Rajasthan High Court - Jodhpur
Saroj Devi vs State And Ors on 29 September, 2018
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
..
S.B. Criminal Revision Petition No. 106/2016 Saroj Devi D/o Shri Om Prakash, B/c Jat, R/o House No.222, Agarwal Colony, Near Housing Board, Sirsa (Haryana) Complainant-Petitioner Versus
1. The Stateof Rajasthan
2. Gopal Sai S/o Ladhuram, B/c Jat, R/o 3-A-26, Jawahar Nagar, Sri Ganganagar.
3. Jamna Devi W/o Birbal Ram, B/c Jat, R/o Sector No.7, Chandigarh (Punjab).
4. Gauri Shankar Sai S/o Ladhu Ram, B/c Jat, R/o Sector No.1, Jawahar Nagar, Sri Ganganagar.
Accused-Respondents Connected With S.B. Criminal Revision Petition No. 105/2016 Saroj Devi D/o Shri Om Prakash, B/c Jat, R/o House No.222, Agarwal Colony, Near Housing Board, Sirsa (Haryana) Complainant-Petitioner Versus
1.The State of Rajasthan
2.Sahab Ram S/o Ladhuram, B/c Jat, R/o Village Dungarsinghpura, Tehsil Sadul Shahar, District Sri Ganganagar Accused-Respondents For Petitioner(s) : Mr. Vineet Jain Mr. Ashok Kumar For Respondent(s) : Mr. Mahesh Bora, Sr. Adv.
Assisted by Mr. Nishant Bora Mr. Yuvraj Singh Mr. Pritam Solanki Mr. V.K. Bhadu Mr. Rajesh Bhati, P.P. for State (2 of 6) [CRLR-106/2016] HON'BLE MR. JUSTICE PANKAJ BHANDARI Judgment 29/09/2018
1. Petitioner has preferred Criminal Revision Petition No.106/2016 and Criminal Revision Petition No.105/2016 aggrieved by order dated 03.12.2015 passed by Special Judge (Women Atrocities & Dowry Cases) Sri Ganganagar, whereby Court has set-aside the order dated 05.06.2013 passed by Judicial Magistrate (First Class) Sadul Shahar, District Sri Ganganagar, whereby, the trial Court has taken cognizance against the accused-respondents for offences under Section 376/109, 313/109 and 325/109 of I.P.C.
2. In brief the facts of the cases are that an application under Section 190 Cr.P.C. was filed by the complainant-petitioner stating therein that in the F.I.R. lodged by the complainant-petitioner, petitioner had levelled allegations with regard to offences under Section 376, 376(2)(n), 313 & 420 of I.P.C. Police after investigation submitted charge-sheet against Sahab Ram only under Section 498-A of I.P.C. Prayer was made that cognizance be taken against Sahab Ram and other accused for offence under Section 376, 376 (2)(n), 313 & 420 of I.P.C.
3. Sahab Ram submitted reply before the trial Court, wherein it was stated that complainant is residing with Sahab Ram from year 2007. She has been shown as wife in the Voter Identity Card and in the Ration Card. In the abortion document also Sahab Ram has been shown as husband, hence, no offence under Section 376 I.P.C. is made out.
(3 of 6) [CRLR-106/2016] 4. Learned trial Court allowed the application and took
cognizance against Sahab Ram for offence under Section 376, 313, 325 of I.P.C. and also took cognizance against Gopal Sai, Jamna Devi and Gauri Shankar Sai for offence under Section 376 read with Section 109, 313 read with Section 109 and 325 read with Section 109 of I.P.C. Court did not took cognizance against Sahab Ram under Section 498-A of I.P.C., aggrieved by this order Sahab Ram preferred Criminal Revision Petition. Gopal Sai, Jamna Devi and Gauri Shankar Sai preferred separate revision against the same order. Learned Court below allowed both the revision petitions and has quashed the order passed by the trial Court, aggrieved by which present revision petitions have been preferred by petitioner-Saroj Devi.
5. It is contended by counsel for the petitioner that petitioner's first marriage was dissolved in the year 2007, as per the customary divorce. She was introduced to the family of the accused persons, it was proposed by the accused that since wife of Sahab Ram has expired, he need someone to look-after his family. A marriage was proposed between petitioner and Sahab Ram. Petitioner and her father wanted some time for the divorce to be legally obtained. However, Sahab Ram and his family members asked the petitioner to accompany them as they urgently required a lady to manage the household. It was proposed that she would be treated as a guest till she obtained a divorce decree from her earlier husband and till petitioner-Saroj Devi voluntarily agrees to marry Sahab Ram.
6. It was alleged in the F.I.R., that acting on the said assurance, petitioner was sent to the accused persons' village Dungarsinghpura. It is alleged that in the night of Deepawali, (4 of 6) [CRLR-106/2016] Sahab Ram subjected her to forceful sexual intercourse against her wishes. Sahab Ram, thereafter, continuously sexual exploited her, as a result of which she conceived and her pregnancy was terminated. She was, thereafter, turmed out of the house on 09.06.2011, after demise of son of Sahab Ram on 29.05.2011.
7. Counsel for the respondents have opposed these revision petitions. Their contention is that petitioner has stayed with Sahab Ram for more than three and a half years as wife. From the documents available on record, it is clear that she had got a Voter Identity Card issued by Election Commission of India, wherein she was shown as wife of Sahab Ram, in the Ration Card also she is shown as wife of Sahab Ram. In the sterilization certificate issued by Medical and Health Services dated 21.09.2008, she is shown as wife of Sahab Ram. She has stayed with Sahab Ram in live in relationship and had never objected to their consensual relationship.
8. It is also contended that petitioner had moved a petition under Section 13-B of Hindu Marriage Act for obtaining divorce from her prior husband. On the said application no order was passed by the Court, hence, the petitioner continued to be a married wife but since she was living in live in relationship, offence under Section 376 of I.P.C. is not made out.
9. Counsel for the respondents have placed reliance on "Baldev Gora Vs. State of Rajasthan" 2018, Volume 2 RJT 1242, wherein, the Rajasthan High Court has held that offence of rape is not made out if the relationship is consensual at the relevant time.
10. I have considered the contentions and have carefully perused the order passed by the Court below.
(5 of 6) [CRLR-106/2016]
11. This case has a chequered history. Trial Court earlier proceeded to take cognizance against Sahab Ram and other accused vide order dated 05.06.2013, two revision petitions were filed by the accused which were decided by the revisional Court vide order dated 09.09.2013. Revisional Court gave a finding that no offence is made out and remanded the matter back to the trial Court for considering it afresh. The order passed by the revisional Court dated 09.09.2013 was challenged by the petitioner by filing Criminal Revision Petition Nos.806/2013 & 805/2013, which were decided by the Hon'ble High Court vide order dated 09.03.2015 and the matter was remanded back to the revisional Court to decide the matter itself instead of remanding it back to the trial Court.
12. The revisional Court, thereafter, again considered the matter vide impugned order dated 03.12.2015 and quashed the order passed by the trial Court.
13. Court below has in detail discussed the facts of the case. It has come to the conclusion that both the parties i.e. Saroj Devi and Sahab Ram were aware of each other situations. Sahab Ram's wife had expired and Saroj Devi had obtained customary divorce from her husband in accordance with social customs. They both mutually agreed to stay together. There was no question of any misrepresentation Saroj Devi stayed with Sahab Ram on her own free will for almost four years. There is no evidence on record that forceful abortion was got conducted upon Saroj Devi.
14. The fact that petitioner got her sterilization operation done on 20.09.2018 also goes to show that the operation was done with her consent as sterilization operation cannot be conducted against a person against her will. Petitioner has remained in live in (6 of 6) [CRLR-106/2016] relationship with Sahab Ram for about four years without raising any objection to the relationship.
15. Learned Special Judge (Women Atrocities Cases) has rightly come to the conclusion that offences against the respondents are not made out. There is no illegality or impropriety in the impugned order. Since the relations were consensual at the relevant time, no offence is made out.
16. The present revision petitions being devoid of any merits are accordingly dismissed. Stay petitions stand disposed.
17. Record of the Court below be returned forthwith.
18. A copy of this order be placed in the connected file.
(PANKAJ BHANDARI),J Amit/29-30 Powered by TCPDF (www.tcpdf.org)