High Court

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.1372 OF 2024Yadav Nagorao Navhare,Age 54 yrs., Occ. Teacher,R/o Manjram, Tq. Naigaon,Dist. Nanded. At present r/o Shakuntal Niwas,Kailash Nagar, Nanded,Tq. & Dist. Nanded. … Applicant… Versus …1The State of MaharashtraThrough Police Inspector,Police Station, Naigaon,Tq. Naigaon, Dist. Nanded. 2X.Y.Z.… Respondents...Mr. S.B. Bhapkar, Advocate h/f Mr. K.B. Jadhav, Advocate for applicantMr. N.R. Dayama, APP for respondent No.1Ms. Sumedha Thombre, Advocate (appointed through High Court LegalServices Sub Committee, Aurangabad) for respondent No.2...CORAM :SMT. VIBHA KANKANWADI & SUSHIL M. GHODESWAR, JJ.RESERVED ON :21st AUGUST, 2025PRONOUNCED ON :12th SEPTEMBER, 2025 2Cri.Appln_1372_2024ORDER : (PER : SMT. VIBHA KANKANWADI, J.)1Present application has been filed under Section 482 of the Codeof Criminal Procedure, 1973 initially for quashment of First InformationReport vide Crime No.4/2024 dated 09.01.2024 registered with PoliceStation, Naigaon, Tq. Naigaon, Dist. Nanded, for the offence punishableunder Section 376(2)(n), 506 of the Indian Penal Code, 1860 and later on byway of amendment for quashing Charge Sheet No.20/2024 i.e. theproceedings in Sessions Case No.58/2024 pending before learned AdditionalSessions Judge, Biloli, Tq. Biloli, Dist. Nanded. 2Heard learned Advocate Mr. S.B. Bhapkar holding for learnedAdvocate Mr. K.B. Jadhav for applicant, learned APP Mr. N.R. Dayama forrespondent No.1 and learned Advocate appointed through High Court LegalServices Sub Committee, Aurangabad for respondent No.2. 3Learned Advocate appearing for applicant has taken us throughthe entire charge sheet and submitted that from First Information Reportitself it can be seen that the ingredients of offence are not attracted. Theprosecutrix – respondent No.2 was aged 39 on the day of First InformationReport and she had sons aged 18 and 14 respectively. She was married in2004 and her husband had expired in 2011. When she was residing at 3Cri.Appln_1372_2024village Naigaon till 2017, she came to know the applicant, who is a Teacherby profession. Applicant is distantly related to respondent No.2. Certainly,she might be then knowing that the applicant, who is aged 54, was marriedand is having children. Still she says that in the year 2018 the applicant hadsexual intercourse with her under the promise to marry. The marriage wasnot at all possible when the applicant was already married and had notobtained divorce from his wife. The prosecutrix states that several timeswhen she was residing at Naigaon, the applicant had sexual intercourse inher house under the pretext of promise to marry, but at the same time shestates that her children were not approving visit of applicant to their house.Then she states that thereafter her children and her mother started residingseparately in the same village. Informant then states that when she askedabout the marriage to applicant, he told that they would go to Nanded andhe would perform marriage with her. It is then stated that applicant hadtaken a room on rent in December, 2022 at Nanded and he used to visit thesaid place occasionally. It is alleged that from December, 2022 to November,2023 by giving promise to marry several times the applicant has committedsexual intercourse with her. But in October, 2023 he refused to marry. Thenshe states that still she was hopeful that the applicant would marry and,therefore, had not lodged any report. Ultimately, it is stated that report hasbeen lodged on 09.01.2024. All these averments would show that the act 4Cri.Appln_1372_2024was consensual and informant had knowledge that the alleged promise willnot be fulfilled at all, still she indulged in the act voluntarily. The statementsof witnesses would show that the landlady and her son were told by theinformant when they asked about the applicant’s visit that they were going toperform the marriage. Cousin brother of the informant states that informantdisclosed him that she has relations with the applicant, they stay togetherand are going to perform the marriage. Similar is the statement of otherrelatives. Under such circumstance, it cannot be stated that the sexualintercourse was without the consent of prosecutrix. It would be futileexercise to ask the applicant to face the trial. 4Per contra, learned APP for respondent No.1 and learnedAdvocate appointed through Legal Aid to represent cause of respondent No.2strongly opposed the application. They submitted that consent was not a freeconsent by prosecutrix, it was under the promise to marry. Learned APPsubmits that though statement of son of respondent No.2 has not beenannexed to the copy of charge sheet, which has been provided by applicant;yet the statement of elder son and mother of prosecutrix has been recorded.They have also stated that the entry of applicant in the life of prosecutrix inthe year 2018 was under the promise to marry. Though they have stated thatthey are not approving the visits of applicant to their house and they started 5Cri.Appln_1372_2024residing separately after the dispute between them and prosecutrix, the factremains is that they are supporting First Information Report that the allegedconsent for relationship was not a free consent. 5When it comes to a case where allegations of rape are levelledupon the promise to marry, then it is the duty of this Court to consider thefacts minutely. The prosecutrix is aged 39 years and as aforesaid, has twochildren aged 18 and 14 on the date of First Information Report. Herhusband expired in 2011 and most important fact is that present applicant isdistantly related to her. Exact relationship has not been given, but the factremains is that she has the knowledge about where the applicant wasresiding and what was his occupation. Taking into consideration the age ofapplicant, certainly, she would have come to know that he is married andmight be having children. There is total suppression of facts on this point byinformant in First Information Report. Though he was having knowledgeabout death of husband of prosecutrix in 2011, it is stated by prosecutrix thatalleged promise to marry was given for the first time in 2018 by applicantand thereafter the sexual intercourse between them started. It is further tobe noted is that when children and mother of prosecutrix were takingobjection for the visit of applicant to their house and of course for therelationship between them, it appears that the prosecutrix continued the said 6Cri.Appln_1372_2024relationship, as a result of which sons and mother of prosecutrix startedresiding separately in 2018 itself. It appears then from First InformationReport that from 2018 to December, 2022 physical relation betweenprosecutrix and applicant had taken place at Naigaon and thereafterprosecutrix shifted to Nanded. Even at Nanded from December, 2022 toNovember, 2023 the relationship continued and prosecutrix states thatapplicant had sexual intercourse several times with her. Even to the landladyand her son the impression was given that they were going to performmarriage and for other relatives i.e. cousin brother, nephew it was stated byprosecutrix herself that she has relations with applicant, they stay togetherand they would perform marriage. Even to witness Shivanand Panchal, whowas residing in the neighbourhood at Nanded, the prosecutrix has stated thesame thing. That means, the prosecutrix had accepted and even told abouther relationship i.e. beyond the marriage to these persons, who are not herrelatives. At no point of time she had disclosed to them while giving the factabout the relationship that said relationship was due to promise to marry.Further, it can be seen from First Information Report that in October, 2023the applicant refused to marry her; yet First Information Report has beenlodged on 09.01.2024. The delay has not been then explained. It is tried tobe stated that still she was hopeful that he would perform the marriage.From all these facts it is clear that the relationship was consensual. We rely 7Cri.Appln_1372_2024on the decisions in Pramod Suryabhan Pawar vs. State of Maharashtra andanother [(2019) 9 SCC 608], Shambhu Kharwar vs. State of Uttar Pradeshand another [AIR 2022 SC 3901] and Amol Bhagwan Nehul vs. The State ofMaharashtra and another [2025 AIR SC 2629] to buttress the legal positionthat when the relationship is consensual, it will not attract the ingredients ofSection 375 of the Indian Penal Code. It would be an abuse of process of lawif the applicant is asked to face the trial. Hence, following order. ORDERi)Criminal Application stands allowed.ii)Charge Sheet No.20/2024 i.e. the proceedings in Sessions CaseNo.58/2024 pending before learned Additional Sessions Judge, Biloli, Tq.Biloli, Dist. Nanded arising out of First Information Report vide CrimeNo.4/2024 dated 09.01.2024 registered with Police Station, Naigaon, Tq.Naigaon, Dist. Nanded, for the offence punishable under Section 376(2)(n),506 of the Indian Penal Code, 1860, stands quashed and set aside as againstapplicant viz. Yadav Nagorao Navhare. ( SUSHIL M. GHODESWAR, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd