Chattisgarh High Court
Dr. Nikhil John Elenjickal vs State Of Chhattisgarh on 18 August, 2023
Author: Rajani Dubey
Bench: Rajani Dubey
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 1202 of 2022
Order reserved on : 08/05/2023
Order pronounced on :18/08/2023
Dr. Nikhil John Elenjickal, S/o Dr John E. Joseph, Aged About 32
Years, R/o Behind Kashmir Restaurant, Gaddi Godown Chowk,
Mohan Nagar, Nagpur District Nagpur Maharashtra
---- Applicant
Versus
State of Chhattisgarh Through The Police Station Gudhiyari,
Raipur District Raipur Chhattisgarh
---- Respondent
For Applicant : Shri Sushil Dubey, Advocate For Respondent/State : Shri Ishwar Jaiswal, P.L. Hon'ble Smt. Justice Rajani Dubey, Judge CAV Order
1. This criminal revision is filed under Section 397 r/w Section 401 of the Code of Criminal Procedure, 1973 against the order dated 30.07.2022 passed by the learned Additional Sessions Judge (F.T.C.) Raipur (C.G.) in S.T. No. 15/2022 whereby the learned Court below has framed the charge against the applicant for the offence under Section 376(2)(k)(n) of IPC.
2. Brief facts of the case are that the sessions trial is pending against the applicant before the learned Additional Sessions Judge (FTC) Raipur which is registered as Sessions Trial No. 15/2022 on the ground that during the period from 01.12.2015 to 27.03.2021, applicant repeatedly sexually harassed the victim/prosecutrix in her house on the pretext of false promise of marriage being in a position to control and having influence over her. Learned trial Court on 30.07.2022 after hearing counsel for the parties, framed the charge against the applicant under Section 2 376 (2)(k)(n) of IPC and against the order dated 30.07.2022, the present revision has been preferred by the applicant.
3. Learned counsel for the applicant submits that the learned trial Court has wrongly framed the charge against the applicant. It is evident from the First Information Report that the duration of relationship of the applicant and the prosecutrix was from 01.12.2015 to 27.03.2021 but the prosecutrix lodged the report on 18.06.2021. He further submits that the prosecutrix is 35 year old woman who is already married at the inception of her physical relation with the applicant as well as she is having a child. In her statement recorded under Section 164 of Cr.P.C., prosecutrix has stated that she is working as Staff Nurse in the Bhimrao Ambedkar Hospital Raipur since 2008 where she met the applicant in the year 2014. Thereafter, in the year 2017, applicant proposed the prosecutrix for marriage and assured her to perform the same after completion of his study and they were having physical relation as husband and wife. In the year 2018, applicant went to Mumbai. After 2018 also, applicant as well as prosecutrix visited the residence of each other and made physical relation. However, on 28.03.2021, applicant broke up with the prosecutrix and when the applicant stopped receiving the phone calls of the prosecutrix, then she made a complaint at concerned Police Station.
4. It is evident from the FIR and statement of the prosecutrix that there was no previous report lodged by her about forceful intercourse or threatening on the part of the applicant. It is clear from all documents that there is free consent of the parties for sexual intercourse, thus it would not attract the provisions of rape as defined under Section 375 of IPC. Therefore, Section 376(2)(k)
(n) of IPC is not made out against the applicant. In other similar matters, Hon'ble Apex Court has held that this type of cases prima facie would not attract the ingredients of Section 375 of IPC, therefore, order dated 30.07.2022 passed by the learned Sessions Judge is liable to be set aside and applicant deserves to 3 be discharged from the charge.
5. Reliance has been placed on the judgment rendered by Hon'ble Supreme Court in the matter of Sonu alias Subhash Kumar v. State of Uttar Pradesh and another in AIR 2021 SC 1405, Dhruvaram Murlidhar Sonar v. State of Maharashtra and others in AIR (2019) 18 SCC 191 and this Court's order dated 01.08.2022 passed in Criminal Revision No. 662 of 2021(Krishnakant Mishra Vs. State of Chhattisgarh).
6. Learned State counsel supported the impugned order.
7. Heard counsel for the parties and perused the material placed on record.
8. As per the FIR and statement of the prosecutrix recorded under Section 164 of Cr.P.C., she is aged about 35 years and is working as staff nurse in hospital since 2008 and she met the applicant in the year 2014 and applicant was post-graduate student there. As per statement of the prosecutrix, from 2017 to 2021, applicant and the prosecutrix were having physical relation.
9. Section 376 (2)(k) and 376(2)(n) provide as under:-
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
(n) commits rape repeatedly on the same woman,
10. Learned trial Court framed the charge against the applicant as under:-
**;g fd vkius fnukad & 01- 12- 2015 ls 27- 03- 2021 ds chp dh vof/k esa] izkfFkZ;k dk edku] fryd uxj] turk dkyksuh] xqf<;kjh] Fkkuk xqf<;kjh] ftyk jk;iqj ¼N0x0½ esa ihfM+rk @ vfHk;ksD=h dks fookg djus dk izyksHku nsdj rFkk ml ij fu;a=.k ;k izHkko j[kus dh fLFkfr esa gksrs gq,] mldh Lora= lEefr ds fcuk mlds lkFk ckj&ckj ySafxd laHkksx dj cykRlax dkfjr fd;kA vkSj ,slk dj vkius og vijk/k dkfjr fd;k tks /kkjk 376 ¼2½ ¼k½ ¼n½ Hkk0n0la0 ds varxZr n.Muh; gS vkSj U;k;ky; ds laKku ds varxZr gSA **
11. It is not the case of the prosecution that applicant is a superior officer to the prosecutrix or she is a junior employee or was in any manner under control of the applicant. The applicant/accused is not in a position to control or have dominance over the victim in any manner because as per prosecution case, he came there for 4 his post graduation in the hospital. It is also clear from statement of prosecutrix that she is a married lady.
12. In 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 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. In para 4, 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."
13. Hon'ble Apex Court in the matter of Sonu alias Subhash Kumar v. State of Uttar Pradesh and another in AIR 2021 SC 1405 has held in paras 8, 9 and 10 as under:-
8. The contents of the FIR as well as the statement under Section 164 of Cr.P.C. leave no manner of doubt that, on the basis of the allegations as they stand, three important features emerge:
(i) The relationship between the appellant and the second respondent was of a consensual nature;
(ii) The parties were in the relationship for about a period of one and a half years; and
(iii) Subsequently, the appellant had expressed a disinclination to marry the second respondent which led to the registration of the FIR.
9. In Pramod Suryabhan Pawar (supra), while dealing with a similar situation, the principles of law which must govern a situation like the present were enunciated in the following observations:
"Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to 5 convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it....."
10. Further, the Court has observed:
"To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two provisions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
14. In the present case also, the complainant and the applicant were having physical relation since the year 2017 and the complainant has also not stated that in this period, she had ever asked the applicant for marriage with her. In her statement recorded under Section 164 of Cr.P.C., it is not stated by the complainant that applicant was in any manner in a position to dominate her or control her and prima facie it is not found, in this case that the complainant was involved in the relationship with the applicant on the basis of false promise or under misconception of facts, or under any fear or pressure. Therefore, considering the observations made by Hon'ble Apex Court in the aforesaid cases, it is difficult to hold in this case that the sexual relationship with the complainant and applicant, that too, for about long years, is a case of "rape".
15. In view of aforesaid discussion and observation, in the opinion of this Court, the impugned order of framing of charge for the alleged 6 offence suffers from illegality and impropriety and the same deserves to be set aside.
16. In the result, the revision is allowed. The impugned order dated 30.07.2022 passed by the learned Additional Sessions Judge (F.T.C.) Raipur (C.G.) in S.T. No. 15/2022 framing charge against the applicant under Section 376 (2)(k)(n) of the IPC is set aside and the applicant is discharged from the aforesaid charge. No Order as to costs.
Sd/-
(Rajani Dubey) Judge Ruchi