AMAR SARAN, SURENDRA SINGH,JJ. - (1.) HEARD learned counsel for the petitioner, Shri Rajesh Kumar Singh for respondent No. 3 and Shri Rishi Tandon, learned Additional Government Advocate representing the State.
(2.) THE allegations in the FIR lodged by the prosecutrix were that she was 16 years in age and the petitioner after giving her a temptation of marriage, physically exploited her for five months. He stated that after he would win over his parents, then he would inform them that he had married her by stating that in Shariyat he had married her and she has accepted him and that she has become his wife. The victim considering herself to be his wife, agreed to carnal relations because of which she became pregnant. She told the petitioner that she was pregnant for four months and that he should now give public information about his marriage otherwise she would loose face in society. He replied that she was a fool and that he was only taking pleasure out of the carnal relations with her. He gave her some medicines and asked her to keep her mouth shut. Out of shame, the victim consumed the pills because of which she became very ill and when her mother asked her, then she disclosed this chain of events to her mother. Because of excess bleeding her condition deteriorated. She was thereby raped by the petitioner by fraud. Learned counsel for the petitioner argued that the victim was over 18 years in age and not 16 years in age as alleged by her. No foetus or embryo was noted in her uterus. She had, after fully understanding the situation, consented agreed to sexual intercourse with the petitioner, who was to marry her on a later date and that in such circumstances no offence under section 376 IPC was disclosed and the case did not fall either under clause "fourthly" or "fifthly" of section 375 IPC because she did not believe that he was another man to whom she believed herself to be lawfully married to. In support of his case learned counsel for the petitioner has placed reliance upon the decision of the Hon'ble Supreme Court in Uday Vs. State of Karnataka, 2003 SCC (Cri) 775 : 2003 (2) ACR 1049 (SC).
(3.) LEARNED counsel for the complainant, however, argued that after abortion and excess bleeding no foetus and embryo would be visible. He referred to the decision of the Hon'ble Supreme Court in the case of Saleha Khatoon Vs. State of Bihar, 1989 Cri.L.J 282, wherein it has been held by the Supreme Court that intercourse without the consent of the prosecutrix on the basis of fraud and allurement on the pretext that later on he would marry her comes within the ambit of rape and the accused is guilty of rape.;