Case Note & Summary
The applicant, Ritesh Aswar, was charged with rape under Section 376 of the Indian Penal Code. The victim, aged 21 years, lodged a report alleging rape. The applicant filed Criminal Application (APL) No. 841/2017 for quashing of FIR, which was dismissed on 27-2-2018 with liberty to raise all questions in the discharge application. Thereafter, the applicant moved an application for discharge before the Additional Sessions Judge, Nagpur in Sessions Trial No. 43/2018, which was rejected. Hence, the present criminal revision. The applicant's counsel argued that the victim was a major and voluntarily went to the lodge and had sexual intercourse with consent, as evidenced by the lodge register. The Court observed that from the perusal of the report, it appeared that the applicant promised to marry the victim, her menstrual cycle stopped, and the applicant started avoiding her. However, the victim was a major and the material on record indicated consent. The Court held that the ingredients of Section 376 IPC are not attracted and allowed the revision, setting aside the order rejecting discharge and discharging the applicant.
Headnote
A) Criminal Law - Rape - Consent - Section 376 Indian Penal Code, 1860 - Discharge - The applicant sought discharge contending that the victim, aged 21 years, voluntarily went to the lodge and had sexual intercourse with consent. The Court held that where the victim is a major and the material on record prima facie shows consent, the ingredients of Section 376 IPC are not attracted, and the applicant is entitled to discharge. (Paras 3-7)
Issue of Consideration
Whether the applicant is entitled to discharge when the victim is a major and the material on record indicates consent.
Final Decision
The revision application is allowed. The order dated 27-2-2018 passed by the Additional Sessions Judge, Nagpur rejecting the discharge application is set aside. The applicant is discharged from the offence punishable under Section 376 of the Indian Penal Code.
Law Points
- Consent
- Major
- Section 376 IPC
- Discharge
- Prima Facie Case
Case Details
2018 LawText (BOM) (12) 122
Criminal Revision Application No. 216 of 2018
Shri S. N. Nandeshwar for applicant, Shri S. D. Sirpurkar, A.P.P. for respondent
Ritesh S/o Vitthalrao Aswar
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Nature of Litigation
Criminal revision against rejection of discharge application in a rape case.
Remedy Sought
The applicant sought discharge from the charge of rape under Section 376 IPC.
Filing Reason
The applicant was charged with rape; he contended that the victim was a major and consented to sexual intercourse.
Previous Decisions
Criminal Application (APL) No. 841/2017 for quashing of FIR was dismissed on 27-2-2018 with liberty to raise all questions in discharge application. The discharge application was rejected by the Additional Sessions Judge, Nagpur.
Issues
Whether the victim's consent, being a major, negates the offence of rape under Section 376 IPC.
Whether the applicant is entitled to discharge based on the material on record.
Submissions/Arguments
Applicant's counsel argued that the victim was a major and voluntarily went to the lodge and had sexual intercourse with consent, as per the lodge register.
The victim's report indicated that the applicant promised to marry her, but the Court noted that consent given under promise of marriage may still be consent if the victim is a major.
Ratio Decidendi
Where the victim is a major and the material on record prima facie shows that she voluntarily went to the lodge and had sexual intercourse with consent, the ingredients of Section 376 IPC are not attracted, and the accused is entitled to discharge.
Judgment Excerpts
Ingredients of Section 376 of the Indian Penal Code are not attracted.
Victim is aged about 21 years. She voluntarily went to the applicant and had sexual relations with her consent.
Procedural History
The victim lodged a report alleging rape. The applicant filed Criminal Application (APL) No. 841/2017 for quashing of FIR, which was dismissed on 27-2-2018 with liberty to raise all questions in discharge application. The applicant then filed a discharge application before the Additional Sessions Judge, Nagpur in Sessions Trial No. 43/2018, which was rejected. Hence, the present criminal revision.
Acts & Sections
- Indian Penal Code, 1860: 376
