HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 1386 / 2015
Harshit Chaplot @ Tappu S/o Mohan Lal, by caste Chaplot, R/o
Bhadesar, District Chittorgarh.
—-Petitioner
Versus
1. The State of Rajasthan
2. Akila Banu D/o Sabir Mohammad, by caste Mohammedan,
Resident of Bhadesar, District Chittorgarh.
—-Respondents
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For Petitioner(s) : Mr. Kaushal Gautam.
For Respondent(s) : Mr. O.P. Rathi, PP.
Mr. Zafar Khan.
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HON’BLE MR. JUSTICE SANDEEP MEHTA
Judgment
Date of Judgment: 12/01/2018
By way of this revision, the petitioner Harshit Chaplot @
Tappu has approached this Court for challenging the order dated
12.08.2015 passed by the learned Additional Sessions Judge No.2,
Nimbaheda, District Chittorgarh in Sessions Case No.38/2015
(14/2015) whereby charge was ordered to be framed against the
petitioner for the offence under Section 376)1) IPC and the order
dated 24.09.2015 whereby the said charge was read over to him.
Shri Kaushal Gautam learned counsel representing the
petitioner vehemently urged that ex-facie, the material placed on
record by the investigation agency alongwith the charge-sheet is
not of such unimpeachable quality so as to justify the order
framing charge against the petitioner. He contended that the
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prosecutrix Smt. ‘A’ was a major married woman. In the FIR as
well as in her statement recorded during investigation, she
admitted that she was already married to one Iqbal Khan and that
owing to her husband’s ill behaviour, she developed an
extramarital love affair with the present petitioner about 4 years
prior to lodging of the FIR which was presented to the
Superintendent of Police, Chittorgarh on 09.02.2015. He further
urged that the case set up by the prosecutrix that the accused
petitioner procured sexual favours from her and exploted her by
extending a fraudulent allurement of marriage is totally
unbelievable because she was a married woman and thus, there
was no scope of her marrying the petitioner during her subsisting
marriage with Iqbal Khan. With these submissions, learned
counsel Shri Gautam implored the Court to set aside the
impugned orders as being grossly illegal.
Per contra, learned Public Prosecutor and Shri Zafar Khan,
learned counsel representing the complainant vehemently
opposed the submissions advanced by the petitioner’s counsel.
They urged that the petitioner gave a patently false allurement of
marriage to the prosecutrix Smt. ‘A’ and thereby, fraudulently
induced her to establish physical relations with him. The promise
of marriage made by the petitioner to the prosecutrix was never
meant to be fulfilled. The prosecutrix fell into for the trap laid by
the accused and got her flourishing marriage with Iqbal Khan
terminated on 30.01.2015 by getting a divorce deed executed.
The petitioner, who was continuously exploiting the lady called her
to Chittorgarh Court on 03.02.2015 with a blatant by false
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assurance that he would get the marriage documents executed. In
good faith, she went to the Chittorgarh Court and kept waiting for
the accused. The accused reached the court and asked her to buy
a stamp of Rs.100/-. A make believe marriage document was got
typed on the stamp paper and then the accused went away from
the court premises saying that he would return shortly but never
returned. It was thus contended that the intention of the accused
was fraudulent right from the inception and he was never desirous
of marrying the proecutrix. All the promises which were given by
the accused were fraudulent and were aimed at procuring undue
sexual favours from the lady. The accused never intended to stand
by his assurance and ditched the prosecutrix after calling her to
the court for preparing the marriage document. They thus
implored the Court to reject the revision.
I have heard and considered the arguments advanced by the
learned counsel for the parties and have gone through the
material available on record.
As per the admitted case set up by the proecutrix Smt. ‘A’
aged 27 years, she was married with Iqbal Khan about 12 years
prior to filing of the FIR and two children were born to her from
her wedlock with Iqbal. Inher statement recorded under Section
161 Cr.P.C., she categorically stated that her marriage with Iqbal
was on the rocks and both used to quarrel frequently. As per her
own case, she came into contact with the petitioner about four
years prior to lodging of the FIR and relationship developed into
intimacy without any kindly allurement ever being offered by the
petitioner. She, as well as the petitioner continued to establish
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voluntary carnal/ sexual relations for a prolonged period of about
four years. She also came into close contact with the petitioner’s
family members and used to exchange sundries with them. She
left her husband about 2 years ago and took up in a separate
residence. The petitioner, used to sleep over at the house of the
prosecutrix where both often indulged in voluntary physical
relations. She alleged that when she resisted the advances of the
accused, an assurance was given that he would accept her as his
wife. The petitioner allegedly advised the prosecutrix to divorce
her husband Iqbal on which, she got the divorce document
executed on 30.01.2015. But the accused resiled from his promise
and ditched her. On going through the said statement, it is
apparent that at no point of time, during the prolonged period of
four years prior to the lodging of the FIR, did the prosecutrix make
any aspersion regarding the accused having given her a false
promise/ allurement of marriage. She admitted that her marriage
with Iqbal was on the rocks. She came into contact and developed
intimacy with the petitioner and both used to indulge in carnal
relations frequently. She also became intimate with the
petitioner’s family members. Thus, no allurement or promise was
given by the petitioner during the said period of four years prior to
lodging of the FIR which could have induced or lured the
prosecutrix into establishing sexual relations with the petitioner
unless she herself craved the same. It is for the first time in the
month of January, 2015 that the prosecutrix alleged that she was
told by the petitioner to divorce her husband. The divorce
documents were prepared and executed on 30.01.2015. While
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being examined under Section 164 Cr.P.C., the prosecutrix alleged
that she came into contact with Harshit about four years ago. Her
husband came to know of these activities and thus stopped
coming to Bhadesar and left the prosecutrix and went away to his
own village Vallabh Nagar. Thereafter, illicit liaison of the
prosecutrix with the petitioner started and continued in an unfazed
manner till the year 2015. The aspersion of the prosecutrix that
the petitioner asked her to divorce her husband so that both could
marry each other is palpably false because in the marriage
affidavit dated 03.02.2015 which the prosecutrix herself presented
to the I.O., it is clearly mentioned that “her husband had harassed
and humiliated her and had also stopped fulfilling his matrimonial
obligations and that, she had broken off all the ties with him for
the previous seven years. Thereafter, she came into contact with
Harshit who had taken good care of her and her children and had
also undertaken to provide for their subsistence. She put a
proposal of marriage to Harshit which he accepted.”
In view of the categoric assertions made by the prosecutrix
in her voluntarily drawn affidavit, it is apparent that the allegation
set out by her in the written report and her statements recorded
under Sections 161 and 164 Cr.P.C. that it was the petitioner who
gave her a false allurement of marriage with the oblique motive of
getting sexual favours is palpably false and fabricated. The facts
available on record clearly indicate that the situation was totally
reverse and it seems to be the prosecutrix who entrapped the
petitioner in her charms. The entire material available on record
does not give rise to even a slender indication of guilt of the
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accused for the offence under Section 376(1) IPC so as to justify
his prosecution for the same. Thus, this Court is of the firm
opinion that the trial court was totally unjustified in directing
framing of charge against the petitioner for the offence under
Section 376(1) IPC. The impugned orders dated 12.08.2015 and
24.09.2015 are grossly bad in the eye of law as well as on facts as
the same are not based on appropriate appreciation and
evaluation of the admitted factual aspects available on record and
hence the same are liable to be set aside.
Accordingly, the instant revision deserves to be and is hereby
allowed. The impugned orders dated 12.08.2015 and 24.09.2015
passed by the learned Additional Sessions Judge No.2,
Nimbaheda, District Chittorgarh whereby charge was framed
against the petitioner for the offence under Section 376(1) IPC is
set aside. The petitioner is discharged from the offence.
Record be returned to the trial court.
(SANDEEP MEHTA),J.
tikam daiya/