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IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD933 CRIMINAL APPLICATION NO.2501 OF 2021Sayyad Fayyaz Sayyad Karim,Age 32 yrs., Occ. Education & private job,R/o Rahimnagar, Super Market,Parbhani, Tq. & Dist. Parbhani. … Applicant… Versus …1The State of Maharashtra2X.Y.Z.… Respondents...Mr. R.P. Patwardhan, Advocate h/f Mr. S.S. Jadhav, Advocate for applicantMr. A.V. Lavte, APP for respondent No.1Mr. R.N. Dhakane, Advocate h/f Mr. S.S. Thombre, Advocate for respondentNo.2...CORAM :SMT. VIBHA KANKANWADI &ROHIT W. JOSHI, JJ.DATE:26th NOVEMBER, 2024ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1Present application has been filed under Section 482 of the Codeof Criminal Procedure, 1973 initially for quashing First Information Report 2933_Cri.Appln_2501_2021vide Crime No.276/2021 dated 17.09.2021 registered with Police Station,Sailu, Tq. Sailu, Dist. Parbhani and after amendment to quash and set asidethe Charge Sheet No.68/2022 i.e. proceedings in Regular Criminal CaseNo.81/2022 pending with Judicial Magistrate First Class, Sailu, Tq. Sailu,Dist. Parbhani, for the offence punishable under Section 376(2)(n) of theIndian Penal Code, 1860. 2Heard learned Advocate Mr. R.P. Patwardhan holding for learnedAdvocate Mr. S.S. Jadhav for applicant, learned APP Mr. A.V. Lavte forrespondent No.1 and learned Advocate Mr. R.N. Dhakane holding for learnedAdvocate Mr. S.S. Thombre for respondent No.2. In order to cut short, it canbe said that they have argued in support of their respective contentions. 3It can be seen that the First Information Report is lodged byrespondent No.2, who is a major married lady having two kids aged 10 and 8on the day of First Information Report. However, it is stated by her that therewas divorce between herself and her husband in 2017. She was serving asTeacher in a private school. She got acquainted with one person and gotmarried to him on 13.01.2020. The present applicant is the cousin brother ofher second husband. Since the date of her second marriage she was knowingthe applicant. Thereafter marital discord arose between the informant and 3933_Cri.Appln_2501_2021her second husband and she was residing separately from him. She wasresiding with her mother. She has then stated that she used to call applicanton phone and thereafter they fell in love with each other. The applicant hadbrought her to Sailu in a lodge on 06.08.2020 from Aurangabad. Theapplicant had forceful sexual intercourse with her on that day and as well ason the next day in lodge. It was then stated that the applicant had promisedher to marry. Thereafter on 22.08.2020 as well on 23.08.2020 again theyhad gone to the same lodge at Sailu, Dist. Parbhani and at that time theapplicant had sexual intercourse with her. She left her job from Aurangabadand started to serve in a school at Nandkheda, Parbhani, Tq. & Dist. Parbhani,which she got due to the acquaintance of the applicant. Thereafter, theapplicant had shifted her along with her belongings and two children fromAurangabad to Parbhani. Applicant was staying with her in the said rentedhouse since 26.08.2020 and the applicant had forcible sexual intercourseunder the promise to marry on 28.08.2020 with her. In February, 2021 alsounder the same promise the applicant had established physical relationshipand the said act continued between February, 2021 to May, 2021 in the samelodge in Sailu. In July also the same act was made and at that time in frontof her mother the applicant had promised that he would marry theinformant. Thereafter, she was taken to Pune by the applicant on 06.09.2021in a hotel where they stayed till 09.09.2021. It is said that again, under the 4933_Cri.Appln_2501_2021promise to marry the applicant had established the sexual intercourse. Theinformant says that as the applicant has not performed marriage with herthough he had given promise to marry and had established the physicalrelationship, she has lodged the report. 4Important point to be noted from the charge sheet is that on thenext day of First Information Report dated 17.09.2021 her statement underSection 161 of the Code of Criminal Procedure appears to have been takeni.e. on 18.09.2021. When after repeating everything she has stated that onthat day i.e. on 18.09.2021 she had gone along with her second husband andshe does not want to proceed with the First Information Report, she says thatat the time of her second marriage the present applicant was present andwhen differences arose between herself and her second husband, she wasrequesting the applicant to mediate, but as the applicant had not given anyresponse, in a rage of anger she has lodged the report. In a categorical termsshe has stated that there was no physical relationship nor she was forced bythe applicant to have sexual intercourse with him and now, when herhusband has undertaken to cohabit with her, she does not want to go ahead.It is to be noted that the said statement has been taken in presence of threepersons including the member of Dakshata Cell. Further, it appears that onthe same day she has given it in her handwriting that she does not want to 5933_Cri.Appln_2501_2021get medically examined as she was not raped and she has no complaint tomake. She has signed that document. However, it appears that the policedid not stop the investigation and the investigation has been completed.Even an affidavit sworn before the Notary Public on 18.09.2021 that she hadlodged a false report was submitted before Police Inspector, Police Station,Sailu. The documents also show that why on the same day i.e. on18.09.2021 she was produced before Judicial Magistrate First Class, Sailu,but at that time she has supported to the First Information Report by makingthe same allegations. We are unable to get the sequence of the events, but itmay be a fact that her statement under Section 164 of the Code of CriminalProcedure would have been recorded first on 18.09.2021 and then thestatement before the three persons and when she was tried to be sent formedical examination, she has given it in handwriting that she had given afalse report. 5The other evidence that has been collected is in the form oflodge record and the statement of the lodge owner as well as statement ofher mother. Of course, the mother has only stated about the acquaintanceand then the information that was given by her daughter to herself. Onemore supplementary statement of the informant has been taken on17.10.2021, which is nothing but the repetition of the First Information 6933_Cri.Appln_2501_2021Report. There is also statement of landlord Sayyad Taukhir SayyadMahammad of Parbhani, who says that the applicant had taken the said flaton rent and had kept the informant and her children in that flat. It was toldto him that they are the relatives, but when the landlord felt that there issomething wrong in their relationship, he asked the informant to vacate thepremises. 6Thus, we have taken note of the entire material which is onrecord. We are mainly concerned with the contents of the First InformationReport i.e. the prosecution story. The informant is an adult married lady. Infact, she got married twice and then since 2020 for about a year she appearsto have gone along with the applicant at different places like lodge and thenthere was physical relationship between her and the applicant. In the FirstInformation Report she has absolutely not stated that there was divorcebetween herself and the second husband. Under such circumstance, how shecould have believed in the promise to marry allegedly given by the applicant.It is nowhere in the First Information Report or in the entire charge sheet asto what is the status of the applicant, that is, whether he was married or not.Unless the informant herself would have taken divorce from her husband, shecould not have married to the applicant. Therefore, her statement that shebelieved in the promise allegedly given by the applicant cannot be accepted 7933_Cri.Appln_2501_2021at all. The present case appears to be that of consent and, therefore, nooffence can be said to be made out, which can be said to be punishable underSection 376(2)(n) of the Indian Penal Code. It would be unjust to ask theapplicant to face the trial with this kind of evidence. Case is made out forexercise of powers under Section 482 of the Code of Criminal Procedure.Hence, following order. ORDERi)Criminal Application stands allowed.ii)First Information Report vide Crime No.276/2021 dated17.09.2021 registered with Police Station, Sailu, Tq. Sailu, Dist. Parbhani andthe Charge Sheet No.68/2022 i.e. proceedings in Regular Criminal CaseNo.81/2022 pending with Judicial Magistrate First Class, Sailu, Tq. Sailu,Dist. Parbhani, for the offence punishable under Section 376(2)(n) of theIndian Penal Code, 1860 stand quashed and set aside as against applicant viz.Sayyad Fayyaz Sayyad Karim. ( ROHIT W. JOSHI, J. )( SMT. VIBHA KANKANWADI, J. )agd