CHANCHAL Vs. STATE

JUDGEMENT

(1.) By the present revision petition, the Petitioner lays a challenge to the order dated 5 th March, 2008 passed by the Learned Additional Sessions Judge whereby he did not frame a charge under Section 376 IPC against Respondent No.2 and sent the matter back for trial to the Learned Metropolitan Magistrate.

(2.) The brief facts of the prosecution case are that the prosecutrix Chanchal and Respondent No.2 Manoj were engaged on 25 th January, 2005 with the consent of the families as they were in love with each other. However, since the parents of Manoj were not satisfied with the dowry articles they broke off the engagement. Thereafter Manoj visited the prosecutrix and told her that he was still in love with her and will marry her very soon. Believing Manoj the prosecutrix had sexual relations with him. She even had to get an abortion on 2 nd May, 2007. The prosecutrix then continued to pressurize him to marry her and therefore on 16 th May, 2007 Manoj married the prosecutrix. Manoj continued to have sexual relations with the prosecutrix but did not take her to the matrimonial home. On 18 th June, 2007 when the prosecutrix pressed Manoj to take her to the matrimonial home he told her about being married to one Nirmala since 9 th May, 2007. The prosecutrix therefore on the same day made a written complaint to the police and vide DD No. 13-A, FIR was registered against Manoj under Sections 376/493/494/406 IPC. The prosecutrix was medically examined on that very day. After completion of investigation the Police filed charge-sheet on 30 th August, 2007 before Learned Metropolitan Magistrate who committed it to the learned Additional Sessions Judge. The Learned Additional Sessions Judge vide order dated 5 th March 2008 held that from the facts of the prosecution case, no case for framing a charge against Manoj under Section 376 IPC is made out. The said order is impugned in this petition.

(3.) The learned counsel for the Petitioner contends that the Respondent No.2 had dishonest intention at the time of having sexual intercourse with the Petitioner as he did not intimate her of his earlier marriage and therefore the said act falls under the fourth description in prescribed Section 375 IPC. He states that the sexual intercourse even prior to the marriage was obtained by promising to marry the Petitioner and therefore her consent was also obtained by fraud under misconception of facts invalidating the consent obtained. The learned counsel places reliance upon Nikhil Parasar Vs. The State Govt. NCT of Delhi Bail Application No. 1754/2009, Salekha Khatoon Vs. State of Bihar, 1989 CrLJ 202, Yedla Srinivasa Rao Vs. State of AP,2007 AllCriR 43, Sanatan Ghosh Vs. State, 1987 1 Crimes 157, Pradeep Kumar @ Pradeep Kr. Verma Vs. State of Bihar, 2007 4 RCR(Cri) 51, State of Rajasthan Vs. Kishan Lal, 2002 SCC(Cri) 1149, Jayanti Rani Panda