Flase IPC 376 (Rape Case)

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : INDIAN PENAL CODE
Judgment reserved on : January 12, 2009
Judgment delivered on : January 16, 2009

Crl.M.A.No.154/2009 (stay) and Crl.M.A. No.155/2009.
Prashant Bharti …SUNIL GAUR, J.
Crl.M.A. 155/2009

Exemption application is allowed, subject to just exceptions.

This application stands disposed of. Criminal Revision Petition No.08/2009
Crl.M.A.No.154/2009 (stay) 1. Petitioner has been called upon by the trial court vide
impugned order of 1st December, 2008, to face the trial for the offences under Section
354/328/376 of the IPC. In this petition, charge framed against the petitioner for aforesaid
offences is also impugned.

2. Stand of the petitioner is that the prosecutrix was working
in a private firm and on 15th February, 2007 she had accompanied the petitioner in his car
and the prosecutrix was allegedly given a cold drink by the petitioner and after
consuming the same, she became unconscious and the petitioner allegedly outraged her
modesty and thereafter the prosecutrix went to her house in auto rikshaw and on the next
day, FIR under Section 328/354 of the IPC was registered against the petitioner.
Thereafter, on 21st February, 2007 prosecutrix made a supplementary statement alleging
that the petitioner had established physical relations with her on the assurance of
marrying her and accordingly, petitioner was also accused of raping her.
Taking note of the statement of the prosecutrix recorded under Section 164 of the
Cr.P.C. and the chargesheet filed in this case, trial court vide impugned order has put the
petitioner on trial for the aforesaid offences.

Learned counsel for the petitioner contends that the prosecutrix had earlier
married twice and on the alleged date of incident, she was living with her husband Manoj
at Tughlakabad and the allegations levelled by the prosecutrix against the petitioner are
patently false. Reliance has been placed upon judgments reported in (2003) 4 SCC 46;
(2005) 1 SCC 88; 2005 (3) JCC 1611 and (2007) 7 SCC 413, to contend that the
prosecutrix was aged 22 years and was already married and even if it is taken that a false
promise of marriage was made, still the offence of rape is not made out. Nothing else is
urged on behalf of the petitioner.

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It is matter of record that petitioner had earlier filed Criminal Writ Petition
No.1112/2007 for getting this FIR quashed and the said Writ Petition was dismissed by
brother Shiv Narain Dhingra, J. on 27th August, 2007 by holding as under :- This court
cannot quash the FIR on the ground that FIR was false FIR. In case of false FIR, it must
be brought to its logical conclusion and Investigating Officer must give a report to that
effect. In this case, if it is found that the petitioner has been falsely implicated and the
complaint was false, it would be obligatory on the part of the Investigating Officer to
register a case and book the prosecutrix for falsely implicating the person in an offence
under Section 376 IPC. It is a very serious matter that a prosecutrix just by making a false
statement can book somebody in offence under Section 376 IPC, which is serious in
nature and invites a minimum punishment of 07 years. I consider that Investigating
Officer shall submit a detailed report and in case, it is found that the petitioner was falsely
implicated, he would take steps for booking the complainant for falsely implicating the
petitioner. The writ petition is disposed of with above directions.

Strangely, prosecutrix also sought quashing of this FIR vide Writ Petition
(Criminal) 257/2008 stating that she has resolved all her differences with the accused/
petitioner herein and said Writ Petition was also dismissed by my esteemed sister Rekha
Sharma, J on 25th February, 2008 while concurring with the aforesaid observations made
by brother Shiv Narain Dhingra, J, while dismissing petitioners petition for quashing of
the FIR in question.

READ  SeX with promise of Marriage is not Rape if its consensual sex.

The two decisions of the Apex Court reported in (2003) 4 Supreme Court Cases
46 and (2005) 1 Supreme Court Cases 88, relied upon by the petitioner are after trial and
are of no assistance to the case of the petitioner as the present case is at its threshold. In
the decision reported in 2005(3) JCC 1611 relied upon by the petitioner, on facts it was
found that the promise of the accused to marry the prosecutrix was not false from its
Aforesaid decision is of no avail to the petitioner as it cannot be said in the present
case, at this stage, as to whether the promise to marry the prosecutrix was only to seduce
the prosecutrix to sexual act or not In the decision reported in (2007) 7 SCC 413, revision
against charge was dismissed by the High Court at Patna by cryptic order and the said
order was set aside by the Apex Court and the matter was remanded to the High Court to
Petitioner wants that at this initial stage, this Court to give a finding that the
petitioners intention was to marry the prosecutrix, right from the beginning. This cannot
be done while exercising revisional jurisdiction.

If on the facts, it is established that at the very inception of the making of
promise, the accused did not really entertain the intention of marrying her and the
promise to marry held out by him was a mere hoax, the consent ostensibly given by the
victim will be of no avail to the accused to exculpate him from the ambit of clause
Secondly of Section 375 of IPC.

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The scope of scrutiny at the stage of charge is quite narrow and it stands
highlighted in a recent verdict of the Apex Court in case of Hem Chand V. State of
Jharkhand {2008 (4) AD (SC) 94} in the following words:- The crystallised judicial view
is that at the stage of framing charge, the court has to prima facie consider whether there
is sufficient ground for proceeding against the accused. The Court is not required to
appreciate evidence to conclude whether the materials produced are sufficient or not for
convicting the accused. The Court at the stage of framing charge exercises a limited
jurisdiction. It would only have to see as to whether a prima facie case has been made out.
Whether a case of probable conviction for commission of an offence has been made out
on the basis of materials found during investigation should be the concern of the Court. It,
at that stage, would not delve deep into the matter for the purpose of appreciation of
evidence. It would ordinarily not consider as to whether the accused would be able to
establish his defence, if any.

Truthfulness or falsity of the allegations, essentially pertains to the realm of
evidence and the same cannot be pre-judged at this initial stage. I do not find any
illegality or infirmity in the impugned order. Consequently, this Revision Petition is
dismissed in limine while making it clear that anything stated herein shall not be
construed as an opinion on merits at trial.

This petition and pending application stands accordingly disposed.
January 16, 2009

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