Dr.Suhas Kamadi vs State
2021 Latest Caselaw 9165 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 935/2014

Dr.Suhas Kamadi S/o Gulab Rao Kamadi, r/o 68/2-Mahalaxmi Nagar, Manebara Road, P.S. Hudkeshwar Nagpur (Maharashtra).

----Petitioner Versus

1. State of Rajasthan

2. Smt. Meenakshi D/o Ghanshyam Sharma, R/o F-114, Subhash nagar, Bhilwara (Raj.)

----Respondent

For Petitioner(s) : Mr.Ashok Kumar, Adv.

For Respondent No.1      :     Mr.S.S.Rajpurohit, PP
For Respondent No.2            Mr.D.S.Udawat, Adv.



         HON'BLE MR. JUSTICE MANOJ KUMAR GARG

                                    Order

Order Reserved on :                 08/04/2021
Date of pronouncement:               09/04/2021

By the instant criminal revision petition under Section

397/401 Cr.P.C., the accused-petitioner has challenged the order

dated 07.07.2014 passed by the learned Additional Sessions

Judge (Women Atrocities Cases), Bhilwara in Sessions Case

No.36/2013, whereby the learned trial court framed charges

against the petitioner for the offences under Sections 494, 495,

420 & 376 IPC.

Brief facts of the case are that an FIR was registered

against the petitioner upon filing of a complaint by respondent

No.2, which was sent by learned competent Court to Police u/s

156(3) Cr.P.C. The gist of allegations levelled in the complaint

(2 of 5) [CRLR-935/2014]

was that accused No.1 (the present petitioner) made contact

with the complainant while she was working at Krishna

Hospital, Bhilwara and accused gradually increased his contact.

He started making physical relations with the complainant by

promising to get higher position and higher salary. After some

time, when the complainant did not get the high position and

increased salary, she suspected the intention of the accused,

however, on assurance of accused to marry her, the

complainant believed the falsehood of the accused, who

continued sexual abuse by promising the marriage to her. It is

further stated by the complainant that she fell into trap of the

accused and due to fear of slander in the society as well as

family, there was no other option except to marry the accused.

Accordingly, the complainant got married with accused on

31.07.2012 at Chamunda Mata Temple at Harani Mahadev. The

obscene photographs taken by trick photography were also

stated to be in possession of the accused. While alleging other

allegations, the complainant stated that she also handed over

the stridhan as deposit i.e. gold necklace, rakadi set, silver

anklet, which were kept by the accused. After thorough

investigation, the police submitted challan against the petitioner

for offence under Sections 376, 420, 494, 495, 354(k)(1)(i) of

IPC. Thereafter, the case was committed for trial in the court of

Additional Sessions Judge (Women Atrocities Cases), Bhilwara.

The learned trial court after hearing the arguments of both the

parties framed charges against the petitioner for the offences

under Section 494, 495, 420, 376 IPC. However, the petitioner

was discharged from the offence under Section354(k)(1)(i) of IPC.

(3 of 5) [CRLR-935/2014]

Learned counsel for the petitioner submits that the order

impugned framing the charges against the petitioner is illegal and

arbitrary. It is argued that the complainant is a grown-up lady and

was working at the same place where the petitioner was also

serving. Both the petitioner and the complainant worked together

for a long time so she was very much acquainted with the marital

status as well as family background of the petitioner, therefore, it

cannot be inferred that she was kept in dark regarding the fact

that he was married or unmarried or divorcee person. The

statement of the prosecutrix reveals that she was very much a

consenting party and she admittedly got married with the

petitioner at the temple as per Hindu rites. The consensual sexual

relationship, if any, happened between the petitioner and the

complainant who are majors, that is voluntarily on the part of the

complainant, therefore, it does not come under the definition of

Section 375 of IPC. In these circumstances, the charges framed

against the petitioner deserves to be quashed and set aside. He

placed reliance on the judgment of Hon'ble Apex court in the case

of Prashant Bharti Vs. State of NCT Delhi reported in 2013(3) RCR

(Criminal) 399.

Per contra, learned learned Public Prosecutor and learned

counsel for the complainant supported the order impugned passed

by the learned trial court and argued that at the preliminary stage

of the framing of the charges, it cannot be said that the charges

framed by the learned trial court is totally baseless. It is further

argued that the prosecutrix in her statement specifically levelled

allegation of rape against the present petitioner. The police after

(4 of 5) [CRLR-935/2014]

thorough investigation also submitted challan against the

petitioner so the order impugned passed by the learned trial court

framing charge is perfectly justified. Hence, the order impugned

does not warrant any interference.

I have considered the arguments advanced before me and

carefully gone through the record of the trial court.

From the reading of complaint filed by the

complainant/prosecutrix, it is revealed that the petitioner came in

contact with the complainant at work place and developed physical

relations with her on false assurance of marriage. It is further

admitted by the prosecutrix that she got married with the

petitioner at Chamunda temple and continued to have physical

relationship with the petitioner.

Hon'ble Apex Court in catena of cases has held that the

consent given by the prosecutrix who is major, to sexual

intercourse with a person with whom she is deeply in love on a

promise that he would marry her on a later date, cannot be said

to be given under a misconception of fact. However, there is no

strait jacket formula for determining whether consent given by the

prosecutrix to sexual intercourse is voluntary, or whether it is

given under a misconception of fact. In the ultimate analysis, the

tests laid down by the Courts provide at best guidance to the

judicial mind while considering a question of consent, but the

Court must, in each case, consider the evidence before it and the

surrounding circumstances, before reaching a conclusion, because

each case has its own peculiar facts which may have a bearing on

the question whether the consent was voluntary, or was given

(5 of 5) [CRLR-935/2014]

under a misconception of fact.

In the instant case, the prosecutrix was a grown up woman

and she had sufficient intelligence to understand the significance

and moral quality of the act she was consenting to. She must

have known the consequences of the act, particularly when she

was conscious of the fact that their marriage may or may not take

place.

Taking note of the above, this Court deems it proper to

quash the charge framed against the petitioner to the extent of

offence under Section 376 IPC and remand the matter back to the

court below for consideration afresh in the light of judgments of

Hon'ble Apex court.

Accordingly, the order dt.07.07.2014 passed by the

Additional Sessions Judge (Women Atrocities Cases), Bhilwara to

the extent of framing charge under Section 376 IPC against the

petitioner is hereby quashed and the matter is remanded back to

the learned trial court with direction to pass an order afresh in

accordance with law as to whether offence under Section 376 IPC

is made out against the petitioner or not.

The revision petition is disposed of in the above terms. Stay

petition also stands disposed of.

Record of the trial court is sent back immediately.

(MANOJ KUMAR GARG),J

167-BJSH/NK

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