Bombay High Court
Arti D/O Ashokrao Mahajan And 2 Others vs The State Of Mah. Thr. Pso Ps Jaripatka ... on 22 April, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:4851-DB
1 929.apl.1084.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION NO.1084 OF 2023
1. Arti d/o Ashokrao Mahajan, Aged about
29 yrs., Occ.- Nil, R/o Sirasgaon Bazar,
Subhash Ward, Ward No.2, Tal.
Hinganghat & Dist. Wardha.
2. Pooja w/o Pankaj Padole (Pooja d/o
Ashokrao Mahajan - name before
marriage), Aged about 30 yrs, Occ.-
Housewife, R/o- Siraspeth, In front of
house of Mr. Gave Awari, Umred Road,
Nagpur - 440 024
3. Nakul s/o Devidasji Ambatkar, Aged
about 33 yrs, Occ. Business, R/o Bazar
square, Wadner, District Wardha - 442
307
... APPLICANTS
VERSUS
1. The State of Maharashtra, through
Police Station Officer, Police Station,
Jaripatkar, Nagpur.
2. XYZ (victim) in Crime No.434/2021,
registered at Police Station,
Jaripatka, Nagpur.
... NON-APPLICANTS.
_____________________________________________________________
Shri S.P. Sonwane, Advocate for the applicants.
Ms. Udeshi, Addl.P.P. for the State.
Shri L.G. Tiple, Advocate for non-applicant no.2.
______________________________________________________________
2 929.apl.1084.2023.odt
CORAM : VINAY JOSHI AND MRS. VRUSHALI V. JOSHI, JJ.
DATED : 22.04.2024.
JUDGMENT :(Per : Vinay Joshi, J.) Heard. ADMIT.
2. The matter is taken up for final disposal by consent of learned Counsel appearing for the parties.
3. This is an application seeking to quash the charge-sheet (R.C.C. No.337/2021) arising out of crime bearing First Information Report No.434 of 2021 registered with the Jaripatka Police Station, Nagpur City for the offence punishable under Sections 376(1), 376(2)
(n), 313, 417 read with Section 34 of the Indian Penal Code. The applicants are two sisters and husband of third sister of Hitesh against whom the principal allegations of rape has been levelled by the informant lady aged 24 years.
4. It is the prosecution case, that the informant was acquainted with Hitesh since childhood as they were taking eduction together. Love relationship was developed in between them since the year 2019. In the month of February 2021, Hitesh assured for marriage and had established sexual relations with the victim. Later on, the 3 929.apl.1084.2023.odt things were repeated on an often. Each time Hitesh allegedly gave promises of marriage and had enjoyed physical relations. The informant stated that on 06.06.2021, she learnt that she has become pregnant from co-accused Hitesh. On 08.06.2021, the informant was called at the house of Hitesh, where all applicants were present. In their presence she was asked to terminate the pregnancy and was assured for marriage. At that time, Hitesh gave pills for the termination of pregnancy and then again for next two days Hitesh gave her pills, which she consumed resulting into termination of pregnancy. It is the informant's case that thereafter, there were meetings for the marriage but finally Hitesh refused to marry, therefore, the report.
5. The learned Counsel for the applicants would submit that the principal allegations of rape are against Hitesh, who is not before the Court. It is also argued that it is a case of consensual relationship. We have been taken through the order of pre-arrest bail passed by this Court in Criminal Application (ABA) No.498/2021. Particularly, in paragraph 6 of the order, prima facie observations have been made that there was every possibility that the victim was having relations with some other named persons and that is why the relationship was broken. The applicants have also produced What's App Chatts and Facebook messages to impress that the victim was having relationship with two 4 929.apl.1084.2023.odt other persons and when this fact was brought to the notice of the family, the marriage was not materialized. In fact, we are not concerned with said aspect as we are dealing this application restricted to two sisters and husband of one another sister of Hitesh, against whom the charge of Sections 313 and 417 of the IPC has been levelled.
6. Learned Counsel for the applicants would submit that only once i.e. on 08.06.2021, these applicants were present in the meeting and in their presence, it has been agreed that both would marry. It is strenuously argued that the applicants have not administered pills to terminate the pregnancy but those allegations are specifically against Hitesh. It is submitted that the informant is a Bachelor of Science did the course of Nursing and since 2018 she is serving as a Nurse meaning thereby she was very well aware about the use and consequences of the termination of pregnancy pills.
7. In this regard our attention has been invited to the decision of this Court in case of Sheetal Rajaram Kadam vs. State of Maharashtra and anr.(Criminal Apeal No.668/2015) dated 14.07.2015, wherein (paragraph 13) this Court took a note of the profession of the victim as a Nurse and under circumstances observed that it is difficult to believed that such a medically education lady had pills without her 5 929.apl.1084.2023.odt wish or knowing the consequences. The learned Counsel for the applicants further relied on the decision of this Court in case of Shantaram Krishna Karkhandis and anr. vs. State of Maharashtra and anr. 2006 ALL MR (Cri.) 2856 to contend that in order to establish the offence punishable under Section 313 of the IPC, it is essential to establish that the pills were administered without the consent of the victim. In this regard it is submitted that in the meeting there was talk between the family members, which was followed by the victim consuming the pills.
8. It is to be noted that the victim was admittedly a Nurse knowing rather better than the accused about the use, result and consequences of such pills at crucial time. It is difficult to believe that without knowing she has consumed the pills. Rather the contents of FIR never says that she was forced to consume the pills. The allegations emerge against these applicants are that they participated in the meeting and asked the victim to have a pregnancy aborted. However, there are no further allegations that either the applicant has brought the pills or forced the victim to consume the same.
9. As regards to the offence of cheating is concerned, the said offence would be complete if the prosecution is able to establish that 6 929.apl.1084.2023.odt the victim was induced with dishonest intention to consume the pills as the marriage would be performed, which she would not have otherwise than the inducement. It emerges from the police papers that the relationship was disclosed to both family members. Notably, it was not a clandestine transaction but it was made known to the family members. Repeated meetings were held and thereafter, there was refusal of marriage.
10. Learned Counsel for the applicant has pointed out that it was a bilateral refusal for marriage. Be that as it may, the allegations of cheating would be at the most against Hitesh. No positive act has been stated on the part of the applicants to incite or induce the victim to take any steps and thus, it reveals that besides a mere reference of these relatives, there is nothing to make out a case.
11. We may recall that principal accused Hitesh is not before us. The applicants are his relatives. Obviously they cannot share a common intention for rest of the offences. In absence of specific allegations of instigating or insisting the victim to consume the pills, continuation of prosecution against them would be abuse of the process of Court. Facing the criminal trial has serious repercussions. The learned Counsel for the applicants also pointed out that one of the 7 929.apl.1084.2023.odt applicant has been selected for some government post and her appointment is in pipe line and rather under clout of this criminal prosecution.
12. Having regard to all above circumstance to uphold the interest of justice, we deem it appropriate to exercise our inherent jurisdiction. Hence the following order :
(a) The application is allowed.
(b) We hereby quash and set aside the charge-sheet (criminal prosecution bearing R.C.C. No.4337/2021) arising out of First Information Report No.434 of 2021 registered with the Jaripatka Police Station, Nagpur City for the offence punishable under Sections 376(1), 376(2)(n), 313, 417 read with Section 34 of the Indian Penal Code against the present applicants.
13. The application stands disposed of.
(MRS. VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.) Trupti