Madhya Pradesh High Court
Dineshchandra Sharma vs The State Of Madhya Pradesh on 4 February, 2019
1
CRR No.35/2019 Dineshchandra Sharma Vs. State of M.P..
High Court of Madhya Pradesh: Bench at Indore
Single Bench: Hon'ble Shri Justice S.K. Awasthi
CRR No.35/2019
Dineshchandra Sharma S/o Late R.C. Sharma
vs.
State of M.P.
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Shri Vivek Singh, learned counsel for the
applicant.
Shri Gaurav Kumar Verma, learned Public
Prosecutor for the respondent/State.
ORDER
(Passed on 04/02/2019 ) The applicant has preferred this revision petition under Section 397/401 of the Cr.P.C. against order dated 13/12/2018 passed by Second Additional Sessions Judge, Mandsaur in ST No. 77/2018, whereby charges under Sections 294, 323, 366, 376(2)(f)(n) and 506 of the IPC have been framed against the applicant.
2. The facts giving leading to this petition are that on 07/11/2015, the complaint lodged by the prosecutrix was received by SHO, Police-station-City Kotwali, Mandsaur, the contents of which disclosed that the applicant/accused is working as teacher at village Guradiya Lalmuha. The prosecutrix was studying the class 10th and she used to go to village-Dhundhadka for her studies. The applicant/accused met with the father of the prosecutrix, who informed him about her 2 CRR No.35/2019 Dineshchandra Sharma Vs. State of M.P..
studies and thereafter, her father handed over the responsibility of her studies to the applicant/accused. Whenever the prosecutrix used to go for the examination, she used to stay at the house of the applicant. During her college studies, she has occupied one rented house near old bus stand, Mandsaur. After some time the applicant/accused started come at her house. One day the applicant told her that he liked her and wanted to marry with her, the prosecutrix declined her proposal stating that you will have the responsibility of your family, then applicant assured her that he will mange everything. Thereafter, the applicant made physical relations with the prosecutrix on the pretext of marriage. Whenever the prosecutrix insisted him for marriage, the applicant avoid the same.
3. On 29/09/2015, when the prosecutrix came to Mandsaur, the applicant met her at Bharat Mata Square and asked to come with him, then prosecutrix told him that if you will marry with me, then I would continue relationship with you. Then applicant abused and threatened her that if she will not made physical relations with him then he will defame her in the society. Thereafter, the prosecutrix narrated the story to her sister and brother-in-law. On the basis of aforesaid complaint, police registered the FIR bearing Crime No. 642/2015 for the offence punishable under Sections 294, 323, 366, 376(2)(f)(n) and 506 of the IPC against the applicant. After completion of the investigation, the charge-sheet was filed before the trial 3 CRR No.35/2019 Dineshchandra Sharma Vs. State of M.P..
Court and vide impugned order dated 13/12/2018, the charges were framed against the applicant for the aforesaid offences as mentioned here-in-above.
4. The learned counsel for the applicant submits that the prosecutrix is a major lady aged about 35 years. From the contents of the FIR, it is apparent that she was involved in physical relationship with the applicant out of her own will. The proseuctrix was having the knowledge that the applicant is a married man and the marriage between them is not possible. Inspite of that she made physical relations with the applicant for quite some time and they have enjoyed the company of each other. Under these circumstances, it cannot be said that the applicant has committed rape with the prosecutrix on the pretext of marriage. Therefore, the trial Court has committed an error in framing the aforesaid charges against the applicant.
5. On the other hand learned counsel for the respondent has supported the impugned order and has pointed out that the contents of the complaint itself disclosed regarding commission of offence under Section 376(2)(n) of the IPC with the prosecutrix, hence, he prayed for dismissal of this revision petition.
6. Having considered rival contentions of the parties and perused the document available on record.
7. It is not disputed that the applicant is a married person and he was working as teacher in the School. It is alleged by the prosecutrix that when the applicant proposed her, she 4 CRR No.35/2019 Dineshchandra Sharma Vs. State of M.P..
refused to accept his proposal on the ground that the applicant is a married man and he is having responsibility of his family, then applicant assured her that he will manage everything. Thereafter, when the prosecutrix refused to made physical relationship with the applicant then the applicant abused and assaulted her and compelled her for continuing the physical relationship with him. There is nothing on record to show that the prosecutrix remained with the applicant for quite some time together and when she came to know that the applicant is a married man, she lodged the complaint against him.
8. In the present case, the applicant has clearly stated that it is a case of passive submission and the phase of physiological pressure extracted and there was tacit consent on the pretext of marriage. When the prosecutrix has refused to continue physical relationship with the applicant, then he threatened to defame her in the society, therefore, at this stage it cannot be said that the prosecutrix made a false complaint against the applicant. Without affording opportunity to prosecution to adduce evidence of the prosecutrix, it cannot be concluded that the prosecutrix was the consenting party.
9. In the case of State of Bihar vs. Ramesh, AIR 1977 SC 18 in which the Hon'ble Apex Court has held that:-
"Reading section 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if 5 CRR No.35/2019 Dineshchandra Sharma Vs. State of M.P..
proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S.228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.
Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused ."
11. The aforesaid issues came up for consideration before the Lordship of the Apex Court in the case of Amit Kapoor vs. Ramesh Chandra, 2012 (9) SCC 460, wherein the Lordship has observed as under :-
"There is a fine distinction between the language of Ss.227 and 228 of the Code. S. 227 is expression of a definite opinion and judgment of the Court while S. 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of S. 228 of the Code.
18. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage."
12. In the case of State of Maharashtra vs. Somnath Thapa and Others, 1996(4) SCC 659, the Hon'ble Supreme Court has held as under:-
"30. In Antulay's case, (AIR 1986 SC 2045), Bhagwati, C.J., opined, after noting the difference in the language of the three pairs of section, that despite the difference there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of "prima facie" case has to be applied. According to Shri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view,better and clearer statement 6 CRR No.35/2019 Dineshchandra Sharma Vs. State of M.P..
of law would be that if there is ground for presuming that the accused has committed the offence, a Court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence" .
31. Let us note the meaning of the word "presume". In Black's Law Dictionary, it has been defined to mean "to believe or accept upon probable evidence". (Emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law "presume"
means "to take as proved until evidence to the contrary is forthcoming", Stroud's Legal Dictionary has quoted in this context a certain judgment according to which "A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged". (Emphasis supplied). In Law Lexicon by P.Ramnath Aiyer the same quotation finds place at page 1007 of 1987 edition.
32. The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."
13. The reproduced portions of the judgments referred herein above make it clear that at the stage of framing charges, an elaborate inquiry into truthfulness of the fact cannot be done."
14. Taking this view of the matter and leaving all the questions raised by the applicants open to be decided by the trial Court after recording of the evidence, the present revision petition is hereby dismissed.
(S.K. Awasthi) Judge skt Santosh Kumar Tiwari 2019.02.11 11:15:21 +05'30' 7 CRR No.35/2019 Dineshchandra Sharma Vs. State of M.P..