- (1.) This revision application has been directed against the order dated 23.1.2013 passed in connection with ST. Case No. 306 of 2010 arising out of Gumla P.S. Case No. 161 of 2009, by the learned District and Additional Sessions Judge-I, Gumla, whereby the petition filed for discharge has been rejected. Learned counsel for the petitioners has contended that the complaint case No. 130 of 2009 was filed under Sections 323/506/395/348/342/498-A of the Indian Penal Code and 3/4 of the Dowry Prohibition Act whereafter it was sent to the police under Section 156(3) of the Cr.P.C. that after investigation the police submitted charge-sheet under Sections 448/323/342/376/498-A of the Indian Penal Code and 3/4 of the Dowry Prohibition Act whereupon a petition for discharge for the offence under Section 376 of the Indian Penal Code was filed by the petitioners but the trial court has rejected the discharge petition without considering the fact that the allegation of physical relation between the petitioner No. 1 and OP. No. 2 was a consensual physical relationship prior to the marriage and the marriage has been solemnized; that the petitioner and the complainant resided as a wife and husband, hence, offence under Section 376 of the Indian Penal Code is not made out. In support of his contention, he has relied on the decision rendered in the case of Deepak Gulati v. State of Haryana, 2014 4 JLJR 220 and submitted that impugned order is not sustainable and is fit to be set aside.
(2.) Mr. Arun Kumar, learned counsel appearing for O.P. No. 2 has opposed and submitted that in the case of Deepak Gulati Hon'ble Apex Court had not acquitted the petitioner of the charge rather he has been given the benefit of doubt. He has also referred to paragraph Nos. 15 and 16 of the said decision and submitted that it is evident that the petitioner No. 1 had established physical relationship with the complainant on the promise of marriage and when he refused to marry then a Panchayati was held before Anjuman and the petitioner No. 1 and O.P. No. 2 have been directed to go to the court to solemnize marriage but the petitioner No. 1 did not solemnize the marriage thereafter on the pressure of Anjuman and Panchayat, the marriage was solemnized. In the said background, it would be evident that O.P. No. 2/complainant had entered into physical relationship with the petitioner on misconception of fact and the said consent cannot be considered as a voluntary consent under Section 90 of the Indian Penal Code; that presumption can be drawn under Section 114-A of the Indian Evidence Act that the petitioner had forcible sexual intercourse and the charge-sheet has rightly been submitted under Section 376 along with other sections of the Indian Penal Code. It is contended that the petitioner started assaulting and torturing the complainant-O.P. No. 2 right from the beginning of the marriage, which shows that he had solemnized the marriage only with an intent to escape the liability for the offence under Section 376 of the I.P.C.
(3.) Heard. Perused the impugned order. Admittedly, the case of O.P. No. 2 is that the petitioner No. 1 had physical relationship with O.P. No. 2 on the pretext of marriage and thereafter he was reluctant to marry but on the pressure of Anjuman and Panchayat, he married her. The facts in the case of Deepak Gulati is that when the petitioner was going to solemnize the marriage with Gita Kumari-victim, then the police had lodged the case and the court held that accused promise is not false and has not been made with a sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. In the instant case, it is admitted that the petitioner No. 1 had solemnized the marriage with O.P. No. 2 and they resided as husband and wife for a couple of months whereafter it is alleged that she was subjected to torture and cruelty for not fulfilling the demand of the petitioner. In the emergent factual scenario the offence under Section 376 of the Indian Penal Code is not made out against the petitioner, accordingly, the impugned order is set aside and the petitioner is discharged for the charge under Section 376 of the Indian Penal Code. However, (sic) with respect to the offence under Sections 448/323/342/498-A of the Indian Penal Code and 3/4 of the Dowry Prohibition Act shall proceed and the trial court shall not be prejudiced by any observation made in this order. Interim order dated 28.6.2013 stands vacated and the revision is, hereby, allowed.;