VIRENDRA SINGH PURVIYA Vs. STATE OF M.P.

JUDGEMENT

(1.) 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) and 376 (2)(f), 109, 506 and 34 of the IPC.

(2.) 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 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.

(3.) 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) and 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.