The voluntary nature of consent given by the prosecutrix in cases of sexual assault and the significance of the surrounding circumstances in determining the consent.

JUDGMENT

Manoj Kumar Garg, J. - By the instant criminal revision petition under Section 397/401 Cr.P.C., the accused-petitioner has challenged the order dated 07.07.2014 passed by the learned Additional Sessions Judge (Women Atrocities Cases), Bhilwara in Sessions Case No.36/2013, whereby the learned trial court framed charges against the petitioner for the offences under Sections 494, 495, 420 & 376 IPC.

2. Brief facts of the case are that an FIR was registered against the petitioner upon filing of a complaint by respondent No.2, which was sent by learned competent Court to Police u/s 156(3) Cr.P.C. The gist of allegations levelled in the complaint was that accused No.1 (the present petitioner) made contact with the complainant while she was working at Krishna Hospital, Bhilwara and accused gradually increased his contact. He started making physical relations with the complainant by promising to get higher position and higher salary. After some time, when the complainant did not get the high position and increased salary, she suspected the intention of the accused, however, on assurance of accused to marry her, the complainant believed the falsehood of the accused, who continued sexual abuse by promising the marriage to her. It is further stated by the complainant that she fell into trap of the accused and due to fear of slander in the society as well as family, there was no other option except to marry the accused. Accordingly, the complainant got married with accused on 31.07.2012 at Chamunda Mata Temple at Harani Mahadev. The obscene photographs taken by trick photography were also stated to be in possession of the accused. While alleging other allegations, the complainant stated that she also handed over the stridhan as deposit i.e. gold necklace, rakadi set, silver anklet, which were kept by the accused. After thorough investigation, the police submitted challan against the petitioner for offence under Sections 376, 420, 494, 495, 354(k)(1)(i) of IPC. Thereafter, the case was committed for trial in the court of Additional Sessions Judge (Women Atrocities Cases), Bhilwara. The learned trial court after hearing the arguments of both the parties framed charges against the petitioner for the offences under Section 494, 495, 420, 376 IPC. However, the petitioner was discharged from the offence under Section354(k)(1)(i) of IPC.

3. Learned counsel for the petitioner submits that the order impugned framing the charges against the petitioner is illegal and arbitrary. It is argued that the complainant is a grown-up lady and was working at the same place where the petitioner was also serving. Both the petitioner and the complainant worked together for a long time so she was very much acquainted with the marital status as well as family background of the petitioner, therefore, it cannot be inferred that she was kept in dark regarding the fact that he was married or unmarried or divorcee person. The statement of the prosecutrix reveals that she was very much a consenting party and she admittedly got married with the petitioner at the temple as per Hindu rites. The consensual sexual relationship, if any, happened between the petitioner and the complainant who are majors, that is voluntarily on the part of the complainant, therefore, it does not come under the definition of Section 375 of IPC. In these circumstances, the charges framed against the petitioner deserves to be quashed and set aside. He placed reliance on the judgment of Hon'ble Apex court in the case of Prashant Bharti Vs. State of NCT Delhi, (2013) 3 RCR(Cri) 399.

4. Per contra, learned learned Public Prosecutor and learned counsel for the complainant supported the order impugned passed by the learned trial court and argued that at the preliminary stage of the framing of the charges, it cannot be said that the charges framed by the learned trial court is totally baseless. It is further argued that the prosecutrix in her statement specifically levelled allegation of rape again