HIGH COURT OF MADHYA PRADESH, JABALPUR
Misc. Criminal Case No.22431 of 2015
State of Madhya Pradesh
Vs
Gulab Chand Kahar
Present : Hon. Shri Justice S.K.Gangele
Hon. Shri Justice Anurag Shrivastava
Shri Vivek Lakhera, P.L. for petitioner/State.
Whether authorized for saying : Yes/No
Per Anurag Shrivastava, J :
O R D E R
(8.3.2017)
Being depressed by a visualisation of exculpation antiquated 14.05.2015, upheld by Special Sessions Judge, SC/ST (Prevention of Atrocities) Act, 1988, Anuppur, in Special Case No.66/2013, whereby a respondent/accused has been clear of a offences underneath Sections 376(2)(n), 506(Part2) of IPC and territory 3(2)(v) of a Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, this petition for extend of leave to interest underneath Section 378(3) of Cr.P.C., has been elite by State.
2. The box of charge in brief is that on 10.8.2013 a prosecutrix lodged a news in military hire Ajak, Anuppur saying that about 4 years ago when prosecutrix was sitting in a backyard of her house, a respondent/accused came there and forcefully took her to circuitously margin and committed rape on her yet her consent. She attempted to make a paint and cry, yet was silenced by a indicted by melancholy her and also by creation her trust that he would marry her. Even after this incident, he had passionate family with her on some-more than one arise for final 4 years on a stratagem of marriage. Some days before camp of report, when prosecutrix regularly done direct for marriage, a respondent denied to marry her. Prosecutrix came to know that a respondent was already married and had children. Thereafter, a prosecutrix lodged a censure before military as settled above.
3. On censure of prosecutrix a FIR Ex.P-1 has been available and an corruption underneath territory 376(2)(n), 506(Part-2) of IPC and territory 3(2)(v) of a Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 has been purebred opposite a respondent and after common review a charge-sheet has been filed in a Court. The hearing Court framed a charges underneath territory 376(2)(n), 506(Part-2) of IPC and territory 3(2)(v) of a Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 opposite a respondent, he abjured guilt. After recording of justification a hearing Court upheld a impugned visualisation and clear a respondent on a belligerent that a prosecutrix is a consenting celebration and no corruption has been found valid over reasonable doubt opposite a respondent.
4. It is argued by schooled warn for a petitioner/State that from a matter of prosecutrix, it is valid that a indicted had committed rape and afterward had passionate retort with a prosecutrix on several occasions during final 4 years on a fake stratagem of marriage. The respondent/accused was already married carrying children. The agree of a prosecutrix was performed on fake illustration and promise. Therefore a hearing Court had poorly clear a indicted treating a prosecutrix as consenting party. The commentary of a hearing Court are erroneous, arrived during on wrong appreciation of justification and probable to be set aside. Thus, a leave to interest might be granted.
5. Considering a arguments of schooled warn for State and on examination of record, it appears that a categorical claim opposite a indicted is that he performed a agree of prosecutrix on fake illustration that he intends to marry her. Therefore, this aspect of box either a prosecutrix has done family with a indicted on her giveaway will or either her agree was performed on fake illustration has to be considered.
6. In a box of Deelip Singh Vs. State of Bihar Hon’ble Apex Court while defining a agree underneath territory 90 of IPC in para 12 and 14 celebrated that :
“Section 90 IPC, though, does not
define “consent”, yet describes what is not
consent. It says that a agree is not such a
consent as is dictated by IPC (Sections 375
and 376 IPC in this case) if it is given underneath a
misconception of fact. A falsification as
regards a goal of a chairman seeking
consent i.e. a accused, could give arise to the
misconception of fact. The agree given
pursuant to a fake illustration that the
accused intends to marry, could be regarded
as agree given underneath myth of fact.
But a guarantee to marry yet anything more
will not give arise to “misconception of fact”
within a definition of Section 90 IPC.”
7. The prosecutrix lodged a news after 4 years of a initial instance of purported rape. From a matter of prosecutrix P.W.1 and eye declare P.W.5, it appears that on a same day, when indicted committed rape on prosecutrix initial time, this fact was brought into a notice of mom of prosecutrix, yet no news of this occurrence had been lodged to police. Prosecutrix (P.W.1) in her matter admits that she had family with a accused/respondent for a final 4 years, given a indicted had done a guarantee to marry her. The relatives of a prosecutrix P.W.6 (mother) and P.W.11 (father) also certified this fact and settled that they knew that a prosecutrix and indicted had passionate relations. Prosecutrix (P.W.1) in interrogate para 14 has certified that her attribute with a indicted was famous to everybody in a encampment and when encampment encampment objected to it and outcasted her, she had started vital with a accused.
8. Thus, from a matter of a prosecutrix and her relatives it is found that a prosecutrix and indicted were in adore and carrying attribute for a final 4 years. During this duration a prosecutrix had earthy family with a accused. She lived with a indicted in his residence plainly for prolonged time.
9. Prosecutrix and indicted are residents of same village. Accused was vital with his mom and children in his house. Prosecutrix in interrogate para 14 certified that she had visited a residence of indicted and met his mom and mom also. The matter of prosecutrix that a indicted had introduced his mom to her as lassie servant, does not enthuse confidence. It is not probable that in a same village, where prosecutrix and indicted are vital given birth, prosecutrix could not get information of a fact that a indicted was a married chairman carrying children. During 4 years of relationship, it is not settled by a charge witnesses when prosecutrix or her relatives asked a indicted or his relatives for matrimony of prosecutrix with a accused. There is not even a wheeze that they approached a respondent or his family members for marrying a prosecutrix. If prosecutrix was carrying attribute with a indicted on guarantee of marriage, afterwards it would be healthy for her to make direct of opening of matrimony within reasonable time. For 4 years not creation any direct for matrimony is not natural. Thus a control of a prosecutrix creates doubt on her evidence.
10. The anticipating of a hearing Court in a benefaction box is scold that a prosecutrix was wakeful that a respondent was already married person.It is not valid that indicted had secluded a fact of his matrimony from prosecutrix. The prosecutrix done passionate family with a respondent/accused intentionally that he was a married person. It is not plausible that a indicted gave a fake guarantee to marry her and swayed her to make passionate attribute with him. It is also not valid that agree of prosecutrix has been performed by falsification and myth of facts. Prosecutrix is a vital woman, efficient to give agree as per her will. For a corruption of rape, it is required to infer over reasonable doubt that a passionate retort was committed opposite her will or yet her consent.
11. Therefore, a hearing Court has righteously hold a respondent not guilty of a purported corruption of rape. Thus there is no piece in this appeal. 12. Consequently, a request for leave to interest is dismissed.
(S.K.GANGELE) (ANURAG SHRIVASTAVA)
JUDGE JUDGE
