1 2025:CGHC:15126 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on : 30.01.2025 Judgment Delivered on : 28.03.2025 CRA No. 1859 of 2022 Animesh Pandey S/o Narendra Pandey, aged about 27 years, R/o Behind I. B. Rest House, Ward No. 19, Janjgir, Police Station- Janjgir, District : Janjgir- Champa, Chhattisgarh ... Appellant Versus State of Chhattisgarh, through the Station House Officer, Police Station- Janjgir, District : Janjgir-Champa, Chhattisgarh ... Respondent For Appellant : Mr. Rishi Rahul Soni, Advocate For State : Mr. Devesh G. Kela, PL Hon'ble Smt. Justice Rajani Dubey C.A.V. Judgment 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment of conviction and order of sentence dated 22.11.2022 passed by the learned Additional Sessions Judge (F.T.C.), Janjgir, District-Janjgir- Digitally signed by RAVVA UTTEJ KUMAR RAJU 2 Champa (C.G.) in ST No.68/2021 whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/S 376 (2) (n) of IPC R.I. for 10 years and fine of Rs. 5000/- in default of payment of fine to undergo additional R.I. for 100 days. 2. Brief facts of the case are that the accused/appellant acquainted with the prosecutrix (PW/7) whose age is 21 years, through facebook, about which the prosecutrix has informed to her mother and she along with her mother went to meet the accused/appellant near Bheema Talab (pond). Thereafter, families of both accused/appellant and prosecutrix decided to play matchmaker and set up the wedding but the family of appellant disagreed for the marriage of accused/appellant and the prosecutrix due to Nadi Dosha (Astrological incompatibility). Upon this the prosecutrix insisted that if the families are not agreeing then we must part ways. But the accused/appellant emotionally blackmailed the prosecutrix in the name of love and convinced her that he will marry her and one day stating so the accused/appellant took the prosecutrix to Mankadayi Mandir (temple) and had put vermilion (sindoor) on her head part and convinced her that he will be marrying her on papers at court. That, on false pretext of marriage the accused/appellant committed sexual intercourse with her on several occasions at his 3 home and ultimately the accused/appellant refused to marry her. Thereafter, when the prosecutrix asked the accused/appellant several times to get married to her, the appellant got infuriated, uttered filthy language and threatened to kill her. Thereafter, on a complaint of prosecutrix (PW/7), FIR (Ex.P/6) with Crime No. 105/2021 had been lodged on 22.02.2021 on the basis of written statement (Ex.P/7) against the accused/appellant for the offence punishable under Section 376 and 506 of the Indian Penal Code (for short IPC). After obtaining consent of the prosecutrix vide Ex.P/8, she had been medically examined. Seizure memo, vide Ex.P/15 had been prepared after seizing article i.e., vaginal slide and underwear. Statement of prosecutrix was recorded under section 164 of Criminal Procedural Code, 1973 (for short Cr.P.C.) in the presence of Judicial Magistrate whereas statement under Section 161 of Cr.P.C. was recorded in the presence of women Police Officer. Spot map of the place of incident had been prepared vide Ex.P/9. After the accused/appellant had been arrested, Arrest Memo had been prepared vide Ex. P/13. Thereafter, the accused/appellant was medically examined and Seizure Memo vide Ex.P/11 had been prepared after seizing article i.e., underwear. Spot map of the place of incident was prepared by Patwari vide Ex.P/3. Articles seized in the case were sent for chemical examination to FSL, Bilaspur vide Ex.P/16 (Memorandum of Superintendent of Police) and FSL report was obtained vide Ex.P/18. 4 3. After completion of due and necessary investigation, charge sheet has been filed against the accused/appellant under Section 376(2)(n) and 506 of IPC. 4. So as to hold the accused/appellant guilty, the prosecution examined 10 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the inculpatory circumstances appearing against him in the prosecution case, pleaded his innocence and false implication. However, the accused/appellant did not adduce any witness in his defence. 5. Learned trial court after hearing counsel for the respective parties and considering their rival submissions and the material available on record has convicted and sentenced the accused/appellant as mentioned in the opening para of this judgment. Hence, this appeal. 6. Learned counsel for the appellant submits that the impugned judgment dated 22.11.2022 is perverse, erroneous and contrary to law, facts and circumstances of the case, therefore it is liable to be set aside. The learned trial Court has grossly erred in convicting the appellant under Section 376 (2) (n) of IPC without any material. The learned trial Court has failed to appreciate that the F.I.R has been lodged with inordinate and unexplained delay only for falsely implicating the appellant. The learned trial Court has 5 failed to appreciate that the prosecutrix (PW-07) went along with the appellant at several places without any protest and, she has further admitted that she was having love affair with the appellant and they were ready for marriage. The appellant has shown his readiness and willingness regarding Court Marriage with the prosecutrix, but before that prosecutrix had performed marriage with other person. It is clear that the prosecutrix is a major lady and it is also an 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 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. So as per Section 375 of IPC no offence is made out against the appellant. The impugned judgment of conviction and order of sentence is liable to be set aside. 7. Learned counsel for the appellant places reliance upon the decision of Hon'ble Supreme Court in the matter of Naim Ahamed Vs. State( NCT of Delhi) reported in 2023 LiveLaw SC 66. 8. Per contra, learned counsel for the State supported the impugned judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and rightly 6 convicted the accused/appellant. As such, this appeal is without any merit and is liable to be dismissed. 9. Heard both the counsel for the parties and perused the material available on record including the impugned judgment with utmost circumspection. 10. It is clear from record of the learned trial Court that the learned trial Court framed charges under Section 376 (2) (n) & 506 (II) of IPC against the accused/appellant and after appreciation of oral and documentary evidence, the learned trial Court acquitted the accused/appellant of offence under Section 506 (II) of IPC, but convicted him under Section 376 (2) (n) of IPC. 11. Prosecutrix (PW-07) stated in her examination-in-chief that she told to her family members regarding her willingness to marry the accused/appellant, then her family members called the accused/appellant to the house and her father had conversation with the accused regarding her daughter’s marriage, to which the appellant replied that he likes his daughter and he was keen to marry his daughter. The father of the prosecutrix told the accused to talk to his family members and then apprise him regarding the same to which the accused nodded his head in a yes, however the appellant mentioned to father of the prosecutrix that marriage will happen only after Tulsi Vivah and the father of the prosecutrix agreed with him. After passage of a week, the appellant told her 7 over the phone that her family members went outside the house and he further mentioned that he does not know cooking so you can come home, cook food for me and look around my home, despite prosecutrix’s resistance, the appellant himself came to her house and took her to his house and after going to the appellant's house, she prepared food for him and was having look of his entire house and when she was ready to go her home, at that time the appellant closed the latch of the room in which the prosecutrix was present and took her to bed, and started alluring her to have physical relationship with him. The prosecutrix told him to wait for two more months, as by that time we will be getting married to each other, but the appellant started emotionally blackmailing her and then he satiated his lust over her and established physical relationship with her, and then he left the prosecutrix at her home. In cross-examination she admitted that she used to roam around with the accused/appellant in his motorcycle and she also admitted that she was having love affair with him. It is correct to say that she did not disclose to anyone in her house regarding her being in a physical relationship with the appellant. 12. (PW-01) Vaishali Pandey stated that prosecutrix told her that she wants to marry with the accused/appellant, although the prosecution declared her hostile and cross-examined her, but she denied her police statement (Ex. P/01). 8 13. (PW-02) Pranjal Yadav has also not supported the prosecution case, although the prosecution declared him hostile and cross- examined him, but he denied all suggestions of the prosecution and denied her police statement (Ex. P/02). 14. (PW-04) Dr. Mamta Jagat examined the prosecutrix on 22.02.2021 and she did not find any symptom of recent sexual intercourse and gave her report (Ex. P/05). 15. (PW-09) father of the prosecutrix stated that the accused/appellant came to his house with a marriage proposal to marry the prosecutrix, and the appellant himself told that his parents will come here to have conversation regarding the same. He further stated that his daughter/prosecutrix has stated that the appellant took her to Mankadayi Mandir (temple) and had put vermilion (sindoor) on her head part and convinced her that he will be marrying her on papers at court. That, on false pretext of marriage the accused/appellant committed sexual intercourse with her on several occasions at his home and ultimately the accused/appellant refused to marry her. In cross-examination he admitted that the appellant used to frequently visit his house and his daughter also used to visit the accused/appellant's house and it is correct to say that they both were in love with each other. 9 16. (PW-06) mother of the prosecutrix stated that accused/appellant used to call her daughter frequently and her daughter told her that she was being raped. As per F.I.R vide Ex. P/06, it is clear that date of incident is 19.09.2020 and date of lodging F.I.R is 22.02.2021 and no explanation was given by the complainant/prosecutrix regarding delay in lodging the report about the incident. The prosecutrix also filed written complaint Ex. P/07, but in her written complaint also she did not explain anything regarding her delay in lodging the F.I.R. 17. Hon'ble Apex Court in the matter of Naim Ahamed (supra) held in para 20 which reads as under:- “20. The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of law and the case fell under the Clause-Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfil his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376. As stated earlier, each case would 10 depend upon its proved facts before the court.” 18. In the light of above, in the present case also it is clear that the prosecutrix is a major lady aged about 21 years and undisputably she continued to have physical relationship with accused/appellant at least for about one year. The prosecutrix was a major lady and also as per her own recent complaint and F.I.R she has passed B.Sc, so she is intelligent enough to understand the significance and consequences of the moral or immoral quality of act which she was consenting to. It is also vivid that she was having love affair with the appellant and she used to go with the appellant to several places and she further admitted that she did not disclose about anything to her parents, it is evident from the record that the family of appellant disagreed for the marriage of accused/appellant and the prosecutrix due to Nadi Dosha (Astrological incompatibility). 19. Thus, having regard to the facts and circumstances of the case, it is clear that the prosecutrix is a consenting party for establishing the sexual relationship with the accused/appellant. However, the learned trial Court did not appreciate the oral and documentary evidence on record properly and especially the statement of the prosecutrix and, thereby gave wrong finding. 20. In view of the aforesaid discussion and considering the facts and circumstances of the case, the finding recorded by the learned trial 11 Court is not sustainable and the appeal is allowed. The impugned judgment is set aside and the present accused/appellant is acquitted of the charge under Section of 376 (2) (n) of IPC. 21. The appellant is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provision of Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023. 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 U. K. Raju