Krishna Srivastava vs State Of U.P. And Another
2021 Latest Caselaw 1290 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 77
 

 
Case :- APPLICATION U/S 482 No. - 23726 of 2019
 

 
Applicant :- Krishna Srivastava
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ganesh Shanker Srivastava
 
Counsel for Opposite Party :- G.A.,Dhirendra Kumar Srivastava,Ranvir Singh,Shams Uz Zaman
 

 
Hon'ble Pankaj Bhatia,J.

Heard counsel for the parties.

The present application has been filed seeking quashing of the charge-sheet dated 20.2.2019 bearing charge-sheet No. 09 of 2019 as well as the cognizance order dated 19.02.2019 in Special Trial No. 176 of 2019 (State Vs. Krishna Srivastava) arising out of Case Crime No. 1019 of 2018, under Section 376 IPC and Section 3(2) (V) of SC/ST Act, P.S. Khorabar, District Gorakhpur pending before the Court of Additional District and Sessions Judge/Special Judge, SC/ST Act, Gorakhpur.

The contention of the counsel for the applicant is that the informant Rajni Chauhan daughter of Gyan Prasad lodged an FIR bearing Case Crime No. 1019 of 2018, against the applicant mainly alleging that the informant had developed friendship with one Ragini Srivastava for the last 6 to 7 years while she was studying in University at Gorakhpur. Subsequently, she met the brother of Ragini, namely, Krishna Srivastava, the applicant, and developed intimacy for the last two years. It was further alleged that on account of promise of marriage, they continued to be in physical relationship for more than two years. It was further stated that when the informant pressurized the applicant for marriage, the same was solemnized on 7.12.2016 at Surya Mandir (Ramkola), Padrauna, District Kushinagar, however, it was alleged that the applicant refused to keep her with him. It was stated that she kept on pressurizing the applicant to allow her to stay with him, however, when she came her house on 25.11.2018, the applicant entered in her house and committed rape with her, as such the FIR in question was filed on 5.12.2018.

The statement of victim was recorded under Section 161 Cr.P.C., wherein she stated that she is 25 years of age and once again reiterated that on account of promise of marriage, for the last two years the applicant was making physical relations with her and on her pressurizing, he took her to Ramkola Temple on 7.12.2016 and applied Sindur and thus they were married, however, he did not allow her to stay with him and on 25.11.2018 the incident as narrated in the FIR was restated in the said statement. Subsequently, statement was recorded under Section 164 Cr.P.C. on 12.12.2018, wherein she reiterated the facts as were stated in the FIR.

Counsel for the applicant has drawn my attention to another statement dated 29.12.2018 given by the informant to the police authorities stating that despite the statements, the applicants were not being arrested by the police authorities. Counsel for the applicant has drawn my attention to the notice dated 20.11.2018 served on behalf of advocate of the OP No. 2, wherein the facts regarding marriage were disclosed and the applicant was called upon to not to demand dowry and he was further threatened that the applicant should keep the informant as his wife in terms of the marriage that was performed on 7.12.2016.

Counsel for the applicant places reliance on the judgments of Hon'ble Supreme Court in the cases of Deepak Gulati v. State of Haryana, Judgment dated 20.5.2013 passed in Criminal Appeal No. 2322 of 2010, Pramod Suryabhan Pawar v. The State of Maharashtra and Another; (2019) 9 SCC 608, Dr. Dhruvaram Murlidhar Sonar v. The State of Maharashtra and Others, Judgment dated 22.11.2018 passed in Criminal Appeal No. 1443 of 2018 and Maheshwar Tigga v. State of Jharkhand; 2020 LawSuit(SC) 595 to stress that accepting all the allegations to be true, the charge-sheet is liable to be quashed for the simple reason that even as per the statement of the informant and the victim, the marriage did take place on the date specified i.e. 7.12.2016 at Padrauna. He further argues that even if there is no marriage and there is a consensual relationship on the ground of promise of marriage, such acts which continue for as long as two years, cannot constitute the offence of rape and as there is nothing on record to demonstrate that the physical relation was non-consensual.

Counsel for the OP No. 2 on the other hand argues that the applicant is refusing to keep the victim as his married wife and thus the application should be dismissed.

Counsel for the OP No. 2 has drawn my attention to the counter affidavit filed on behalf of OP No. 2, wherein the version of the OP No. 2 has been relevant, extracts of which are quoted hereinbelow:-

"In the year 2017 at the time of the marriage of the sister of the accused applicant the opposite party no. 2 also provided her Rs. 15,000/- as financial help, on the pretext of the marriage the accused applicant has physical relation with the opposite party no. 2 and also brought her to Surya Mandir Sun Temple at Ramkola District Kushinagar on 07.12.2016 and married to her at temple.

That in the month of November, 2018 the opposite party no. 2 was in acute need of money for depositing her school fee as well as to pay the rent of her house then she requested with the accused applicant to return her money Rs. 15,000/- as provided to him at the time of marriage of his sister but the accused applicant refused to pay the same then the opposite party no. 2 having no option moved an application before Police Station Shahpur, District Gorakhpur on 08.11.2018 mentioning the entire fact. True copy of the application dated 08.11.2018 is being filed herewith and marked as Annexure No. SCA-1 to this short counter affidavit.

That it is also relevant to mention here that the accused applicant in continuous contact with the opposite party no. 2 through mobile as well as whatsapp messages through her mobile no. 9838380931, this fact is evident from the whatsapp chatting between the applicant and opposite party no. 2. True copy of the some whatsapp messages are being filed herewith and marked as Annexure No. SCA-3 to this short counter affidavit."

In view of the submissions as recorded above, what is to be determined by this Court is whether on the basis of the averments made in the FIR and the statements, an offence can be said to have been committed under Section 376 IPC.

Section 376 IPC provides for punishment to a person who commits rape with a rigorous imprisonment for a term not less than 10 years, which may extend to imprisonment for life and also shall be liable to fine. The word ''rape' is defined in Section 375 IPC and is quoted hereinbelow:-

"2[375. Rape.--A man is said to commit "rape" if he--

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman of makes her to do so with him or any other persons; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under circumstances falling under any of the six following seven descriptions:--

First -- Against her will.

Secondly --Without her consent.

Thirdly -- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly--With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly -- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly -- With or without her consent, when she is under sixteen years of age.

Explanation.1--For the purposes of this section "vagina" shall also include labia majora.

Explanation.2-- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception .1-- A medical procedure or intervention shall not constitute rape,.

Exception .2-- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.]"

To implicate a person accused of rape, it is essential that one of the aforesaid 6 descriptions as explained in Section 375 IPC should exist and the contingencies of Exception should not exist.

In the present case, there is no averment that the physical intercourse in between the applicant and the opposite party no. 2 was against her will, in fact, from the averments made in the FIR what bears is that the marriage had taken place as admitted in the counter affidavit and as disclosed in the statements, at least i.e. what appears to be the understanding of the opposite party no. 2. The averments made in the counter affidavit further make it clear that the opposite party no. 2 continue to engage in physical relationship with the applicant under the belief that the applicant shall marry her one day as they had engaged into an informal wedding at a temple.

The whole edifice of the case said by the opposite party no. 2 is that the consent for the sexual intercourse was based upon the promise of marriage as allegedly given by the applicant. There is nothing on record to demonstrate that the sexual intercourse in between the applicant and the opposite party no. 2 was not consensual and thus what is to be seen is whether the consent is not a consent as clarified in Section 90 of the IPC. Section 90 IPC is quoted hereinbelow:-

"90. Consent known to be given under fear or misconception.--A consent is not such a consent as it 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 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."

There is nothing on record to demonstrate that the consent of the opposite party no. 2 was under any fear of injury and further it cannot be said that the consent was under a misconception of fact unless it could be demonstrated that the consent was given under that fear or misconception.

The Apex Court in the case of Pramod Suryabhan Pawar (supra) has dealt with the scope of Section 90 of IPC and has recorded as under:-

"24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her." (Emphasis supplied) 17. In Uday v State of Karnataka12 the complainant was a college going student when the accused promised to marry her. In the complainant's statement, she admitted that she was aware that there would be significant opposition from both the complainant's and accused's families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The court observed that in these circumstances the accused's promise to marry the complainant was not of immediate relevance to the complainant's decision to engage in sexual intercourse with the accused, which was motivated by other factors:

(2003) 4 SCC 4625.There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception."

There is nothing on record to demonstrate that the consent given by the opposite party no. 2 was induced by any misconception of fact.

In the present case, the Exception-2 as given in the second proviso is also relevant. From the perusal of the documents on record as well as in the FIR and the legal notice that was got served, it is clear that the informant made specific averment that she was married to the accused at Ramkola Temple on 7.12.2016 and in fact the legal notice that was got served indicated that the accused was called upon not to demand dowry and to keep the informant with him. In short, a legal notice was got served on the accused for restitution of conjugal rights, once these facts are contained in the foundation i.e. the First Information Report, the statement and the notice clearly Exception-2 to the second proviso to Section 375 IPC is attracted, more so in view of the fact that the girl admittedly is not under 15 years of age. On that count also, the offence of Section 375 IPC is not made out in the present case. This fact is also borne out from the fact that the assertion with regard to the legal notice has been made in para 21 of the application, to which there is no denial whatsoever in the counter affidavit filed on behalf of opposite party.

Coming to the question of Section 3(2) (v) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the same is quoted hereinbelow:-

"(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property 1[knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine."

Once again there is nothing on record to demonstrate or even to allege that the alleged offence under Section 376 IPC was committed knowing that the opposite party no. 2 is a member of Scheduled Caste or Scheduled Tribes, once such averments are absent in the entire records, no case can be said to be made out against the applicant under Section 3(2) (V) of SC/ST Act.

Considering the facts as disclosed above and on the basis of material as recorded above, I am of the firm view that the proceedings pending against the applicant are nothing but an abuse of process of law and the applicant has made out a case for exercise of extraordinary powers of this Court and to record that the proceedings instituted and being carried against the applicant are an abuse of process of law.

Accordingly, the charge-sheet dated 20.2.2019 bearing charge-sheet No. 09 of 2019 as well as the cognizance order dated 19.02.2019 in Special Trial No. 176 of 2019 (State Vs. Krishna Srivastava) arising out of Case Crime No. 1019 of 2018, under Section 376 IPC and Section 3(2) (V) of SC/ST Act, P.S. Khorabar, District Gorakhpur pending before the Court of Additional District and Sessions Judge/Special Judge, SC/ST Act, Gorakhpur. are quashed.

The application is allowed.

Order Date :- 21.1.2021

S. Rahman