Brijesh Ahirwar vs State Of Madhya Pradesh And Others

Anuradha Shukla, J

The petitioner by way of this writ petition, filed under Article 226 of the Constitution of India, seeks the relief of quashment of criminal proceedings registered against him for the offence of Sections 376(2)(n) and 506 IPC in Crime No.225/2023 of Police Station, Pipariya, district Narmadapuram.

The summary of the facts of the case is that on the basis of an FIR lodged by prosecutrix in Police Station, Pipariya, district Narmadapuram, FIR at Crime No.225/2023 was registered against the petitioner for the offences of Sections 376(2)(n) and 506 IPC. According to the prosecution, petitioner was in good relationship with the prosecutrix even after her marriage. The prosecutrix was married about 18-19 years ago and her eldest child is aged about 18 years. Being tired of the relationship with her husband, the prosecutrix started living with the petitioner as his wife but petitioner was not willing to marry her despite her insistence. On 28.5.2023, at around 10:00 a.m. petitioner gave his consent for marriage and asked the prosecutrix to accompany him on the motorcycle; he then took her to his house and committed rape with her; on the basis of this FIR, the investigation followed and the charge-sheet was filed in the Court of Sessions, Narmadapuram. The petitioner was allowed bail in the matter by the High Court and is now facing the trial.

The grounds raised in this writ petition are that no offence is made out against the petitioner as the prosecutrix was a married lady and had not divorced her husband, therefore any promise of marriage allegedly made by the petitioner was legally impossible to carry out; the sexual intercourse between the parties was consensual and with mutual agreement; for the offence of criminal intimidation under Section 506 IPC it must be proven that the victim was threatened intentionally to cause injury to her reputation or property or person but facts of the present case fell short of constituting the act of intimidation; both petitioner and victim were adult persons of whom age of victim is about 48 years while the petitioner is merely 26 years old; these facts cast doubt on the vulnerability or susceptibility of prosecutrix to the act of coercion. The case of State of Haryana and others v. Bhajanlal and others 1992 Supp. (1) SCC 335 has been relied upon. It is claimed that in the absence of any adequate evidence about the offence of forceful sexual intercourse or misrepresentation played upon the prosecutrix, this petition should be allowed and the charge-sheet should be quashed.

Learned counsel for the State has opposed the petition and has prayed for its rejection.

On the date of final arguments, it was submitted by the counsel for petitioner that he would file relevant citations but even after lapse of period of more than a fortnight, he has not filed any additional citation.

Heard learned counsel for the parties and perused the documents filed along with the petition.

7 . On examining the documents, filed along with the charge-sheet of Crime No.225/2023 by Police Station, Pipariya, district Narmadapuram, it can be stated without any ambiguity that it is not a case of making complaint about false promise of marriage and establishing sexual relationship. The facts mentioned in the FIR very clearly claim that on 28.5.2023 the prosecutrix was forcibly raped by the petitioner in the ruins of a warehouse on Shobhapur Road, Pipariya. Although the prosecutrix willingly accompanied the petitioner to that place, but FIR reveals that she was strongly opposing the sexual relationship which the petitioner was trying to establish with the prosecutrix and despite her opposition to it, she was forcibly raped by the petitioner there. Thus, it cannot be successfully claimed at this stage that the prosecutrix was a consensual party on the date of incident and the physical relationship was established on that date with her consent and willingness.

The documents filed along with the charge-sheet reveal that the vaginal slide of prosecutrix was prepared in Government Hospital, Pipariya, and this slide as well as pubic hair and clothes of both the parties along with the semen slide of petitioner were sent to RFSL, Jabalpur, for forensic examination. The documents further reveal that the blood sample of petitioner was taken for the purpose of DNA examination. The report of RFSL, Jabalpur, is available in the record of this case and it reveals that the vaginal slide of prosecutrix tested positive for the presence of sperms.

The facts of the case do not, in their entirety, reflect that the petitioner is falsely implicated in the case and registration of FIR is absolutely unfounded and baseless. The petitioner is not denying the fact of having sexual relationship with the prosecutrix. His contention is that this relationship was consensual but this aspect is to be tested on evidence and there is no material available in the charge-sheet which would suggest that the act of establishing sexual relationship i n an abandoned and isolated place was committed with the consent of prosecutrix. Accordingly, the principle laid down by Apex Court in the case of Bhajanlal (supra) cannot be applied here.

The writ petition is accordingly dismissed and disposed of.