Dr.Neeraj Kheda vs The State Of Madhya Pradesh Thr on 21 June, 2017

1 CRR 970/2015

(Dr. Neeraj Kheda vs. State of M.P. Anr.)
21.06.2017
Shri Rajmani Bansal, Counsel for the applicant.
Shri Girdhari Singh Chauhan, Public Prosecutor for
the respondent/State.

None for the respondent No.2.

This criminal revision under Section 397, 401 of
Cr.P.C. has been filed against the order dated 24.8.2015
passed by 5th ASJ, Gwalior in Special Sessions Trial No.
272/2015 by which the charges under
Section 376 (2)

(n), 323 of IPC and under Section 3/4 of Dowry
Prohibition Act have been framed.

The necessary facts for the disposal of the present
revision in short are that the prosecutrix made a written
complaint to the SHO, Police Station Kampoo, District
Gwalior alleging that she was posted as Junior Resident
in the Department of Neuro Surgery where she met with
the applicant and in the year 2013, they became friends.
As she was selected for post graduation, therefore, in the
month of July 2013, she resigned and joined on
31.7.2013 in the Pediatrics Department. Thereafter the
respondent No.2 made a proposal for marriage and
accordingly on 22.6.2014, the engagement ceremony
was performed and at that time as her brother had given
Rs. 5,000/- and gold ring to the applicant, therefore, the
family members of the applicant became annoyed and
said that they have been insulted by giving only an
amount of Rs. 5,000/-. Thereafter, the behavior of the
applicant also changed. The marriage was fixed for
30.1.2015. Even when the prosecutrix as well as the
2 CRR 970/2015

applicant were making purchases for the marriage, at
that time also the applicant used to say that the family
members of the prosecutrix are not giving any dowry, as
a result of which, they are being insulted in the society
as his brother Deepak is insisting to break the marriage.
At that time the applicant had also assaulted the
prosecutrix and thereafter he refused to marry her. It
was further alleged that under the promise of marriage
the applicant had made physical relations with her on
several occasions. On this written complaint, the police
registered the FIR and started investigation.

During investigation the prosecutrix reiterated the
allegations made in the written complaint but in her case
diary statement, she further stated that even prior to the
engagement ceremony, when the applicant and the
prosecutrix were friend, at that time also the applicant
under the promise of marriage had physical relations with
her. Thus, in nutshell it is the prosecution case that the
prosecutrix and the applicant were friends and they had
physical relations with each other on the promise of
marriage thereafter the marriage was settled and
engagement ceremony was also performed. As the family
members of the prosecutrix did not give the articles at
the time of the engagement ceremony as per the
expectations of the family members of the applicant,
therefore, they felt insulted in the society and ultimately
the applicant broke the marriage with the prosecutrix. It
is further alleged that prior to the engagement ceremony
and even after the engagement ceremony, the applicant
had physical relations with the prosecutrix.

3 CRR 970/2015

Challenging the order framing charge, it is

submitted by the counsel for the applicant that initially
the prosecutrix had given a written application to the
SHO, Mahila Police Station Padav, District Gwalior making
the similar allegations about friendship, engagement and
thereafter breaking of the marriage because of less
dowry but it is submitted that in the said written
complaint, no allegation was made by the prosecutrix
with regard to the physical relations and thus it is
submitted that the allegations of having physical relations
with the prosecutrix on the false promise of marriage are
nothing but an afterthought in order to make the offence
more grave. It is further submitted that even if the
allegations made in the written complaint given to the
SHO, Mahila Police Station Padav are taken into
consideration then it can be said that at the most an
offence under
Section 3/4 of Dowry Prohibition Act may
be made out. However, it is fairly conceded by the
counsel for the applicant that the written complaint which
has been filed by the applicant as Annexure P/3 along
with the present revision has not been filed by the
prosecution along with the charge sheet. It is submitted
by the counsel for the applicant that in the light of the
judgment passed by the Supreme Court in the case of
Rajiv Thapar Ors. vs. Madan Lal Kapoor reported in
(2013) 3 SCC 330, the documents which are of sterling
and impeccable quality can be taken into consideration.
It is further submitted that even if the entire allegations
are accepted then it would be clear that the prosecutrix
herself was a consenting party and, therefore, for that
4 CRR 970/2015

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reason no offence under Section 376(2) (n) of IPC would
be made out. It is further submitted by the counsel for
the applicant that in fact it is the prosecutrix and her
family members who were not interested in going ahead
with the marriage which is evident from the fact that the
hotel which was booked for the marriage which was
scheduled to be held on 30.1.2015 was already got
cancelled by the family members of the prosecutrix on
10.12.2014.

To substantiate his submission, the counsel for the
applicant invited the attention of this Court to the
information given by the Hotel Management to the police
and which is a part of the charge sheet. According to this
information booking in the hotel Yatrik, Jhansi in the
name of Dilip Singh and Naar Singh were cancelled on
12.10.2014. It is submitted by the counsel for the
applicant that Dilip Singh and Naar Singh are the
relatives of the prosecturix.

Per contra, it is submitted by the counsel for the
State that as the written complaint allegedly made by the
prosecutrix to the SHO, Mahila Police Station Padav,
District Gwalior on 14.5.2015 is not the part of the
charge sheet, therefore, at the time of framing charges,
this document cannot be taken into consideration. It is
further submitted that whether this complaint was made
by the prosecutrix herself or not is also a matter of
evidence and the applicant can get the explanation from
the prosecutrix during her cross-examination. Thus, it is
submitted that without formal proof of this document, it
cannot be said that the prosecutrix herself had written
5 CRR 970/2015

this complaint to the SHO, Mahila Police Station Padav. It
is further submitted that so far as the FIR is concerned, it
is well established principle of law that the same cannot
be treated as an encyclopedia of an offence and,
therefore, if the allegation of having physical relations
with the prosecutrix by the applicant even prior to the
engagement cannot be said to be fatal because in the
case diary statement the prosecutrix has specifically
stated that during the friendship, the applicant under the
false promise of marriage had developed physical
relations with her.

It is further submitted that it is clear from the
photographs which are the part of the charge sheet that
the applicant was moving to different places along with
the prosecutrix. It is further submitted that whether the
prosecutrix was a consenting party or not, whether her
consent was obtained by misrepresentation of marriage
or not are the disputed questions of fact which can be
decided only after the evidence is recorded. It is further
submitted that in the present case, it is clear that even
prior to the engagement the applicant had developed the
physical relations with the prosecutrix and in order to
show his bonafides he also agreed for engagement but
thereafter he himself broke the marriage on the pretext
that the family members of the prosecutrix are not giving
sufficient dowry as meager amount of Rs. 5,000/- which
was given at the time of the engagement ceremony
along with the hold ring has insulted them in the society.
It is further submitted that from the allegations, it is
clear that it is the applicant who broke the marriage and
6 CRR 970/2015

it is not a case that the applicant had bonafidely made a
promise of marriage but because of certain reasons
beyond his control the marriage could not be solemnized.
As the applicant himself is responsible for breaking the
marriage with the prosecutrix, therefore, it is clear that
right from day one, the intention of the applicant was not
to marry the prosecutrix and, therefore, under the false
promise of marriage he obtained the consent of the
prosecutrix for having physical relations with her and,
therefore, it cannot be said that the consent of the
prosecutrix was a free consent as per
Section 90 of IPC
as the same was obtained under a misconception.

READ  Vinod S/O Shri Laxman Das Kinger-vs-M/S. Sbi Global Factors Ltd., ( on 22 March, 2011

Heard the learned counsel for the parties.
So far as the fact that whether the prosecutrix had
made a written complaint to the SHO, Mahila Police
Station Padav making allegations against the applicant
with regard to the demand of dowry and breaking of
marriage is concerned, undisputedly, this document has
not been filed by the prosecution along with the charge
sheet.

In view of the judgment passed by the Supreme
Court in the case of State of Orissa vs. Devendra Nath
Padhi reported in (2005) 1 SCC 568, it is clear that the
documents cannot be produced by the accused in his
defence at the stage of framing of charges. He can prove
the documents in his defence at the appropriate stage. It
is further clear that as the written complaint allegedly
made by the prosecutrix is not the part of the charge
sheet, therefore, at this stage it cannot be said that the
said complaint was made by the prosecutrix herself.

7 CRR 970/2015

Furthermore, the applicant can cross-examine the

prosecutrix and can seek explanation with regard to the
written complaint allegedly made by her to the SHO,
Mahila Police Station Padav. As the authenticity and the
authorship of this application is not beyond reasonable
doubt, thereafter at this stage it cannot be said that this
application/evidence is of sterling and impeccable quality.
There is nothing on record that any investigation/enquiry
was conducted by the police on this application. Thus, in
the considered opinion of this Court, the application
allegedly written by the prosecutrix to the SHO, Mahila
Police Station Padav in absence of its authenticity cannot
be considered at this stage of framing of charges even in
exercise of powers under
Section 482 of Cr.P.C.

So far as the question of consent of the prosecutrix
is concerned, it is the specific allegation by the
prosecutrix that under the false promise of marriage the
applicant had developed physical relations with her. The
counsel for the applicant has relied upon a judgment of
the Supreme Court in the case of
Uday vs. State of
Karnataka reported in (2003) 4 SCC 46. By referring
to paragraph 21 of the judgment passed in the case of
Uday (supra), it is submitted by the counsel for the
applicant that even in case of promise to marry no
straight-jacket formula can be formulated and, therefore,
if the applicant inspite of his best efforts could not marry
the prosecutrix then it cannot be said that the consent
for physical relations was obtained by misconception of
fact or misrepresentation.

The Supreme Court in the case of Uday (supra)
8 CRR 970/2015

has held as under:-

“21. It therefore appears that the
consensus of judicial opinion is in
favour of the view that the consent
given by the prosecutrix 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. A
false promise is not a fact within the
meaning of the Code. We are
inclined to agree with this view, but
we must add that there is no
straitjacket 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
under a misconception of fact. It
must also weigh the evidence
keeping in view the fact that the
burden is on the prosecution to
prove each and every ingredient of
the offence, absence of consent
being one of them.

If the facts of this case are considered in the light of
the judgment passed by the Supreme Court in the case
of Uday (supra) then it would be clear that both the
applicant and the respondent are doctors by profession.

READ  M S Prakash vs C S Nandini on 28 February, 2014

9 CRR 970/2015

Initially, the respondent was working as a Junior Resident
along with the applicant who was working as a Senior
Resident doctor. Even the family members of both the
persons were ready for marriage and the engagement
ceremony was also performed, thus it cannot be said that
the prosecutrix was aware of the fact that her marriage
with the applicant is not possible. When there was a
possibility of marriage of the prosecutrix with the
applicant and because of the social status and the similar
line of profession if the prosecutrix under the bonafide
belief that the promise of marriage made by the
applicant can be materialized then it cannot be said that
the prosecutrix herself is solely responsibility for giving
consent for the physical relations with the applicant.
Further, if the facts of this case are considered in proper
perspective then it is clear that it is the applicant who
broke the marriage after the engagement ceremony was
performed. The basis for breaking the marriage was
insufficient dowry, thus it is clear that at this stage it can
be inferred that right from day one the applicant was
aware of this fact that he will not marry with prosecutrix
and even if he is required to perform certain ceremonies
for marriage then he can break the marriage on the issue
of dowry. In the present case, both the applicant and the
prosecutrix are doctors by profession, therefore, it cannot
be said that the applicant was more educated or efficient
than the prosecutrix. Under these circumstances when
both the applicant and the prosecutrix were doctors by
profession then breaking the marriage on the ground of
insufficiency of dowry cannot be said to be a bonafide
10 CRR 970/2015

reason. Even otherwise breaking of marriage on the
ground of insufficient dowry is also an offence. Thus, it
cannot be said that the applicant did not marry the
prosecutrix because of any reasonable and bonafide
reasons. Thus it is clear that right from day one the
intention of the applicant was not to marry the
prosecutrix. Under these circumstances, it can be prima
facie held that the consent was obtained by the applicant
by misrepresentation and misconception of fact. Thus, at
this stage it cannot be said that the prosecutrix was a
consenting party to the physical relations between herself
and the applicant.

Under the facts and circumstances of this case, this
Court is of the considered opinion that evidence available
on record is sufficient to frame charges under Section
376 (2) (n), 323 of
IPC and under Section 3/4 of Dowry
Prohibition Act.

Before parting with this order, this Court find it
appropriate to issue a note of caution to the Trial Court.
As the matter was argued by the counsel for the
applicant in detail, therefore, in order to appreciate the
submissions made by the counsel for the applicant, it was
necessary for this Court to make certain observations in
this order. However, it is made clear that these
observations have been made considering the limited
scope of interference at the stage of framing of charges.
The trial has to be decided on the basis of evidence
which would ultimately come on record and, therefore, it
is made clear that the Trial Court should not get
prejudiced by any of the observation made by this Court
11 CRR 970/2015

in this order. The Trial Court is further directed to decide
the trial strictly on the basis of the evidence which would
ultimately come on record.

With aforesaid note of caution, this revision is
dismissed.

(G.S. Ahluwalia)
(alok) Judge

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