Kishore vs State & Anr on 17 February, 2018

S.B. Criminal Misc(Pet.) No. 1852 / 2014
Kishore S/o Bhanwar Lal by caste Dhakad, Age 30 years, r/o
Sukhwada, P.S. Bhadeshar, Distt. Chittorgarh


1. State of Rajasthan

2. Smt. Prem Jat D/o Bhagwan Ji Jat (W/o Bheru Lal Jat), aged
25 years, R/o Bhutiya Khurd, P.S. Bhadeshar, Distt. Chittorgarh

For Petitioner(s) : Mr. Naman Mohnot
For Respondent(s) : Mr. Deepak Choudhary, P.P.

Mr. Rajeev Bishnoi
Mr. Gopi Chand, R.P.S., C.O. Nimbaheda,

By way of the instant petition under Section 482 CrPC,

petitioner Kishore has approached this court seeking quashing of

the FIR No.461/2013 registered at Police Station Kotwali, District

Chittorgarh for the offences under Sections 376, 384, 366, 342,

344 of the I.P.C. and Section 76 of the I.T. Act.

Facts in brief are that the respondent No.2 complainant

Smt. “P” lodged a complaint in the court of C.J.M., Chittorgarh on

07.11.2013 alleging inter alia that she was married in the Village

Pipali. However, her marital ties with her previous husband fell

out and were terminated by mutual consent. About a year and

half ago, the accused petitioner allegedly gave a fraudulent
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assurance of marriage to the complainant and took her to

Chittorgarh, where she was kept confined in a room and the

accused indulged in sexual intercourse with her against her desire.

When the neighboring people objected to this immoral activity, the

complainant was taken to Senti, where again she was locked up in

a room and her sexual exploitation at the hands of the accused

continued. She was also threatened that her indecent pictures

and videos etc. would be uploaded on Facebook and other social

media. Her family members were also misled by the accused.

About 13 to 14 months ago, she somehow managed to escape

from the clutches of the accused, whereafter her family members

married her off to someone in the Village Utheri. However, the

accused came down to the Village Utheri and threatened to make

her indecent pictures/videos viral. Fearing consequences of these

threats, the complainant left her husband’s house and went to live

at her father’s house at the Village Bhutiya. She tried to talk sense

into the father of the accused, but he also did not provide any aid

in this regard to the complainant. She lodged a complaint with

the S.P., Chittorgarh on 15.10.2013, but no action was taken.

Thereupon, she was compelled to file a complaint in the Court of

CJM, Chittorgarh. The said complaint was forwarded to the Police

Station Kotwali, District Chittorgarh for investigation under

Section 156 (3) CrPC, where the aforementioned FIR came to be

lodged. The accused petitioner has approached this court by way

of the instant miscellaneous petition seeking quashing of the

above FIR on numerous grounds.

Mr. Naman Mohnot, learned counsel representing the
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petitioner, urged that ex facie the allegations set out in the highly

belated FIR lodged by the complainant are false and fabricated.

He urged that in the period intervening the last incident of alleged

sexual assault made upon the complainant and the lodging of the

FIR, numerous cases, criminal as well as civil, came to be lodged

inter se between the parties. Despite registration of these cases,

the complainant kept silence and did not raise even a murmur

regarding her having been exploited sexually by the petitioner.

He, thus, urged that the impugned FIR is nothing but a means of

extracting money and for pressurizing the petitioner and the same

deserves to be quashed as it does not disclose the necessary

ingredients of the offences alleged.

Per contra, Mr. Rajeev Bishnoi, learned counsel

representing the complainant, and learned Public Prosecutor,

assisted by Mr. Gopi Chand, Circle Officer, Nimbaheda, Chittorgarh

(Investigating Officer) vehemently opposed the submissions

advanced by the petitioner’s counsel. They urged that the

petitioner complainant had a bonafide reason for not filing the FIR

promptly. They contended that the accused was a married man

and without disclosing this fact, he induced the complainant to

believe that he would be marrying her and under this fraudulent

assurance, he procured sexual favours from the lady and thus, the

act of the accused clearly falls within the definition of rape as per

clause (4) of Section 375 of the I.P.C. With these submissions,

learned Public Prosecutor as well as learned counsel for the

complainant craved dismissal of the instant petition under Section

482 CrPC.

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I have given my thoughtful consideration to the

submissions advanced at bar and gone through the material

available on record.

A detailed factual report prepared by the Investigating

Officer, after concluding investigation has been submitted on

record of the petition. A few relevant extracts from the said

factual report have a material bearing on the controversy and are

thus, reproduced hereinbelow for the sake of ready reference :-

“lEiw.kZ vuqla/kku miyC/k jsdkMZ ls ik;k tkrk gS fd izkfFkZ;k izse ,oa
vizkFkhZ fd”kksj /kkdM ds o’kZ 2010 ls tku igpku Fkh] vizkFkhZ dk pksjh
pqids Jhefr izse ds ?kj vkuk tkuk Fkk A izkfFkZ;k ,oa vizkFkhZ fd”kksj
/kkdM fpÙkksMx esa xkWa/khuxj o lsarh {ks esa dejs fdjk, ysdj jgs
fd”kksj /kkdM ,oa Jhefr izse us 78 ekg rd LoSPNk ls “kkjhfjd
laca/k cuk, j[ksa bl ckr dh iqf’V xokg vCnqy yrhQ] jes”k “kekZ o
Hkkuq dqekj djrs gSa A Lo;a fd”kksj /kkdM us iqNrkN esa vafdr djk;k
gSa] 78 ekg rd xkWa/khuxj ,oa lsarh {ks esa mlus fdjk,s ds dejksa esa
izse dks LosPNkiwoZd j[kk o “kkjhfjd laca/k LFkkfir fd,s A izkfFkZ;k izse
ckbZ ds ?kj tkus ds ckn ¼izkfFkZ;k ,oa vizkFkhZ ds fcp iwoZ esa tehu
[kjhn o dCts dks ysdj mRiUu fookn½ rhu lky ckn izkfFkZ;k us
cykRdkj dk vfHk;ksx ntZ djk;k gSa A

izkfFkZ;k ,oa izkfFkZ;k ds firk us xqe”kqnxh dh tkWap ds nkSjku
c;ku fd;k fd og fj”rsnkjh esa pyh xbZ Fkh] dksbZ cgdk dj ugh ys
x;k gSa tcfd xqe”kqnxh dh 78 ekg dh vo/kh ds nkSjku izkfFkZ;ka
fd”kksj /kkdM ds lkFk LosPNk iwoZd fpÙkkSMx esa jg jgh Fkh A izkfFkZ;k
}kjk is”k FIR, 161 CRPC ds c;ku] 164 CRPC ds c;ku] 91
CRPC ds rgr~ fn,s x,s uksfVl esa Hkh fojks/kkHkkl gS A

?kVuk dh lwpuk le; ij ugha nsus dk dkj.k lekt o
yksdykt dk Hk; crk;k] ;g lR; gS fd izkfFkZ;k ds firk ds }kjk
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fodz;”kqnk 01 ch?kk tehu dks ysdj izkfFkZ;k ds fj”rsnkj o vizkFkhZ ds
fcp fookn tehu fodz; djrs gh “kw: gks x;k Fkk A

izdj.k gktk esa lEiw.kZ vuqla/kku ls ik;k x;k fd izkfFkZ;k Jh
fd”kksj /kkdM }kjk fprkSMx esa xka/khuxj o lSarh {ks esa fdjk;s ds
dejs esa j[kk] Lo;a fookfgr gksrs gq, ,oa ;g tkurs gq, fd Jhefr izse
Hkh fookfgr gS] muds lkFk 78 ekg rd “kkjhfjd lEcU/k LFkkfir
fd;s A

bl izdkj vizkFkhZ Jh fd”kksj /kkdM Lo;a fookfgr gksrs gq, ,oa
Jhefr izse fookfgrk gksuk tkurs gq, Hkh muds lkFk 78 ekg rd
“kkjhfjd lEcU/k LFkkfir djus ls ¼/kkjk 375 Hkk-n-l- ;kSu vijk/k ds
[k.M4 vuqlkj ml Lh dh lEefr ls] tcfd og iq:’k ;g tkurk
gS] fd og ml Lh dk ifr ugha gS vkSj ml Lh us lEefr blfy, nh
fd og fo”okl djrh gS fd og ,slk iq:’k gS ftlls og fof/kiwoZd
fookfgr gS ;k fookfgr gksus dk fo”okl djrh gSa A½ ;kSu “kks’k.k djuk]
vfHk;qDr ds fo:) vijk/k /kkjk 376 Hkk-n-l- ik;k tkrk gS A “

Manifestly, these findings of the Investigating Officer

are clearly indicative of the only possible conclusion that the

sexual relationship between the petitioner and the complainant

were totally consensual in nature. The complainant as well as the

petitioner were both married and thus, the woman could not have

even entertained a remotest of belief that the accused petitioner

could marry her. The relationship was purely an immoral

extramarital sexual affair between two major married persons.

The Investigating Officer has not found the complainant’s

allegation regarding the accused having misused any of her

indecent pictures or videos. The complainant did not set up a

case in the FIR that the accused induced her to indulge in sexual
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relationship by giving her a fraudulent assurance of marriage.

However, in her statement recorded under Section 164 CrPC, this

improved theory was presented. Nevertheless, as has been

discussed above, since both the partners in the immoral sexual

relationship were married from before, it was not possible in any

case for them to have married each other lawfully. The

complainant was required by law to be aware of the consequence

of indulging in such a relationship. The Investigating Officer has

concluded that the accused was married from before and he

fraudulently induced the complainant to enter into a sexual

relationship by making her to believe that he was her husband and

thus, the offence under Section 376 IPC is proved. Ex facie, the

said finding has no basis whatsoever because it is contrary to the

complainant’s own allegations. The factual report also indicates

that during the span of time, from the date of the last alleged

sexual assault till the lodging of the FIR, numerous criminal and

civil cases came to be registered inter se between the parties.

Thus, there was no reason for the complainant to have kept silent

during this long period of one and half years and in not lodging a

prompt report, if there was any truth in her allegations.

In view of the discussion made hereinabove, this court

is of the firm opinion that allowing further investigation of the

impugned FIR and the proceedings sought to be taken in

furtherance thereof would be nothing short of a gross abuse of

process of law. The case is clearly one of an extramarital carnal

fling between two major married adults. Ex facie the impugned

FIR is nothing but a tool of wreaking vengeance upon the
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petitioner. The same does not disclose ingredients of any offence

whatsoever. Hence, the instant miscellaneous petition deserves to

be and is hereby allowed. The FIR No.461/2013 registered at

Police Station Kotwali, District Chittorgarh and all the proceedings

sought to be taken in furtherance thereof are hereby quashed.



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