Salman vs State & Anr on 5 September, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 54 / 2017
Salman S/o Shri Abdul Rehman, Resident of Maderna Colony,
Krishi Mandi, Jodhpur

—-Petitioner
Versus

1. State of Rajasthan Through Public Prosecutor.

2. Jameela D/o Mohammed Salim, Resident of Samshan Road, Gal
Basti, Maderna Colony, Jodhpur

—-Respondents
__
For Petitioner(s) : Mr. Firoz Khan.

For Respondent(s) : Mr. R.K. Bohra, PP.

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

Heard learned counsel for the petitioner and learned Public

Prosecutor. Perused the impugned order as well as the material

available on record.

By way of this revision, the petitioner Salman craves to

assail the legality and validity of the order dated 03.10.2016

passed by the learned Additional Sessions Judge (Women

Atrocities) Cases, Jodhpur in Sessions Case No.31/2016 whereby,

charges were ordered to be framed against him for the offence

under Section 376(2)(N) IPC.

Facts in brief are that the respondent No.2 Smt. ‘J’ lodged a

typed report with the Commissioner of Police, Jodhpur on

31.05.2016 alleging inter alia that the petitioner herein was

harassing and stalking her for the last 5-6 years. The petitioner
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[CRLR-54/2017]

allegedly used to call the complainant on her mobile phone and

frequently pressurised her to establish friendship with him. She

told the petitioner that she was already married to one Mohd.

Naseer and thus, she could not foray into this kind of relationship.

Mohd. Naseer divorced the complainant on 27.10.2014 whereafter,

the petitioner managed to establish friendship with the

complainant by offering her a false assurance that he would marry

her. Six months before lodging of the report, the petitioner

allegedly called her at the house of Shabbo, friend of the

prosecutrix and there, after giving her an assurance of marriage,

the petitioner allegedly established forcible sexual relations with

her. The same act was repeated four months later at the house of

Roshni, sister of the petitioner. About a month before lodging of

the report, she was again subjected to intercourse at the house of

Shabbo. Before establishing physical relations with the

prosecutrix, the accused repeatedly assured her that they would

marry. On 28.05.2016, the petitioner bluntly refused to marry the

prosecutrix. She alleged that the accused had sexually exploited

her under a false promise of marriage and thus sought action

against him. The said report was forwarded to the Police Station

Mahamandir for investigation where FIR No.195/2016 was

registered and investigation commenced. The investigation officer,

after concluding investigation, proceeded to file a charge-sheet

against the petitioner for the offence under Section 376(2)(N) IPC.

The petitioner contested the charge before the learned Trial Judge

who, by order dated 03.10.2016, turned down the prayer of

discharge made on behalf of the petitioner and directed framing of
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[CRLR-54/2017]

charge against him in the above terms. Being aggrieved of the

said order, the petitioner has approached this Court by way of

instant revision petition.

Shri Firoz Khan, learned counsel representing the petitioner,

relied upon the Hon’ble Apex Court’s judgments in the case of

Pradeep Kumar Verma vs. State of Bihar Anr., reported in

AIR 2007 SC 3059, Udaipur vs. State of Karnataka,

reported in AIR 2003 SC 1639 and Deepak Gulati vs. State

of Haryana, reported in 2013 Cr.L.R. (SC) 607, and urged

that ex-facie, the allegation of the complainant that she was

fraudulently induced by the accused to establish sexual relations

under a fictitious promise of marriage is absolutely untenable. He

urged that as per the statement of the prosecutrix recorded under

Section 161 Cr.P.C., it is clear that she was in touch with the

petitioner from 6-7 months after her marriage with Mohd. Naseer

resident of Pali. Owing to this relationship, Mohd. Naseer divorced

the prosecutrix. The prosecutrix left behind her two children with

her ex-husband Mohd. Naseer and started living with her father.

She alleged that she established friendship and relations with the

petitioner because of the assurance given by him that he would

marry her and it is she who retracted by contracting Nikaah with

one Javed resident of near New Kohinoor Cinema Hall. She lived

with Javed for 10-12 days as his wife and then came back and

continued her friendship with the petitioner. She again approached

her ex-husband Mohd. Naseer with a request to take her back but

he refused to accept her back. Thereafter, on numerous occasions,

she and the petitioner had sexual relations at various places.

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[CRLR-54/2017]

Similar allegations were levelled by the prosecutrix in her

statement recorded under Section 164 Cr.P.C. The witness

Shabana @ Shabbo, friend of the complainant in whose house the

complainant and the accused had established sexual relations on

more than one occasion, stated that the prosecutrix came to her

house about six months ago in the afternoon. A little later, the

petitioner also came there. The prosecutrix told her that she and

Salman were desirous of marrying each other and wanted to talk

in confidentially. She offered a room of her house to both of them

who went there and stayed there. Upon inquiry as to what they

had done in a room for a such a long time, the prosecutrix

laughed and told her that they had slept together in the room

because they were to marry each other.

From the version set up by the prosecutrix in her

investigational statement, it is apparent that she was having an

intimate relationship with the accused for last 5-6 years. She was

in touch with the petitioner apparently against the desire of her

husband Mohd. Naseer who finally became fed-up and divorced

the lady. She left her two children with Naseer and started living

with her parents apparently for continuing her affair with the

petitioner. A very significant fact emerges from the statement of

the prosecutrix recorded under Section 161 Cr.P.C. wherein, she

categorically stated that about 8 months ago, she contracted

Nikaah with one Javed, son of Babu Chhipa resident of New

Kohinoor at Jaipur. Thus apparently, after having been divorced by

Mohd. Naseer and before establishing physical relations with the

present petitioner, the prosecutrix had already married another
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[CRLR-54/2017]

person named Javed son of Babu Chhipa. Consequently, there was

no possibility of her marriage with the petitioner because she was

already continuing in a subsisting marital relationship with another

person. It is an admitted position that physical relations between

the prosecutrix and the petitioner were purely by consent though

of course she claimed that such relations were established under a

false promise of marriage. However, as has been observed above,

the possibility of marriage between the prosecutrix and the

accused was virtually non-existent as she was already married to

Javed. The situation at hand is clearly covered by the ratio of the

judgment rendered by the Hon’ble Supreme Court in the case of

Udai vs. State of Karnataka (supra) and hence, I am of the

firm opinion that the order framing charge against the petitioner is

grossly illegal and cannot be sustained.

As a consequence, the revision petition deserves to be and is

hereby allowed. The impugned order dated 03.10.2016 passed by

the learned Additional Sessions Judge (Women Atrocities) Cases,

Jodhpur in Sessions Case No.31/2016 whereby, charges were

framed against the petitioner for the offence under Section 376(2)

(N) is hereby quashed and set aside.

(SANDEEP MEHTA)J.

tikam daiya/

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