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Judgment
(PER : NANDESH S. DESHPANDE, J.)
Heard. Admit. Heard finally with the consent of learned Counsel for both the parties.
The applicant has approached this Court by filing the present application under Section 482 of the Criminal Procedure Code seeking quashing of the First Information Report bearing Crime No. 0282/2023 dated 10.08.2023, registered at Murtizapur Police Station, District Akola, for the offences punishable under Sections 376 (2)(n), 313, 417, 494 of the Indian Penal Code, as well as the charge sheet/Final Report No. 89/2023, which is now registered as Regular Criminal Case No. 157/2023.
As per the report lodged by the non-applicant No.2, she is a woman aged 30 years and was earlier married to one Kishor Chavhan in the year 2007. She has also begotten a 10 years old son out of the said wedlock. It is further stated in the said First Information Report that a customary divorce took place between them in the presence of panch witnesses of the community. Thereafter, she was living with her son. In the year 2022, she visited the Murtizapur Tahsil Office to avail benefits under the Shrawanbal Scheme, launched by the Government, where she became acquainted with the present applicant, who was serving as a Gram Sevak. Subsequently, the applicant and the non-applicant No.2 continued to remain in contact, during the course of which a love relationship developed between them. It is further stated in the First Information Report that the applicant thereafter proposed her for marriage. The non-applicant No. 2 initially refused the proposal, but thereafter agreed to the same, after the applicant assured her that he would take responsibility of her parents and her son. It is further stated in the First Information Report that, the applicant thereafter proposed her for marriage. The non-applicant No. 2 initially refused the proposal, but thereafter agreed for the same, after the applicant assured her that he would take responsibility of her parents and her son.
It is further stated in the First Information Report that after 23.06.2023, the applicant abruptly distanced himself from the non-applicant No. 2, and so she became suspicious of such behavior of the applicant. Post inquiry, it was discovered that the applicant was already married and had two children. When being confronted, the applicant falsely assured to resolve the matter. It is further alleged in the First Information Report that on 27.06.2023, the applicant took her to an Advocate and forcibly obtained her signature on certain documents. It is further stated that as she became pregnant, the applicant attempted to administer pills to terminate the pregnancy. Upon her refusal, the applicant allegedly kicked her abdomen, which resulted in miscarriage. On the basis of these allegations, the First Information Report, as stated supra, was lodged by the non-applicant No.1, which is under challenge in the present application.
We have heard Shri Nikhil Tekade, learned Counsel for the applicant and Shri N. H. Joshi, learned Additional Public Prosecutor for non-applicant No.1/State, along with Ms S.A. Chavhan, learned Counsel for non-applicant No.2.
Learned Counsel for the applicant submits that, looking at the age of the non-applicant No. 2, she is a mature married lady of 30 years, being fully aware from the very inception of the relationship that the applicant is a married man having two children from the subsisting marriage. Despite such knowledge, she willingly continued the relationship and thus had consensual relations with the applicant. He submits that by no stretch of imagination consensual act between two adults cannot attract the offence of rape. He further submits that the first informant/non-applicant No.2 had been extracting money from the applicant on the pretext of not implicating him. Accordingly, an agreement was executed on 27.06.2023 whereby the said non-applicant No 2 acknowledged the receipt of Rs.5,00,000/- from the applicant, and undertook not to pursue any complaint. It is therefore the submission of the learned Counsel for the applicant that the First Information Report is nothing but a blatant attempt to extort money from the applicant. He lastly submits that the first informant had deserted her first husband without obtaining any legal divorce, and in the absence of dissolution of her first marriage legally, no promise of marriage could have been made by the applicant, nor could any valid second marriage take place. He, therefore, prays for quashing of the First Information Report and the consequent criminal proceedings.
Learned Additional Public Prosecutor appearing for the State, while vehemently opposing the prayer made in the application, states that a meaningful reading of the First Information Report and the material collected by the investigating agency during the course of investigation squarely attracts the offences punishable under the various sections. He further submits that the material collected clearly discloses that the applicant, by suppressing his existing marriage, induced the victim into a physical relationship and thereby committed the offences mentioned in the First Information Report.
Ms Chavhan, learned Counsel for the non-applicant No.2, while adopting the submissions advanced by the learned Additional Public Prosecutor, submits that throughout the relationship, the first informant believed that the applicant would marry her and shoulder a responsibility for her minor son and aged parents. As regards the agreement dated 27.06.2023 is concerned, she contends that the same is fabricated document and the signatures thereon are obtained by force and coercion.
In the backdrop of these facts, we have appreciated the contentions canvassed by the learned Counsel for the respective parties. It is an admitted fact on record that the first informant is about 30 years of age, and the applicant herein is about 32 years of age. Thus, both are adults, major, and able to understand the repercussions of initiation and continuance of a relationship. It is also an admitted fact on record that a joint affidavit was sworn by both of them, evidencing that they are husband and wife. The said affidavit is notarized on 28.12.2022, wherein it is clearly stated that they are accepting each other as husband and wife with effect from 13/10/2022. It is worthwhile to mention that this affidavit is not disputed by the non-applicant No. 2 / first informant. Furthermore, even if the agreement dated 27.06.2023 is disputed, the same being allegedly fabricated, the same has no veracity since it is not digestible that a matured lady whose signatures were obtained under force or coercion would wait for about 1 and 1/2 months to lodge a report, since the agreement in question is executed on 27.06.2023, and the First Information Report in question is lodged on 10.08.2023 about 1 and 1/2 month thereafter. The delay caused in lodging the First Information Report is neither explained nor can be culled out from the material filed by the prosecution agency.
Furthermore, as far as the termination of pregnancy is concerned, the statement of the doctor, namely, Sameer Shashikant Malviya, clearly states that the non-applicant No.2 was admitted to the hospital since she was suffering from typhoid. He further states that he administered treatment to her and was discharged on 19.11.2022. Thus, the story of the termination of pregnancy also does not have any truthfulness in it.
In a recent judgment of Samadhan s/o Sitaram Manmothe versus state of Maharashtra and another, in Criminal Appeal No. 5001 of 2025, dated 24.11.2024, the Hon’ble Supreme Court has once again expounded the law in relation to offence punishable under Section 376 (2) (n), is reproduced as under :
“21.Section 376(2)(n) of the IPC provides for enhanced punishment in cases where rape is committed repeatedly on the same woman. It mandates rigorous imprisonment for a term of not less than ten years which may extend to life imprisonment for the remainder of the person's natural life. The object of this provision is to address aggravated instances of sexual assault where the offence is not a single incident but has occurred repeatedly on the same victim. The expression "repeatedly" employed in the provision is of significance. It contemplates more than one act of sexual assault, committed at different points in time on the same victim. Courts have consistently interpreted this phrase to mean a series of acts that are separate in nature and not a continuation of a single transaction.
22.In genuine cases under Section 376(2)(n) of the IPC, the pattern is usually unmistakable; it is an initial act of sexual assault, followed by multiple acts under fear, pressure, captivity, or continued deceit, often when the woman is rendered vulnerable and unable to escape the situation.
27.In this regard, it becomes relevant to refer to the decision of this Court in the case of Mahesh Damu Khare vs. State of Maharashtra, (2024) 11 SCC 398, (“Mahesh Damu”) wherein the following observations were made :
27.In our view, if a man is accused of having sexual relationship by making a false promise of marriage and if he is to be held criminally liable, any such physical relationship must be traceable directly to the false promise made and not qualified by other circumstances or consideration. A woman may have reasons to have physical relationship other than the promise of marriage made by the man, such as personal liking for the male partner without insisting upon formal marital ties.
28.Thus, in a situation where physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the appellant to marry her. Thus, unless it can be shown that the physical relationship was purely because of the promise of marriage, thereby having a direct nexus with the physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact.
29.This Court has, on numerous occasions, taken note of the disquieting tendency wherein failed or broken relationships are given the colour of criminality. The offence of rape, being of the gravest kind, must be invoked only in cases where there exists genuine sexual violence, coercion, or absence of free consent. To convert every sour relationship into an offence of rape not only trivialises the seriousness of the offence but also inflicts upon the accused indelible stigma and grave injustice. Such instances transcend the realm of mere personal discord. The misuse of the criminal justice machinery in this regard is a matter of profound concern and calls for condemnation.”
Thus, the Hon’ble Supreme Court in unequivocal terms has stated that nowadays there is a tendency of filing such cases where the relationship has turned sour after a considerable period of time. In view of the fact stated above, we are of the opinion that no offence punishable under Section 376 (2)(n) is made out since the relationship between the applicant and the non-applicant No.2 was purely consensual in nature.
As far as offence under Section 313 is concerned, as already discussed above, there is no material on record that the applicant caused miscarriage without the woman's consent. The non-applicant No.2 was very well aware of the fact that the applicant is married, and therefore, there is no question of offence punishable under Section 407 of cheating being attracted in the present case. However, as far as offence under Section 494 is concerned, the applicant has sworn an affidavit on 28.12.2022 stating clearly that he and the non-applicant No.2 are husband and wife from 13.10.2022. Even the statements of Gajanan and his wife (Landlord) states that the applicant and the non-applicant No.2 were living as husband and wife.
This would be a fit case to quash the same. We therefore proceed to pass the following order :
ORDER
The application is partly allowed.
ii) The First Information Report bearing Crime No. 0282/2023 dated 10.08.2023, registered at Murtizapur Police Station, District Akola, for the offences punishable under Sections 376 (2)(n), 313, 417, 494 of the Indian Penal Code, as well as the charge sheet/ Final Report No. 89/2023, which is now registered as Regular Criminal Case No. 157/2023, is hereby quashed and set aside to the extent of the applicant – Avinash s/o Maruti Thop and to the extent of offences punishable under Sections 376(2)(n), 313 and 417 of the Indian Penal Code, 1860, except Section 494 of the Indian Penal Code.
Prosecution would continue as far as offence punishable under Section 494 of the Indian Penal Code is concerned.
The application is allowed and disposed of accordingly.