Consent in sexual relationships must be genuinely understood; presenting false pretenses may constitute a misconception but requires clear malicious intent to amount to rape.

ORDER :

Vishal Mishra, J.

The present petition has been filed under Section 528 in Bharatiya Nagarik Suraksha Sanhita, 2023 (similar to Section 482 from Old CrPC) for quashment of the charge-sheet arising out of the FIR being Crime No. 113 of 2024 registered at Police Station Chandia District Umaria (M.P.) for the alleged offence under Section 376(2)(n) of IPC and all subsequent proceedings.

2. The facts of the case are that on 12.04.2024, the victim made a written complaint to the Police Station Chandia District Umaria alleging therein that the petitioner on a false pretext of marriage committed sexual intercourse with her. Thereafter, he repeatedly raped her for years. On 19.03.2024, he again raped her but refused to marry her and therefore, a written complaint was made by the victim against the petitioner to the police authorities on which an FIR being Crime No. 113 of 2024 was lodged for the offence under Section 376(2)(n) of IPC.

3. It is argued that the petitioner and the victim were known to each other. She is major on the date of lodging of report before the police authorities. It is a case of consent. She herself developed physical relations with the petitioner and was willingly staying with her in relationship. Therefore, no case under Section 376(2)(n) of IPC is made out. It is pointed out that the date of incident is reported from 19.03.2023 to 19.03.2024 and the FIR was registered against the petitioner on 12.04.2024. Hence, there is considerable delay of more than a year in lodging the report and the same is not properly explained. She herself has chosen to remain silent for a long time which creates doubt on the allegations. It is argued that if the victim's statements recorded under Sections 161 and 164 of CrPC are seen coupled with the contents of the FIR and the written complaint, then it is a clear case of consent. The petitioner's counsel has drawn attention to the written complaint dated 12.04.2024 made by the victim to the police authorities wherein she has categorically stated that the petitioner has made physical relationship with her on several occasions on pretext of marriage. She stated herself that she is aged about 20 years at the relevant time. On the basis of the said complaint, an FIR was lodged against the petitioner. The last incident was reported to be 19.03.2024 and thereafter the complaint was made. Her 164 statement recorded before the trial Court supports the prosecution story to the aforesaid extent that she herself has made physical relations with the petitioner on pretext of marriage.

4. It is further argued that 164 statement reflects that the victim as well as the petitioner were known to each other for last 2-3 years. They were in love relationship. It is further stated that the petitioner used to ask the victim for making physical relations for which she gave consent to him. Whenever he used to call her on mobile, she used to visit the place as asked by him and there they regularly made physical relations but in March, 2024, when the petitioner refused to marry her, she made complaint before the police authorities. It is argued that she is major and it is a matter of consent, therefore, no case for the offence under Section 376(2)(n) of IPC is made out. To buttress his submissions, reliance is placed on the judgments of the Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 and Sonu v. State of U.P., (2021) 18 SCC 517. On these grounds, prayer is made to quash the impugned charge sheet and the consequential proceedings.

5. Counsels appearing for the State as well as the victim have vehemently opposed the petitioner's contentions and have suppor