Madhya Pradesh High Court

Devendra Kumar Sharma @ Pintu vs The State Of Madhya Pradesh on 16 March, 2021

Author: Gurpal Singh Ahluwalia

     1 THE HIGH COURT OF MADHYA PRADESH
                 M.Cr.C. No.52360/2018
Devendra Kumar Sharma @ Pintu Vs. State of M.P. and another

Gwalior, Dated:16/03/2021

         Shri J.S. Rathore, Counsel for the applicant.

         Shri Ravi Vallabh Tripathi, Counsel for respondent no.1/State.

Shri Anshuman Dudawat, Counsel for respondent no.2.

Heard on the question of admission.

1. This application under Section 482 of Cr.P.C. has been filed for

quashing F.I.R. in Crime No.125 of 2018 registered at Police Station

Sirol, Distt. Gwalior for offence under Sections 376, 294, 406, 417 of

I.P.C. and all subsequent criminal proceedings.

2. It is the case of the applicant, that the applicant was living in

Live-in-Relationship with the respondent no.2, for the last 8 years.

During this period of Live-in-Relationship, the applicant was

financially exploited by the respondent no.2 and her family members.

Since, the respondent no.2 was continuously extending threats that

She would falsely implicate the applicant in a rape case, therefore,

the applicant made several complaints to the police. However, the

police authorities did not take any action in the matter. Thereafter, the

applicant filed a private complaint against the respondent no.2 and

her family members on 29-8-2018 for offence under Sections 384,

388, 389, 420 and 120B of IPC and the Trial Magistrate by order

dated 29-8-2018 sought report from the police.

3. It is submitted that the respondent no.2 has lodged a F.I.R. 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.52360/2018 Devendra Kumar Sharma @ Pintu Vs. State of M.P. and another

against the applicant in crime No.125/2018 for offence under

Sections 376, 294, 506 and 417 of IPC on the allegations, that the

applicant developed physical relationships with the complainant by

making false promise of marriage. The relationships continued from

2010 to 2018. In the year 2011, the complainant met with the family

members of the applicant, who also recognized the complainant as a

member of their family. Thereafter, she continuously visited the

family of the applicant. The sisters of the applicant as well as the

father of the applicant, also accepted the complainant as member of

their family. During this period of 8 years, the applicant took her to

various places like Goa, Shimla, Manali, Rohtange, Laddakh etc. and

the complainant continued with her relationship under the

impression, that since, the entire family has accepted her, therefore,

the applicant would certainly marry her. On 26-8-2017, the father of

the applicant informed the brother of the complainant, that the

marriage of the applicant with the complainant would never take

place. Then, her brother informed that not only the complainant is

interested in getting married to the applicant, but the applicant is also

interested in marrying her. However, the father of the applicant

replied that he would convince his son. Thereafter, the applicant

abused the prosecutrix very filthily. Thereafter, she lost her

confidence on the applicant. In the meanwhile, the sister of the 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.52360/2018 Devendra Kumar Sharma @ Pintu Vs. State of M.P. and another

applicant also abused her. After two months, the complainant came to

know that now the applicant is proposing some other girl.

Accordingly, she had a talk with the said girl. Thereafter, the

applicant started spending time with one Girl, namely, Urvashi.

When the complainant talked to the applicant, then he promised that

he is in love with the complainant only, and would marry her only.

On 15th June, she came to Gwalior, then the applicant called his

friends and disclosed that as the complainant has come, therefore,

now he would marry her. On the promise made by the applicant, the

complainant once again started living with him. On 14 th July, the

applicant purchased Mangalsutra for the complainant. Thereafter,

they went to Arya Samaj Mandir, where application for marriage was

filled, but the applicant did not deposit his ID proof, and promised

that he would deposit the same by the evening. When the

complainant enquired from the applicant, as to why he did not

deposit his ID, then She was mercilessly beaten by the applicant, as a

result She sustained injuries on her lips, cheek and ear. Thereafter, the

applicant insisted that the complainant must go back to Banglore,

Thereafter, the complainant replied that she would go back either

after marrying him or after terminating the relationships. Thereafter,

on 14-7-2018, the applicant, after tying her hands and legs with bed,

forcibly committed rape on her. As the complainant was screaming, 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.52360/2018 Devendra Kumar Sharma @ Pintu Vs. State of M.P. and another

therefore, the applicant started the Cooler to suppress her screams.

Thereafter, the applicant once again promised her to marry her.

When the complainant extended a threat that She would lodge a

report, then She was locked in the room of the flat of his friend

Gajendra. Food was not given and her mobile was also taken away.

Looking to her precarious condition, the complainant was left at the

railway station, from where She came back to Banglore. Thereafter,

the applicant called her and threatened that in case if she comes to

Gwalior, then he would throw acid on her.

4. Challenging the F.I.R. lodged by the complainant, it is

submitted by the Counsel for the applicant, that it is clear from the

FIR itself, that the prosecutrix was in live-in-relationship with the

applicant for the last almost 8 years. The complaint was already filed

by the applicant before the Court of competent jurisdiction, much

prior to lodging of F.I.R., and report from the police was also called

by the Court. It is further submitted that on various occasions, the

applicant had transferred money in the account of the complainant,

and her only intention was to financially exploit the applicant. To

buttress his contentions, the Counsel for the applicant has relied upon

the judgments passed by the Supreme Court in the case of Sonu @

Subhash Kumar Vs. State of U.P. and another passed in Criminal

Appeal No. 233 of 2021 on 1st March 2021, in the case of Pramod 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.52360/2018 Devendra Kumar Sharma @ Pintu Vs. State of M.P. and another

Suryabhan Pawar Vs. The State of Maharashtra and another

passed in Cr.A. No. 1165 of 2019 on 21-8-2019, Dr. Dhruvaram

Murlidhar Sonar Vs. State of Maharashtra reported in 2019(1)

Crimes 20(SC), Deepak Gulati Vs. State of Haryana reported in

2013(2) Crimes 311 (SC), Uday Vs. State of Karnataka reported in

2003(2) Crimes 176 (SC), judgments passed by this Court in the

case of Udaypal Singh Vs. State of M.P. in M.Cr.C. No. 48480 of

2018 (Indore Bench), and in the case of Devendra Rai Vs. State of

M.P. and another passed in M.Cr.C. No. 52889 of 2018 (Indore

Bench).

5. Per contra, it is submitted by the Counsel for the complainant,

that the complainant was ditched by the applicant. The complainant

had become pregnant also, but she was turned out by the applicant.

Accordingly, She filed W.P. No.25126 of 2018 before the High Court

for Medical Termination of Pregnancy and the said writ petition was

allowed by order dated 13-11-2018 and permission was granted for

Medical Termination of Pregnancy. However, the Doctors were also

directed to preserve the DNA sample of foetus.

6. The Counsel for the State also submitted that it is clear from

the F.I.R. as well as the statement of the prosecutrix recorded under

Section 161 of Cr.P.C. that on 14-7-2018, the applicant had physical

relations with the prosecutrix forcibly without her consent, as a result 6THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.52360/2018 Devendra Kumar Sharma @ Pintu Vs. State of M.P. and another

She became pregnant. It is further submitted that the police after

concluding the investigation has already filed the charge sheet

against the applicant in the year 2018 itself.

7. Heard the learned Counsel for the parties

8. The Charge sheet has been filed against the applicant in the

year 2018 itself, but the stage of Trial is not known. It is not known

as to whether any charges have been framed or not. It is also not

known as to whether the charges were ever challenged or not? Be

that as it may be. An application for quashment of proceedings filed

under Section 482 of Cr.P.C. cannot be dismissed only on the ground

that the charge sheet has been filed.

9. Undisputedly, the prosecutrix is major, therefore, her consent

would be material.

10. If the F.I.R. is read in its entirety, then it would be clear that it

can be bifurcated in two parts :

(i) relationship prior to 14-7-2018; and,

(ii) relationship on and subsequent to 14-7-2018.

11. It is the case of the prosecutrix that as She was fed up with the

false promise of marriage made by the applicant, therefore, She

decided that she would go back to Bangalore only after either getting

married to the applicant, or would terminate the relationship. If the

allegations of rape committed by applicant on 14-7-2018 are 7THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.52360/2018 Devendra Kumar Sharma @ Pintu Vs. State of M.P. and another

considered in the backdrop of the mindset of the prosecutrix, then it

is clear that She had already decided, that either the applicant should

marry her or else She would not move ahead with the relationship. In

such a situation, when the applicant committed rape on the

prosecutrix after tying her hands and legs with a bed, then by no

stretch of imagination, it can be held that the act of sex on 14-7-2018,

was the outcome of live-in-relationship between the applicant and the

prosecutrix. Further, the prosecutrix got pregnant because of sexual

act on 14-7-2018 and accordingly, She also filed a Writ Petition for

Medical Termination of Pregnancy which was registered as W.P.

No.25126 of 2018, and the co-ordinate Bench of this Court, by

relying upon the allegation of the prosecutrix that She was raped by

the applicant, permitted the Medical Termination of Pregnancy.

12. It is submitted by the Counsel for the applicant, that so far as

the allegation of rape on 14-7-2018 after tying her hands and legs is

concerned, the same is false as it has not been alleged by the

prosecutrix in her statement recorded under Section 164 of Cr.P.C.

13. The Counsel for the applicant, could not point out any

provision of law, which gives preference to the statement recorded

under Section 164 of Cr.P.C., over the statement under Section 161 of

Cr.P.C. This Court in exercise of power under Section 482 of Cr.P.C.

cannot compare the statements recorded under Section 161 of Cr.P.C.

8THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.52360/2018 Devendra Kumar Sharma @ Pintu Vs. State of M.P. and another

with statement under Section 164 of Cr.P.C., to hold that which of

them is more reliable and acceptable. The applicant would get full

opportunity to point the omissions in different statements at the time

of examination of prosecutrix.

14. Now the question for consideration is that under what

circumstances, it can be held that the physical relationship between

the accused and prosecutrix was consensual sex and the consent was

not obtained by misconception of fact.

15. In Deepak Gulati (Supra) it has been held by the Supreme

Court that if the accused's promise was not false and was not made

with sole intention to seduce the prosecutrix to indulge in sexual acts,

then such act(s) would not amount to rape.

16. Similarly, in the case of Pramod Suryabhan Pawar (Supra),

it has been held by Supreme Court that where the promise to marry is

false and the intention of the maker at the time of making promise

itself was not to abide by it but to deceive the woman to convince her

to engage in sexual relations, there is a "misconception of fact" that

vitiates the woman's consent.

17. If the allegations made in the present case are considered, it is

clear that in the month of June 2018, the applicant went to Arya

Samaj Mandir along with the prosecutrix for the purposes of

marriage, but the marriage could not be solemnized because the 9THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.52360/2018 Devendra Kumar Sharma @ Pintu Vs. State of M.P. and another

applicant had not brought his ID proof. If the applicant had an

intention to marry the prosecutrix, then either he should have carried

his ID proof with him, or could have deposited at a later stage, but

that was not done. Further, by purchasing Mangalsutra, the applicant

had tried to give a bonafide impression in the mind of the prosecutrix

that he is really serious in marrying the prosecutrix. With this

background, when the prosecutrix refused to further indulge in sexual

relationship with the applicant on 14-7-2018, then She was raped by

the applicant after tying her hands and legs with bed.

18. In order to find out that whether any particular act of physical

relationship was a consensual act or was a rape, the theory of once a

consenting party, always a consenting party cannot be applied. For

each and every act of physical relationship, the consent of the

prosecutrix is necessary. In the present case, it is the allegation of the

prosecutrix that She was raped by the applicant on 14-7-2018, and in

the backdrop of the fact that in the month of June, 2018, the applicant

had tried to project that he is serious in marrying the prosecutrix and

also took her to Arya Samaj Mandir after purchasing Mangalsutra,

but the marriage could not be solemnized only because the applicant

had not brought his ID proof, coupled with the fact, that the

prosecutrix had filed W.P. No.25126 of 2018 for medical termination

of pregnancy on the ground that She was subjected to rape, and 10THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.52360/2018 Devendra Kumar Sharma @ Pintu Vs. State of M.P. and another

relying upon the allegation made by the prosecutrix, the co-ordinate

Bench of this Court, permitted the Medical Termination of

Pregnancy, this Court is of the considered opinion, that there is prima

facie material available on record for prosecution of the applicant for

committing rape on the prosecutrix.

19. So far as the complaint filed by the applicant against the

prosecutrix is concerned, at the most it can be said to be his defence.

Further, there is nothing on record to show as to what ultimately

happened in the said complaint.

20. Accordingly, this Court is of the considered opinion, that

neither the FIR in Crime No.125/2018 registered at Police Station

Sirol, Distt. Gwalior, can be quashed nor the Charge sheet.