IMPORTANT POINT
The court emphasized that the determination of consent in sexual offenses must be established through trial evidence, not at the charge framing stage.

ORDER :

Narendra Kumar Vyas, J.

1. The applicant has filed this Criminal Revision under Sections Section 397 & 401 of the Code of Criminal Procedure against the order dated 16-10-2018 (Annexure A/1) passed by the learned Additional Sessions Judge, Bemetara, District Bemetara (CG) in Sessions Trial No 28 of 2018 by which the learned trial Court has framed charges against the applicant under Sections 376, 506(B) and 323 of IPC.

2. Brief facts as reflected from the record are that the complainant/victim lodged a report on 14.09.2017 before the Police Station Bemetara, District Bemetara on the basis of which FIR was registered as crime No. 551/2017 for commission of offence under Sections 376, 506(B) and 323 of IPC mainly alleging that she is a student of MA First year and applicant is a resident of village Udka and posted as Constable at the relevant time. They had come in contact through one Kamal Bhaghel, started talking on telephone and later on it developed into love relationship and accordingly they used to meet oftenly. The applicant has taken her to lodge at Bemetara where he has made physical relationship with her and when she used to talk about their marriage he started avoiding her. It is also case of the prosecution that due to physical relationship made by the applicant the victim became pregnant, which was later on aborted by giving medicines. It is also the case of the prosecution that whenever victim asked the applicant to marry her, he refused to marry her. It has also been alleged that she was studying at Bilaspur and resides in a rented house where applicant also used to come and made physical relationship with her and whenever she asked for marriage he refused. On 12.09.2017 when her brother had gone to Bemetara for settling the issue, then he has assaulted them and caused injury and thereafter she lodged the FIR against the applicant.

3. After due investigation, on the basis of report lodged by the complainant/victim, Police have registered the aforesaid offense against the applicant. Further case of the prosecution is that the victim was also examined under Section 164 of the Cr.P.C., wherein she reiterated the same stand and also stated that she has submitted a Form before the Registrar of Marriage i.e. Additional Collector Bemetara for registration of marriage, notice was issued and advertisement was prepared for publication on the date of marriage, but notice was not published in the newspaper. She has also stated that when she has gone to Police Station Bemetara on 12-9-2017 to rescue her brother, the applicant, his elder brother and others have assaulted her in the Police Station, threatened to kill her on telephone and also threatened to withdraw the complaint filed by her for which money was also offered. She has also stated that FIR was not registered and she was removed from the Police Station. She has also stated that he has made physical relationship with her forcefully and always called her for the same and if she refuses, he threatened her that he will upload her photographs in the website.

4.Learned counsel for the applicant would submit that the complainant is a major lady and she is well aware of the consequences of physical relation and knowing the fact she has agreed for physical relation, as such, no case is made out against the applicant. He would further submit that before framing of charges the learned Trial Court should have seen that since it is a consensual act and victim is a major lady, therefore, as per Section 90 of IPC the applicant is entitled to get protection from the charge framed against him, thus the order of framing of charges dated 16.10.2018 deserves to be quashed. He would further submit that offence of rape is defined in Section 375 of IPC and from bare perusal of Section 375 of IPC, it is quite vivid that sexual intercourse must be against her will or without her consent or her consent has been obtained putting her under duress or threat. When a woman is a minor, even if s