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Digvijay @ Ansh vs The State Of Madhya Pradesh Thr on 29 June, 2018

1 MCRC- 22695/2018

THE HIGH COURT OF MADHYA PRADESH
MCRC 22695/2018
(Digvijay alias Ansh vs. State of MP Anr.)

Gwalior, Dated : 29/06/2018
None for the applicant.
None for the respondents.

An information has been sent by the Secretary, the
High Court Bar Association, Gwalior to the Principal
Registrar, High Court of MP, Bench Gwalior to the effect that
the President, Vice President and some other members of
the Bar were attacked by some miscreants, as a result of
which the lawyers are abstaining from work.

Shri Sukhvir Singh, the father of the applicant, is
present in person. It is submitted by the pairokar of the
applicant that he has been duly authorized and instructed
by the applicant to argue the matter. The pairokar of the
applicant was informed that if he feels that he is not well-
acquainted with the law, then he may not argue, but still he
submitted that the investigation may be stayed and notice
may be issued.

Heard the pairokar of the applicant.

This petition under Section 482 of CrPC has been filed
for quashing the FIR in Crime No.246/2018 registered at
Police Station Padav, District Gwalior for offence under
Section 376 of IPC and Section 3(1)(v) of Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act.

It is submitted by the pairokar of the applicant that on
13/05/2018, the respondent No.2 has lodged a report
against the applicant for offence under Section 376 of IPC
and Section 3(1)(v) of Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act. The copy of the FIR
has been placed on record.

2 MCRC- 22695/2018

As per the allegations made in the FIR, it appears that
the respondent No.2 lodged a report to the effect that she
is resident of Thatipur, District Gwalior and she was the
friend of the applicant and the applicant was known to her
for the last five -six years and even, the parents of the
applicant used to meet with the prosecutrix. On 3 rd
November, 2017, the applicant for the first time took the
prosecutrix to his house situated in Railway Colony, Gwalior
and at that time, there was nobody in the house. The
applicant, without the consent of the prosecutrix and by
making a false promise of marriage, committed rape on her.
Thereafter, on 15/03/2018 at about 12:00 pm the applicant
again took her to his house where the brother-in-law of the
applicant Neeraj Sikarwar, and one friend of the applicant
were present. The applicant requested them to go out and
accordingly, both of them left the house. Thereafter, the
applicant took her to his room and offered water which was
mixed with some narcotic substance and after drinking
water, the prosecutrix started feeling uneasy. It is further
alleged that the applicant thereafter tried to take off her
clothes which was objected by her, but the applicant
insisted that he would marry her, and therefore, committed
rape on her. When the prosecutrix requested the applicant
to marry her, then he refused to marry her and has
threatened that in case, if the prosecutrix makes a
complaint to anybody, then he would kill the prosecutrix
and her family members. As the prosecutrix was afraid of
the applicant, therefore, she did not lodge the report
immediately. On the basis of the report, the police has
registered the crime for the above-mentioned offences. It is
submitted by the pairokar of the applicant that in fact, the
applicant and the prosecutrix were having love affairs and
3 MCRC- 22695/2018

out of deep love, the prosecutrix continued to have physical
relations knowing-fully well that the applicant is avoiding
the question of marriage. The consent given by the
prosecutrix was the free consent and it cannot be said that
the consent of the prosecutrix was obtained by
misconception of fact. It is submitted that this Court by
order dated 18/05/2017, passed in the case of Abid Ali
vs. State of MP and Another [ MRC 11363/2016] has
quashed the proceedings by holding that the prosecutrix
was deeply in love with the applicant and she continued to
have physical relations with the applicant, knowing-fully
well that the applicant was avoiding the question of
marriage and accordingly, it cannot be said that the consent
of the prosecutrix was obtained by making a false promise
of marriage. It is further submitted by the pairokar of the
applicant that the facts and circumstances of the present
case are squarely covered by the facts and circumstances of
the case of Abid Ali(supra). It is further submitted by the
pairokar of the applicant that whats-app conversation
between the applicant and the prosecutrix clearly
establishes that they were in deep love with each other. The
prosecutrix was aware of the fact that the marriage of the
prosecutrix with the applicant is not possible.

Considered the submissions made by the pairokar of
the applicant.

So far as the submissions made by the pairokar of the
applicant that the facts and circumstances of the present
case is squarely covered by the facts and circumstances of
the case of Abid Ali (supra) is concerned, the same is
misconceived and cannot be accepted. In the said case, the
allegations were that the applicant therein was used to take
the prosecutrix to various places including his farmhouse
4 MCRC- 22695/2018

and on various occasions the prosecutrix allowed the
applicant therein, to have physical relations with her.
However, in the present case, as per the allegations made
in the FIR, the applicant had raped the prosecutrix for the
first time on 3rd November, 2017 and raped the prosecutrix
for the second time on 15/03/2018.

So far as the allegations of committing rape on
15/03/2018 is concerned, it is specifically alleged that the
applicant had mixed some narcotic substance in the water,
which was offered by him, as a result of which she became
uneasy and the applicant forcefully committed rape on her
in spite of her objection. The prosecutrix has also given an
explanation in the FIR for not lodging the report
immediately. Whether the explanation given by the
prosecutrix for delayed FIR is plausible or not, cannot be
considered at this stage, because it is a matter of trial and
it is for the trial Court to come to the conclusion that
whether the explanation given by the prosecutrix for delay
in lodging the FIR is plausible or not. However, one thing is
clear. Where pride and dignity of the family of the
prosecutrix are involved, then it is naturally that a person
before lodging the FIR, may think about the pros and cons
of such report. When the prosecutrix is afraid of getting
defamed in the society because of the fact that she was
sexually violated by her friend, then such an apprehension
cannot be said to be baseless. However, as already pointed
out, it is for the trial Court to appreciate the evidence which
would come on record in this regard.

Section 90 of the IPC reads as under:-

”90. Consent known to be given under fear or
misconception.- A consent is not such a consent
as is intended by any section of this Code, if the
consent is given by a person under fear of injury,
or under a misconception of fact, and if the person
5 MCRC- 22695/2018

doing the act knows, or has reason to believe, that
the consent was given in consequence of such fear
or misconception; or
Consent of insane person.-if the consent is
given by a person who, from unsoundness of mind,
or intoxication, is unable to understand the nature
and consequence of that to which he gives his
consent; or
Consent of child.-unless the contrary
appears from the context, if the consent is given by
a person who is under twelve years of age.”
Thus, the moot question for consideration is that
whether the consent of the prosecutrix was obtained by the
applicant under misconception of fact or not ?

From the FIR, it appears that the applicant and the
prosecutrix were friends. The friendship between persons of
opposite gender cannot be said to be only for one purpose.
Therefore, it cannot be said that merely because the
prosecutrix accepted the friendship of the applicant,
therefore, she agreed for physical relations. Even it is
mentioned in the FIR that the prosecutrix used to meet the
parents of the applicant also. It is alleged that on 3 rd
November, 2017 the applicant committed rape on the
prosecutrix for the first time and when she objected to it,
then the applicant made a promise that he would marry
her. Therefore, it is clear that in order to justify his act of
committing rape on the prosecutrix, the applicant had made
a promise of marriage. For the second time, the applicant
raped the prosecutrix on 15/03/2018 and again at that
point of time, the applicant made a promise of marriage.
Thus, it cannot be said that the prosecutrix was a
consenting party for the physical relations but on the
contrary, it is apparent from the FIR that in order to justify
his act of committing rape on the prosecutrix, the applicant
made a promise of marriage. Thus, it cannot be said that
the prosecutrix agreed to have physical relations with the
6 MCRC- 22695/2018

applicant under an impression that the applicant would
marry. Thus, it is clear that the law laid down by this Court
in the case of Abid Ali (supra) has no application to the
facts and circumstances of the present case.

It is informed by the pairokar of the applicant that the
applicant has not been arrested so far. Thus, it is clear that
the applicant has approached this Court under Section 482
of CrPC for quashment of FIR at the most early stage.

It is well-established principle of law that the defence
of the accused cannot be accepted at this stage. It is also
well established principle of law that the legitimate
prosecution cannot be stifled in the midway.

Accordingly, considering the allegations made in the
FIR, this Court is of the considered opinion that prima facie,
there are sufficient allegations against the applicant
warranting registration of offence under Section 376 of IPC
and Section 3(1)(v) of Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act. The FIR in Crime
No.246/2018 registered at Police Station Padav, District
Gwalior for offence under Section 376 of IPC and under
Section 3(1)(v) of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act cannot be quashed.

This petition fails and is accordingly dismissed.

(G.S. Ahluwalia)
Judge

MKB

MAHENDRA KUMAR BARIK
2018.06.29 15:22:53 +05’30’

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