Beerendra Kumar Tiwari vs State Of Madhya Pradesh

This petition under Section 482 of the Cr.P.C. has been filed by the petitionerBirendra Kumar Tiwari for invoking the extraordinary jurisdiction of

this Court and to quash the FIR at Crime no.40616, registered at Police Station, Adhartal for offences under Sections 376(2)(f), 376(2)(n) and 506 of

the IPC against the petitioner.

The prosecution story in brief is that, respondentNo.2Archana Tiwari is the wife of the younger brother of the petitioner(Birendra Kumar Tiwari).

The complainantArchana Tiwari along with her husband were residing in the house of the petitioner at Jabalpur. The petitioner was serving as

Hawaldar in the RPF, Kota.Off and on, he used to visit Jabalpur.

On 07032012 at about 3 p.m., the petitioner beaten theprosecutrix and allegedly committed rape with her. She was threatened saying that, if she

resists, her husband and children will be dealt to death. A MMS was also prepared and the petitioner threatened to make it public. Because of the

fear, she submitted herself. He also threatened her that, her family will be thrown out of the house. One day, her husband returned from the restaurant

and saw the petitioner holding the hand of the prosecutrix. The petitioner abused them with obscene words and fled from the spot. The prosecutrix

narrated the whole incident to her husband and explained about the MMS and the sexual harassment. The prosecutrix also claimed that, her two

daughters also have seen the petitioner about his threatening. On 07032016, the prosecutrix was again subjected to sexual harassment. Her elder

daughter Palak was also aware of the incidents. On this report, crime has been registered under Sections 376(2)(f), 376(2)(n) and 506 of the IPC.

On behalf of the petitioner, FIR has been challenged on theground that, the FIR is delayed about 4 years and the alleged incident took place on

17032012. The petitioner was in service at Kota, Rajasthan. The Rojnamcha dated 03062016 at entry No.27 was lodged, but at that time, the petitioner

was at Kota. It is also claimed that, the petitioner, on 07032016 sent a legal notice to vacate the house within two months and also demanded rent @

Rs.5,000- p.m. from the year 2011 till vacating the house, which comes around Rs.3,00,000-. It is stated that, because of this notice, the prosecutrix

become annoyed and to wreck vengeance has lodged the complaint. It is further claimed that, the petitioner being harassed unnecessarily, therefore,

the FIR and consequent criminal proceeding be quashed.

Per contra, learned GA for the respondentState opposed thecontentions and stated that, the petitioner was serving as Hawaldar in RPF, Kota but

used to visit Jabalpur in holidays. On 17032012 at about 3pm, the petitioner given prashad to the prosecutrix. Because of which, she had lost her

consciousness. The petitioner committed sexual intercourse with her and prepared MMS and showing that MMS, he blackmailed the prosecutrix. He

was also threatening her to throw away from the house. Because of the fear, she could not resist the petitioners. Palak, the 11 years old daughter of

the prosecutrix in her statement under Section 161 of Cr.P.C. has also supported the statement of the prosecutrix and narrates that, the petitioner

used to beat and threaten the prosecutrix. She also states that, when her father used to go to the work, the petitioner used to caught the prosecutrix

and take her into the room and locks the room from inside. The statements under Section 164 of Cr.P.C. recorded on 07062016 before JMFC,

Jabalpur also gives details of the incident and the action of the petitioner. In the statement of Palak recorded under Section 164 of Cr.P.C. she has

described the earlier incidents.

On behalf of the complainant, the whole petition is opposedand it is stated that, the petitioner was living at Kota. After the incident, the complainant

and her family left the house and is living separately. There are certain offences registered against the petitioner including Section 307 of IPC.

Husband of the petitioner was working in the ICICI Bank as a team leader in finance sector. The statement made by the petitioner is false. On

15032012, there was a Pooja in the house of the petitioner. The petitioner administered some substance and because of the effect of the substance,

the prosecutrix was almost unconscious, then the petitioner taking advantage committed the offence and prepared the MMS. The petitioner has never

given any notice or oral instructions to the husband of the prosecutrix to vacate the house. It has been created to prepare a cause of defence.

Perused the record and the police diary.

The MLC report also show no definite opinion can be givenwith regard to the sexual intercourse but the statement of the prosecutrix and Palak

Tiwari under Sections 161 and 164 of Cr.P.C. are very important.

On behalf of the petitioner, reliance has been place in the caseof Vineet Kumar and others Vs. State of U.P. & another reported as AIR 2017 SC

1884, wherein it is held that, bald assertion by the complainant that all accused have raped and medical examination not done on the date of incident or

on next day or even on date when I.O. asked complainant for getting it done is material indicating that proceeding is maliciously instituted with an

ulterior motive.

The ratio of this citation is not applicable in the present case for the incident took place long back with threatening and blackmailing the

prosecutrix.

At this stage, it would be appropriate to say that, theallegations made in the complaint and in the statements of the prosecutrix and her daughter

constitute offence against the petitioner. It would not be proper for the high Court to analyse the case of the petitioner in the light of all probabilities in

order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings ought to be quashed. It

would be erroneous to assess the material before the Court and conclude that the criminal case cannot be proceeded with.

Therefore, this petition is dismissed.