BIJAY LAKRA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The instant criminal revision has been filed against the order dated 26.11.2009 whereby petitioner's application filed under Section 227, Cr PC for discharging him from the charge of offence under Sections 376 and 313, IPC, has been rejected.

(2.) Facts of the case is that the informant/prosecutrix and the accused- petitioner had solemnized Lota-Paani ceremony on 5.6.1998 in presence of the family members of both sides and the said ceremony was also witnessed by the villagers as well as the punches of the panchayat Thereafter, they lived as husband and wife till February, 2009 and in these 11 years they developed sexual relationship. In the FIR it is alleged that within said 11 years the informant caused several miscarriages and thereafter the petitioner refused to marry her. On this allegation the informant/prosecutrix lodged FIR against the petitioner under Section 376, IPC on 9.5.2009. After investigation, charge-sheet was submitted under Sections 376 and 313, IPC against the present petitioner.

(3.) Learned counsel for the petitioner submitted that there is long delay in lodging the FIR i.e. about 11 years, which has not been explained in the FIR. The doctor, who examined the victim, has opined that the age of the victim was in between 30 to 35 years at the time of her examination and no evidence of sexual intercourse was found. Learned counsel has further pointed out that both the petitioner and the informant lived like husband and wife since 1998 which itself clearly shows that the informant was always a consenting partner to the act of sexual intercourse right from the beginning and, therefore, no case under Section 376, IPC can be made out against the petitioner. So far as the offence under Section 313, IPC is concerned, learned counsel has submitted that admittedly the informant/prosecutrix had caused miscarriage several times at the instance of the petitioner but she never filed any complaint or any FIR immediately after such miscarriage, if it was against her will. On the contrary, after lapse of 11 years, she has lodged this case against the petitioner on his refusal to marry her.