The distinction between consensual relations and rape requires clear evidence of intent to deceive regarding marriage; mere failure to fulfill a promise does not constitute rape.

ORDER :

S.VISHWAJITH SHETTY, J.

Petitioners – accused Nos.2 to 4 and 6 in Criminal Petition No.102674/2023 are before this Court with a prayer to set aside the order dated 22.11.2022 passed in S.C. No.21/2018 by the Court of Principal District and Sessions Judge, Uttara Kannada, Karwar District registered for offences punishable under Sections 143 , 147, 376, 417, 504, 506, 109 and 149 of IPC, wherein the application filed by the accused Nos.2 to 4 and 6 under Section 227 of Cr.P.C. seeking their discharge was dismissed. Whereas, petitioner – accused No.1 in W.P. No.105223/2023 is before this Court with a prayer to quash the entire proceedings in the aforesaid case i.e., S.C. No.21/2018 pending before the Court of Principal District and Sessions Judge, Uttara Kannada, Karwar District.

2. Heard the learned counsel for the parties.

3. FIR in Crime No.28/2018 was registered by Chittakula Police Station, Uttara Kannada District initially for offences punishable under Sections 143 , 147, 376, 417, 504, 506, 109, 149 of IPC against accused No.1 – Naresh Mohan and others. After completing investigation in the said case, charge sheet has been filed for the aforesaid offences against five persons and petitioners herein are arrayed as accused Nos.1 to 4 and 6 in the charge sheet. After the case was committed to the jurisdictional Sessions Court, the same was numbered as S.C. No.21/2018 and in the said proceedings, accused Nos.2 to 4 and 6 had filed an application under Section 227 of Cr.P.C. seeking their discharge. The said application was opposed by the prosecution by filing objections. Trial Court has rejected the said application. It is under these circumstances, the petitioners are before this Court.

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4. Material on record would go to show that allegation in the first information, which is submitted by the victim girl aged about 23 years, who is arrayed as respondent No.2 in these petitions is that, she was acquainted to the accused No.1 for the last about seven years prior to registration of the FIR and they were loving each other. He had allegedly promised to marry her. For the last about three years, he is working in Dubai as Machine Operator and she was working as a Teacher. About three years prior to registration of FIR, when she was alone in her house, accused No.1, who came to her house allegedly caught hold of her and asked for sexual favour. She refused on the ground that she can co-operate for the same only after marriage. However, he allegedly had sex with her inspite of she opposing the same. Thereafter, when she questioned accused No.1, he allegedly informed her that he would marry her. Subsequently, he had sexual intercourse with her many times though she was not willing for the same.

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5. She has stated that when the accused No.1 was abroad, they used to talk and exchange messages in their mobile phone. Subsequently accused No.1 allegedly changed his behaviour and about three weeks prior to registration of FIR, he had returned from Dubai and had informed the victim girl that he was not willing to marry her. Therefore, a panchayat was held on 27.03.2018 which was attended by the relatives and the mother of the victim girl and also the father of the victim girl. Accused No.1 had not attended the said Panchayath on 27.03.2018. Hence, separate Panchayath was held on 02.04.2018 and in the said Panchayat, accused No.1 had participated and informed the Panchayat that he was not willing to marry the victim girl. His parents, sister, brother-in-law and other relatives allegedly abused the mother of victim girl using filthy language and it is u