V.K. Gupta, C.J.

1. This is yet another very unfortunate case where the learned trial court appears to have rejected the prayer of the petitioners without any application of mind whatsoever and by a totally mechanical, and patently erroneous and illegal exercise of jurisdiction . The petitioners had prayed to the trial Court that the charge under Section 376 of the Indian Penal Code was nut at all made out and the same be accordingly dropped. Consequentially, the petitioners had submitted that the matter be sent back to the concerned Magistrate for trial of the offence only under Sections 493 and 323 of the Indian Penal Code, but not for the offence under Section 376 of the Indian Penal Code. By dealing with the aforesaid contention of the petitioners in a slipshod manner, the learned court below rejected the prayer of the petitioner. Hence, the present revision petition.

2. The first information report (FIR) clearly shows that the prosecutrix/victim lady was a hundred percent consenting party to the act of sexual intercourse between herself and the accused Ashok Pandit. The FIR being in Hindi, the English translation of the relevant extract reads thus :--

"The husband of the prosecutrix had died five years back. The prosecutrix has two sons and a daughter for the last three years. The accused Ashok Pandit has been regularly visiting the house of the prosecutrix at night and would make overtures to her about being in love with her. The accused Ashok Pandit is unmarried. Since the prosecutrix had been feeling lonely, and without any shelter in life, she consented to, and accepted his offer of love and both of them thereafter started living as husband and wife. Ashok Pandit accused, to his full satisfaction, enjoyed the sexual intercourse with the prosecutrix and thereafter the prosecutrix became pregnant....."

3. Now, in the face of the aforesaid contents in the F.I.R., on the abovementioned application/prayer of the petitioners, the learned trial court disposed of, by dismissing, their application of the basis of the following observations:--

"According to the case of the prosecution accused Ashok Pandit induced the complainant to have cohabitation with him and they lived as wife and husband. Ashok Pandit treated the complainant as wife and also assured to marry to her. She carried a pregnancy thereafter but the family members did not like, it and therefore accused Ashok Pandit made attempt to have abortion of the pregnancy for which he gave a medicine to her. On the petition of the complainant Most. Chinta widow of Mangru Pandit case was registered and the I.O. of the case after completing investigation submitted chargesheet against the accused persons who are the family members of accused Ashok Pandit for the offence punishable under Section 493, 376 and 323/34 IPC. Materials are available on the record and perused the same. On considering the materials available on record and in the circumstance of the case, it is found that there is no ground at all to allow the prayer of the accused persons and therefore the prayer is rejected and the accused persons are directed to be physically present in court on 21.8.2001 for framing charge against them. (dictated)."

4. Before I embark upon any decision or critical examination of the legality and correctness of the order of the learned court below, I may not profitably lose sight of the fact that in this case as many as seven persons were impleaded as accused, Ashok Pandit being only one of them.

5. Section 375 of the Indian Penal Code defines rape the relevant extract of this section as it pertains to this case reads thus:--

"375. Rape.--A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:--

First--Against her will.

Secondly--Without her consent. * * *"

6. Even a layman, even a semi-literate lay-man, after reading the aforesaid version of the prosecutrix would