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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