Hari Ram vs State & Anr on 5 September, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 7 / 2017
Hari Ram S/o Shri Kanwar Lal Ji Meena, Aged About 39 Years,
Binda, P.s. Ghatoli, Tehsil- Akhlera, District- Jhalawar.

—-Petitioner
Versus

1. The State of Rajasthan

2. Smt. Sumanlata Meena D/o Shri Raj Singh, R/o-c-57, Kumbha
Nagar, Chittorgarh (raj.).

—-Respondents
__
For Petitioner(s) : Mr. Ashwini Kumar Babel.
For Respondent(s) : Mr. O.P. Rathi, PP.

None present for the respondent No.2.

__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Judgment
Date of Judgment:- 05/09/2017

By way of this revision petition, the petitioner accused Hari

Ram seeks to assail the order dated 30.11.2016 passed by the

learned Additional Sessions Judge No.1, Chittorgarh in Sessions

Case No.34/2014 whereby, charges were framed against the

appellant for the offences under Sections 493, 496, 420 and 376

IPC.

Service of the revision has been effected upon the

respondent No.2 Smt. ‘S’ being the complainant of the case at

hand, but nobody has put in appearance on her behalf.

Facts in brief are that the respondent No.2, lodged a report

against the petitioner herein and four other persons before the

Superintendent of Police, Chittorgarh on 28.05.2013 alleging inter
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alia that she was married to one Bhanwar Singh Meena of Luhari

Kala, Tehsil Jahajpur, District Bhilwara in the year 2003 and a male

child was born from the wedlock who at the time of lodging of the

report was aged 8 years. It was further alleged that after the birth

of the child, Bhanwar Singh Meena started quarreling with the lady

and their matrimonial relations became strained. Consequently,

they had started living separately for the last 3-4 years and

ceased to have any kind of relationship. The complainant, after

being deserted by her husband, got admission in the GNM Course

at Bhilwara and started living there. The accused Hari Ram, who

was related to her uncle, came in touch with her. He used to

confide in her that he was previously married to one Anita but

owing to a matrimonial dispute, both were living separately for the

last two years and that he was in search of a life partner and

managed to seduce the complainant with these false assurances.

In this manner, the accused seduced the complainant and took her

to Arya Samaj at Kota and solemnised a farce marriage ceremony

with her. Thereafter, Hari ram started establishing regular physical

relations with her. She was taken by the accused, to visit various

places and the physical relations continued unabated. Upon her

father coming to know of this relationship, he called the accused

to Chittorgarh on 19.10.2012 and compelled him to execute an

undertaking on a stamp paper of Rs.100/- in which the accused

promised that he would give status of legally wedded wife to the

complainant and that she would get rights in his movable and

immovable properties which included a house at Aklera. However,

a little later, the accused severed his contact with the lady who
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became worried and went to the house of the accused at Aklera.

She was shocked to find that Anita the first wife of the accused

was residing at that house with her two children. The family

members of the accused refused to accept the complainant as his

legally wedded wife and she was thrown out of the house after

being assaulted. The complainant thus alleged in the complaint

that the accused fraudulently induced her to enter into a make

believe marriage ceremony and sexually exploited her under a

false promise of marriage. The complainant prayed that the

accused be prosecuted and punished for the various offences

including the offence of rape under false promise of marriage.

During the course of investigation, the statement of the

complainant was recorded under Section 164 Cr.P.C. It is

significant to note here that neither in the detailed complaint nor

in the statement recorded under Section 164 Cr.P.C., did the

complainant allege that her previous marriage with Bhanwar Singh

Meena had ever been dissolved. Be that as it may. The

investigating officer also, did not delve into this aspect and

proceeded to file a charge-sheet against the accused for the

offences mentioned above. The accused contested the charges

before the learned trial court and claimed discharge. However, the

trial court turned down the said order and proceeded to frame

charges against the accused as stated above. Hence, this revision.

I have heard the arguments advanced by Shri Ashwini

Kumar Babel learned counsel representing the petitioner and the

learned Public Prosecutor and have gone through the impugned

order as well as the challan papers.

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Shri Babel relied upon the Supreme Court decision in the

case of Prashant Bharti vs. State of NCT of Delhi, reported in

AIR 2013 SC 2753 and urged that admittedly, the relations

established between prosecutrix and the accused petitioner were

totally consensual even as per the case set out in detailed written

report as well as the statements of the complainant recorded

under Section 161 and 164 Cr.P.C. He urged that it is evident from

these material pieces of evidence that the prosecutrix was married

to one Shri Bhanwar Singh Meena when she established the illicit

liaison with the accused. Neither in the FIR nor in her statements

recorded under Section 161 or 164 Cr.P.C., did the prosecutrix

disclose that her marriage with Shri Bhanwar Singh had been

legally annulled. He urged that in such a situation, it was fool

hardy of the prosecutrix to expect that she could enter into a valid

marriage with the petitioner. He urged that the learned trial court

did not advert to this inherent lacuna in the prosecution case and

mechanically proceeded to frame charges against the accused in a

totally unjustified manner. He thus implored that the impugned

order dated 30.11.2016 being grossly illegal should be quashed

while accepting the revision.

Per contra, learned Public Prosecutor vehemently opposed

the submissions advanced by the petitioner’s counsel and urged

that the petitioner intentionally mislead the prosecutrix to believe

that his marriage with Smt. Anita was no longer in existence. In

order to convince the prosecutrix regarding this false assurance,

the accused also executed a make believe agreement in which he

assured that he would be taking care of the complainant in future
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and would give her the status of a legally wedded wife. He pointed

out that in the earlier, the learned Additional Sessions passed a

non-speaking order dated 29.11.2014 and directed framing of

charges for the same offences against the petitioner who

challenged the order passed by the learned Additional Sessions

Judge by filing a revision petition No.51/2015 in this Court. This

Court held that the order framing charges was unreasoned and the

incriminating material on record was not discussed by the trial

court and accordingly, the order framing charges was set aside

and the matter was remanded to the trial court to pass a fresh

order on the question of charges after hearing the parties.

Shri Babel urged that the learned trial court did not advert to

the admitted factual position regarding the petitioner as well as

the complainant being married from before and the virtual legal

bar on a fresh marriage while their earlier marriages still

subsisted.

I have heard the arguments advanced by the learned

counsel for the parties and have gone through the material

available on record.

The prosecutrix has categorically mentioned in her complaint

as well as in her statements recorded under Section 161 and 164

Cr.P.C. that she was married to Shri Bhanwar Singh Meena.

Neither in the report nor in the entire investigation, did the

prosecutrix allege that her marriage with Bhanwar Singh Meena

had been dissolved. It was not even mentioned in the report that

she and Bhanwar Singh had divorced customarily. It is the

admitted case of the prosecutrix that she was aware of the
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petitioner’s subsisting marriage with Smt. Anita. There is no

allegation of the prosecutrix that the petitioner ever suggested to

her that he had divorced Smt. Anita. Even in the affidavit

executed by the petitioner, it has been mentioned that he was

living separately from his wife Smt. Anita for the last two years.

Thus apparently, in this affidavit as well, the existing marital

status of the petitioner is clearly spelt out. The said affidavit was

allegedly executed on the instructions of the complainant’s father.

Manifestly thus, marriage of the petitioner and the prosecutrix was

impossible as it was prohibited by law because, both were having

subsisting marriages when they entered into a relationship which

legally is nothing short of an illicit extramarital affair and hence

the prosecution of the petitioner for the above offences is

absolutely unjustified. The situation at hand is squarely covered

by the Supreme Court decision in the case of Prashant Bharti

(supra) wherein, the Hon’ble Apex Court considered almost an

identical situation and held that as the complainant therein was

married from before, there was no question of her being induced

into a marriage. The Hon’ble Apex Court held as below:

“16. The factual position narrated above would
enable us to draw some positive inferences on the
assertion made by the complainant/prosecuterix –
against the appellant-accused (in the supplementary
statement dated 21.2.2007). It is relevant to notice,
that she had alleged, that she was induced into a
physical relationship by Prashant Bharti, on the
assurance that he would marry her. Obviously, an
inducement for marriage is understandable if the same
is made to an unmarried person. The judgment and
decree dated 23.9.2008 reveals, that the
complainant/prosecuterix was married to Lalji Porwal
on 14.6.2003. It also reveals, that the aforesaid
marriage subsisted till 23.9.2008, when the two
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divorced one another by mutual consent under Section
13B of the Hindu Marriage Act. In her supplementary
statement dated 21.2.2007, the
complainant/prosecuterix accused Prashant Bhati of
having had physical relations with her on 23.12.2006,
25.12.2006 and 1.1.2007 at his residence, on the
basis of a false promise to marry her. It is apparent
from irrefutable evidence, that during the dates under
reference and for a period of more than one year and
eight months thereafter, she had remained married to
Lalji Porwal. In such a fact situation, the assertion
made by the complainant/prosecuterix, that the
appellant-accused had physical relations with her, on
the assurance that he would marry 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. Accordingly,
there was no question of anyone being in a position to
induce her into a physical relationship under an
assurance of marriage. If the judgment and decree
dated 23.9.2008 produced before us by the
complainant/prosecuterix herself is taken into
consideration alongwith the factual position depicted in
the supplementary statement dated 21.2.2007, – it
would clearly emerge, that the
complainant/prosecuterix was in a relationship of
adultery on 23.12.2006, 25.12.2006 and 1.1.2007
with the appellant-accused, while she was validly
married to her previous husband Lalji Porwal. In the
aforesaid view of the matter, we are satisfied that the
assertion made by the complainant/prosecuterix, that
she was induced to a physical relationship by Prashant
Bharti, the appellant-accused, on the basis of a
promise to marry her, stands irrefutably falsified.”

In view of the discussion made hereinabove, I am of the firm

opinion that the admitted highest allegations of the prosecution do

not disclose the necessary and essential ingredients so as to

justify framing of charge against the accused for the offences

under Sections 493, 496, 420 and 376 IPC.

Resultantly, the revision petition deserves to be and is

hereby allowed. The impugned order dated 30.11.2016 passed by
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the learned Additional Sessions Judge No.1, Chittorgarh in

Sessions Case No.34/2014 is quashed and set aside as being

grossly illegal.

(SANDEEP MEHTA)J.

tikam daiya/

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