Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 837 (RAJ)

Suhas Kamadi v. State Of Rajasthan

2021-04-09

MANOJ KUMAR GARG

body2021
JUDGMENT Manoj Kumar Garg, J. - By the instant criminal revision petition under Section 397/401 Cr.P.C., the accused-petitioner has challenged the order dated 07.07.2014 passed by the learned Additional Sessions Judge (Women Atrocities Cases), Bhilwara in Sessions Case No.36/2013, whereby the learned trial court framed charges against the petitioner for the offences under Sections 494, 495, 420 & 376 IPC. 2. Brief facts of the case are that an FIR was registered against the petitioner upon filing of a complaint by respondent No.2, which was sent by learned competent Court to Police u/s 156(3) Cr.P.C. The gist of allegations levelled in the complaint was that accused No.1 (the present petitioner) made contact with the complainant while she was working at Krishna Hospital, Bhilwara and accused gradually increased his contact. He started making physical relations with the complainant by promising to get higher position and higher salary. After some time, when the complainant did not get the high position and increased salary, she suspected the intention of the accused, however, on assurance of accused to marry her, the complainant believed the falsehood of the accused, who continued sexual abuse by promising the marriage to her. It is further stated by the complainant that she fell into trap of the accused and due to fear of slander in the society as well as family, there was no other option except to marry the accused. Accordingly, the complainant got married with accused on 31.07.2012 at Chamunda Mata Temple at Harani Mahadev. The obscene photographs taken by trick photography were also stated to be in possession of the accused. While alleging other allegations, the complainant stated that she also handed over the stridhan as deposit i.e. gold necklace, rakadi set, silver anklet, which were kept by the accused. After thorough investigation, the police submitted challan against the petitioner for offence under Sections 376, 420, 494, 495, 354(k)(1)(i) of IPC. Thereafter, the case was committed for trial in the court of Additional Sessions Judge (Women Atrocities Cases), Bhilwara. The learned trial court after hearing the arguments of both the parties framed charges against the petitioner for the offences under Section 494, 495, 420, 376 IPC. However, the petitioner was discharged from the offence under Section354(k)(1)(i) of IPC. 3. Learned counsel for the petitioner submits that the order impugned framing the charges against the petitioner is illegal and arbitrary. The learned trial court after hearing the arguments of both the parties framed charges against the petitioner for the offences under Section 494, 495, 420, 376 IPC. However, the petitioner was discharged from the offence under Section354(k)(1)(i) of IPC. 3. Learned counsel for the petitioner submits that the order impugned framing the charges against the petitioner is illegal and arbitrary. It is argued that the complainant is a grown-up lady and was working at the same place where the petitioner was also serving. Both the petitioner and the complainant worked together for a long time so she was very much acquainted with the marital status as well as family background of the petitioner, therefore, it cannot be inferred that she was kept in dark regarding the fact that he was married or unmarried or divorcee person. The statement of the prosecutrix reveals that she was very much a consenting party and she admittedly got married with the petitioner at the temple as per Hindu rites. The consensual sexual relationship, if any, happened between the petitioner and the complainant who are majors, that is voluntarily on the part of the complainant, therefore, it does not come under the definition of Section 375 of IPC. In these circumstances, the charges framed against the petitioner deserves to be quashed and set aside. He placed reliance on the judgment of Hon'ble Apex court in the case of Prashant Bharti Vs. State of NCT Delhi, (2013) 3 RCR(Cri) 399. 4. Per contra, learned learned Public Prosecutor and learned counsel for the complainant supported the order impugned passed by the learned trial court and argued that at the preliminary stage of the framing of the charges, it cannot be said that the charges framed by the learned trial court is totally baseless. It is further argued that the prosecutrix in her statement specifically levelled allegation of rape against the present petitioner. The police after thorough investigation also submitted challan against the petitioner so the order impugned passed by the learned trial court framing charge is perfectly justified. Hence, the order impugned does not warrant any interference. 5. I have considered the arguments advanced before me and carefully gone through the record of the trial court. 6. The police after thorough investigation also submitted challan against the petitioner so the order impugned passed by the learned trial court framing charge is perfectly justified. Hence, the order impugned does not warrant any interference. 5. I have considered the arguments advanced before me and carefully gone through the record of the trial court. 6. From the reading of complaint filed by the complainant/prosecutrix, it is revealed that the petitioner came in contact with the complainant at work place and developed physical relations with her on false assurance of marriage. It is further admitted by the prosecutrix that she got married with the petitioner at Chamunda temple and continued to have physical relationship with the petitioner. 7. Hon'ble Apex Court in catena of cases has held that the consent given by the prosecutrix who is major, to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. However, there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. 8. In the instant case, the prosecutrix was a grown up woman and she had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may or may not take place. 9. Taking note of the above, this Court deems it proper to quash the charge framed against the petitioner to the extent of offence under Section 376 IPC and remand the matter back to the court below for consideration afresh in the light of judgments of Hon'ble Apex court. 10. 9. Taking note of the above, this Court deems it proper to quash the charge framed against the petitioner to the extent of offence under Section 376 IPC and remand the matter back to the court below for consideration afresh in the light of judgments of Hon'ble Apex court. 10. Accordingly, the order dt.07.07.2014 passed by the Additional Sessions Judge (Women Atrocities Cases), Bhilwara to the extent of framing charge under Section 376 IPC against the petitioner is hereby quashed and the matter is remanded back to the learned trial court with direction to pass an order afresh in accordance with law as to whether offence under Section 376 IPC is made out against the petitioner or not. 11. The revision petition is disposed of in the above terms. Stay petition also stands disposed of. 12. Record of the trial court is sent back immediately.