The distinction between rape and consensual sex, and the need for evidence to support allegations.

JUDGMENT :

Vivek Rusia, J.

1. The applicant has filed the present petition under Section 482 of Code of Criminal Procedure (hereinafter referred as "Cr.P.C.) seeking quashment of FIR No. 268/2019 dated 20.06.2019 registered at Police Station - Kotwali, District Dhar for the offence punishable under Section 376, 376 (2) (n), 294 of Indian Penal Code (for short "I.P.C.) and Section 3/4 of Protection of Children From Sexual Offence, Act, 2012 (for short "POCSO").

2. After filing, this petition Final Report (Chalan) has been filed under Section 173 of Cr.P.C. for the offence punishable under Section 376, 376 (2) (n), 323, 294, 506, 450 of I.P.C. and Section 3/4 and 5(l)/6 of POCSO Act.

3. The facts of the case, in short, is that the respondent No. 2 (hereinafter referred as "Prosecutrix") submitted a written complaint to Mahila Thana Palasiya, Indore disclosing the commission of the offence as under:

"At present she is pursuing the studies of M.A. In the year 2013, she was studying in B.Sc. first year and the present applicant being a resident of Village Kalmani, Tehsil Dahi, District Dhar was also pursuing the study in the same college. Since he belongs to his caste and community, therefore, she has started communicating with him. In the month of January 2014, when she was aged about 17 years, the applicant was residing at Deendayalpuram, Dhar on rent and she was also living in the rented house, the applicant called her in his room and because of friendship she went into the room, where the applicant disclosed her that he is in love with her and near about 12:00 pm he forcefully made sexual relation against her wishes. When she started weeping, the applicant assured her that she would marry, thereafter he continued to make physical relations with her. In the year 2016, after completing graduation, she started living at Moosakhedi, Indore, there also on the pretext of marriage, he made physical relation with her. Thereafter, the applicant got an appointment in SAF and went for training but he used to come on Sunday and continue to make physical relations with her. Thereafter on her persuasion, they married on 28.12.2018 before the Notary, thereafter, he stopped contacting her. On the telephone, he has misbehaved with her by filthy language and threatened her. Thus, he raped her, therefore, she wants action against her.

4. The prosecutrix gave consent for medical examination. She was medically examined but no sign of force was found. The final opinion was kept pending awaiting the FSL report. The police have registered an FIR against the applicant on 20.06.2019 for the offence punishable under Section 376, 376 (2) (n), 294 of I.P.C. and Section 3/4 of Protection of Children From Sexual Offence Act, 2012. The applicant was arrested on 07.09.2019 and thereafter, he was enlarged on bail by this Court. The Forensic Science Laboratory, Rau has submitted a report dated 10.07.2019 and according to which semen was not found on nails, underwear and pubic hair but found on slide.

5. The police recorded the statement of the prosecutrix, her mother Rajibai and her father Chamar Singh. The statement under Section 164 of Cr.P.C. before the Magistrate was also recorded in which she has reiterated the same as in the written complaint. After completing the investigation, Final Report (Chalan) has been filed on 09.11.2019 for the offence under Section 376, 376 (2)(n), 323, 294, 506, 450 of I.P.C. and Section 3/4 and 5L/6 of POCSO Act.

6. Learned counsel for the applicant submits that the applicant is a constable and presently posted at 24th Battalion SAF, Jaora, District Ratlam. Even if the allegations made by the prosecutrix are accepted in their entirety no case against the applicant under Section 376, 386(2) (n), 294 of I.P.C. and Section 3/4 of POCSO Act, 2012 is made out. The applicant had performed the marriage with the prosecutrix on 28.12.2018 by observing the necessary religious steps and the certificate has been issued by Akhil Vishwa Gayatri Pari