Point of Law: It is necessary to examine FIR, statement recorded under Section 161 and 164 of Cr.P.C. before Judicial Magistrate First Class to find out correct factual matrix of issue - Sum and substance of decisions would be that if it is established and proved that from inception accused who gave promise to prosecutrix to marry, did not have any intention to marry and prosecutrix gave consent for sexual intercourse on such an assurance by accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of IPC and, in such a case, such a consent would not excuse offender and such an offender can be said to have committed rape as defined under Section 375 of IPC and can be convicted for offence under Section 376 of IPC.

ORDER :

1. The applicant has filed the present Cr.M.P. under Section 482 Cr.P.C. for quashing of FIR No. 0068/2020 registered at police station Chakradhar Nagar, Raigarh and subsequent filing of the final report by the State for committing offence under Section 376 IPC.

2. The brief facts, as projected by the applicant in the petition, are that Prosecutrix- Non-applicant No.2 has filed a complaint on 12.1.2020 before the police station Chakradhar Nagar, Raigarh alleging that applicant committed sexual intercourse with her from year 2008 to 2019 on the pretext of marriage. According to prosecutrix, she is legally wedded wife of Shanbhoo Sarkar, resident of Nehru Nagar, Bilaspur. She met with the present applicant while working with an NGO in the month of June, 2008 at Bilaspur. Prosecutrix and present applicant developed cordial relationship and started living together. It has been alleged that the applicant has convinced Prosecutrix on the count that her husband is an alcoholic person and does not love her, therefore, he promised to marry her. The applicant feared prosecutrix that her husband would know about their illegitimate relationship and he took prosecutrix to a rented house at Raigarh. Prosecutrix started living with her and they were regularly committing sexual intercourse. Last time, applicant committed sexual intercourse with prosecutrix on 10.11.2019, thereafter, he left Raigarh. The prosecutrix tried to contact applicant but the applicant has put her mobile number in block list. Thereafter, prosecutrix came to know that applicant was already married and was living with his wife at Triveni Vihar, H.No.-598/6 near Krishna Hospital, Raipur. Thereafter, she filed a complaint on 12.1.2020 and on the basis of complaint, FIR has been registered at the police station Chakradhar Nagar, Raigarh on 3.3.2020 for committing offence under section 376 IPC.

3. The further contention of the applicant is that he has filed a complaint against prosecutrix on 24.2.2020 and 25.2.2020 before Inspector General of Police, Bilaspur contending that prosecutrix and her husband have threatened him that they will implicate him for committing offence with intention to extort money from him, therefore, he has requested for registration of offence against them. It is further contended that he was living with the prosecutrix in live-in-relationship. She has also extorted huge amount of money from him. She is wife of Shambhoo Sarkar and no divorce has been taken place between them. With an intention to grab illegal monetary consideration, she has fabricated her voter I.D. as wife of applicant thereby she has withdrawn money from his bank account. In the month of December, 2019 she demanded Rs. 5 lakh which he was unable to pay therefore she has threatened him that she will file false complaint of physical molestation against him, as such, requested authorities to register criminal case against her.

4. Applicant has also filed a complaint before the Chief Election Officer, Raipur on 27.2.2020 alleging act of fabrication in the voter I.D. card done by the prosecutrix along with her husband, but no action has been taken on his application, It is further contended by the learned Counsel of the Applicant that FIR bearing No.0068/2020 has been registered before police station Chakardhar Nagar, Raigarh on the behest of the prosecutrix for committing offence under section 376 IPC against him. During pendency of present Cr.M.P. police has completed his investigation in the matter and submitted final report before the learned Sessions Judge, Raigarh which has been registered as criminal case No. 185/2021.

5. On the above factual foundation, applicant prayed for quashing of the FIR and subsequent charge-sheet filed before the learned Sessions Judge, Raigarh .

6. The state has not filed their return.

7. Prosecutrix has filed her return contending that prima-facie ingredients of offence under section 376 of the IPC are present, FIR has rightly been registered against