1 CRA No. 1126 of 2007 2025:CGHC:49218 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1126 of 2007 Judgment reserved on : 06.08.2025 Judgment delivered on : 25.09.2025 Chudamani @ Dronacharya Pande, S/o Shri Ramdulare Pande, aged about 42 Years, R/o Village & Post- Hardibhata, Police Station- Mainpur, District- Raipur (C.G.) ... Appellant versus State of Chhattisgarh, through Police Station- Mainpur, District- Raipur (C.G.) ----State _____________________________________________________________ For Appellant : Mr. Shubhank Tiwari, Advocate. For State : Ms. N. K. Kashyap, PL _____________________________________________________________ Hon'ble Smt. Justice Rajani Dubey J. C A V Judgement 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 29.09.2007 passed by Learned Additional Sessions Judge, Gariyaband, District- Raipur (C.G.) in Sessions Trial No.24/2007, wherein the said Court convicted the appellant and sentenced him as under:- Conviction Sentence Under Section 376 of IPC. R.I. for 10 years, with fine amount of 2 CRA No. 1126 of 2007 Rs. 500/-, in default of payment of fine, to undergo additional R.I. for 01 month. 2. Brief facts of the case are that the prosecutrix had lodged an FIR (Ex. P/2) at Police Station- Mainpur alleging that she was having love affair with the appellant from 6 months before lodging of the said FIR and she had established physical relationship with the appellant on several times as the appellant given his assurance that he will perform marriage with her. They used to meet frequently at hospice (dharmsala) of Ram Janaki temple. On 06.11.2006, the appellant and the prosecutrix were caught in compromising position by the father and uncle of the prosecutrix at hospice (dharmsala) temple of Ram Janaki and then before the witnesses namely Mohd. Hanif and Hemant Kumar Patel, the appellant and his mother had agreed to perform the marriage of the appellant with the prosecutrix. Both the parties had agreed to solemnize the marriage between the appellant and the prosecutrix, but later on the appellant had absconded and his family members refused to perform the marriage between them. The appellant on the pretext of marriage, established sexual intercourse several times with the prosecutrix with her consent, as the appellant refused to marry with the prosecutrix, the case is registered against him. Undergarments of the appellant and the prosecutrix were seized and sent for medial examination and also the agreement was seized on 06.11.2006. The statements of the witnesses were recorded. The prosecution after completing the due and necessary investigation, led the charge-sheet before the concerned Jurisdictional Magistrate, who, in turn, committed the case for trial. On the basis of the material contained in the charge- sheet, learned trial Court framed charges against the appellant for alleged commission of offence under Section 376 of IPC. The accused 3 CRA No. 1126 of 2007 having abjured guilt was subjected to trial. 3. In order to bring home the guilt, the prosecution has examined as many as 10 witnesses to prove its case against the appellant. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C., in which he denied all the incriminating circumstances appearing against him in the prosecution case and pleaded his innocence and false implication in this case. However, no witness examined by him in his defence. 4. After appreciation of oral as well as documentary evidence led by the prosecution, learned Trial Court has convicted the appellant and sentenced him as mentioned in inaugural paragraph of this judgment. Hence, this appeal. 5. Learned counsel for the appellant submits that judgment of conviction and sentence passed by trial Court is arbitrary, illegal and contrary to the law applicable to the facts and circumstances of the case, learned trial Court erred in holding the appellant guilty of rape. The prosecutrix herself admitted this fact that she has established sexual relations with the appellant for a long time and lodged the F.I.R. on 22.12.2006 as the appellant refused to marry with her. He further submits that the prosecutrix stated in her statement that she used to meet hospice (dharmsala) of Ram Sita Temple and wanted to marry with the appellant and agreement was prepared to perform marriage is admitted by her. The father of the prosecutrix (PW-2) stated that her daughter was ready to do marriage with the appellant and admitted this fact that the agreement was prepared to perform the marriage. It is clear that the prosecutrix is a major lady and it is also admitted position that appellant and she had willingly developed physical relationship. However, if the entire case of prosecution is taken as it is then also the alleged offence 4 CRA No. 1126 of 2007 is not made out against the appellant. The learned trial Court has failed to appreciate that the medical report has not supported the case of the prosecution. The prosecutrix herself admitted that she has love affair with the appellant since long and nowhere she had made any protest to the appellant for establishing sexual relationship with him. Learned trial Court has erred on relying upon the testimonies of PW-1, PW-2, PW-3 and PW-4 as they have not supported the prosecution case. The evidence of these witness are full of contradictions and omissions, but the learned Trial Court did not appreciate oral and documentary evidence minutely. Thus, the findings recorded by learned trial Court are highly perverse and the impugned judgment of conviction and order of sentence being bad-in- law is liable to be set aside. In support of his contention, he relied upon the judgments of Hon’ble Apex Court in the matters of Sumitha Pradeep vs. Arun Kumar C. K. Another1, Ganeshan vs. State Represented by Inspector of Police2 and D eepak Gulati vs. State of Haryana 3 and judgment passed by this Court in the matters Animesh Pandey vs. State of C.G, passed in CRA No. 1859/2022 and in Shiv Ram @ Golu vs. State of C.G., passed in CRA No. 111/2009. 6. Ex adverso, learned counsel for the State opposes the submissions of learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt, however, learned trial Court minutely appreciated the oral and documentary evidence, thereby rightly convicted the appellant for the alleged offence and the impugned judgment of conviction and order of sentence needs no interference by this Court. 1 2022 (17) SCC 391 2 2020 (10) SCC 573 3 2013 (7) SCC 675 5 CRA No. 1126 of 2007 7. I have heard learned counsel for the parties and perused the material available on record including the impugned judgment. 8. It is evident from record of learned Trial Court that it framed charges against the appellant for offence under Section 376 of IPC. Learned Trial Court after minutely appreciating the oral and documentary evidence convicted the appellant for the aforesaid offence. 9. Complainant/Prosecutrix (PW-01) stated in her examination-in-chief that on the date of incident i.e., on 06.11.2006 in Ram Janki’s hospice (dharmsala), Hardibhata, Thana- Mainpur, her uncle and father caught her with the appellant and admitted this fact that on the date of incident she established physical relation with the appellant. She stated that the appellant on false pretext of marriage, established physical relations with her. She further admitted this fact that the appellant is the son of her aunt (bua) and they reside in the same vicinity and the appellant came to her house and told them that he knows her since childhood and he expressed his desire to marry her and keep her as a legally wedded wife, thereafter, he brought his mother to her house, thereafter the appellant’s mother said that by next year i.e., March, 2007 they will get married and in this regard, an agreement was prepared before the witnesses who were present, wherein she signed and also other witnesses were signed. But, after a month of the said incident, the family members of the appellant denied the marriage for some unknown reasons and said that for the appellant, they are looking for other matches, on being apprised of the said fact, she went to the appellant’s house where his mother was present and she too denied her marriage with the appellant and in bold tone said that to go report the same. Therefore, she went to the police station- Mainpur along with her father and other persons to lodged an FIR (Ex. P/2) against the 6 CRA No. 1126 of 2007 appellant and after lodging the FIR (Ex. P/2), she gave her consent for medical examination, signed on consent letter vide Ex. P/1, wherein she admitted her signature on A to A part and police seized her cloth vide Ex. P/4. In her cross-examination, she admitted this fact that she had established physical relations with the appellant several times in the month of September and October. In para 2 of her cross- examination, she denied the suggestion that she established physical relations with the appellant with her own free will, herself admitted this fact that she denied for this act. In para 13 and 14 of her cross- examinations, She admitted this fact that first time physical relations were established in the appellant’s house and also admitted this fact that she went to the house of the appellant with her own free will and the appellant did not insist her to come to his house. In para 17 of her cross-examination, she also admitted this fact that if anyone shouts from the appellant’s house, voice can be heard by the neibhours of the vicinity. In para 19 of her cross-examination, she admitted this fact that she loved the appellant, therefore, she did not disclose the said incident to any family members. In para 22, she admitted this fact that both of them had mutual desire to marry each other. In para 23, she stated that thereafter physical relations were established in the Ram Janki hospice (dharmsala) and she went with the appellant to Ram Janki hospice (dharamsala) at 2:00 am with her own free will. She also admitted this fact that they were caught when they were in compromising position, thereafter, the family members came to an agreement and accordingly a written agreement had been prepared. In paras 40 and 41, she admitted this fact as under :- “ 40. यह कहना सही है की अमलीपदर में आरोपी की बड़ी माँ रहती है यह कहना सही है की जब मै आरोपी के माँ से मिमलने गयी थी तब आरोपी अमलपदार गया थाI 7 CRA No. 1126 of 2007 41. यह कहना सही है की यमिद आरोपी और मै आपत्तिजनक स्ति तथिथ में पकड़ाए नहीं होते तो आरोपी से शारीरिरक सम्बन्ध थामिपत करने वाली बात मै मिकसी को नहीं बतातीI” 10. PW-2, father of the prosecutrix stated that 1 o’ clock at night, being in a worried state, his wife came to his room and asked regarding whereabouts of their daughter by stating that it’s been one hour since her daughter went for latrine and not returned yet, then they went for searching their daughter with her brother and reached Ram Janki Temple hospice (dharmsala) at about 2:30 in the night, where the appellant and her daughter were present, thereafter the appellant jumped from the window and fled from the spot leaving behind his cloths and slippers. Thereafter, he brought his daughter to his home and after passage of half an hour, the appellant himself came to his house. Subsequently, he stated that he asked to the appellant and her daughter as they wanted to marry, on which both of them nodded their head to yes. Thereafter, a written agreement had been prepared by their own free will by family members, but after few days of the said agreement, the appellant’s mother denied to perform the marriage of the prosecutrix with the appellant. In his cross-examination, he admitted this fact that at about 2:30 am, he caught the appellant and her daughter in a compromising position and her daughter told him that she established physical relationship with the appellant on the pretext of marriage as stated by the appellant. In para 12 of his cross- examination, he admitted this fact that though the appellant still wanted to marry with her daughter, but his mother denied the same. An agreement vide Ex. D/1 had been executed between the parties to perform the marriage by their own free will and he admitted his signature on the same. He admitted this suggestion that in Ex. D/1 it is not mentioned that on the pretext of marriage, appellant committed 8 CRA No. 1126 of 2007 sexual intercourse with his daughter. He also admitted this fact that after refusing to perform the marriage with her daughter by the appellant, he convened a village meeting and denied the suggestion that appellant’s mother had demanded the time as she had no money to perform her son’s marriage. 11. PW-4, who is the uncle of the prosecutrix has supported the statement of father of the prosecutrix (PW-2) and stated that they caught the prosecutrix and appellant in a compromising position at Ram Janki Temple’s hospice (dharmsala). 12. PW- 3 Mohd. Haneef, PW-5 Hemant Kumar Patel are the witnesses of the written agreement (Ex. D/1) and they have supported the statement of father of the prosecutrix, as they have been apprised by him regarding the said incident and further they have stated, a village meeting was convened and a written agreement (Ex. D/1) had been prepared. 13. PW-9 Dilip Kumar, who is the Principal of Primary School, filed Admission/Dakhil Kharij Register of school vide Ex. P/11 and stated that in this Register at Serial No. 503, date of birth of the prosecutrix is written as 26.12.1986. Article-1 is transfer certificate of the prosecutrix. He admitted this suggestion of defence that at Serial No. 503 in column of father’s name of the said register is written as Rajkumar, however, the original name of the prosecutrix’s father (PW-2) is nowhere mentioned in the said Register. 14. It is quite evident that as per the said Register (Ex. P/11) and Article-1, the date of birth of the prosecutrix is 26.12.1986 and as per the prosecution, date of incident is 06.11.2006. It is evident that on the date of incident, the prosecutrix was aged about 19 years 10 months. Thus, 9 CRA No. 1126 of 2007 the prosecution itself admitted this fact that the age of the prosecutrix is more than 18 years on the date of incident. 15. Dr. Alpana Nand (PW-10), who examined the complainant/prosecutrix (PW-1) on 23.12.2006. After examination, she opined that she did not find any external and internal injuries upon her body, found hymen is ruptured and patient has undergone intercourse, therefore she advised for urine pregnancy test. She admitted this fact in her cross- examination that if forcible sexual intercourse committed with the prosecutrix then she would have received external and internal injuries upon her body and gave her report vide Ex. P/6. 16. From bare perusal of the record and from close scrutiny of statements of all witnesses, it is quite evident that prosecutrix (PW-1) was having love affair with the appellant and she went with the accused/appellant at the night time and father (PW-2) and uncle (PW-4) of the prosecutrix caught them in a compromising position at Ram Janki Temple’s hospice (dharamsala), then they convened a village meeting and prepared a written agreement (Ex.D/1) before the witnesses to perform the marriage of the appellant and the prosecutrix, but mother of the appellant denied to perform the marriage of the appellant with the prosecutrix. 17. It has been held by this Court in the matter of Shiv Ram (supra) in para 14, which reads as under:- 14. The Hon’ble Supreme Court in the matter of Deepak Gulati (supra) held in paras 21 & 23 of its judgment as under: “21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on 10 CRA No. 1126 of 2007 each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives. 23. This Court, while deciding Pradeep Kumar (2007) 7 SCC 413, placed reliance upon the judgment of the Madras High Court in N. Jaladu, In re ILR (1913) 36 Mad 453, wherein it has been observed: (Pradeep Kumar cases, SCC pp. 418-19, para "11. 11 CRA No. 1126 of 2007 11. '26. ..."... We are of opinion that the expression 'under a misconception of fact' is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act Illustration (d) [states] that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact that the second accused intended to get the girl married. … ‘thus … if the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person'.... Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of Section 90 IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence." (N. Jaladu, In re case, ILR pp. 456-57)' (Deelip Singh case (2005) 1 SCC 88, SCC pp. 101-02, para 26)” 18. In light of the aforesaid decision, if the facts and evidence emerging in the present case are examined, it is clear that the prosecutrix was having love affair with the appellant and she herself admitted this fact that she established physical relations with the appellant several times and further she also admitted this fact if they would not have caught by 12 CRA No. 1126 of 2007 her father and uncle at Ram Janki Temple hospice (dharmsala) in a compromising position, they would have reached ecstasy and she would not have lodged any report. 19. From the evidence on record coupled with the conduct of the prosecutrix during the incident and subsequent thereto it does not appear that her consent for sexual indulgence was obtained by the appellant under any misrepresentation of fact or through any false promise of marriage or the consent was given under any misconception. The prosecutrix is aged about more than 19 years old girl and capable of understanding the consequence of such consent and all the witnesses have clearly admitted this fact appellant is ready to perform marriage with the prosecutrix, but his mother had denied to perform the marriage of the appellant and the prosecutrix and their marriage could not take place due to refusal of the appellant’s mother. It is thus evident that the prosecutrix was a consenting party to the act of the appellant and she kept her relationship with the appellant secret till they were caught red handedly by her father and uncle. Being so, it is evident that the appellant has been falsely implicated in the crime in question as the prosecutrix was the consenting party to the act of the appellant, as such, offence under Section 376 of IPC stands no legs against the appellant. 20. Ex consequenti, the appeal is allowed and the impugned judgment dated 29.09.2007 of the learned trial Court is hereby set aside. The appellant is acquitted of the charge leveled against him. 21. The appellant is reported to be on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023 the appellant is also directed to furnish a personal bond for a sum of Rs. 25,000/- with one surety in the like amount before the Court concerned which shall be effective for 13 CRA No. 1126 of 2007 a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereon shall appear before the Hon'ble Supreme Court. 22. The Trial Court record along with a copy of this judgment be sent back immediately to the Trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE AMIT PATEL