Rajasthan High Court
Siyaram Son Of Kaduram vs State Of Rajasthan on 19 October, 2022
Bench: Birendra Kumar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 152/2022
Siyaram Son Of Kaduram, Resident Of Gulabpura, Police Station,
Sapotra, District Karauli (Rajasthan)
----Petitioner
Versus
1. State Of Rajasthan, Through P.P.
2. Victim, daughter of late Charat Lal, R/o Bichhochh, Police
Station, Batoda, District Sawai Madhopur (Rajasthan)
----Respondents
For Petitioner(s) : Mr. Rajneesh Gupta
For Respondent(s) : Mr. Prashant Sharma, PP
Mr. Abdul Rahim Khan
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Judgment reserved on : 27.09.2022
Judgment pronounced on : 19.10.2022
1. The petitioner, an accused in FIR No. 79/2021 registered
with Mahila Thana, Police Station, Sawai Madhopur for offence
under Section 376(2)(n) IPC, has sought for quashment of the
FIR.
2. According to FIR, the prosecutrix, a married lady was not
pulling relation with her husband well, therefore, she was residing
along with her parents and preparing for REET competitive
examination. In the year 2015, the prosecutrix met with the
petitioner. The petitioner started one sided love with her. When
the prosecutrix was ignoring the petitioner, the petitioner posed
that he would commit suicide. The prosecutrix tried to convince
the petitioner that she is already a married lady and has
(2 of 6) [CRLMP-152/2022]
already lost one of her leg in an accident in her childhood,
therefore, she was not suitable for the petitioner but the petitioner
continued insisting for marriage and in the year 2015, on three to
four occasions, established physical relations in the village of the
prosecutrix in Gangapur city. Thereafter on different places of the
District, the petitioner was in physical relations with the
prosecutrix on the pretext of marriage. Whenever the prosecutrix
asked the petitioner to get married with her, the petitioner kept
deferring the matter saying that after getting a job, he would
marry with the prosecutrix. It is further stated that the petitioner
and the prosecutrix were living as husband and wife in a room at
Jaipur and the petitioner was in physical relations with her till
22.9.2020. On 9.6.2021, the petitioner assured that they would
marry on 10.6.2021. Thereafter mobile phone of the petitioner
was switched off forever. Allegation is that the prosecutrix was
sexually exploited on the pretext of marriage.
3. Mr. Rajneesh Gupta, learned counsel for the petitioner
submits that entire statement disclosed in the FIR would make out
a case of consensual relationship. The allegation that the consent
was obtained on false pretext of getting married is pulpably false
as marriage between the prosecutrix and one Ram Singh was
subsisting on 20.9.2021 when the prosecutrix filed a case before
the Civil Judge, Bamanvas for a decree of dissolution of marriage
against Ram Singh. Copy of the divorce petition is at Annexure-5.
Learned counsel next contends that respondent No.2 has not
denied in its reply about the pendency of the divorce case against
Shri Ram Singh brought by the complainant-prosecutrix. Learned
counsel for the petitioner further contends that husband of the
prosecutrix i.e. Ram Singh had lodged FIR No. 107 dated 1.4.2011
(3 of 6) [CRLMP-152/2022]
at Bamanwas Police Station for offences under Section 384, 365,
494, 392, 420 IPC and Section 3 SC/ST Act against the
prosecutrix and others including one Chandan alleging therein that
Chandan had provided a Car to the prosecutrix, thereafter both
were in relationship in the nature of marriage and the fact was
known to the parents of the prosecutrix, rather with their consent
the relationship was there. Ram Singh had also alleged extortion
of money and cheating by the prosecutrix and others.
The respondents in their reply have admitted the aforesaid
FIR, however stated that the police after investigation did not find
the allegations true.
4. Mr. Abdul Rahim Khan, learned counsel for the respondent
No.2 submits that respondent No.2 belongs to Scheduled Tribe
community and as per their customs, the provisions of Hindu law
are not applicable and under the custom, she had already
dissolved the marriage with her husband Ram Singh under
permissible custom of "Nata". Learned counsel for the respondent
No.2 next contends that the law is well settled that if the FIR
discloses commission of cognizable offence, it cannot be quashed
at the initial stage, the correctness of the allegation would be the
subject matter of the investigation itself.
5. Now, the point for consideration is whether the relationship
between the petitioner and the complainant as disclosed in the FIR
and the attending circumstances makes out a case of consensual
relationship. If the answer would be in positive, the most
important ingredient of offence of rape as defined under Section
375 IPC stands missing, as such allowing the criminal prosecution
to stand, would be abuse of the process of law.
(4 of 6) [CRLMP-152/2022]
If the FIR discloses the fact that consent was obtained by
fraud or under some misconception of fact, the consent would be
no consent and the allegation would be required to be
investigated.
6. It has not been disputed that the prosecutrix brought a case
for dissolution of her marriage with Ram Singh on 20.9.2021. As
such her marriage was subsisting with Ram Singh till that date. As
such allegation of "promise of marriage" to a married lady whose
marriage was not dissolved earlier, would be treated as bald
allegation. It is also a fact that the relationship between the
prosecutrix and the petitioner was in between the year 2015 to
22.9.2020 when the marriage of the prosecutrix was subsisting
with Shri Ram Singh.
7. Identical question was considered by the Supreme Court in
Prashant Bharti Vs. State (2013) 9 SCC 293. In that case
also, allegation against the accused was of physical relation on the
assurance that he would marry with the prosecutrix. In para 17 of
the judgment, the Hon'ble Supreme Court noted "obviously, an
inducement for marriage is understandable if the same is
made to an unmarried person." As referred above, the
marriage of the prosecutrix with Shri Ram Singh was subsisting
during the long period of physical relationship of the prosecutrix
with the petitioner. The Hon'ble Supreme Court further stated
that "In such a fact situation, the assertion made by the
complainant/prosecutrix, that the appellant-accused had
physical relations with her, on the assurance that he would
marry with her, is per se false and as such, unacceptable.
She, more than anybody else, was clearly aware of the fact
that she had a subsisting valid marriage with Lalji Porwal.
(5 of 6) [CRLMP-152/2022]
Accordingly, there was no question of anyone being in a
position to induce her into a physical relationship under an
assurance of marriage."
8. In Pramod Suryabhan Panwar Vs. State of Maharashtra
& Anr., (2019) 9 SCC 608, the Hon'ble Supreme Court said that
"consent" with respect to Section 375 IPC involves active
understanding of circumstances, actions and consequences of the
proposed act. An individual who makes a reasoned choice to act
after evaluating various alternative actions (or inaction) as well as
various possible consequences flowing from such action or
inaction, consents to such action.
9. The factual scenario of this case discloses that the physical
relation between the accused and the prosecutrix was a reasoned
choice of the prosecutrix as she was already married with Ram
Singh and marriage was subsisting during entire six years
relationship. The allegation of physical relation with the petitioner
is in between the year 2015 to 2020, during subsistence of
marriage of the prosecutrix with Shri Ram Singh. Therefore, it
cannot be argued that this was a case of misconception of fact to
vitiate the consent. Since the prosecutrix had brought a judicial
proceeding for dissolution of marriage with Shri Ram Singh, it
cannot be said that marriage was dissolved through any other
permissible mode, as per custom governing the prosecutrix.
Therefore, the physical relation, though the petitioner has denied,
between the prosecutrix and the petitioner as alleged in the FIR,
was a reasoned and deliberate relationship and not due to
deceived consent.
10. In the circumstances, continuance of the criminal
proceedings pursuant to the impugned FIR would be an abuse of
(6 of 6) [CRLMP-152/2022]
process of law, hence the impugned FIR and all subsequent
proceedings arising out of the same, stands hereby quashed and
this petition is allowed.
Pending applications, if any, also stand disposed of.
(BIRENDRA KUMAR),J
BRIJ MOHAN GANDHI /77/91
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