Court: Madhya Pradesh High Court
Bench: JUSTICE G.S. Ahluwalia
Digvijay @ Ansh vs The State Of Madhya Pradesh Thr on 29 June, 2018
Law Point:
JUDGEMENT
An information has been sent by the Secretary, the High Court Bar Association, Gwalior to the Principal Registrar, High Court of MP, Bench Gwalior to the effect that the President, Vice President and some other members of the Bar were attacked by some miscreants, as a result of which the lawyers are abstaining from work.
Shri Sukhvir Singh, the father of the applicant, is present in person. It is submitted by the pairokar of the applicant that he has been duly authorized and instructed by the applicant to argue the matter. The pairokar of the applicant was informed that if he feels that he is not well- acquainted with the law, then he may not argue, but still he submitted that the investigation may be stayed and notice may be issued.
Heard the pairokar of the applicant.
This petition under Section 482 of CrPC has been filed for quashing the FIR in Crime No.246/2018 registered at Police Station Padav, District Gwalior for offence under Section 376 of IPC and Section 3(1)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
It is submitted by the pairokar of the applicant that on 13/05/2018, the respondent No.2 has lodged a report against the applicant for offence under Section 376 of IPC and Section 3(1)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The copy of the FIR has been placed on record.
2 MCRC- 22695/2018 As per the allegations made in the FIR, it appears that the respondent No.2 lodged a report to the effect that she is resident of Thatipur, District Gwalior and she was the friend of the applicant and the applicant was known to her for the last five -six years and even, the parents of the applicant used to meet with the prosecutrix. On 3 rd November, 2017, the applicant for the first time took the prosecutrix to his house situated in Railway Colony, Gwalior and at that time, there was nobody in the house. The applicant, without the consent of the prosecutrix and by making a false promise of marriage, committed rape on her. Thereafter, on 15/03/2018 at about 12:00 pm the applicant again took her to his house where the brother-in-law of the applicant Neeraj Sikarwar, and one friend of the applicant were present. The applicant requested them to go out and accordingly, both of them left the house. Thereafter, the applicant took her to his room and offered water which was mixed with some narcotic substance and after drinking water, the prosecutrix started feeling uneasy. It is further alleged that the applicant thereafter tried to take off her clothes which was objected by her, but the applicant insisted that he would marry her, and therefore, committed rape on her. When the prosecutrix requested the applicant to marry her, then he refused to marry her and has threatened that in case, if the prosecutrix makes a complaint to anybody, then he would kill the prosecutrix and her family members. As the prosecutrix was afraid of the applicant, therefore, she did not lodge the report immediately. On the basis of the report, the police has registered the crime for the above-mentioned offences. It is submitted by the pairokar of the applicant that in fact, the applicant and the prosecutrix were having love affairs and 3 MCRC- 22695/2018 out of deep love, the prosecutrix continued to have physical relations knowing-fully well that the applicant is avoiding the question of marriage. The consent given by the prosecutrix was the free consent and it cannot be said that the consent of the prosecutrix was obtained by misconception of fact. It is submitted that this Court by order dated 18/05/2017, passed in the case of Abid Ali vs. State of MP and Another [ MRC 11363/2016] has quashed the proceedings by holding that the prosecutrix was deeply in love with the applicant and she continued to have physical relations with the applicant, knowing-fully well that the applicant was avoiding the question of marriage and accordingly, it cannot be said that the consent of the prosecutrix was obtained by making a false promise of marriage. It is further submitted by the pairokar of the applicant that the facts and circumstances of the present case are squarely covered by the facts and circumstances of the case of Abid Ali(supra). It is further submitted by the pairokar of the applicant that whats-app conversation between the applicant and the prosecutrix clearly establishes that they were in deep love with each other. The prosecutrix was aware of the fact that the marriage of the prosecutrix with the applicant is not possible.
Considered the submissions made by the pairokar of the applicant.
So far as the submissions made by the pairokar of the applicant that the facts and circumstances of the present case is squarely covered by the facts and circumstances of the case of Abid Ali (supra) is concerned, the same is misconceived and cannot be accepted. In the said case, the allegations were that the applicant therein was used to take the prosecutrix to various places including his farmhouse 4 MCRC- 22695/2018 and on various occasions the prosecutrix allowed the applicant therein, to have physical relations with her. However, in the present case, as per the allegations made in the FIR, the applicant had raped the prosecutrix for the first time on 3rd November, 2017 and raped the prosecutrix for the second time on 15/03/2018.
So far as the allegations of committing rape on 15/03/2018 is concerned, it is specifically alleged that the applicant had mixed some narcotic substance in the water, which was offered by him, as a result of which she became uneasy and the applicant forcefully committed rape on her in spite of her objection. The prosecutrix has also given an explanation in the FIR for not lodging the report immediately. Whether the explanation given by the prosecutrix for delayed FIR is plausible or not, cannot be considered at this stage, because it is a matter of trial and it is for the trial Court to come to the conclusion that whether the explanation given by the prosecutrix for delay in lodging the FIR is plausible or not. However, one thing is clear. Where pride and dignity of the family of the prosecutrix are involved, then it is naturally that a person before lodging the FIR, may think about the pros and cons of such report. When the prosecutrix is afraid of getting defamed in the society because of the fact that she was sexually violated by her friend, then such an apprehension cannot be said to be baseless. However, as already pointed out, it is for the trial Court to appreciate the evidence which would come on record in this regard.
Section 90 of the IPC reads as under:-
”90. Consent known to be given under fear or misconception.- A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person 5 MCRC- 22695/2018 doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.-if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.-unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.” Thus, the moot question for consideration is that whether the consent of the prosecutrix was obtained by the applicant under misconception of fact or not ?
From the FIR, it appears that the applicant and the prosecutrix were friends. The friendship between persons of opposite gender cannot be said to be only for one purpose. Therefore, it cannot be said that merely because the prosecutrix accepted the friendship of the applicant, therefore, she agreed for physical relations. Even it is mentioned in the FIR that the prosecutrix used to meet the parents of the applicant also. It is alleged that on 3 rd November, 2017 the applicant committed rape on the prosecutrix for the first time and when she objected to it, then the applicant made a promise that he would marry her. Therefore, it is clear that in order to justify his act of committing rape on the prosecutrix, the applicant had made a promise of marriage. For the second time, the applicant raped the prosecutrix on 15/03/2018 and again at that point of time, the applicant made a promise of marriage. Thus, it cannot be said that the prosecutrix was a consenting party for the physical relations but on the contrary, it is apparent from the FIR that in order to justify his act of committing rape on the prosecutrix, the applicant made a promise of marriage. Thus, it cannot be said that the prosecutrix agreed to have physical relations with the 6 MCRC- 22695/2018 applicant under an impression that the applicant would marry. Thus, it is clear that the law laid down by this Court in the case of Abid Ali (supra) has no application to the facts and circumstances of the present case.
It is informed by the pairokar of the applicant that the applicant has not been arrested so far. Thus, it is clear that the applicant has approached this Court under Section 482 of CrPC for quashment of FIR at the most early stage.
It is well-established principle of law that the defence of the accused cannot be accepted at this stage. It is also well established principle of law that the legitimate prosecution cannot be stifled in the midway.
Accordingly, considering the allegations made in the FIR, this Court is of the considered opinion that prima facie, there are sufficient allegations against the applicant warranting registration of offence under Section 376 of IPC and Section 3(1)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The FIR in Crime No.246/2018 registered at Police Station Padav, District Gwalior for offence under Section 376 of IPC and under Section 3(1)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act cannot be quashed.
This petition fails and is accordingly dismissed.
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