crn3539.09.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 3539 OF 2008 Sunil s/o Lavsingh Rathod :: Applicant -:Versus:- The State of Maharashtra and and Archana Tukaram Chauhan :: Non-applicants ............................................................................................................................. Shri F. T. Mirza, Advocate for the applicant. Shri D. B. Yengal, A. P. P. for non-applicant No. 1. Shri Tariq M. Zaheer h/f Smt. S. D. Desai, Advocate for Non applicant No. 2. ............................................................................................................................. CORAM : R. Y. GANOO, J. DATED : 27TH JULY, 2009. P. C. : 1. Heard Mr. F.T. Mirza, learned Advocate for the applicant and Mr. D. B. Yengal, learned A.P.P. for the non-applicant-State. 2. Non-applicant No. 2 filed F. I. R. with Police Station, Yeotmal on 02/02/2007 alleging that the applicant had sexual intercourse with her by promising that he would marry her and she was persuaded to consent for sexual intercourse assuming that applicant shall fulfill the promise. When non- applicant No. 2 conceived and this fact was informed to the applicant, the applicant declined to maintain the said promise and hence F.I.R. No. 16 of 2003 came to be registered. By this application, the applicant wants that FIR No. 16/07 as also charge sheet No. 95 of 2007 dated 13/8/2007 should be quashed. crn3539.09.odt 2/3 3. I have heard learned Advocates from both the sides. Perusal of the FIR would go to show that non-applicant No. 2 was allured with a promise of marriage, i.e. to say that the applicant will marry her. Plain reading of the FIR goes to show that non-applicant No. 2 is said to have had sexual intercourse with the applicant on the promise that applicant would marry her. The FIR further shows that non-applicant No. 2 conceived and when this fact was brought to the notice of the applicant, applicant declined to maintain the said promise and that is how non-applicant No. 2 felt that she has been subjected to fraud and that how she has filed the FIR. The allegations made in the FIR are crystal clear and prima facie indicate that if the applicant did not promise to marry non-applicant No. 2, non-applicant No. 2 would not have surrendered herself. Insofar as this aspect is concerned, perusal of the charge- sheet would go to show that what happened between the applicant and non- applicant No. 2 was based on the promise given by the applicant to non- applicant No. 2, i.e. in future, he will marry her. 4. According to the applicant, ingredients of Section 375 IPC are not disclosed and hence, no offence under Section 376 IPC is made out. I am not in agreement with the submission advanced by the learned Advocate for the applicant. Prima facie, the applicant is alleged to have had sexual intercourse with non-applicant No. 2 and the case of the applicant would fall under Clause (ii) of Section 375 IPC i.e. to say the applicant had sexual intercourse with non- applicant No. 2 “without consent”, because even the consent which the applicant had given to non-applicant No. 2, is by practicing fraud. crn3539.09.odt 3/3 5. Argument advanced on the basis of which the age of non- applicant No.2 has been disputed by the applicant by taking the matter to the school leaving certificate relied upon by the prosecution and by making some calculation. On the basis of the said certificate, it was argued that the age of non-applicant No. 2 at the relevant time i.e. on 02/02/2007 was more than 20 years. In my view, in this case, age of non-applicant No. 2 would not be very much material because intercourse had been done by obtaining consent by the applicant by practising fraud, which is clear from the text of the FIR. 6. The question whether non-applicant No. 2 permitted the applicant to have sexual intercourse with or without consent is a matter to be attended at the time of trial and there is no question of quashing the charge sheet or FIR at this juncture. The applicant will have to face the trial. Of course, it will be open for him to put his defence before the learned trial Judge as regards the question of non-applicant No. 2 giving consent for sexual intercourse. 7. In view of the above, the application is required to be dismissed. No views are expressed on the merits of the case and what has been stated was required to be discussed for the purposes of considering the application for quashing. Hence, the application is dismissed. JUDGE wwl