1 CRA No. 662 of 2022 2025:CGHC:20257 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 662 of 2022 [Arising out of judgment dated 06.04.2022 passed in Sessions Trial No.21/2018 by the Additional Sessions Judge Janjgir, District Janjgir-Champa, Chhattisgarh.]  Arvind Shriwas S/o Gajanand Shriwas, aged about 32 years, R/o village Ratanmahka, Police Station Kharsiya, District Raigarh, Chhattisgarh. ... Appellant versus  State of Chhattisgarh through Police Station Janjgir, District Janjgir-Champa, Chhattisgarh. ... Respondent For Appellant :- Mr. Shailendra Kumar Bajpai and Mr. F.S. Khare, Advocates For State-Respondent :- Mr. Rahul Tamaskar, Government Advocate. ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.05.06 14:40:48 +0530 2 CRA No. 662 of 2022 Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 02/05/2025 1. Assailing the legality, validity, correctness of order and judgment dated 06.04.2022 passed by the Additional Sessions Judge, Janjgir, District Janjgir-Champa, Chhattisgarh, in Sessions Trial No. 21/2018, the appellant has preferrred this criminal appeal under Section 374(2) of the CrPC, by which the appellant herein has been convicted for offence under Section 376(2)(n) of the IPC and sentenced thereunder to suffer rigorous imprisonment for 10 years with fine of ₹ 50,000/-; in default of payment of fine amount the appellant has to undergo additional rigorous imprisonment for ten months while acquitting him from offence under Section 315/34 of the IPC. Also two co-accused persons (father and mother of the appellant herein) have already 3 CRA No. 662 of 2022 been acquitted by the trial Court of the said offences. Prosecution Case:- 2. The case of the prosecution as projected by the prosecution and accepted by the trial Court is that from 27.08.2017 to 23.12.2017 the appellant herein on the pretext of marriage committed repeatedly sexual intercourse with the major victim (PW-7) against her wishes by which she became pregnant and thereafter, she was subjected to abortion on 27.12.2017 and thereby, the appellant committed the aforesaid offence. On the written complaint (Ex.P/7) of the victim against the said act of the appellant, FIR was registered vide Ex.P/8. Crime details form and nazari naksha were prepared vide Exs.P/2 & P/10, respectively. Major victim (PW-7) was medically examined by Dr. Mamta Jagat (PW-6) who prepared the victim’s 4 CRA No. 662 of 2022 medical report vide Ex.P/6. In the medical report (Ex.P/6) proved by PW-6, victim was found to be habitual of sexual intercourse and advised for expert opinion of gynaecologist with regard to abortion. Major victim was subjected to abortion by Dr. Gurmeet Kaur (PW-14), who after taking consent of the victim vide Ex.P/31 terminated her pregnancy. In the consent form of the victim (Ex.P/31), name of the appellant herein was mentioned as husband of the victim. Wheels of investigation started running and the appellant was arrested. 3. After due investigation, appellant was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 5 CRA No. 662 of 2022 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 14 witnesses; exhibited 31 documents and 17 articles, whereas, the appellant in defence has not examined any witness, however exhibited 3 documents. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. 6 CRA No. 662 of 2022 Submission of the parties:- 6. Mr. Shailendra Kumar Bajpai & Mr. F.S. Khare, learned counsels for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. They would also submit that the victim (PW-7) was major at the relevant date and time of offence, she is highly educated and capable of understanding of well being of herself. They would further submit that victim was married and not legally divorced at that time and even otherwise, there is considerable delay in lodging the FIR as the offence is said to have been taken place from 27.08.2017 to 23.12.2017, whereas, the FIR was lodged on 01.02.2018, which has sufficiently not been explained by the prosecution. As such, the victim was the consenting party and the relationship between the appellant and the victim was consensual in nature. Therefore, 7 CRA No. 662 of 2022 the instant appeal deserves to be allowed and the appellant is entitled for acquittal on the basis of benefit of doubt. 7. Mr. Rahul Tamaskar, learned State counsel, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for offence in question as the the victim (PW-7) has clearly implicated the appellant in crime in question and, therefore, the appeal deserves to be dismissed and the appellant is not entitled for acquittal. 8. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records meticulously. 8 CRA No. 662 of 2022 Discussion and analysis:- 9. As per the prosecution, the incident had taken place between 27.08.2017 to 23.12.2017 and victim was subject to abortion on 27.12.2017, thereafter, the FIR was lodged on 01.02.2018. Further, the victim (PW-7) was medically examined by Dr. Mamta Jagat (PW-6) who in the victim’s medical report (Ex.P/6) has opined that the victim is habitual of sexual intercouse and advised for expert opinion of gynaecologist with regard to abortion. 10. Admittedly, the victim (PW-7) was major at the relevant period of offence i.e. 27.08.2017 to 23.12.2017, as she was aged about 29 years. Victim (PW-7) at paragraph No.46 of her statement before the Court has admitted the fact that she is married to Ravindra and the divorce has not been taken place between her and her husband. Even 9 CRA No. 662 of 2022 otherwise, she (PW-7) is well educated and a government officer who is working on the post of Agriculture Extension Officer in Agriculture Departmment of State Government, as such, she is capable of understanding of well being of herself. 11. Considering the fact that the victim was major and married with one Ravindra; she has not been legally divorced. She (PW-7) became pregnant and subjected to abortion after giving her consent (Ex.P/31). In the consent form (Ex.P/31), the name of the appellant is mentioned as the husband of the victim, therefore, the only question for consideration, which arises, would be whether the victim was the consenting party or on the false pretext of marriage the appellant has committed sexual intercourse against the wishes of the victim. However, father of the victim (PW-5) in last paragraph of his 10 CRA No. 662 of 2022 statement before the Court has stated that since the appellant’s father had refused to give expenses incurred in the engagement of the appellant and the victim, he reported the matter to the police against the appellant and even otherwise, in paragraph No. 12 he has also stated that if the marriage could have taken place between the appellant and her daughter, he would not have reported the complaint to the police against the appellant. 12. Since the victim, as per her own statement at paragraph No.46 before the Court, is married with one Ravidnra and she has not been legally divorced, the question of committing sexual intercourse with her on the false pretext of marriage does not arise. However, a careful perusal of the Court’s statement of victim would show that the engagement ceremonoy of the appellant and the 11 CRA No. 662 of 2022 victim had taken place on 28.06.2017 and thereafter, they used to call each other and used to visit the house of each other time to time and also 29.09.2017 and 30.09.2017 the appellant stayed in the house of the victim and during that period they made physical relationship. Due to the said act, the victim became pregnant which was terminated by Dr. Gurmeet Kaur (PW-14) on 27.12.2017 after taking consent of the victim vide Ex.P/31. The victim at paragraph No. 44 in her statemnet before the Court has also stated that if her marriage could have taken place with the appellant she would not have reported the matter against the appellant to the police. 13. At this stage, it would be appropriate to notice the principles of law laid down by their Lordships of the Supreme Court in the matter of Naim Ahamed v. State (NCT of 12 CRA No. 662 of 2022 Delhi)1 followed in the matter of XXXX v. State of Madhya Pradesh and another 2 . In the matter of Naim Ahamed (supra) the prosecutrix herself was already a married woman having three children. The complaint of alleged rape on false promise of marriage was made five years after they had started having relations. She even got pregnant from the loins of the accused. Therein she got divorce from her existing marriage much after the relations between the parties started. However, their Lordships have found that there cannot be any stretch of imagination that the prosecutrix had given her consent for sexual relationship under misconception and, therefore, the accused was not held to be guilty. Relevant para 22 thereof is extracted below:- “22. In the instant case, the prosecutrix who herself was a married woman having three children, could not 1 (2023) 15 SCC 385 2 (2024) 3 SCC 496 13 CRA No. 662 of 2022 be said to have acted under the alleged false promise given by the appellant or under the misconception of fact while giving the consent to have sexual relationship with the appellant. Undisputedly, she continued to have such relationship with him at least for about five years till she gave complaint in the year 2015. Even if the allegations made by her in her deposition before the court, are taken on their face value, then also to construe such allegations as “rape” by the appellant, would be stretching the case too far. The prosecutrix being a married woman and the mother of three children was matured and intelligent enough to understand the significance and the consequences of the moral or immoral quality of act she was consenting to. Even otherwise, if her entire conduct during the course of such relationship with the accused, is closely seen, it appears that she had betrayed her husband and three children by having relationship with the accused, for whom she had developed liking for him. She had gone to stay with him during the subsistence of her marriage with her husband, to live a better life with the accused. Till the time she was impregnated by the accused in the year 2011, and she gave birth to a male child through the loin of the accused, she did not have any complaint against the accused of he having given false promise to marry her or having cheated her. She also visited the native place of the accused in the year 2012 and came to know that he was a married man having 14 CRA No. 662 of 2022 children also, still she continued to live with the accused at another premises without any grievance. She even obtained divorce from her husband by mutual consent in 2014, leaving her three children with her husband. It was only in the year 2015 when some disputes must have taken place between them, that she filed the present complaint. The accused in his further statement recorded under Section 313CrPC had stated that she had filed the complaint as he refused to fulfil her demand to pay her huge amount. Thus, having regard to the facts and circumstances of the case, it could not be said by any stretch of imagination that the prosecutrix had given her consent for the sexual relationship with the appellant under the misconception of fact, so as to hold the appellant guilty of having committed rape within the meaning of Section 375IPC.” 14. Coming to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the above stated judgment, it is quite vivid that the victim was major at the relevant date and time of offence, as she was aged about 29 years, she is married with one Ravindra; she is highly educated and a government officer 15 CRA No. 662 of 2022 who is working as Agriculture Extension Officer and also capable of understanding of well being of herself. Further, there is a considerable delay in lodging the FIR as the incident had taken place between 27.08.2017 to 23.12.2017, preganancy was terminated on 27.12.2017 and the FIR was lodged on 01.02.2018 vide Ex.P/8, which has not sufficiently been explained by the prosecution. Moreover, considering the fact that since the egagement had taken place between the appellant and the victim and marriage could not have been taken place, as per the statement of victim’s father (PW-5), and also the expenses incurred in the engagement was not returned by the appellant’s father, the report came to be lodged. Similarly, the victim in her statement before the Court has stated that if she could have married with the appellant, the report would not have been lodged by her 16 CRA No. 662 of 2022 against the present appellant. As such, no question of committing sexual intercourse on the false pretext of marriage arises in light of the decision of the Supreme Court in the matter of Naim Ahamed (supra) and it cannot be said by any stretch of imagination that the prosecutrix/victim herein had given her consent for the sexual relationship with the appellant under the misconception of fact, so as to hold the appellant guilty of having committed the offence in question, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt. Conclusion:- 15. In view of the aforesaid discussion and analysis, the impugned judgment of conviction and order of sentence dated 06.04.2022 passed by the trial Court convicting and sentencing the appellant for the offence under Section 376(2)(n) of the IPC, is hereby set aside and 17 CRA No. 662 of 2022 the appellant is entitled for acquittal on the basis of benefit of doubt. Appellant is stated to be on bail. He need not surrender. However, his bail bond shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC. 16. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith for information and necessary action, if any. /- Sd/- (Sanjay K. Agrawal) Judge Ankit