THE HIGH COURT OF MADHYA PRADESH
MCRC-18828-2016
(BEERENDRA KUMAR TIWARI Vs THE STATE OF MADHYA PRADESH)

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Jabalpur, Dated : 27-04-2018
Mr. Surendra Singh, learned Senior Advocate with Mr. B.S.
Grewal and Mr. Vijay Kumar Shrivastava, learned counsel for the
petitioner.
Ms. Shahin Fatima, learned GA for respondent No.1/State.

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Ms. Amrit Kaur Ruprah, learned counsel for respondent No.2.

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This petition under Section 482 of the Cr.P.C. has been filed by

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the petitioner/Birendra Kumar Tiwari for invoking the extraordinary

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jurisdiction of this Court and to quash the FIR at Crime no.406/16,
registered at Police Station, Adhartal for offences under Sections
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376(2)(f), 376(2)(n) and 506 of the IPC against the petitioner.

2. The prosecution story in brief is that, respondent
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No.2/Archana Tiwari is the wife of the younger brother of the
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petitioner(Birendra Kumar Tiwari). The complainant/Archana Tiwari
along with her husband were residing in the house of the petitioner at
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Jabalpur. The petitioner was serving as Hawaldar in the RPF, Kota.

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Off and on, he used to visit Jabalpur.

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3. On 07/03/2012 at about 3 p.m., the petitioner beaten the
prosecutrix and allegedly committed rape with her. She was threatened
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saying that, if she resists, her husband and children will be dealt to
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death. A MMS was also prepared and the petitioner threatened to
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make it public. Because of the fear, she submitted herself. He also
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threatened her that, her family will be thrown out of the house. One
day, her husband returned from the restaurant and saw the petitioner
holding the hand of the prosecutrix. The petitioner abused them with
obscene words and fled from the spot. The prosecutrix narrated the
whole incident to her husband and explained about the MMS and the
sexual harassment. The prosecutrix also claimed that, her two
daughters also have seen the petitioner about his threatening. On
07/03/2016, the prosecutrix was again subjected to sexual harassment.
Her elder daughter Palak was also aware of the incidents. On this
report, crime has been registered under Sections 376(2)(f), 376(2)(n)
and 506 of the IPC.

4. On behalf of the petitioner, FIR has been challenged on the
ground that, the FIR is delayed about 4 years and the alleged incident
took place on 17/03/2012. The petitioner was in service at Kota,
Rajasthan. The Rojnamcha dated 03/06/2016 at entry No.27 was
lodged, but at that time, the petitioner was at Kota. It is also claimed
that, the petitioner, on 07/03/2016 sent a legal notice to vacate the
house within two months and also demanded rent @ Rs.5,000/- p.m.
from the year 2011 till vacating the house, which comes around

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Rs.3,00,000/-. It is stated that, because of this notice, the prosecutrix

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become annoyed and to wreck vengeance has lodged the complaint. It

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is further claimed that, the petitioner being harassed unnecessarily,

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therefore, the FIR and consequent criminal proceeding be quashed.

5. Per contra, learned GA for the respondent/State opposed the
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contentions and stated that, the petitioner was serving as Hawaldar in
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RPF, Kota but used to visit Jabalpur in holidays. On 17/03/2012 at
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about 3pm, the petitioner given prashad to the prosecutrix. Because
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of which, she had lost her consciousness. The petitioner committed
sexual intercourse with her and prepared MMS and showing that
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MMS, he blackmailed the prosecutrix. He was also threatening her to
throw away from the house. Because of the fear, she could not resist
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the petitioners. Palak, the 11 years old daughter of the prosecutrix in
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her statement under Section 161 of Cr.P.C. has also supported the
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statement of the prosecutrix and narrates that, the petitioner used to
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beat and threaten the prosecutrix. She also states that, when her father
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used to go to the work, the petitioner used to caught the prosecutrix
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and take her into the room and locks the room from inside. The
statements under Section 164 of Cr.P.C. recorded on 07/06/2016
before JMFC, Jabalpur also gives details of the incident and the action
of the petitioner. In the statement of Palak recorded under Section 164
of Cr.P.C. she has described the earlier incidents.

6. On behalf of the complainant, the whole petition is opposed
and it is stated that, the petitioner was living at Kota. After the
incident, the complainant and her family left the house and is living
separately. There are certain offences registered against the petitioner
including Section 307 of IPC. Husband of the petitioner was working
in the ICICI Bank as a team leader in finance sector. The statement
made by the petitioner is false. On 15/03/2012, there was a Pooja in
the house of the petitioner. The petitioner administered some
substance and because of the effect of the substance, the prosecutrix
was almost unconscious, then the petitioner taking advantage
committed the offence and prepared the MMS. The petitioner has
never given any notice or oral instructions to the husband of the
prosecutrix to vacate the house. It has been created to prepare a cause
of defence.

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7. Perused the record and the police diary.

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8. The MLC report also show no definite opinion can be given

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with regard to the sexual intercourse but the statement of the

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prosecutrix and Palak Tiwari under Sections 161 and 164 of Cr.P.C.
are very important.

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9. On behalf of the petitioner, reliance has been place in the case
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of Vineet Kumar and others Vs. State of U.P. another reported
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as AIR 2017 SC 1884, wherein it is held that, bald assertion by the
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complainant that all accused have raped and medical examination not
done on the date of incident or on next day or even on date when I.O.

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asked complainant for getting it done is material indicating that
proceeding is maliciously instituted with an ulterior motive.

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10. The ratio of this citation is not applicable in the present case
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for the incident took place long back with threatening and
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blackmailing the prosecutrix.

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11. At this stage, it would be appropriate to say that, the
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allegations made in the complaint and in the statements of the
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prosecutrix and her daughter constitute offence against the petitioner.
It would not be proper for the high Court to analyse the case of the
petitioner in the light of all probabilities in order to determine whether
a conviction would be sustainable and on such premises arrive at a
conclusion that the proceedings ought to be quashed. It would be
erroneous to assess the material before the Court and conclude that the
criminal case cannot be proceeded with.

Therefore, this petition is dismissed.

(SUSHIL KUMAR PALO)
Digitally signed by JUDGE
RASHMI RONALD VICTOR
Date: 2018.05.02
16:20:08 -07’00’
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