Arjun Singh vs The State Of Madhya Pradesh
2021 Latest Caselaw 690 MP

       THE HIGH COURT OF MADHYA PRADESH                     1
                 MCRC 10801 of 2021
              Arjun Singh vs. State of MP

Gwalior, Dated :15/03/2021

      Shri APS Sisodiya, Counsel for the applicant.

      Shri Indar Singh Asthana, Panel Lawyer for the respondents

No.1 and 2/ State.

Shri Ashutosh Pandey, Counsel for the respondent No.3.

This application under Section 482 of CrPC has been filed

for quashing the FIR in Crime No.11/2021 registered at Mahila

Thana, Padav, District Gwalior for offence under Sections 376(2)

(n), 417, 506 of IPC.

It is submitted by the Counsel for the applicant that

according to the prosecution case, the prosecutrix was married to

one Gabbar Goswami on 02/06/2011. Since behaviour of Gabbar

Goswami was not cordial towards the prosecutrix and he was in

habit of consuming ganja, liqour etc, as a result of which he

became mentally and physically sick. Whenever the prosecutrix

requested her husband to leave the ill-habits, then he used to abuse

her and beat her. The applicant who is Jeth (elder brother of

husband of the prosecutrix) took advantage of the situation and in

absence of her husband, he used to say that since her husband is

physically sick, therefore, he would not be in a position to satisfy

her requirements and accordingly, on 20 th March, 2015 the

applicant had physical relations with her. Thereafter, on various

MCRC 10801 of 2021 Arjun Singh vs. State of MP

occasions, he also promised that he would marry her and they

would enjoy the life and also pressurized the prosecutrix to take

divorce from Gabbar Goswami and he also assured that he would

construct a separate house for the prosecutrix and both would stay.

Later on, the applicant sold his house in the month of September,

2020. Whenever the prosecutrix used to attend the Court

proceedings in connection with her divorce case, the applicant also

used to accompany her and she was continuously violated by him

physically. She was always threatened by the applicant that in case

if she narrates to anybody, then she would be killed, therefore, she

did not inform the incident to anybody. Thereafter, in the month of

October, 2020, she started living separately in a rented premises. It

was further alleged that the applicant somehow managed to get the

new address of the prosecutrix and started visiting her and in the

month of October, 2020 he had physical relations with her forcibly.

Again on 18th December, 2020, he had forcible physical relations

with the prosecutrix and also assured that he would marry her and,

thereafter, the applicant did not come back. It is submitted that even

if the entire prosecution story is accepted, then it is clear that the

prosecutrix is a major lady and was a consenting party and under

these circumstances, it cannot be said that any false promise of

marriage was ever made by the applicant. It is further submitted

MCRC 10801 of 2021 Arjun Singh vs. State of MP

that the FIR has been lodged after inordinate delay of five years

and nine months and the FIR has been lodged with a clear intention

to misuse the process of law. In support of his contention, the

counsel for the applicant has relied upon the judgment passed by

the Supreme Court in the case of Pramod Suryabhan Pawar vs.

State of Maharashtra and Another, reported in (2009) 9 SCC

608. It is submitted by the counsel for the applicant that in the

month of August, 2020 also the applicant had given a cheque of

Rs.3 lac to the prosecutrix.

Per contra, the application is vehemently opposed by the

Counsel for the State as well as counsel for the complainant. It is

submitted by the Counsel for the State that so far as the cheque of

Rs. 3 lac which is alleged to have been given by the applicant to the

prosecutrix is concerned, the same is a defence which cannot be

considered at this stage. Further, there is nothing on record to

indicate that the said cheque was actually encashed because the

applicant has not filed any document to show his bank records.

Further, the fact that the applicant had given a cheque of Rs.3 lac to

the prosecutrix clearly indicates that he was having some

relationships with the prosecutrix.

Heard the learned counsel for the parties.

If the FIR in its entirety is read, then it is clear that it consists

MCRC 10801 of 2021 Arjun Singh vs. State of MP

of two parts which are as under:-

(i) The incident took place prior to October, 2020; and

(ii) The incidents took place after October, 2020.

It is the case of the prosecution that as the prosecutrix was

fed up by the activities of the applicant, therefore, she separated

herself and started leaving separately in a rented premises in the

house of one Aslam Khan and the applicant somehow managed to

get the new address of the prosecutrix and also started visiting her

house and under the threat of defaming her, he had forcible

physical relations with the prosecutrix in the month of October,

2020 and thereafter, on 18/12/2020.

If these two incidents of physical relationship are considered,

then by no stretch of imagination, it can be held that the prosecutrix

was a consenting party for the physical relationships which took

place between the applicant and the prosecutrix in the month of

October, 2020 and on 18/12/2020. For each and every act of

physical relationship, the consent of woman is required. It cannot

be held that a consenting party will always be a consenting party

for each and every subsequent act of physical relationship.

It is the specific case of the prosecutrix that she had

separated herself in the month of October, 2020 and started living

in a rented premises and there also, the applicant came and had

MCRC 10801 of 2021 Arjun Singh vs. State of MP

forcible physical relationships with her in spite of her objections. If

the act of rape committed by the applicant in the month of October,

2020 and on 18/12/2020 are considered, then it is clear that the FIR

which was lodged on on 09/01/2021 cannot be said to be a belated

FIR specifically when the case of divorce of the prosecutrix from

her husband is going on and the applicant is elder brother of her

husband. By no stretch of imagination, it can be said that the act of

physical relationship which took place between the applicant and

the prosecutrix in the month of October, 2020 and on 18/12/2020

was a consensual sex of the applicant and the prosecutrix.

Under these circumstances, this Court is of the considered

opinion that no case is made out for quashment of FIR as well as

quashment of investigation.

It is well-established principle of law that an unborn baby

should not be killed and legitimate prosecution should not be

stiffled in the mid-way.

Accordingly, the application fails and is hereby dismissed.

(G.S. Ahluwalia) Judge

MKB

MAHENDRA KUMAR BARIK 2021.03.17 18:28:38 +05'30'