CRL.M.C./530/2017 of SANDEEP SHARMA Vs STATE THR.NCT OF DELHI & ANR.

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on : April 26, 2017

+CRL.M.C. 530/2017

SANDEEP SHARMA..... PetitionerThrough:Mr.Kirti Uppal, Senior Advocate withMr.Sumit Bansal, Ms.Richa Oberoi &Mr.Harsh Kumar, Advocates

versusSTATE THR.NCT OF DELHI & ANR...... RespondentsThrough:Mr.Panna Lal Sharma, AdditionalPublic Prosecutor for the State

CORAM:HON'BLE MR. JUSTICE P.S.TEJI

JUDGMENT

P.S.TEJI, J.1.By this petition filed under Section 482 of Cr. P.C. thepetitioner seeks for quashing of the FIR No. 213/13 dated 20.05.2013,under Section 323/342/506/376 of IPC registered at Police StationGazipur, Delhi.

2.It is informed that the charge sheet in this case has been filedand the learned Additional Sessions Judge (Special Fast Track Court),East District, Karkardooma Courts, Delhi, has passed an order dated03.10.2016 in S.C. No. 392/2016 (S.C. No.95/2015) whereby thepetitioner has been charged for the offences punishable under Sections

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376/376(2)(n)/377 of IPC. The petitioner has separately challenged thesaid order by way of Crl. Rev. P. No.821/2016 and on the basis of thesimilar grounds the petitioner has prayed for quashing of the FIR inthis case.

3.In nutshell, the facts of the case are that respondent No. 2 camein contact with the petitioner Sandeep Sharma in January 2003,through Yahoo Messager and thereafter, friendship developed betweenthem. The petitioner made physical advances to her which sheresisted. However, as per complaint of respondent No. 2 the petitionermade physical relations with her in natural and unnatural mannerwithout her consent. It is further alleged that on 04.06.2012, thepetitioner befooled the respondent No. 2 into some ceremonypretending to be married with her. Thereafter, the petitioner startedignoring respondent No. 2 and on 18.05.2013 when respondent No. 2went to the house of the petitioner, family members of the petitioneri.e., Mani Ram Sharma (Father), Nirmala Sharma (Mother) andHemant Sharma (Brother) locked her in room and gave beatings toher. It is further alleged that brother of the petitioner - Hemant Sharmamisbehaved with her and outraged her modesty. They also threatenedthe prosecutrix that they will kill her. She got medically examined atLBS Hospital on 21.05.2013. Her MLC records showed that she washaving multiple contused abrasions over forearms, face, back andthigh. There were also some tenderness at some places.

4.In the statement under Section 164 of Cr.P.C., the prosecutrix

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reiterated the allegations as made in her complaint. After completionof investigation the prosecution had filed charge sheet in court and thepetitioner – Sandeep Sharma was charge-sheeted for the offence underSection 376(1) of IPC.

5.Learned Senior Advocate appearing on behalf of the petitionercontended that the present case is registered on the complaint dated20.05.2013 made against the petitioner by respondent No. 2 for theoffence under Section 376(1) of IPC. It is further contended that in herstatementrecorded underSection 161 Cr.P.C.,on 20.05.2013respondent No. 2 had stated that the petitioner indulged in oral sexseveral times with her and on 11.02.2011, the petitioner was alleged tohave oral sex with her in car standing outside his house. It is furthercontended that it is submission of the prosecutrix that when thepetitioner asked to have anal sex to which she had refused and calledthe police and with the interference of the police the matter was sortedout after which the petitioner agreed to marry her. On 21.05.2013,respondent No. 2 was taken to Lal Bahadur Shastri HospitalGynecological Department, but in front of the doctors, she refused toundergo medical examination on the pretext that she was unwell.6.Learned senior counsel for the petitioner further contended thatin the statement of respondent No. 2 under Section 164 of Cr. P.C.before the learned Metropolitan Magistrate that it is the submission ofthe prosecutrix that her marriage with the petitioner was performed ata temple in Sector 11, Rohini according to the Hindu Rites and Rituals

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and after marriage, the petitioner took her to Meerut home where heforced her to have unnatural sex where she refused to have completephysical relationship till the registration of marriage. The counselfurther urged that in the same statement, the prosecutrix hadcategorically stated that she put forward her desire to have baby towhich the petitioner replied that they can have baby later. It isfurther contended that even the material evidences collected by thepolice authorities during the course of investigation was that of themarriage between the prosecutrix and the petitioner have solemnizedand confirmed the marriage between the two. Despite the fact that theprosecutrix herself had stated to be married to the petitioner, in such asituation, the charge under Section 376, 376(1)/376(2)(n) and 377 ofIPC could not have been framed against the petitioner. It is furthercontended on behalf of the petitioner that no allegation of sexualintercourse if alleged by the prosecutrix, rather the prosecutrix in hercomplaint as well as in her statement under Section 161 Cr.P.C. and164 Cr.P.C. had taken stand that she is married to the petitioner asper Hindu Rites and the dispute between the two was over registrationof marriage only and mere refusal of registration of marriage cannotform the basis of allegations under Section 376 of IPC.

7.It is further contended on behalf of the petitioner that theallegations made by the prosecutrix in her complaint were before theamendment to the IPC, which came into effect since 03.02.2013 andthere are no allegation whatsoever on behalf of the petitioner againstthe petitioner post 03.02.2013, therefore the impugned order thereby

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framing charge against him is liable to be set aside. The learned seniorcounsel for the petitioner also raised ground of contradiction in thestatement of the prosecutrix. It is submitted that in the statementrecorded under Section 164 Cr.P.C., before the learned MetropolitanMagistrate, it was clearly mentioned by the prosecutrix that sheresisted to have complete sexual relationship till the registration of themarriage whereas, the prosecutrix in her complaint dated 20.05.2013stated that the petitioner met the prosecutrix and though have contactsand the petitioner forced her to indulge into intercourse forcefullywithout getting married. In such situation, no reliance can be placedon the statement of the prosecutrix. Moreover, it is contended that theallegation against the petitioner in the complaint are after marriage andthat too in relation to the unnatural sex therefore, the impugned orderis liable to be set aside on this ground as well. It is further contendedthat the prosecutrix had nowhere made any allegation of sexualintercourse against the petitioner and relied on the order dated07.06.2013 passed by the learned trial court wherein it was noted thatthe only material collected was that of marriage and consequently thebail was granted to the petitioner and no charge under Section376(2)(n) could have been framed.

8.Learned Additional Public Prosecutor appears on behalf of theState and referred the Final Report in which the complainant hascategorically stated that the petitioner committed to marry her and onthe pretext of marriage, the petitioner had intimated relationship withher. The complainant has also stated in his complaint that on

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04.06.2012 the petitioner befooled her that he is getting married withher. On her asking to get their marriage registered, he tried to befooled her and continued to have oral sex. When she visited thepetitioner’s parents to take their support, they locked her in roomand gave beatings to her mercilessly and threatened her to keep hermouth shut, otherwise they will kill her. The prosecutrix furtherspecifically alleged that brother of the petitioner had misbehaved withher and accordingly he was additionally charged with Section 354 ofIPC. Learned Additional Public Prosecutor further contended that thevictim had also reiterated the aforesaid contentions in her statementunder Section 161 of Cr. P.C. as well as in her statement under Section164 of Cr. P.C. recorded before the court. In such like cases, only thestatement of the victim is sufficient to held the accused guilty for theoffences with which the petitioner is charged. Since, the victimremained consistent in her complaint as well as in statement, therefore,the impugned order dated 03.10.2016, thereby framing of chargeunder Section 376/376(2)(n)/377 of IPC against the petitioner is wellreasoned order and does not call for any interference from thisHon’ble Court.

9.I have heard the submission made by learned Additional PublicProsecutor for the State and have also gone through the impugnedorders passed by the learned Additional Session Judge framingchargesagainst the petitioner forthe offence under Sections376/376(2)(n)/377 of IPC.

10.Upon perusal of the impugned order dated 03.10.2016, in theconsidered opinion of this court, it cannot be said that the learnedAdditional Session Judge has not passed reasoned order. The learnedAdditional Session Judge has dealt with the cases relied on by thepetitioner in Union of India vs. Prafulla Kumar Samal & Anr., (1979)3 SCC 4; Dilawar Balu Kurane vs. State of Maharashtra, (2002) 2SCC 135; P. Vijayan vs. State of Kerala and Anr., AIR 2010, SC 663and Yogesh alias Sachin Jagdish Joshi vs. State of Maharashtra,(2008) 10 SCC 394 and found the sufficient material on record whichraised grave suspicion against the petitioner of committing an offencepunishable under Section 376/376(2)(n)/377 of IPC and accordingly,the petitioner had been charged with those offences.

11.In view of the aforesaid facts and circumstances of the presentcase, this court observes that the petitioner has filed the presentpetition for quashing the FIR under Section 376/376(2)(n)/377 of IPC,on the grounds already taken in his revision petition (Crl. Rev. P.No.821/2016)againsttheorderofframingofchargedated03.10.2016, wherein this court while dealing with the settledprinciples of law on the point of framing of charge, has upheld theorder dated 03.10.2016 passed by learned Additional Sessions Judgethereby framing of charge under Section 376/376(2)(n)/377 of IPCagainst the petitioner.

12.After going through the contents of the petition as well asmaterial placed on record, this court is of the considered opinion that

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the responsibility of framing the charges is that of the Court and it hasto judicially consider the question of doing so and this court does notfind any illegality or infirmity in the order dated 03.10.2016 passed bythe learned Trial Court. Therefore, in these circumstances, the presentpetition filed by the petitioner is liable to be rejected. However, thepetitioner shall have every opportunity to submit and prove hiscontentions by leading the cogent evidence before the Trial Court andit is the prerogative of the Trial Court to consider all the materialevidence placed before it and to pass the appropriate order.

13.Finding no merit in the present petition the same is herebydismissed.

APRIL 26, 2017pkb

(P.S.TEJI)JUDGE