Point of Law : Offence of Rape - Charge sheet quashed - The acknowledged consensual physical relationship between the parties would not constitute an offence under section 376 of the IPC.”

JUDGMENT :

NITIN B. SURYAWANSHI, J.

1. This application filed under Section 482 of the Code of Criminal Procedure, seeks quashing of RCC No. 626/2020, pending before the trial Court at Parbhani, which arises out of FIR at Crime No. 185/2020, registered with New Mondha Police Station, Parbhani, for the offence punishable under Section 376 of the Indian Penal Code.

2. Rule. Rule is made returnable forthwith. By the consent of the parties, the matter is heard finally at admission stage.

3. In the FIR in question, the respondent No. 2 - victim has in short alleged that she and the applicant belong to the same caste and they got acquainted with each other. Prior to 2015, when the applicant was serving at Aurangabad they had friendly relations and used to talk on mobile. In the year 2015 – 2016, victim was preparing for competitive examinations and used to go to Vision Classes and Kalyan Mandapwala’s Government Library, Parbhani. At that time, the applicant used to come there for studies. Their friendship, therefore, continued. After the selection of the applicant as a clerk in Mantralaya, Mumbai, in the year 2016, he went to Mumbai. They were in constant touch on phone. The applicant used to come to Parbhani on Saturdays and Sundays and the victim and applicant used to meet. The applicant used to tell the victim that he will marry her. The applicant had also given the idea of his decision to marry victim to his parents. In the month of January 2018, the applicant invited the victim to come to Mumbai for celebrating her birthday. The victim went to Mumbai and stayed at the applicant's room at Badalapur for three days. During that time, they had sexual intercourse. Since the applicant was assuring that he would marry the victim, she did not resist. Thereafter, the victim returned to Parbhani and their phone calls and chatting continued. They continued to meet at Parbhani on Saturdays and Sundays and they used to go for outing on applicant's two wheeler and used to enjoy consensual physical relations in the Sugarcane field at the outskirts of Parbhani. On 18.04.2019, the victim went to Mumbai to appear for the examination for the post of Assistant Clerk. That time also she stayed at the room of the applicant and everyday they enjoyed sexual intercourse. The victim, thereafter, returned to Parbhani. On 13.12.2018, the victim went to Mumbai for new year's celebration. The applicant and victim stayed at a lodge near Dadar Railway Station for two days and they had consensual sexual intercourse. In July 2019, the applicant came for his piles operation to Parbhani, at that time, the applicant and victim met at the house of victim. There was nobody at her house, at that time also they had sexual intercourse. Once when the applicant had come to the house of victim, he demanded victim's hand in marriage from her mother. He used to assure the victim that he is going to marry her. During the years 2018, 2019 and 2020, whenever the victim and the applicant used to meet, they used to indulge in consensual sexual intercourse. Since November 2019 onwards, the applicant talked to the victim on phone. On 06.04.2020, the applicant called and asked the victim about her decision of marriage and told her to send her maternal uncle to applicant's brother for the marriage talks. Thereafter, the applicant's phone was switched off. The victim, therefore, contacted his parents. They also told her that they are not able to contact him since last two months. They asked her to wait since there was lockdown. The victim, therefore, alleged that by giving false promise of marriage, the applicant kept physical relations with her and thereby physically and mentally exploited her.

4. Heard the learned Advocate for the applicant, learned APP for the State and the learned Advocate for respondent No. 2.

5. Learned Advocate for the applicant by relying on the averments in the FIR and the history given by the victim at the time of her medical examination contended that victim was