IMPORTANT POINT
Consent in sexual relationships must be free from coercion, and a promise to marry must be proven false from the outset to constitute a misconception of fact that vitiates consent under Section 375 of IPC.

JUDGMENT/ORDER

1. Heard Mr. Raikar, learned Counsel for the applicant and Mr. Pravin Faldesai, learned Additional Public Prosecutor for the respondent Nos.1 and 2.

2. Even though the notice was issued to the victim, none appeared for her. Mr. Faldessai points out that the victim is present. A reply is filed on behalf of respondent No.3 which is dtd. 05/12/2023 thereby opposing the present proceedings.

3. The challenge in the present petition is to the order passed by the learned Sessions Judge dtd. 25/08/2023 by which the application for discharge filed by the applicant /accused was rejected and at the same time directed to frame charge against the applicant/accused for the offence punishable under Sec. 376, 313 and 201 of IPC.

4. Admit. Heard learned Counsel for final disposal at the admission stage itself with consent.

5. Mr. Raikar appearing for the applicant would submit that from the charge sheet and statement of the victim recorded under Ss. 161 and 164 of CrPC, it is amply clear that ingredients of Sec. 376 of IPC are not made out. He submits that relationship between applicant and the victim was consensual and there was no promise to marry with intention to defraud the victim. He submits that first of all the statement/ complaint of the victim nowhere shows that from the inspection, the petitioner/applicant had an intention to cheat the victim in connection with the proposal for marriage. He would then submit that the consent has to be considered in view of the statements given by the victim as simply breach of promise cannot be considered as false promise from the inception.

6. Mr. Raikar would submit that there is absolutely nothing on record to show that there was any refusal on the part of the applicant to marry the victim. He submits that due to subsequent developments and the fact that the applicant is of young age, he along with the victim decided to abort the child. Accordingly both approached the Doctor and after consent given by the victim, the procedure was carried out. Thus he submits that the ingredients of Ss. 313 and 201 of IPC are not made out for framing of charge.

7. Mr. Raikar placed reliance in the case of Sonu @ Subhash Kumar v/s. State of Uttar Pradesh and Anr.(Criminal Appeal No. 233 of 2021) dtd. 01/03/2021 wherein the Apex Court has considered its earlier decision in the case of Pramod Suryabhan Pawar v/s. State of Maharashtra[(2019) 9 SCC 608].

8. Mr. Raikar also placed reliance in the case of State of Karnataka v/s. Jatin Chhabria [2020 4 KarLJ 59] He submits that if two views are possible and the view favouring to the accused is a plausible view, the same have to be accepted even at the stage of considering the matter for framing of charges.

9. Per contra, the learned Additional Public Prosecutor Mr. Faldessai would submit that the victim had filed affidavit before this Court confirming her statement given to the Police on which FIR was registered and even before the trial Court, she confirmed her contentions raised in the complaint. He submits that the cumulative facts of such statement would clearly show that there is grave suspicion against the accused which shows that relationship was established on the false promise of marriage. He would further submit that the statement of the Doctor clearly goes to show that initially the victim came to his hospital along with the accused however she suddenly disappeared but was brought again by the accused which shows that she was forced to abort. He therefore submits that the observations of the learned Sessions Court need no interference.

10. Rival contentions fall for determination.

11. Statement of the victim reported by the Victim Assistance Unit on 25/03/2022 shows that the victim along with the accused became friendly and even the accused was introduced to the family members of the victim. The accused used to visit the victim at her place at Caranzalem. During such visits, the physical relationship was established. It was the contention of the