Sunday, 26 June 2016

Whether prosecution of accused for offence of Rape can be quashed on the ground there is compromise between him and victim?

Upon the meticulous and careful reading of the letter
dated 23.08.2014 written by the prosecutrix to the S.H.O. of
Police Station Shahdol and her statement under Section 164
of the Cr.P.C., I have found that the prosecutrix has not
stated overtly or covertly that she has levelled false
allegations against the applicant. On the other hand, she has
simply and guilelessly stated that the parents of the applicant
and the applicant himself are agreed upon her marriage with
the applicant, therefore, she does not want to prosecute him.
Hence, the charges of rape and criminal intimation are
undeniably on record. Resultantly, on the basis of the
aforesaid, the applicant cannot be discharged in terms of
Section 227 of the Cr.P.C. Further, I am of the considered
view that once the complainant/informant has set the criminal
machinery of the State in motion by lodging a report of
cognizable offence(s) then, further proceedings in the case
cannot be stopped at his insistence because he has arrived at
friendly understanding with the accused and he does not want
any penal action against him. Otherwise, there will be a
complete anarchy and the State's criminal machinery will
become a tool of whims and fancies of the complainant. Upon
the aforesaid premises, the complainant cannot stop the
prosecution of the accused of a cognizable case except as per
provisions of Section 320 of the Cr.P.C. Hence, in the present
case, the prosecutrix cannot stop the prosecution of the
applicant because she has developed an understanding with
the applicant. Thus, the trial Court is bound to conduct the
trial of the case in accordance with the provisions of the
Cr.P.C. irrespective of the fact whether the prosecutrix would
support the prosecution case or not at trial?
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Single Bench : Rajendra Mahajan J.)
Criminal Revision No. 1988/2015
Shivendra Tripathi, aged about
29 years,
 Applicant
VERSUS
1. State of Madhya Pradesh 
2. Amrita Pandey, 

Dated:15-10 -2015
Citation: 2016 CRLJ(NOC)154 M.P

This criminal revision under Section 397 read with 401
of the Cr.P.C. has been preferred by the applicant feeling
dissatisfied and aggrieved by the order dated 02.07.2015
passed by the Sessions Judge, Shahdol in Sessions Trial
No.55/2015, whereby the applicant is charged with the
offences punishable under Sections 376(2)(n) and 506(B) of
the I.P.C.
2. The relevant and necessary facts for adjudication of
this revision are given below:-
(2.1) On 20.08.2014, the prosecutrix, who is the
respondent No.2 herein, lodged an oral report at
Police Station Kotwali, Shahdol making
allegations against the applicant that he came in
close contact with her. He proposed to her.
Thereupon, she told him that she got married in
her childhood and she is the mother of a girl.
The applicant told her that notwithstanding the
aforesaid facts he would marry her. Thereafter,
he had physical intimacy with her over two
years. As a result of his cohabitation, she has
become pregnant and is presently carrying two
months old pregnancy. She disclosed him about
her pregnancy. He insisted upon her to undergo
abortion, but she refused to do so. Thereupon,
he started giving her life threats and he has
gone into hiding since long. His parents refused
to give her his whereabouts. She has also
alleged that earlier she became pregnant with
his cohabitation. At that time, upon his
insistence she had abortion. Upon her oral
report, an F.I.R. is recorded against the applicant
at Crime No.517/14 under Sections 376 and
506(B) of the I.P.C.
(2.2) Upon completion of the investigation, the
applicant is charge sheeted under Sections 376
and 506(B) of the I.P.C.
(2.3) After the committal proceedings, the case is
registered as Sessions Trial No.55/2015.
(2.4) Having heard the learned counsel for the parties
over the framing of charges, the learned
Sessions Judge vide the impugned order has held
that there is prima facie evidence for framing of
charges against the applicant under Sections
376(2)(n) and 506(B) of the I.P.C. and has
levelled the aforesaid charges at him.
(2.5) Dissatisfied with the action of the trial Court in
framing aforesaid charges against him, the
applicant has filed this criminal revision.
3. The learned counsel for the applicant has submitted
that the prosecutrix gave a written application dated
23.08.2014 to the S.H.O. of the aforesaid police station
praying that the applicant's father Premraj has agreed to
accept her as his daughter-in-law and the applicant is also
ready to marry her. Therefore, she does not want any action
by the police against him upon her police report dated
20.08.2014. It is also submitted by him that the same facts
have been reiterated by the prosecutrix in her statement
dated 23.08.2014 recorded under Section 164 of the Cr.P.C.
However, the learned Sessions Judge had not taken into
consideration the aforesaid documents in right perspective
while passing the impugned order. If he had given due
weightage to them, then the applicant would have been
discharged under Section 227 of the Cr.P.C. Thus, the learned
Sessions Judge has committed a grave error of facts and law
by framing the aforesaid charges. Upon these submissions, he
has prayed for quashing of the impugned order and discharge
of the applicant of the aforesaid charges on the basis of the
aforesaid documents. In support of the submissions, learned
counsel has relied upon the decisions rendered in the cases of
Union of India Vs. Prafulla Kumar Samal (AIR 1979 SC 366),
State of M.P. Vs. Mohan Lal Soni (AIR 2000 SC 2583), Uday
Vs. State of Karnataka (AIR 2003 SC 1639), Deelip Singh @
Dilip Kumar Vs. State of Bihar (AIR 2005 SC 203), Prashant
Bharti Vs. State of NCT of Delhi (AIR 2013 SC 2753) and
Hemant Choubey Vs. State of M.P. (2015 (II) MPJR 62).
4. Per contra, learned Panel Lawyer has contended that
the prosecutrix in her letter dated 23.08.2014 and her
statement under Section 164 of the Cr.P.C. does not state that
she has made false allegations against the applicant. On the
other hand, she has simply stated that she does not want any
penal action against the applicant as he and his parents have
agreed upon her marriage with the applicant. Thus, the
prosecutrix's allegations of her sexual exploitation upon the
false promise of marriage and life threats upon her refusal to
undergo abortion by the applicant are there. It is further
submitted by him that the prosecutrix has made aforesaid
allegations against the applicant in her case diary statement
dated 21.08.2014. In view of the above, the learned Sessions
Judge has not committed any error of law or facts by framing
the aforesaid charges.
5. The learned counsel for the respondent
No.2/prosecutrix has supported the arguments raised by the
learned counsel for the applicant.
6. I have anxiously considered the rival submissions and
perused entire material on record.
7. In the cases of State of U.P. Vs. Naushad (2014 Cr.L.J.
540 SC) and Deepak Gulari Vs. State of Haryana (2014 (3)
MPHT 82 SC), the Supreme Court has laid down the law that
sexual intercourse/sexual exploitation on the false promise of
marriage amounts to rape. Upon the perusal of the F.I.R. of
the case and the case diary statement of the prosecutrix, I
have found that in the aforesaid the prosecutrix has squarely
stated that the applicant had sexually exploited her over two
years on the promise of marriage despite her saying that she
got married in her childhood, and she is the mother of a girl.
Upon the aforesaid facts, the police have rightly registered
the case against the applicant for the offences punishable
under Sections 376 and 506(B) of the I.P.C.
8. Upon the meticulous and careful reading of the letter
dated 23.08.2014 written by the prosecutrix to the S.H.O. of
Police Station Shahdol and her statement under Section 164
of the Cr.P.C., I have found that the prosecutrix has not
stated overtly or covertly that she has levelled false
allegations against the applicant. On the other hand, she has
simply and guilelessly stated that the parents of the applicant
and the applicant himself are agreed upon her marriage with
the applicant, therefore, she does not want to prosecute him.
Hence, the charges of rape and criminal intimation are
undeniably on record. Resultantly, on the basis of the
aforesaid, the applicant cannot be discharged in terms of
Section 227 of the Cr.P.C. Further, I am of the considered
view that once the complainant/informant has set the criminal
machinery of the State in motion by lodging a report of
cognizable offence(s) then, further proceedings in the case
cannot be stopped at his insistence because he has arrived at
friendly understanding with the accused and he does not want
any penal action against him. Otherwise, there will be a
complete anarchy and the State's criminal machinery will
become a tool of whims and fancies of the complainant. Upon
the aforesaid premises, the complainant cannot stop the
prosecution of the accused of a cognizable case except as per
provisions of Section 320 of the Cr.P.C. Hence, in the present
case, the prosecutrix cannot stop the prosecution of the
applicant because she has developed an understanding with
the applicant. Thus, the trial Court is bound to conduct the
trial of the case in accordance with the provisions of the
Cr.P.C. irrespective of the fact whether the prosecutrix would
support the prosecution case or not at trial?
9. The law laid down in the first five rulings as
mentioned in Para 3 of this order are not applicable in this
case as they are distinguishable on facts. In the last citation,
the prosecutrix in her statement under Section 164 of the
Cr.P.C. has stated inter-alia that she had lodged the report of
rape and other offences against the applicant/accused,
because he had come to her college and beat her with his
shoes and tried to take her in the vehicle. Thereupon, this
court has held that in the case-offence under Section 376 of
the I.P.C. is not made out on the basis of the statement of
the prosecutrix. However, all the remaining offences are
prima facie made out as framed by the trial court. Thus, the
law laid down in the said authority is also not applicable in
the facts-situation of the present case.
10. In the light of aforesaid discussion, I do not find any
infirmities with the impugned order of framing of charge. I,
therefore, dismiss this revision being meritless affirming the
impugned order.
11. Accordingly, this revision is finally disposed of.
 (Rajendra Mahajan)
 Judge
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