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Madhya Pradesh High Court

Virendra Singh Purviya vs The State Of Madhya Pradesh on 7 January, 2020

Author: Rajeev Kumar Dubey

Bench: Rajeev Kumar Dubey

                                                  1               M.Cr.C.No.9334 of 2019

                  HIGH COURT OF MADHYA PRADESH
                       PRINCIPAL SEAT AT JABALPUR

Single Bench :        Hon'ble Shri Rajeev Kumar Dubey, J.

                        Misc. Criminal Case No.9334/2019


                                Virendra Singh Purviya
                                            vs.
                          State of Madhya Pradesh & Anr.
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Shri Manish Datt, Senior Advocate with Shri Pawan Gujar, counsel for the

applicant.

Shri Rajesh Tiwari, Govt. Advocate for the respondent No.1/State.

Shri A.K. Pali, counsel for the respondent No.2/prosecutrix

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                                       ORDER

Reserved on : 05/12/2019 Delivered on : 07/01/2020 This petition has been filed under Section 482 of the Code of Criminal Procedure for quashing of the proceedings of Criminal Case No.67/2019 arising out from the charge sheet filed by the police after investigation of Crime No.409/2018 registered at Police Station Pipariya, District Hoshangabad (M.P.) for the offence punishable under Sections 376 (2)(n) & 376 (2)(f), 109, 506 & 34 of the IPC.

As per prosecution case, on 31.10.2018 prosecutrix, wife of applicant Virendra Purviya lodged a report at Police Station Pipariya District Hoshangabad averring that she married applicant Virendra on 05/03/2018. After marriage, she stayed at her matrimonial house. Her husband went to Pune on 01/05/2018. Thereafter on 03.05.2018 when she was sleeping in her room in her matrimonial house, at around 01:00 AM, someone knocked at 2 M.Cr.C.No.9334 of 2019 the door of her room. When she opened the door, it was her brother-in-law (Jeth) co-accused Govind Purviya, who came inside her room and bolted the door of the room from inside and thereafter on the point of a knife he committed rape with her. Next morning, when she told her mother-in-law Siyabai, sister-in-law Saraswati, father-in-law Vishal Purviya, about the incident, her mother-in-law Siyabai said that they would remonstrate him and asked her not to tell anyone about the incident. Her mother-in-law Siyabai also took her mobile. Two-three days after the incident, she told applicant/her husband about the incident, then her husband said that it was okay and that it might have happened since his (co-accused Govind's) wife had died, and also asked her to allow him to do whatever he wanted whenever he came to her room. It is further averred that on 08.05.2018, at about 12 PM in the night, co-accused Govind Purviya again came to her room and forcibly made physical relation with her. On the next day, she again narrated the incident to her mother-in-law. She then asked her to let him do so otherwise she would be killed like her sister-in-law (jethani). It is further averred that she did not tell anything to anybody out of fear. On 19.05.2018, she returned to her parental home situated at Village Bhatti which comes under the Police Station Sohagpur. On 30.10.2018, when her parents asked her the reason for not going back to her matrimonial home, she narrated the whole incident to her parents and other relatives. On that, police registered Crime No.409/2018 for the offence punishable under Section 376 (2)(n), 376 (2)(f), 506 of IPC against co-accused Govind Purviya and investigated the matter. During the investigation, police recorded the statements of the prosecutrix, her brothers Dharmendra, Jitendra, mother Geeta Bai, father Kamlesh and maternal uncle Arvind and also implicated the applicant in the crime. After investigation police filed charge sheet against applicant Virendra Purviya and co-accused Govind Purviya before the JMFC, Pipariya, who committed the case to the Court of Sessions. On that S.T.No.35/2019 was registered which is pending before Second Additional Sessions Judge, Pipariya, District Hoshangabad. Being aggrieved, the applicant filed this petition.

Learned counsel for the applicant submitted that there is no evidence on record to connect the applicant with the crime. There is no allegation against the applicant that he was present on the spot at the time of the incident or took part in the incident. From the FIR itself, it is clear that at the time of incident applicant was at Pune and alleged incident said to have committed by the co-accused Govind at Pipariya. There is no allegation against the applicant that he abetted co-accused Govind to commit rape with the prosecutrix. The only allegation against the applicant is that after the first incident when prosecutrix told him about the incident on mobile, then he asked her to allow co-accused Govind to do whatever he wanted whenever he came to her room. Only on that basis, it cannot be said that the applicant abetted the co-accused Govind to commit the rape with the prosecutrix. The offence of abetment is only made out when the applicant abetted the co- accused to commit the crime, not on the ground that the applicant asked prosecutrix that she allowed co-accused Govind to make sexual relation with her. So on the basis of allegations made by the prosecutrix against present applicant no offence punishable under Sections 376 (2)(n) & 376 (2)(f), read with 109 or 34 of the IPC is made out against him. Therefore the proceedings of the S.T.No.35/2019 as relate to applicant be quashed.

Per Contra, learned counsel of the State as well as complainant/ respondent no.2 opposed the prayer and submitted that from the FIR and case diary statement of the prosecutrix it is apparent that applicant Virendra forced the prosecutrix to made sexual relation with co-accused Govind Purviya, so offence under Section 376 read with 109 of IPC is clearly made out against the applicant. Therefore proceedings of Criminal Case No.67/2019 cannot be quashed.

This court has gone through the record and arguments of the counsels of both the parties. It is alleged that the applicant abetted the co-accused Govind to commit rape with the prosecutrix. Chapter 5 of the Indian Penal Code, 1860 deals with offences relating to abatement. Abetment basically means the action of instigating, encouraging or promoting a person into committing an offence. It can also mean aiding the offender while he is committing a crime.

Section 109 IPC provides that whoever abets any offence, shall, if the act abetted is committed in consequence of the abetment, and no express provision is made for the punishment of such abetment, be punished with the punishment provided for the main offence.

Section 107 IPC defines "abetment of a thing" as under:

"107. Abetment of a thing.--A person abets the doing of a thing, who-- First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing."

From bare perusal of above mentioned provisions of the Penal Code it appears that a person abets when he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to the conspiracy some act or illegal omission takes place or has intentionally induced the commission of an offence by an act or illegal omission. When any of these requirements exists, the offence of abetment is complete.

It is alleged that when prosecutrix was at her matrimonial house situated at Pipariya, on 03/05/2018 & 08/05/2018 co-accused Govind, brother of the applicant committed rape with the prosecutrix. The only allegation against the applicant is that after the first incident when prosecutrix told him about the incident on mobile, then he asked the prosecutrix that it was okay and that it might have happened since his (co- accused Govind's) wife had died, and also asked her to allow him to do whatever he wanted whenever he came to her room. Thereafter on 08.05.2018 at about 12 PM in the night, co-accused Govind Purviya again 5 M.Cr.C.No.9334 of 2019 committed the rape with the prosecutrix. There is no allegation against the applicant that he had instigated the co-accused Govind to commit the offence or had engaged with him in a conspiracy to commit the offence of rape. So clause first along with Explanation 1 and Second clause of Section 107 do not applies in this case. Therefore, the issue that arises for consideration is whether thirdly of Section 107 IPC with Explanation 2 of Section 107 is attracted in the facts and circumstances of the present case. In order to convict a person of abetment by illegal omission, it is necessary to show that the accused intentionally aided the commission of offence by his non-interference and that the omission involved a breach of legal obligation. Abetment by omission would only be punishable if the omission were an illegal omission. The word 'illegal' means against or not authorised by law and omission is something that has not been done either deliberately or accidentally.

There is nothing on record to show that failure of the applicant to prevent his brother co-accused Govind to commit rape upon prosecutrix (his wife) was against the law or the applicant was under an obligation by law to prevent such incident.

Although it is also alleged that after the first incident when prosecutrix told applicant Virendra Purvia about the incident on mobile, he asked her to allow co-accused Govind to do whatever he wanted whenever he came to her room, but neither in the case diary statement of prosecutrix nor in the FIR, it is mentioned that Prosecutrix allowed the co-accused Govind to make sexual intercourse with her against her will due to the pressure of the applicant. So in the considered opinion this Court the act of the applicant does not come within the expression 'illegal omission' also and accordingly he cannot be held liable for abetment of the offence. There is no allegation against the applicant that he threatened prosecutrix. So from the charge-sheet no offence under under Sections 376 (2)(n) & 376 (2)(f), 109, 506 & 34 of the IPC is made out against the present applicant Virendra Purvia.

Hence this petition is allowed and the proceedings of S.T.No.35/2019 which is pending before the Second Additional Sessions Judge, Pipariya, 6 M.Cr.C.No.9334 of 2019 District Hoshangabad arising out of the charge-sheet filed by the police after investigating of the Crime No.409/2018 registered at Police Station Pipariya, District Hoshangabad (M.P.) for the offence punishable under Sections 376 (2)(n) & 376 (2)(f), 109, 506 & 34 of the IPC is hereby quashed, as regards to the applicant. It is however made clear that nothing contained in this order shall affect the case of prosecution against co-accused Govind Purviya.

(Rajeev Kumar Dubey) Judge (ra)/sarathe Digitally signed by NAVEEN KUMAR SARATHE Date: 2020.01.09 11:12:51 +05'30'