Unknown vs Durmesh @ Durgesh"
2023 Latest Caselaw 2838 UK

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                                     C482 No.1884 of 2023
                                     Hon'ble Sharad Kumar Sharma, J.

Mr. Vijay Kumar Chauhan, Advocate, for the applicant.

Mr. S.C. Dumka, AGA, for the State of Uttarakhand.

The argument of the learned counsel for the applicant while challenging the proceedings of the Criminal Case No.776 of 2023, "State Vs. Durmesh @ Durgesh", whereby he has been summoned to be tried for the offence under section 376 (2) (n) of IPC.

Arguing from the prospective that in accordance with the set of allegations levelled in the FIR, it is an admitted case of the complainant that she has been in an intimate relationship for the last more than five years. At the initial stage when the physical relationship was established, she has never objected nor had ever complained. He further argues that there is no evidence on record that after conceiving, there was a forceful abortion, because that is the reason why no cognizance for the offence under section 313 of IPC, was taken by the Investigating Officer or consequently by the trial court also.

His argument is that when a major female enters into a relationship with a male of her choice, and continues the same for a considerable long time, and when there is a establishment of a consensual physical relationship may be under the false pretext of marriage, that will not attract section 376 of IPC, owing to the fact, that to make an offence fall under section 376 of IPC, it has to satisfy the ingredients and parameters provided under section 375 of IPC, as it has been postulated by the Hon'ble Apex Court in the judgment of "Sonu Vs. State of Uttar Pradesh", as reported in 2021 SCC Online SC 181, which was subsequently followed by me, in yet another judgment rendered by this Court in C482 No.730 of 2022, "Vijay Shukla Vs. State of Uttarakhand and another", as reported in 2022 SCC Online Utt 1840.

The tenacity of the argument of the learned counsel for the applicant is that, even if take for granted, that there was a physical relationship, first of all it was consensual, unobjected, at the stage when the first attempt for sexual assault was made, and if there was no retaliation, the consent would be presumed to be existing.

He further argues that in such an eventuality and the circumstances as narrated, therein, the only offence, which could be made out against the present applicant would be a breach of trust, which has to be independently dealt with in accordance with the provisions of the Indian Penal Code, but not under section 376 of IPC, would not be made out as consent was existing.

Issue notice to the respondent no.2. Steps to be taken within a week.

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

Till the next date of listing, the further proceedings of the Session Trial No.43 of 2023, "State Vs. Durmesh @ Durgesh" pending consideration before the court of FTSC/Additional District Judge, Laksar, District Haridwar, would be kept in abeyance.

(Sharad Kumar Sharma, J.) 25.09.2023 NR