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2022 DIGILAW 2638 (RAJ)

Versus v. State Of Rajasthan

2022-10-19

BIRENDRA KUMAR

body2022
JUDGMENT 1. The petitioner, an accused in FIR No. 79/2021 registered with Mahila Thana, Police Station, Sawai Madhopur for offence under Section 376(2)(n) IPC, has sought for quashment of the FIR. 2. According to FIR, the prosecutrix, a married lady was not pulling relation with her husband well, therefore, she was residing along with her parents and preparing for REET competitive examination. In the year 2015, the prosecutrix met with the petitioner. The petitioner started one sided love with her. When the prosecutrix was ignoring the petitioner, the petitioner posed that he would commit suicide. The prosecutrix tried to convince the petitioner that she is already a married lady and has already lost one of her leg in an accident in her childhood, therefore, she was not suitable for the petitioner but the petitioner continued insisting for marriage and in the year 2015, on three to four occasions, established physical relations in the village of the prosecutrix in Gangapur city. Thereafter on different places of the District, the petitioner was in physical relations with the prosecutrix on the pretext of marriage. Whenever the prosecutrix asked the petitioner to get married with her, the petitioner kept deferring the matter saying that after getting a job, he would marry with the prosecutrix. It is further stated that the petitioner and the prosecutrix were living as husband and wife in a room at Jaipur and the petitioner was in physical relations with her till 22.9.2020. On 9.6.2021, the petitioner assured that they would marry on 10.6.2021. Thereafter mobile phone of the petitioner was switched off forever. Allegation is that the prosecutrix was sexually exploited on the pretext of marriage. 3. Mr. Rajneesh Gupta, learned counsel for the petitioner submits that entire statement disclosed in the FIR would make out a case of consensual relationship. The allegation that the consent was obtained on false pretext of getting married is pulpably false as marriage between the prosecutrix and one Ram Singh was subsisting on 20.9.2021 when the prosecutrix filed a case before the Civil Judge, Bamanvas for a decree of dissolution of marriage against Ram Singh. Copy of the divorce petition is at Annexure-5. Learned counsel next contends that respondent No.2 has not denied in its reply about the pendency of the divorce case against Shri Ram Singh brought by the complainant-prosecutrix. Copy of the divorce petition is at Annexure-5. Learned counsel next contends that respondent No.2 has not denied in its reply about the pendency of the divorce case against Shri Ram Singh brought by the complainant-prosecutrix. Learned counsel for the petitioner further contends that husband of the prosecutrix i.e. Ram Singh had lodged FIR No. 107 dated 1.4.2011 at Bamanwas Police Station for offences under Section 384, 365, 494, 392, 420 IPC and Section 3 SC/ST Act against the prosecutrix and others including one Chandan alleging therein that Chandan had provided a Car to the prosecutrix, thereafter both were in relationship in the nature of marriage and the fact was known to the parents of the prosecutrix, rather with their consent the relationship was there. Ram Singh had also alleged extortion of money and cheating by the prosecutrix and others. The respondents in their reply have admitted the aforesaid FIR, however stated that the police after investigation did not find the allegations true. 4. Mr. Abdul Rahim Khan, learned counsel for the respondent No.2 submits that respondent No.2 belongs to Scheduled Tribe community and as per their customs, the provisions of Hindu law are not applicable and under the custom, she had already dissolved the marriage with her husband Ram Singh under permissible custom of "Nata". Learned counsel for the respondent No.2 next contends that the law is well settled that if the FIR discloses commission of cognizable offence, it cannot be quashed at the initial stage, the correctness of the allegation would be the subject matter of the investigation itself. 5. Now, the point for consideration is whether the relationship between the petitioner and the complainant as disclosed in the FIR and the attending circumstances makes out a case of consensual relationship. If the answer would be in positive, the most important ingredient of offence of rape as defined under Section 375 IPC stands missing, as such allowing the criminal prosecution to stand, would be abuse of the process of law. If the FIR discloses the fact that consent was obtained by fraud or under some misconception of fact, the consent would be no consent and the allegation would be required to be investigated. 6. It has not been disputed that the prosecutrix brought a case for dissolution of her marriage with Ram Singh on 20.9.2021. As such her marriage was subsisting with Ram Singh till that date. 6. It has not been disputed that the prosecutrix brought a case for dissolution of her marriage with Ram Singh on 20.9.2021. As such her marriage was subsisting with Ram Singh till that date. As such allegation of "promise of marriage" to a married lady whose marriage was not dissolved earlier, would be treated as bald allegation. It is also a fact that the relationship between the prosecutrix and the petitioner was in between the year 2015 to 22.9.2020 when the marriage of the prosecutrix was subsisting with Shri Ram Singh. 7. Identical question was considered by the Supreme Court in Prashant Bharti v. State (2013) 9 SCC 293 . In that case also, allegation against the accused was of physical relation on the assurance that he would marry with the prosecutrix. In para 17 of the judgment, the Hon'ble Supreme Court noted "obviously, an inducement for marriage is understandable if the same is made to an unmarried person." As referred above, the marriage of the prosecutrix with Shri Ram Singh was subsisting during the long period of physical relationship of the prosecutrix with the petitioner. The Hon'ble Supreme Court further stated that "In such a fact situation, the assertion made by the complainant/prosecutrix, that the appellant-accused had physical relations with her, on the assurance that he would marry with her, is per se false and as such, unacceptable. She, more than anybody else, was clearly aware of the fact that she had a subsisting valid marriage with Lalji Porwal. Accordingly, there was no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage." 8. In Pramod Suryabhan Panwar v. State of Maharashtra & Anr., (2019) 9 SCC 608 , the Hon'ble Supreme Court said that "consent" with respect to Section 375 IPC involves active understanding of circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as various possible consequences flowing from such action or inaction, consents to such action. 9. The factual scenario of this case discloses that the physical relation between the accused and the prosecutrix was a reasoned choice of the prosecutrix as she was already married with Ram Singh and marriage was subsisting during entire six years relationship. 9. The factual scenario of this case discloses that the physical relation between the accused and the prosecutrix was a reasoned choice of the prosecutrix as she was already married with Ram Singh and marriage was subsisting during entire six years relationship. The allegation of physical relation with the petitioner is in between the year 2015 to 2020, during subsistence of marriage of the prosecutrix with Shri Ram Singh. Therefore, it cannot be argued that this was a case of misconception of fact to vitiate the consent. Since the prosecutrix had brought a judicial proceeding for dissolution of marriage with Shri Ram Singh, it cannot be said that marriage was dissolved through any other permissible mode, as per custom governing the prosecutrix. Therefore, the physical relation, though the petitioner has denied, between the prosecutrix and the petitioner as alleged in the FIR, was a reasoned and deliberate relationship and not due to deceived consent. 10. In the circumstances, continuance of the criminal proceedings pursuant to the impugned FIR would be an abuse of process of law, hence the impugned FIR and all subsequent proceedings arising out of the same, stands hereby quashed and this petition is allowed. Pending applications, if any, also stand disposed of.