- (1.) THIS application has been filed for quashing of the order dated 31/01/2013, passed in S.T. No. 161 of 2013 (arising out of Jharia P.S. Case No. 409/2012, G.R. No., 4184/2012), whereby and whereunder cognizance of the offences punishable under Sections 376, 493, 313 of the Indian Penal Code, has been taken against the petitioner.
(2.) THE case of the prosecution as it appears from the F.I.R is that the petitioner was keeping the informant for the last two years as his wife. By pretending of loving her, the petitioner use to have have sex with her. In course of time, she became pregnant. During that period, the petitioner use to have have sex with her on the pretext that he will marry her. On 18/10/2012, she felt headache. When she told to the petitioner that she is having headache, the petitioner gave some pills to eat. Upon consuming that pills, the pregnancy, which she was carrying, got terminated. Thereupon, the petitioner refused to marry her. On such allegation, a case was lodged, which was registered as Jharia P.S. Case No. 409 of 2012, under Sections 373, 493, 313 of the Indian Penal Code. After completion of the investigation, when the charge sheet was submitted, cognizance of the offence, as aforesaid, was taken against the petitioner vide order dated 31/01/2013, which is under challenge. Learned counsel appearing for the petitioner submits that accepting the entire allegations to be true, no offence is made out under Section 376 IPC as it has never been the case of the informant that the petitioner, on giving false promise to marry her, had had sex with the informant, rather from the allegation what has been made in the FIR, it would appear that since the petitioner was loving her, she subjected herself to the petitioner to have have sex with her and, therefore, it can easily be said to be a case of consensual sex. Further, it was submitted that it has never been the case of the informant that this petitioner on the pretext of marrying her had had sex with the informant, but the petitioner had no intention to marry and thereby, the case would also not fall even under Section 417 IPC.
(3.) IT was also submitted that no ingredients are there for constituting offence under Section 493 IPC, as it has never been the case of the informant that this petitioner ever induced the informant deceitfully to believe that he had married her and on that belief he had had cohabitation with the informant. At the same time, no offence is made out under Section 313 IPC also of causing miscarriage without consent of the informant as it is the case of the informant itself that when the informant did make complaint about headache, some pills were given, which the informant consumed and, thereafter, pregnancy got terminated. Which allegation never does indicate that the petitioner made the informant to consume a pill, which was meant for causing miscarriage. Moreover, the Post Mortem report does indicate that it is never the case of termination of pregnancy, rather the case appears to be of premature delivery of stillborn child.;