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Saroj Devi vs State And Ors on 29 September, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

..

S.B. Criminal Revision Petition No. 106/2016

Saroj Devi D/o Shri Om Prakash, B/c Jat, R/o House No.222,
Agarwal Colony, Near Housing Board, Sirsa (Haryana)
Complainant-Petitioner
Versus

1. The Stateof Rajasthan

2. Gopal Sai S/o Ladhuram, B/c Jat, R/o 3-A-26, Jawahar Nagar,
Sri Ganganagar.

3. Jamna Devi W/o Birbal Ram, B/c Jat, R/o Sector No.7,
Chandigarh (Punjab).

4. Gauri Shankar Sai S/o Ladhu Ram, B/c Jat, R/o Sector No.1,
Jawahar Nagar, Sri Ganganagar.

Accused-Respondents
Connected With
S.B. Criminal Revision Petition No. 105/2016
Saroj Devi D/o Shri Om Prakash, B/c Jat, R/o House No.222,
Agarwal Colony, Near Housing Board, Sirsa (Haryana)
Complainant-Petitioner
Versus

1.The State of Rajasthan

2.Sahab Ram S/o Ladhuram, B/c Jat, R/o Village
Dungarsinghpura, Tehsil Sadul Shahar, District Sri Ganganagar
Accused-Respondents

For Petitioner(s) : Mr. Vineet Jain
Mr. Ashok Kumar
For Respondent(s) : Mr. Mahesh Bora, Sr. Adv.

Assisted by Mr. Nishant Bora
Mr. Yuvraj Singh
Mr. Pritam Solanki
Mr. V.K. Bhadu
Mr. Rajesh Bhati, P.P. for State
(2 of 6) [CRLR-106/2016]

HON’BLE MR. JUSTICE PANKAJ BHANDARI

Judgment

29/09/2018

1. Petitioner has preferred Criminal Revision Petition

No.106/2016 and Criminal Revision Petition No.105/2016

aggrieved by order dated 03.12.2015 passed by Special Judge

(Women Atrocities Dowry Cases) Sri Ganganagar, whereby

Court has set-aside the order dated 05.06.2013 passed by Judicial

Magistrate (First Class) Sadul Shahar, District Sri Ganganagar,

whereby, the trial Court has taken cognizance against the

accused-respondents for offences under Section 376/109,

313/109 and 325/109 of I.P.C.

2. In brief the facts of the cases are that an application under

Section 190 Cr.P.C. was filed by the complainant-petitioner stating

therein that in the F.I.R. lodged by the complainant-petitioner,

petitioner had levelled allegations with regard to offences under

Section 376, 376(2)(n), 313 420 of I.P.C. Police after

investigation submitted charge-sheet against Sahab Ram only

under Section 498-A of I.P.C. Prayer was made that cognizance be

taken against Sahab Ram and other accused for offence under

Section 376, 376 (2)(n), 313 420 of I.P.C.

3. Sahab Ram submitted reply before the trial Court, wherein it

was stated that complainant is residing with Sahab Ram from year

2007. She has been shown as wife in the Voter Identity Card and

in the Ration Card. In the abortion document also Sahab Ram has

been shown as husband, hence, no offence under Section 376

I.P.C. is made out.

(3 of 6) [CRLR-106/2016]

4. Learned trial Court allowed the application and took

cognizance against Sahab Ram for offence under Section 376,

313, 325 of I.P.C. and also took cognizance against Gopal Sai,

Jamna Devi and Gauri Shankar Sai for offence under Section 376

read with Section 109, 313 read with Section 109 and 325 read

with Section 109 of I.P.C. Court did not took cognizance against

Sahab Ram under Section 498-A of I.P.C., aggrieved by this order

Sahab Ram preferred Criminal Revision Petition. Gopal Sai, Jamna

Devi and Gauri Shankar Sai preferred separate revision against

the same order. Learned Court below allowed both the revision

petitions and has quashed the order passed by the trial Court,

aggrieved by which present revision petitions have been preferred

by petitioner-Saroj Devi.

5. It is contended by counsel for the petitioner that petitioner’s

first marriage was dissolved in the year 2007, as per the

customary divorce. She was introduced to the family of the

accused persons, it was proposed by the accused that since wife

of Sahab Ram has expired, he need someone to look-after his

family. A marriage was proposed between petitioner and Sahab

Ram. Petitioner and her father wanted some time for the divorce

to be legally obtained. However, Sahab Ram and his family

members asked the petitioner to accompany them as they

urgently required a lady to manage the household. It was

proposed that she would be treated as a guest till she obtained a

divorce decree from her earlier husband and till petitioner-Saroj

Devi voluntarily agrees to marry Sahab Ram.

6. It was alleged in the F.I.R., that acting on the said assurance,

petitioner was sent to the accused persons’ village

Dungarsinghpura. It is alleged that in the night of Deepawali,
(4 of 6) [CRLR-106/2016]

Sahab Ram subjected her to forceful sexual intercourse against

her wishes. Sahab Ram, thereafter, continuously sexual exploited

her, as a result of which she conceived and her pregnancy was

terminated. She was, thereafter, turmed out of the house on

09.06.2011, after demise of son of Sahab Ram on 29.05.2011.

7. Counsel for the respondents have opposed these revision

petitions. Their contention is that petitioner has stayed with Sahab

Ram for more than three and a half years as wife. From the

documents available on record, it is clear that she had got a Voter

Identity Card issued by Election Commission of India, wherein she

was shown as wife of Sahab Ram, in the Ration Card also she is

shown as wife of Sahab Ram. In the sterilization certificate issued

by Medical and Health Services dated 21.09.2008, she is shown as

wife of Sahab Ram. She has stayed with Sahab Ram in live in

relationship and had never objected to their consensual

relationship.

8. It is also contended that petitioner had moved a petition

under Section 13-B of Hindu Marriage Act for obtaining divorce

from her prior husband. On the said application no order was

passed by the Court, hence, the petitioner continued to be a

married wife but since she was living in live in relationship, offence

under Section 376 of I.P.C. is not made out.

9. Counsel for the respondents have placed reliance on “Baldev

Gora Vs. State of Rajasthan” 2018, Volume 2 RJT 1242,

wherein, the Rajasthan High Court has held that offence of rape is

not made out if the relationship is consensual at the relevant time.

10. I have considered the contentions and have carefully perused

the order passed by the Court below.

(5 of 6) [CRLR-106/2016]

11. This case has a chequered history. Trial Court earlier

proceeded to take cognizance against Sahab Ram and other

accused vide order dated 05.06.2013, two revision petitions were

filed by the accused which were decided by the revisional Court

vide order dated 09.09.2013. Revisional Court gave a finding that

no offence is made out and remanded the matter back to the trial

Court for considering it afresh. The order passed by the revisional

Court dated 09.09.2013 was challenged by the petitioner by filing

Criminal Revision Petition Nos.806/2013 805/2013, which were

decided by the Hon’ble High Court vide order dated 09.03.2015

and the matter was remanded back to the revisional Court to

decide the matter itself instead of remanding it back to the trial

Court.

12. The revisional Court, thereafter, again considered the matter

vide impugned order dated 03.12.2015 and quashed the order

passed by the trial Court.

13. Court below has in detail discussed the facts of the case. It

has come to the conclusion that both the parties i.e. Saroj Devi

and Sahab Ram were aware of each other situations. Sahab Ram’s

wife had expired and Saroj Devi had obtained customary divorce

from her husband in accordance with social customs. They both

mutually agreed to stay together. There was no question of any

misrepresentation Saroj Devi stayed with Sahab Ram on her own

free will for almost four years. There is no evidence on record that

forceful abortion was got conducted upon Saroj Devi.

14. The fact that petitioner got her sterilization operation done

on 20.09.2018 also goes to show that the operation was done with

her consent as sterilization operation cannot be conducted against

a person against her will. Petitioner has remained in live in
(6 of 6) [CRLR-106/2016]

relationship with Sahab Ram for about four years without raising

any objection to the relationship.

15. Learned Special Judge (Women Atrocities Cases) has rightly

come to the conclusion that offences against the respondents are

not made out. There is no illegality or impropriety in the impugned

order. Since the relations were consensual at the relevant time, no

offence is made out.

16. The present revision petitions being devoid of any merits are

accordingly dismissed. Stay petitions stand disposed.

17. Record of the Court below be returned forthwith.

18. A copy of this order be placed in the connected file.

(PANKAJ BHANDARI),J

Amit/29-30

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