DINESH KUMAR SINGH-1,J. - (1.) Heard Sri Bipin Kumar Tripathi, learned counsel for the applicant and Sri B.A. Khan, learned A.G.A. for the State.
(2.) This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the impugned charge-sheet dated 25.03.2019 having cognizance order dated 4.07.2019 as well as proceedings thereof bearing Case No. 1532 of 2019 under Sections 376 and 506 I.P.C. pending in the Court of A.C.J.M. First, Court No. 9, Basti originate from Case Crime No. 25 of 2019, P.S. Munderwa, District Basti.
(3.) Learned counsel for the applicant has argued that the accused applicant has been falsely implicated in this case by O.P. No. 2 who is married lady. Her marriage was solemnized in the year 1996 with one Vijay Nath and out of the wedlock, two children were born. Thereafter she left matrimonial home which led her husband, Vijay Nath to file a case under Section 9 of the Hindu Marriage Act for restitution of Conjugal Right but she did not return to her matrimonial home. Thereafter she developed illicit relation with one Hemant Jaiswal and because of that her husband, Vijay Nath had filed a divorce petition under Section 13 of Hindu Marriage Act for seeking divorce. O.P. No. 2 had also filed a case under Section 125 Cr.P.C. against her husband seeking maintenance, documents regarding which is annexed at annexure no. 4 of this petition. False allegation has been made by O.P. No. 2 against the the present accused applicant saying that the accused applicant has sexually exploited her giving her false assurance that he would marry her. Reliance has been placed by learned counsel for the applicant upon Tilak Raj v. State of H.P ., (2016) 4 SCC 140 in which in para 16 and 17 following is held: "16. We have carefully heard both the parties at length and have also given our conscious thought to the material on record and the relevant provisions of the Penal Code , 1860 (in short " IPC "). In the instant case, the prosecutrix was an adult and mature lady of around 40 years at the time of the incident. It is admitted by the prosecutrix in her testimony before the trial court that she was in a relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence. After perusal of a copy of the FIR and the evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable. 17. The evidence as a whole, including the FIR, testimony of the prosecutrix and the MLC report prepared by the medical practitioner clearly indicates that the story of the prosecutrix regarding sexual intercourse on false pretext of marrying her is concocted and not believable. In fact, the said act of the appellant seems to be consensual in nature. The trial court has rightly held thus: 23. If the story set up by the prosecutrix herself in the court is to be believed, it does come to the fore that the two were in a relationship and she well knew that the accused was duping her throughout. Per the prosecutrix, she had not succumbed to the proposal of the accused. Having allowed access to the accused to her residential quarter, so much so, even having allowed him to stay overnight, she knew the likely outcome of her reaction. Seeing the age of the prosecutrix which is around 40 years, it can be easily inferred that she knew what could be the consequences of allowing a male friend into her bedroom at night. 24. The entire circumstances discussed above and which have come to the fore from the testimony of none else but the prosecutrix, it cannot be said that the sexual intercourse was without her consent. The act seems to be consensual in nature. 25. It is also not the case that the consent had been given by the prosecutrix believing the accused's promise to marry her. For, her testimony itself shows that the entire story of marriage has unfolded after 5-1-2010 when the accused was stated to have been summoned to the office of the DSP. Prior to 5-1-2010, there is nothing on record to show that the accused had been pestering the prosecutrix for any alliance. The prosecutrix has said a line in her examination-in-chief, but her cross-examination shows that no doubt the two were in a relationship, but the question of marriage apparently had not been deliberated upon by any of the two. After the sexual contact, some talk about marriage had cropped up between the two. Thus, it also cannot be said that the consent for sexual intercourse had been given by the prosecutrix under some misconception of marriage." ;