.I.R. in Crime No. 125 of 2018 registered at Police Station Sirol, Distt. Gwalior for offence under Sections 376, 294, 406, 417 of I.P.C. and all subsequent criminal proceedings. 2. It is the case of the applicant, that the applicant was living in Live-in-Relationship with the respondent no. 2, for the last 8 years. During this period of Live-in-Relationship, the applicant was financially exploited by the respondent no. 2 and her family members. Since, the respondent no. 2 was continuously extending threats that She would falsely implicate the applicant in a rape case, therefore, the applicant made several complaints to the police. However, the police authorities did not take any action in the matter. Thereafter, the applicant filed a private complaint against the respondent no. 2 and her family members on 29-8-2018 for offence under Sections 384, 388, 389, 420 and 120B of IPC and the Trial Magistrate by order dated 29-8-2018 sought report from the police. 3. It is submitted that the respondent no. 2 has lodged a F.I.R. against the applicant in crime No. 125/2018 for offence under Sections 376, 294, 506 and 417 of IPC on the allegations, that the applicant developed physical relationships with the complainant by making false promise of marriage. The relationships continued from 2010 to 2018. In the year 2011, the complainant met with the family members of the applicant, who also recognized the complainant as a member of their family. Thereafter, she continuously visited the family of the applicant. The sisters of the applicant as well as the father of the applicant, also accepted the complainant as member of their family. During this period of 8 years, the applicant took her to various places like Goa, Shimla, Manali, Rohtange, Laddakh etc. and the complainant continued with her relationship under the impression, that since, the entire family has accepted her, therefore, the applicant would certainly marry her. On 26-8-2017, the father of the applicant informed the brother of the complainant, that the marriage of the applicant with the complainant would never take place. Then, her brother informed that not only the complainant is interested in getting married to the applicant, but the applicant is also interested in marrying her. On 26-8-2017, the father of the applicant informed the brother of the complainant, that the marriage of the applicant with the complainant would never take place. Then, her brother informed that not only the complainant is interested in getting married to the applicant, but the applicant is also interested in marrying her. However, the father of the applicant replied that he would convince his son. Thereafter, the applicant abused the prosecutrix very filthily. Thereafter, she lost her confidence on the applicant. In the meanwhile, the sister of the applicant also abused her. After two months, the complainant came to know that now the applicant is proposing some other girl. Accordingly, she had a talk with the said girl. Thereafter, the applicant started spending time with one Girl, namely, Urvashi. When the complainant talked to the applicant, then he promised that he is in love with the complainant only, and would marry her only. On 15th June, she came to Gwalior, then the applicant called his friends and disclosed that as the complainant has come, therefore, now he would marry her. On the promise made by the applicant, the complainant once again started living with him. On 14th July, the applicant purchased Mangalsutra for the complainant. Thereafter, they went to Arya Samaj Mandir, where application for marriage was filled, but the applicant did not deposit his ID proof, and promised that he would deposit the same by the evening. When the complainant enquired from the applicant, as to why he did not deposit his ID, then She was mercilessly beaten by the applicant, as a result She sustained injuries on her lips, cheek and ear. Thereafter, the applicant insisted that the complainant must go back to Bangalore. Thereafter, the complainant replied that she would go back either after marrying him or after terminating the relationships. Thereafter, on 14-7-2018, the applicant, after tying her hands and legs with bed, forcibly committed rape on her. As the complainant was screaming, therefore, the applicant started the Cooler to suppress her screams. Thereafter, the applicant once again promised her to marry her. When the complainant extended a threat that She would lodge a report, then She was locked in the room of the flat of his friend Gajendra. Food was not given and her mobile was also taken away. Thereafter, the applicant once again promised her to marry her. When the complainant extended a threat that She would lodge a report, then She was locked in the room of the flat of his friend Gajendra. Food was not given and her mobile was also taken away. Looking to her precarious condition, the complainant was left at the railway station, from where She came back to Bangalore. Thereafter, the applicant called her and threatened that in case if she comes to Gwalior, then he would throw acid on her. 4. Challenging the F.I.R. lodged by the complainant, it is submitted by the Counsel for the applicant, that it is clear from the FIR itself, that the prosecutrix was in live-in-relationship with the applicant for the last almost 8 years. The complaint was already filed by the applicant before the Court of competent jurisdiction, much prior to lodging of F.I.R., and report from the police was also called by the Court. It is further submitted that on various occasions, the applicant had transferred money in the account of the complainant, and her only intention was to financially exploit the applicant. To buttress his contentions, the Counsel for the applicant has relied upon the judgments passed by the Supreme Court in the case of Sonu @ Subhash Kumar Vs. State of U.P. and another passed in Criminal Appeal No. 233 of 2021 on 1st March 2021, in the case of Pramod Suryabhan Pawar Vs. The State of Maharashtra and another passed in Cr.A.No.1165 of 2019 on 21-8-2019, Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra reported in 2019 (1) Crimes 20 (SC), Deepak Gulati Vs. State of Haryana reported in 2013 (2) Crimes 311 (SC), Uday Vs. State of Karnataka reported in 2003 (2) Crimes 176 (SC), judgments passed by this Court in the case of Udaypal Singh Vs. State of M.P. in M.Cr.C. No. 48480 of 2018 (Indore Bench), and in the case of Devendra Rai Vs. State of M.P. and another passed in M.Cr.C. No. 52889 of 2018 (Indore Bench). 5. Per contra, it is submitted by the Counsel for the complainant, that the complainant was ditched by the applicant. The complainant had become pregnant also, but she was turned out by the applicant. State of M.P. and another passed in M.Cr.C. No. 52889 of 2018 (Indore Bench). 5. Per contra, it is submitted by the Counsel for the complainant, that the complainant was ditched by the applicant. The complainant had become pregnant also, but she was turned out by the applicant. Accordingly, She filed W.P. No. 25126 of 2018 before the High Court for Medical Termination of Pregnancy and the said writ petition was allowed by order dated 13-11-2018 and permission was granted for Medical Termination of Pregnancy. However, the Doctors were also directed to preserve the DNA sample of foetus. 6. The Counsel for the State also submitted that it is clear from the F.I.R. as well as the statement of the prosecutrix recorded under Section 161 of Cr.P.C. that on 14-7-2018, the applicant had physical relations with the prosecutrix forcibly without her consent, as a result She became pregnant. It is further submitted that the police after concluding the investigation has already filed the charge sheet against the applicant in the year 2018 itself. 7. Heard the learned Counsel for the parties. 8. The Charge sheet has been filed against the applicant in the year 2018 itself, but the stage of Trial is not known. It is not known as to whether any charges have been framed or not. It is also not known as to whether the charges were ever challenged or not? Be that as it may be. An application for quashment of proceedings filed under Section 482 of Cr.P.C. cannot be dismissed only on the ground that the charge sheet has been filed. 9. Undisputedly, the prosecutrix is major, therefore, her consent would be material. 10. If the F.I.R. is read in its entirety, then it would be clear that it can be bifurcated in two parts: (i) relationship prior to 14-7-2018; and, (ii) relationship on and subsequent to 14-7-2018. 11. It is the case of the prosecutrix that as She was fed up with the false promise of marriage made by the applicant, therefore, She decided that she would go back to Bangalore only after either getting married to the applicant, or would terminate the relationship. 11. It is the case of the prosecutrix that as She was fed up with the false promise of marriage made by the applicant, therefore, She decided that she would go back to Bangalore only after either getting married to the applicant, or would terminate the relationship. If the allegations of rape committed by applicant on 14-7-2018 are considered in the backdrop of the mindset of the prosecutrix, then it is clear that She had already decided, that either the applicant should marry her or else She would not move ahead with the relationship. In such a situation, when the applicant committed rape on the prosecutrix after tying her hands and legs with a bed, then by no stretch of imagination, it can be held that the act of sex on 14-7-2018, was the outcome of live-in-relationship between the applicant and the prosecutrix. Further, the prosecutrix got pregnant because of sexual act on 14-7-2018 and accordingly, She also filed a Writ Petition for Medical Termination of Pregnancy which was registered as W.P. No. 25126 of 2018, and the co-ordinate Bench of this Court, by relying upon the allegation of the prosecutrix that She was raped by the applicant, permitted the Medical Termination of Pregnancy. 12. It is submitted by the Counsel for the applicant, that so far as the allegation of rape on 14-7-2018 after tying her hands and legs is concerned, the same is false as it has not been alleged by the prosecutrix in her statement recorded under Section 164 of Cr.P.C. 13. The Counsel for the applicant, could not point out any provision of law, which gives preference to the statement recorded under Section 164 of Cr.P.C., over the statement under Section 161 of Cr.P.C. This Court in exercise of power under Section 482 of Cr.P.C. cannot compare the statements recorded under Section 161 of Cr.P.C. with statement under Section 164 of Cr.P.C., to hold that which of them is more reliable and acceptable. The applicant would get full opportunity to point the omissions in different statements at the time of examination of prosecutrix. 14. Now the question for consideration is that under what circumstances, it can be held that the physical relationship between the accused and prosecutrix was consensual sex and the consent was not obtained by misconception of fact. 15. The applicant would get full opportunity to point the omissions in different statements at the time of examination of prosecutrix. 14. Now the question for consideration is that under what circumstances, it can be held that the physical relationship between the accused and prosecutrix was consensual sex and the consent was not obtained by misconception of fact. 15. In Deepak Gulati (Supra) it has been held by the Supreme Court that if the accused's promise was not false and was not made with sole intention to seduce the prosecutrix to indulge in sexual acts, then such act would not amount to rape. 16. Similarly, in the case of Pramod Suryabhan Pawar (Supra), it has been held by Supreme Court that where the promise to marry is false and the intention of the maker at the time of making promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's consent. 17. If the allegations made in the present case are considered, it is clear that in the month of June 2018, the applicant went to Arya Samaj Mandir along with the prosecutrix for the purposes of marriage, but the marriage could not be solemnized because the applicant had not brought his ID proof. If the applicant had an intention to marry the prosecutrix, then either he should have carried his ID proof with him, or could have deposited at a later stage, but that was not done. Further, by purchasing Mangalsutra, the applicant had tried to give a bonafide impression in the mind of the prosecutrix that he is really serious in marrying the prosecutrix. With this background, when the prosecutrix refused to further indulge in sexual relationship with the applicant on 14-7-2018, then she was raped by the applicant after tying her hands and legs with bed. 18. In order to find out that whether any particular act of physical relationship was a consensual act or was a rape, the theory of once a consenting party, always a consenting party cannot be applied. For each and every act of physical relationship, the consent of the prosecutrix is necessary. 18. In order to find out that whether any particular act of physical relationship was a consensual act or was a rape, the theory of once a consenting party, always a consenting party cannot be applied. For each and every act of physical relationship, the consent of the prosecutrix is necessary. In the present case, it is the allegation of the prosecutrix that She was raped by the applicant on 14-7-2018, and in the backdrop of the fact that in the month of June, 2018, the applicant had tried to project that he is serious in marrying the prosecutrix and also took her to Arya Samaj Mandir after purchasing Mangalsutra, but the marriage could not be solemnized only because the applicant had not brought his ID proof, coupled with the fact, that the prosecutrix had filed W.P. No. 25126 of 2018 for medical termination of pregnancy on the ground that She was subjected to rape, and relying upon the allegation made by the prosecutrix, the co-ordinate Bench of this Court, permitted the Medical Termination of Pregnancy, this Court is of the considered opinion, that there is prima facie material available on record for prosecution of the applicant for committing rape on the prosecutrix. 19. So far as the complaint filed by the applicant against the prosecutrix is concerned, at the most it can be said to be his defence. Further, there is nothing on record to show as to what ultimately happened in the said complaint. 20. Accordingly, this Court is of the considered opinion, that neither the FIR in Crime No. 125/2018 registered at Police Station Sirol, Distt. Gwalior, can be quashed nor the Charge sheet. 21. However, before parting with this order, it is observed, that the facts of the case have been considered in the light of limited scope of interference under Section 482 of Cr.P.C. The Trial Court is requested not to get influenced/prejudiced by any of the observations made in this order. The Trial be decided strictly in accordance with evidence which would come on record. With aforesaid observations, the application is Dismissed.