Chattisgarh High Court
Krishnakant Mishra vs State Of Chhattisgarh on 1 August, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 662 OF 2022
Krishnakant Mishra, son of late Shri Ramnaresh Mishra, aged
about 64 years, R/o Gram Bashara Tarhar, PO Chathara
Tarhar, Station Lalapur, Distt. Prayagraj (UP)
---- Applicant/accused
Versus
State of Chhattisgarh Through- Station House Incharge, PS
Katghora, Distt. Korba (C.G.)
Non-applicant
---------------------------------------------------------------------------------------
For Applicant : Shri Anshul Tiwari, Adv. For State : Shri Gurudev I. Sharan, Govt. Adv.
---------------------------------------------------------------------------------------
Hon'ble Shri Justice N.K. Chandravanshi Order on board 1-8-2022
1. This criminal revision is brought before this Court challenging the legality, propriety and correctness of the order dated 8-4-2022 passed by the 2nd Upper Sessions Judge, Katghora, Distt. Korba in Sessions Trial No. 104/2021 whereby charge under Section 376(2) (ढ) of the Indian Penal Code (in short 'IPC') has been framed against the applicant.
2. Brief facts of the case are that on 12-10-2020, complainant made written complaint to the Station House Officer, PS Katghora, Distt. Korba alleging therein that since last about 15 years, she knows the applicant, who was police constable at that time. In the year 2003, he called her in his residence and said that he will solve her all problems and made physical relation with her. The applicant also took a rented house for her, where she along with her children resided. It is alleged that prior to year 2003, husband of the complainant had died and at that time, she had five children. It is further alleged that on pretext of marriage, the applicant sexually exploited her since year 2003 to 2019-2020 and after retirement, he went to his native place Allahaband (UP). Thereafter complainant made written complaint against him that the applicant sexually exploited her from 2003 to 2019-2020 on pretext of marriage / by deceiving her. Based on above facts, present crime under Section 2 376 of the IPC was registered at PS Katghora against the applicant and after usual investigation, charge sheet for aforesaid offence was filed against the applicant.
3. Vide impugned order dated 8-4-2022, learned 2nd Upper Sessions Judge, Katghora framed charge under Section 376(2)(ढ) of IPC against the applicant. Hence, this revision.
4. Learned counsel for the applicant would submit that it is the case of complainant herself that she had physical relation with the applicant from 2003 to 2019-2020. The complainant neither stated in written complaint nor in police statement that the applicant sexually abused her by threatening her or without her wish or will, rather, it is apparent from written complaint and her police statement recorded under Section 161 of the Cr.P.C. that their relation was consensual relation and the complainant indulged in that relation with her free will and wish. It is further submitted that, had the applicant ever made pretext to marry with her, then the complainant would have stated in her written complaint in police station as to when she asked him to marry with her and if the applicant had denied, then whether she had made complaint to any forum against the applicant. Lacking of such conduct of complainant shows that the complainant involved with the applicant in such relation for a very long time of 18-19 years without any alleged promise or deception, on her own wish and will. It is further submitted that while complainant was in relation with the applicant, she was getting monetary and other benefits from him, but after his retirement when he went to his native place Allahaband (UP), the complainant made present complaint against the applicant with mal- intention to grab huge amount from him. Hence, it is prayed that prima facie case under Section 376(2)(ढ) of the IPC is not made out against the applicant, as none of the ingredients is present against the applicant in this case. Hence, the order impugned may be set aside and the applicant may be discharged from aforesaid charge.
5. Per contra, learned State counsel vehemently opposes the submission made by counsel for the applicant. He would submit that the applicant had sexually exploited the complainant by deceiving 3 her on the pretext of marriage, therefore, the order impugned does not call for any interference of this Court.
6. I have heard learned counsel for the parties, perused the copy of the charge sheet filed by the applicant, case diary and material available on record.
7. As per case of the prosecution, complainant is a lady aged about 45 years and before the year 2003, her husband had died and at that time she had 5 children i.e. 2 sons and 3 daughters. As per written complaint and statement of the complainant recorded under Section 161 of the Cr.P.C., complainant and applicant were having physical relation since 2003 to 2019-2020. It is not a case of the prosecution that their relation was under any threat or any pressure, rather, the applicant was having physical relation with the complainant on alleged pretext of marriage and he also made promise to her that all her happiness and sorrow would be of him. Thus, the applicant had made physical relation with her for such a long time i.e. for about 18-19 years by keeping her in deception.
8. The complainant has not stated anything that during such long period, she had ever made request to the applicant to marry with her. She has also not stated that the applicant denied for the same and if the applicant had denied, then what steps she took against him. Nothing doing in this regard by the complainant itself shows that their relation was not under any influence or alleged pretext of marriage or any deception, rather, facts available on record would show that since the complainant was getting benefit from the applicant either monetary or others, hence, she was involved in such relation for long time, that too, for about 18-19 years and when after retirement, the applicant left her company and went far from the complainant, i.e. to his native place at Allahaband (UP), therefore, looking to the loss of benefit which she was getting from the applicant, she made written complaint against the applicant.
9. In a similar case Shivshankar alias Shiva -v- State of Karnataka and anr. [(2019) 18 SCC 204], Hon'ble Supreme Court has observed that "it is difficult to hold that sexual intercourse in the 4 course of a relationship which has continued for eight years is "rape", especially in the face of the complainant's own allegation that they lived together as man and wife. It was also held as under :
"4. In the facts and circumstances of the present case, it is difficult to sustain the charges levelled against the appellant who may have possibly, made a false promise of marriage to the complainant. It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as "rape" especially in the face of the complainant's own allegation that they lived together as man and wife."
10. In the case of Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra and ors., [(2019) 18 SCC 191], the Hon'ble Supreme Court while considering the case of rape, has observed thus :
"23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if 5 he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC."
11. In the present case also, as has been discussed above that the complainant and the applicant were having physical relation for about 18-19 years and the complainant has also not stated that in this period, she had ever asked the applicant for marriage with her, instead thereof, facts of the case show that since complainant was getting benefited in such relation with the applicant hence, prima facie, it is not found in this case that the complainant was involved in the relation with the applicant on the basis of false promise or under misconception of fact, or under any fear or pressure. Therefore, considering the observation made by Hon'ble Supreme Court in aforesaid cases, it is very much difficult to hold in this case that sexual relationship between the complainant and applicant, that too, for about 18-19 years, is a case of "rape".
12. In view of aforesaid discussion and observation, in the opinion of this Court, the order of framing of charge for the alleged offence vide impugned order suffers from illegality and impropriety and the same deserves to be set aside.
13. In the result, the revision is allowed. The impugned order dated 8-4-2022 passed by learned 2nd Upper Sessions Judge, Katghora, Distt. Korba in ST no. 104/2021 framing charge against the applicant under Section 376(2)(ढ) of the IPC is set aside and the applicant is discharged from the aforesaid charge. No costs.
Sd/-
(N.K. Chandravanshi) Judge Pathak/-