C482/282/2023
2023 Latest Caselaw 458 UK

                   Office Notes, reports,
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      22.02.2023
                                            C482 No. 282 of 2023
                                            Hon'ble Sharad Kumar Sharma, J.

Mr. Kurban Ali, Advocate, for the applicant.

Mr. Atul Kumar Sah, Deputy Advocate General, along with Mrs. Mamta Joshi, Brief Holder, for the State.

The complainant, who is the victim to the FIR No. 50 dated 01.02.2022, has registered the said FIR as against the present applicant for his commission of the offence under Sections 376, 323, 504 and 506 of IPC. The applicant is the named accused person. Even as per the admitted story of the complainant, she admits the fact, that she got in touch with the present applicant on Facebook for about a year back and that relationship continued, till they for the first time met in June 2021 and she has admittedly established a consensual physical relationship.

It's not her case, that ever since June 2021, she had ever objected to it or has raised any alarm by registering the FIR, on the date of commission of offence, as back as in 2021. Later on, she has developed a story, that when she felt some uneasyness, she informed her mother about the commission of the said offence of 2021. The FIR doesn't disclose the date, on which the said information was imparted by the complainant to her mother.

It is not even that, after the narration of the said fact she has submitted, that under an assurance of marriage, she had moved around with the present applicant and had gone at several places and had established physical relationship with the present applicant and had even stayed with him in a hotel in Rishikesh where physical relationship was established.

She submitted that as a consequence of the establishment of physical relationship, she conceived, which was later on aborted by her and thereafter, she has further raised an allegation, that on 13.11.2021, the present applicant has established an unnatural physical relationship with her at her residence.

Continuance of a relationship for a considerable long time and establishment of the consensual physical relationship, as well as commission of an unnatural sexual offence would rather establish a fact, that it was a consensual relationship.

In that eventuality, this Court is of the view that in the light of the judgment rendered by the Hon'ble Apex Court in the matters of Sonu @ Subhash Kumar Vs. State of Uttar Pradesh and Another, as reported in 2021 SCC OnLine SC 181, this Court is of the view that it would not be a 'rape', because the element of consent was present and it will not fall to be within a definition of 'rape', under Section 375 of IPC.

Let notice be issued to the respondent No. 2.

Respondent No. 1 is represented by the learned Government Advocate.

Steps would be taken by the applicant within a period of one week from today.

Respondents may file their counter affidavit within a period of three weeks from today.

List thereafter.

Till next date of listing, the proceedings of Criminal Case No. 2743 of 2022, State Vs. Manjil Kalra, pending consideration before the Court of Chief Judicial Magistrate, Dehradun, District Dehradun, would be kept in abeyance.

(Sharad Kumar Sharma, J.) 22.02.2023 Mahinder/