State vs Avinash Oram Kujur
2013 Latest Caselaw 973 Del

$~5 & 7
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CRL.REV.P. 193/2012
     DIVYA ORAM KUJUR                                           ..... Petitioner
                        Through:     Ms.Protima Parihar, Advocate

                        versus

     STATE & ANR                                            ..... Respondent
                        Through:     Ms.Rajdipa Behura, APP for the State
                                     Mr.K.K.Malhotra, Advocate for R-2

+    CRL.REV.P. 379/2012
     STATE                                                      ..... Petitioner
                        Through:     Ms.Rajdipa Behura, APP for the State

                        versus

     AVINASH ORAM KUJUR                                    ..... Respondent
                 Through:            Mr.K.K.Malhotra, Advocate


     CORAM:
     HON'BLE MR. JUSTICE G.P. MITTAL
                    ORDER

% 27.02.2013

1. As per the allegations made by the prosecution, the Petitioner Divya Oram Kujur and the Respondent (Accused) Avnish Oram Kujur hailed from the State of Orissa.

2. The Respondent (Accused) made the Petitioner to believe that he was not married and that he had a liking for her. In the year 2005, the Respondent (Accused) solemnized marriage with the Petitioner. After the marriage, the Petitioner had sexual relations with the Respondent.

3. According to the Petitioner, even in July, 2010 she (the Petitioner) pressurized the Respondent to have a court marriage and an affidavit in this regard was sworn by the parties.

4. According to the Petitioner, in the year 2010 she happened to go through some insurance documents, that is, Sarv Suraksha Advantage Policy Schedule and she came to know that the Respondent was already married. Thus, according to the Petitioner, she consented to the sexual intercourse with the Respondent only because she presumed that she was a legally wedded wife of the Respondent.

5. Learned ASJ, Saket Court, Delhi vide impugned order held that the Petitioner had sexual intercourse with the Respondent out of her free will, and therefore, even if the allegations levelled are believed, the same would amount to commission of an offence punishable under Section 494 IPC only and no prima facie case for commission of offence under Section 376 IPC is made out. The Respondent was accordingly discharged.

6. The learned counsel for the Petitioner and the learned APP for the State urge that since the Petitioner gave consent to sexual intercourse believing that she was the legally wedded wife of the Respondent whereas the Respondent new that the Petitioner was not legally wedded wife as the Respondent was already married, the act of the Respondent committing sexual intercourse, in the circumstances would amount to rape. Learned APP for the State relies on a judgment of the Supreme Court in Bhupender Singh v. U.T. of Chandigarh, 2008 8 SCC 531.

7. On the other hand, learned counsel for the Respondent (Accused) places reliance on Sudhamay Nath @ Bachhu v. State of West Bengal, 1999 CRL. L.J. 4482 and Sunil Vishnu Salve & Anr. v. State of Maharashtra, 2006 CRL.L.J. 587 to urge that since the Petitioner voluntarily consented to sexual intercourse, it would not amount to rape.

8. The judgments cited by the learned counsel for the Respondent (Accused) are not attracted to the facts of the present case. In Sunil Vishnu Salve and Sudhamay Nath @ Bachhu, the prosecutrix had consented to the sexual intercourse on the promise of marriage and that promise was broken by the accused. In the instant case, the prosecutrix (the Petitioner) gave consent only believing that she was the legally wedded wife of the Respondent. Paras 16 and 17 of the report are extracted hereunder:-

"16. Though it is urged with some amount of vehemence that when the complainant knew that he was a married man, clause "Fourthly" of Section 375 IPC has no application, the stand is clearly without substance. Even though, the complainant claimed to have married the accused, which fact is established from several documents, that does not improve the situation so far as the appellant-accused is concerned. Since he was already married, the subsequent marriage, if any, has no sanctity in law and is void ab initio. In any event, the appellant-accused could not have lawfully married the complainant. A bare reading of clause "Fourthly" of Section 375 IPC makes this position clear.

17. It is pointed out by learned counsel for the appellant that the date of knowledge claimed by the complainant is 6-3-1994, but the first information report was lodged on 19-9-1994. The complainant has explained that she delivered a child immediately after learning about the incident on 16-4-1994 and, therefore, was not in a position to lodge the complaint earlier. According to her she was totally traumatised on learning about the marriage of the appellant-accused. Though the explanation is really not satisfactory, but in view of the position in law that the accused was really guilty of the offence punishable under Section 376 IPC, the delayed approach of the complainant cannot, in any event, wash away the offence."

9. The truthness or falsity of the allegations made by the Petitioner shall be matter of appreciation of evidence and shall be gone into only during trial.

10. In Bhupender Singh the Supreme Court laid down that when a person commits sexual intercourse with a woman making her believe that she is his wife, though she is not, the case would fall in clause fourthly to Section 375 IPC.

11. In view of this, the approach of the learned ASJ in discharging the Respondent (Accused) on the ground that there was no prima facie case against the Respondent (Accused) for the offence punishable under Section 376 IPC was illegal. The impugned order, therefore, cannot be sustained; the same is accordingly set aside.

12. Respondent No.2 (Accused) to appear before the learned ASJ on 01.04.2013.

13. Both the Petitions are allowed in the above terms.

14. Pending Applications stand disposed of.

G.P. MITTAL, J.

FEBRUARY 27, 2013 v