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Santosh Kolam vs The State Of Madhya Pradesh on 21 June, 2019

1 MCRC-956-2019
The High Court Of Madhya Pradesh

Jabalpur, Dated : 21-06-2019
Shri Ashish Tiwari, counsel for the applicant.
Shri Rudra Dev Singh, P.L. for the State/respondent No.1.
Shri Rajendra Yadav, counsel for the Victim/respondent No.2.
Heard finally.
The applicant has filed this petition under Section 482 of Cr.P.C., for

quashment of the charge-sheet dated 15.11.2018 filed before the Special
Court of JMFC, Jabalpur registered as RCT No.6440/2018.

giving rise to this petition, in short, are that the prosecutrix
married on 29.02.2012 with one Vijay Kushwaha and after two years of the
marriage child was born out of the said wedlock. Peviously, prosecutrix was
known to the applicant, he used to come at her house and after marriage he
used to come at the matrimonial home of the prosecutrix. On 13.06.2018,
when the husband of the prosecutrix was out of the house, the applicant came
in her house in the night approximately at 9 PM and said that he has been

promoted and bring some sweets for celebration and one piece was offered
to the prosecutrix. When the prosecutrix consumed the piece of sweet, then
she feel giddiness and became unconscious. The applicant took the benefit
of this situation and committed sexual intercourse upon her and clicked some
objectionable photos and prepare video of the prosecutrix. On the next day
i.e. on 14.06.2018, the applicant again come in the night in the house of the
prosecutrix and threatened her that he clicked some objectionable photo and
prepared a video of the prosecutrix, if she narrated the incident to anyone, he
will get viral that video in the media. After threatening her, he committed
sexual intercourse on so many times. When the applicant repeatedly come at
the matrimonial home of the prosecutrix, then the prosecutrix after mustering
courage narrated the story to her husband and her mother and father. On

Digitally signed by PRASHANT
Date: 22/06/2019 17:43:06
2 MCRC-956-2019
16.06.2018, when the applicant came at her house, then her husband phoned
to the police, however, the applicant fled away from the spot. After that, she
lodged an FIR against the applicant at Police Station Ranjhi, Jabalpur. The
police registered a Crime No.610/2018 for the offence punishable under
Sections 376 and Section506 of IPC and started investigation and submitted the
charge-sheet against the applicant before the Court of JMFC, Jabalpur.

Being aggrieved by that charge-sheet, the applicant has filed this
petition under Section 482 of Cr.P.C., for quashment of the criminal
proceedings filed against him on the ground that the prosecutrix was a major
at the time of incident, she was a consenting party and with the consent of the
prosecutrix, he committed sexual intercourse repeatedly with her, but her
husband-Vijay Kushwaha filed a petition under Section 13 of the Hindu
Marriage Act for taking the divorce from the prosecutrix and also made the
applicant as a party and alleged therein that the prosecutrix is having illicit
relations with the applicant and is living in a adultery on that ground he has
filed a petition for divorce. The brother of the applicant Jagdish Kumar
Komal also made a complaint to the Police Station Ranjhi on 15.10.2018
alleging therein that the prosecutrix is trying to blackmail his brother and
demanding Rs.20 Lacs and he is having the recording of all the
conversations of the prosecutrix. The applicant is having the CD and Pen
Drive and prays to close the investigation, but the Investigating Officer
instead to close the investigation, filed a charge-sheet which is totally based
on false facts and prays to quash the charge-sheet.

Learned counsel for the prosecutrix stated that the charge has been
framed against the applicant. The case is being tried by the Special Court, the
applicant can agitate this fact before the Court. There is prima facie
ingredients of the alleged offence against the applicant. The applicant by
pressuring the prosecutrix committed sexual intercourse with her. She
narrated the story to her husband also made a complaint to the SHO PS
Ranjhi, on 26.07.2018. When the applicant threatened her to viral the

Digitally signed by PRASHANT
Date: 22/06/2019 17:43:06
3 MCRC-956-2019
objectionable video, then she again lodged the report against the applicant on
12.10.2018. There is sufficient evidence available against the applicant and
pray to dismiss the petition.

Learned counsel for the State also supported the stand of the
objector/victim and submitted that the applicant committed sexual intercourse
against her will and threatened her to circulate the objectionable video. There
i s prima facie ingredients of the offences are made out and prays for
dismissal of the petition.

Having heard both the counsel, perused the documents filed along with
the charge-sheet.

It is not disputed that the applicant is well known to the prosecutrix

before marriage and after marriage he used to come to her matrimonial home.
As per case of prosecution case, prosecutrix lodged the report stating therein
that on 13.06.2018, the applicant came in the matrimonial home of the
prosecutrix and fraudulently offered piece of sweet and when she consumed
the sweet, she became semi-unconscious due to narcotics substance. Taking
the advantage of such situation, the applicant committed rape upon her and
prepared a video and clicked some objectionable photo which was
objectionable for the prosecutrix and threatened the prosecutrix that he will
viral the video and photos. The applicant took the advantage of such
situation, committed sexual intercourse repeately upon the prosecutrix and
lateron, the prosecutrix mustered courage and then she narrated the story to
her husband. She filed a written report on 26.07.2018 to SHO PS Ranjhi and
lateron, again she filed a written complaint on 12.10.2018 to the SHO and
lodged the FIR against the applicant.

Perused the statement of the prosecutrix recorded under Sections 161
and Section164 of Cr.P.C. She categorically stated that she is not consenting party.
The applicant made such type of atmosphere and also created a fear in the
mind of prosecutrix and on the basis of that fear the applicant committed rape
upon her and she did not narrate the story of rape to anyone. The applicant

Digitally signed by PRASHANT
Date: 22/06/2019 17:43:06
4 MCRC-956-2019
filed a copy of the divorce petition filed by the husband against the
prosecutrix. In this petition, husband of the prosecutrix categorically
mentioned that applicant is having illicit relations with the prosecutrix inspite
knowing the fact that she is a married lady. Whether the prosecutrix was a
consenting party or consenting on the misconception and misrepresentation
or under the fear that is to be decided on merits during trial. This is not the
stage to decide the case on merits, as trial is going on.

After perusal of the FIR, statement of the prosecutrix and the
statement recorded before the Magistrate under Section 164 of the Cr.P.C.,
this Court does not find any substance to quash the criminal proceedings
lodged against the applicant at initial stage because while invoking the power
under Section 482 of Cr.P.C., the Court is not in a position to consider the
case on merits. No doubt charge-sheet can be filed on the basis of evidence
under Section 161 of Cr.P.C. which are inadmissible but Court can presume
the ingredients of the offence before framing the charge.

Counsel for the applicant appeared has mainly pressed this application
on the point that prosecutrix being a major and consenting party, no case is
made out against him. This Court is of the opinion that this fact is not to be
decided in this petition, it has to be decided after recording the evidence and
on merits, as per Section 90 of the IPC and newly amended Section 114-A of
the Evidence Act. There are some presumption and burden for proving the
consent is shifted on the accused, if commission of sexual intercourse is
established against the accused.

On the basis of foregoing discussions, this Court is not inclined to
invoke the inherent powers envisaged under Section 482 of Cr.P.C.
Consequently, this petition being devoid of any merit, deserves to be and is
hereby dismissed.



Digitally signed by PRASHANT
Date: 22/06/2019 17:43:06
5 MCRC-956-2019

Digitally signed by PRASHANT
Date: 22/06/2019 17:43:06

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