1 2025:CGHC:52871 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR RESERVED ON 14-10-2025 DELIVERED ON 30-10-2025 CRA No. 1241 of 2022 Chandan Singh Chadak, son of Kawal Singh Chadak Aged About 27 Years R/o Harshadabbar, Police Station - Visnah, District Jammu - Kashmir … Appellant versus State Of Chhattisgarh Through Police Station - Kabir Nagar, District Raipur Chhattisgarh ... Respondent For appellant : Mr. Sabyasachi Bhaduri, Adv. For Respondent : Mr. Shailesh Puria, Panel Lawyer. (Hon’ble Mr. Naresh Kumar Chandravanshi, J) CAV JUDGMENT 1. This criminal appeal has been preferred by appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity ‘Cr.P.C.’) challenging the judgment of conviction and order of sentence dated 2- 8-2022 (wrongly mentioned as ‘02-08-2002’) passed by learned Upper Sessions Judge (F.T.C.) Raipur (CG) in Sessions Case No. 57/2019, whereby the appellant / accused has been convicted for the offence punishable under Section 376(2)(n) of the Indian Penal Code (in brevity ‘IPC’) and sentenced to undergo RI for 10 years with fine of Rs.2,000/- and in default of payment of fine, to undergo 6 months’ RI. 2. Case of the prosecution, in brief, is that, on 15-8-2018 the complainant made written complaint (Ex. P-1) in Police Station Kabir Nagar, Raipur Digitally signed by AVANISH KUMAR PATHAK Date: 2025.10.31 11:07:56 +0530 2 stating inter alia that, she is in relation with the appellant / accused for about 5 ½ years. He met her mother and other relatives and promised to marry her. On this pretext, he is making physical relation with her for last about 1 ½ year. Last time, he made physical relation with her in the month of May, 2018 in Raipur, but now he has refused to marry her. Thereby, he has raped her on the pretext of marriage. Based on aforesaid complaint, the FIR (Ex. P-2) was lodged against the appellant on 15-8-2018 in PS Kabir Nagar, Raipur for the offence punishable under Section 376(2)(ग) of the Indian Penal Code. Statement (Ex. P-6) under Section 164 of the Cr.P.C. of the victim was recorded from concerned Judicial Magistrate. Spot map (Ex. P-3 and Ex. P-4) were prepared by the Police and Patwari respectively. Medical examination of the victim was conducted by Dr. Rajni Chaurasiya (P.W. 6), in which, she opined vide MLC report (Ex. P-20) that, since no external or internal injury was found on her person, therefore it cannot be opined conclusively about the forceful sexual intercourse with her. She prepared two vaginal slides of the victim and handed over the same to the concerned Constable for chemical examination. Medical examination of appellant/accused was conducted by Dr. S.K. Agrawal (P.W. 4), in which, vide Ex. P-11, he reported him to be competent for sexual intercourse. Vaginal slides of the victim were seized from concerned constable vide Ex. P-14. Underwear of the appellant/accused was seized vide Ex. P-15. Photographs, photocopy of whatsapp video calling and whatsapp chats were seized from the victim vide Ex. P-7, CD of conversation between the appellant and his elder brother along with a mobile phone were seized from the 3 victim vide Ex. P-8. Statement of witnesses under Section 161 of the Cr. P.C. was recorded. Seized mobile phone and CD were sent for technical examination. Vaginal slides of victim and underwear of the appellant/accused were sent for chemical examination, in which vide Ex. P-19 in underwear of the appellant (Article B), semen and human spermatozoa has been reported to be found, but in vaginal slides of the victim Article A, no human spermatozoa has been reported to be found. After completion of investigation, charge sheet under Section 376(2)(ग) of the IPC was filed against the appellant/accused before concerned Judicial Magistrate. After committal, the case was transferred to the Upper District Judge (Fast Track Court’), Raipur (henceforth, referred to as ‘Fast Track Court’), who conducted trial. 3. Learned Fast Track Court framed charge under Section 376(2)(n) of the IPC against the appellant/accused, who abjured the guilt and claimed trial. 4. So as to hold guilty the appellant, prosecution examined as many as 7 witnesses and exhibited 21 documents and produced 28 articles. Statement of appellant/ accused was recorded under Section 313 of the Cr.P.C., in which he denied all the circumstances appearing against him in the prosecution evidence, claiming himself to be innocent and false implication. He exhibited 1 document as Ex. D-1 which is police statement of the victim but he has not examined any witness in his defence. 5. After appreciating the evidence adduced by the prosecution, learned 4 Fast Track Court, convicted and sentenced the appellant as mentioned in opening paragraph of this judgment. Being aggrieved, the appellant/accused has preferred this appeal. 6. Learned counsel for the appellant submits that, at the time of incident, the victim and the appellant both were aged about 27 years and were adults. They fell in love with each other. The victim is a well educated lady having M.B.A. degree and also pursuing job. He further submits that, the appellant was in training at the time of 1st incident and now he is posted as Constable in Border Security Force. The appellant had never promised to marry her, despite that, the victim indulged in roaming with him at various places including Jammu & Kashmir, Nagpur etc. She also stayed with him in hotels in so many occasions and made physical relation with the appellant in aforesaid period having love affair with the appellant. He further submits that, if there would have been any miss-conception of fact, then, after initial relation, she could have refused to join the company of appellant and have physical relation, but she never did so, therefore, having considered the long relation between them, their physical relation cannot be given colour of rape committed by the appellant with the victim. Despite that, learned Fast Track Court convicted the appellant only on the basis of deposition of victim, which is perverse to the evidence available on record and the law rendered by the Hon’ble Apex Court. In this regard, he relied on the judgment rendered by Hon’ble Supreme Court in the cases of (1) Maheshwar Tigga Vs. State of Jharkhand [(2020) 10 SCC 108] and Mandar Deepak Pawar Vs. The state of Maharashtra 5 and anr. [2022 Live Law (SC) 649]. 7. Per contra, learned counsel for the State supports the impugned judgment. 8. I have heard learned counsel for the parties and perused the material available on record including the record of the Fast Track Court. 9. In instant case, the prosecution has examined 7 witnesses, out of which, P.W. 1 is victim, P.W. 3 is her mother and Anju Bhau (P.W.7) is her aunt (Mousi). Other witnesses are formal witnesses. 10. The victim (P.W. 1) has stated in her deposition that, the appellant/accused is neighbour of her maternal-grand-father/maternal- grand-mother, who resided at Jammu and also friend of son of her Mama. Therefore, she came in contact with the appellant/accused in the year 2012 and accepted his proposal of friendship. She has further stated that, he accepted the proposal of marriage as they belong to same caste and he also assured her that, even if his family members do not agree, despite that, he will marry her. On pretext of marriage, in the month of January, 2017, when she had gone to Jammu, that time, the appellant/accused told her that his family members are not ready to get married her with him, but he shown his willingness to get married in temple, which was consented by her mother also. Thereafter, appellant/accused took her in a temple but it was told to them that, marriage is not performed there, thereafter, he took her at Patnitop, they stayed there in a hotel and on pretext of marriage, he first time, 6 made physical relation with her. The victim has further deposed that, thereafter the appellant/accused had come to Nagpur at her parental place, from where, they had gone to Dongargarh where, they stayed in a hotel and the appellant/accused made physical relation with her on pretext of marriage. Again in the month of November, 2017, the appellant took her at Patnitop, where they stayed in a hotel and on pretext of marriage, he made physical relation with her. She has also deposed that, at Dongargarh as well as Patnitop also, he had taken her to temple but marriage could not be performed between them as the appellant had stated that to get married her, he has to take permission of his mother. Again in the month of May, 2018, the appellant/accused came to Raipur where again they were ready to marry in Arya Samaj, but one day prior to marriage, he went to Jammu by saying that health of his mother is not well. In between, the appellant resided with her for 2 days and made physical relation. Ultimately, in the month of June, July, 2018, the appellant/accused had again asked her that he is ready to marry her after completion of training on 10th August, 2018, but thereafter, on being asked, he refused to come to Raipur to marry her. 11. P.W. 3 is mother of victim. She has also supported deposition of the victim to the extent that in the year 2012, the appellant/accused asked her that, he will marry the victim, thereafter they had gone to a temple as well as to Court to marry, but for one or other reason, their marriage could not be performed. She has also stated that, in the month of July, 2018, on being asked by her, the appellant told her that, he will marry the victim, but his mother told her that, the appellant has never told her 7 about his relation with the victim and they have settled his relation at other place. Subsequently, the appellant refused to marry her. She has stated in her deposition that, when the appellant refused to marry the victim, thereafter the victim had lodged written report against the appellant. 12. Anju Bhau (P.W. 7) is aunt (Mousi) of the victim. She has also stated in her deposition that, the appellant had told her that, he will marry the victim but subsequently, he did not marry her. This witness has denied the suggestion of learned Public Prosecutor that, the appellant had sexually exploited the victim for about 1 ½ year on pretext of marriage. 13. Dr. Rajni Chourasiya (P.W.6) medically examined the victim on 15-8- 2018, in which, she did not find any external or internal injury on the person of the victim. Therefore, she opined vide MLC report Ex. P-20 that, no definite opinion can be given with regard to forceful sexual intercourse with the victim. The doctor collected 2 vaginal slides of the victim and the police also seized underwear of the appellant vide seizure memo Ex. P-15. In FSL report (Ex. P-19) of aforesaid articles, semen and human spermatozoa have been reported to be found in underwear (Article B) of the appellant but no human spermatozoa has been reported to be found in vaginal slide of the victim. Thus, medical report and FSL report do not support the prosecution case. 14. Though, medical report ( Ex. P-20) and FSL report (Ex. P-19) are not supportive to the case of prosecution, but it has not been controverted in cross-examination of the victim that, the appellant and the victim 8 were in relation from the year 2012 and they indulged in physical relation from the month of January, 2017 and last time, physical relation was established between them in the month of May, 2018. Upto some extent, this fact also gets support from the deposition of mother (P.W. 3) of the victim. 15. The victim (P.W. 1) has denied in her cross-examination that, the appellant/accused had never promised to marry her, rather not only the victim, but her mother (P.W. 3) and Aunt Anju Bhau (P.W. 7) have also supported the deposition of victim that, the appellant/accused had told the victim to marry her. It is also proved from the deposition of the victim (P.W. 1) and her mother (P.W. 3) that, at various occasions, the victim and the appellant had also gone to temple as well as the Court to marry, but for one or other reason, their marriage could not be performed. It is found from the cross-examination of the victim (P.W. 1) and her mother (P.W. 3) that, since family members of the appellant were not ready, therefore, he could not perform marriage with the victim as she (P.W. 1) herself has stated in her deposition para 10 and 11 that, the appellant had told her that, after completion of training on 10th August, 2018, he will marry her, but subsequently, he refused to come to Raipur to marry her, but he did not tell any reason, rather, his family members had fixed his marriage in other place, therefore, her uncle met with the family where marriage of the appellant was fixed, showed them photographs and message of the victim and appellant, then they told him that in absence of any report, they could not break their relation. This fact shows that, only thereafter, report was lodged 9 by the victim on 15-8-2018. 16. It is evident from the deposition of the victim that, she was about 27 years of age in the year 2017 and she has obtained degree of M.B.A. and also pursuing job. Thus, she was very much capable to think about her well being and consequence of having physical relation prior to marriage, despite that, she indulged in physical relation with the appellant for more than 1 ½ year. She also used to visit various places, stayed in hotels with the appellant and made physical relation. Though she has deposed that, the appellant made physical relation with her on pretext of marriage, but if a well educated adult lady indulged in repeated physical relation with a person, visited various places, and also stayed at hotels, then, in such situation, it cannot be held that, she consented for physical relation only on pretext of marriage, rather, such long relation coupled with roaming here and there and staying in the night shows that, such relation is made on their being fallen in love. If the victim gave her consent on pretext of marriage, then such miss- conception of fact could have for initial occasion only, but if she indulged in such activity in aforesaid circumstances, then it cannot be held that consent was extended by the victim on any miss-conception of fact. 17. Section 90 IPC defines “consent” known to be given under fear or misconception: “90. Consent known to be given under fear or misconception.—A consent is not such a consent as is 10 intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;” 18. Thus, Section 90 of the IPC though does not define “consent”, but describes what is not “consent”. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. Consent for the purpose of Section 375 of the IPC requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances. 19. In Uday v. State of Karnataka, [(2003) 4 SCC 46], Hon’ble Supreme Court was considering a case where the prosecutrix, aged about 19 years, had given consent to sexual intercourse with the accused with whom she was deeply in love, on a promise that he would marry her on a later date. The prosecutrix continued to meet the accused and often had sexual intercourse and became pregnant. A complaint was lodged on failure of the accused to marry her. It was held that consent cannot be said to be given under a misconception of fact. It was held thus : (SCC pp. 56-57, paras 21) 11 “21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.” 20. In Deelip Singh v. State of Bihar, [(2005) 1 SCC 88], Hon’ble Supreme Court framed the following two questions relating to consent : (SCC p. 104, para 30) “(1) Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in? 12 (2) Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her? In this case, the girl lodged a complaint with the police stating that she and the accused were neighbours and they fell in love with each other. One day in February 1988, the accused forcibly raped her and later consoled her by saying that he would marry her. She succumbed to the entreaties of the accused to have sexual relations with him, on account of the promise made by him to marry her, and therefore continued to have sex on several occasions. After she became pregnant, she revealed the matter to her parents. Even thereafter, the intimacy continued to the knowledge of the parents and other relations who were under the impression that the accused would marry the girl, but the accused avoided marrying her and his father took him out of the village to thwart the bid to marry. The efforts made by the father of the girl to establish the marital tie failed. Therefore, she was constrained to file the complaint after waiting for some time.” With this factual background, the Hon’ble Supreme Court held that the girl had taken a conscious decision, after active application of mind to the events that had transpired. It was further held that at best, it is a case of breach of promise to marry rather than a case of false promise to marry, for which the accused is prima facie accountable for damages under civil law. It was held in Deelip Singh (supra) thus : “35. The remaining question is whether on the basis of the evidence on record, it is reasonably possible to hold that the accused with the fraudulent intention of inducing 13 her to sexual intercourse, made a false promise to marry. We have no doubt that the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. PW 12 was also too keen to marry him as she said so specifically. But we find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was false to his knowledge. No circumstances emerging from the prosecution evidence establish this fact. On the other hand, the statement of PW 12 that “later on”, the accused became ready to marry her but his father and others took him away from the village would indicate that the accused might have been prompted by a genuine intention to marry which did not materialise on account of the pressure exerted by his family elders. It seems to be a case of breach of promise to marry rather than a case of false promise to marry. On this aspect also, the observations of this Court in Uday case [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] at para 24 come to the aid of the appellant.” 21. In Deepak Gulati v. State of Haryana, [(2013) 7 SCC 675], the Hon’ble Supreme Court has drawn a distinction between rape and consensual sex. This was a case of a prosecutrix aged 19 years at the time of the incident. She had an inclination towards the accused. The accused had been giving her assurances of the fact that he would get married to her. The prosecutrix, therefore, left her home voluntarily and of her own free will to go with the accused to get married to him. She called the accused on a phone number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She 14 also waited for him for a long time, and when he finally arrived, she went with him to a place called Karna Lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the accused. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the accused at Birla Mandir there. Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus station, the accused was arrested by the police. The Supreme Court held that the physical relationship between the parties had clearly developed with the consent of the prosecutrix as there was neither a case of any resistance nor had she raised any complaint anywhere at any time, despite the fact that she had been living with the accused for several days and had travelled with him from one place to another. The Supreme Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be levelled against the accused. 22. Hon’ble Supreme Court in the case of Dhruvaram Murlidhar Sonar v. State of Maharashtra, [(2019) 18 SCC 191], after considering aforesaid judgments has held in para 23 as under :- “Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very 15 carefully examine whether the complainant 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 also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. 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 the misconception created by 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. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC.” 23. In the case of Maheshwar Tigga Vs. State of Jharkhand (supra), Hon’ble 3 Judge Bench of the Apex Court, while considering similar issue has observed in para 14 and 20 as under :- “14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eye of the law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a 16 conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her. 20. We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep-seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love. The observations in this regard in Uday (supra) are considered relevant : (SCC p. 58, para 25) “25. … It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that 17 the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.” 24. Recently, in the case of Prithivirajan Vs. State, represented by Inspector of Police and Another (2025 SCC OnLine SC 696), while considering similar case, Hon’ble Supreme Court has held in paragraphs 6 and 7 as under :- “6. This Court has time and again reiterated that only because physical relations were established based on a promise to marry, it will not amount to rape. For the offence of rape to be attracted, the following conditions need to be satisfied : first, the accused promised to marry the prosecutrix solely to secure consent for sexual relations without having any intention of fulfilling said promise from the very beginning; second, that the prosecutrix gave her consent for sexual relations by being directly influenced by such false promise of marriage. [See : Pramod Suryabhan Pawar v. State of Maharashtra (2019) 9 SCC 608; Mahesh Damu Khare v. State of Maharashtra 2024 SCC OnLine SC 3471] 7. The instant case is one of consensual relationship between the appellant and prosecutrix. Even otherwise, it does not appear from the record that the initial promise to marry allegedly made by the appellant was false to begin with. Perusal of FIR itself suggests that the alleged promise to marry could not be fulfilled by the appellant due to intervening circumstances. 18 Consequently, the relationship ended because of which the present FIR came to be registered. Under these circumstances, letting the appellant face trial would be nothing short of an abuse of the process of the Court. This cannot be permitted.” 25. In another recent decision of the Hon’ble Supreme Court in the case of Jothiragawan Vs. State Represented by Inspector of Police and another (2025 SCC OnLine SC 628), where, the accused and victim/ prosecutrix were relative, the couple had sexual intercourse thrice. On 17.04.2021, they took a room in a hotel where according to the victim/prosecutrix, there was an ‘abrupt and unexpected’ sexual intercourse, under coercion against her wish. Again on the pretext of discussing marriage, the accused called the victim/prosecutrix and she willingly accompanied him to the very same hotel where they had an intercourse and thus again the victim/ prosecutrix was coerced into a sexual intercourse. After both instances the victim/prosecutrix was mentally upset but this did not prevent her from still again going to the very same hotel at the request of the accused, a third time. Thereafter he refused to solemnize their relationship by a valid marriage. In these circumstances, the Hon’ble Supreme Court held that “the criminal proceedings initiated against the present appellant/accused are nothing but an abuse of process of the court. This is precisely a case where the High Court should have interfered in exercise of its inherent and extraordinary powers under Section 482 of the Cr. P.C. These proceedings cannot go on.” 26. Having considered the aforesaid law laid down by Hon’ble Apex Court, 19 if facts of the instant case are seen, then it is found from the evidence of the victim herself that, she was in friendship/love affair with the appellant from the year 2012 and despite being well educated lady pursuing job also, indulged in physical relation with the appellant at various places and on various occasions, also used to stay with him in night in hotels at various occasions. Though it is found from the deposition of victim that initially, the appellant/accused had proposed to marry her and at various occasions, he also took her to temples, courts etc. to marry, but marriage could not be performed between them because, family members of the appellant settled his marriage with some other girl and the appellant could not resist his family members, though he was ready to marry the victim after completion of his training in the month of August, 2018, therefore, when victim asked him to come to Raipur to marry her, he only refused to come to Raipur but did not tell any reason. This fact shows that, motive of the appellant was also not malafide and he has not made the promise with the sole intention to seduce the victim to indulge in sexual act, rather, he was ready to marry her even after lodging present FIR as, as per para 10 of the deposition of the victim, the appellant had told her that, he will marry after completion of training on 10th August, 2018, but it is found that, his family members were not ready to get married him with the victim. Having considered aforesaid fact, it cannot be said that, the appellant obtained consent of the victim only on pretext of marriage, rather it is found proved that, physical relation between the victim and the appellant were established with the consent of the prosecutrix at various places coupled with staying in hotels many times and neither 20 any resistance was made by the victim nor she made any complaint about forceful relation by the appellant. Even otherwise, if the victim would have consented for such relation on misconception of fact i.e. on pretext of marriage, then she could have refused for such relation after initial occasions and she could have lodged FIR of rape against the appellant, but she did not do so, rather, the FIR was lodged by the victim only when family members of the appellant fixed his marriage with other girl. In such situation, it cannot he held proved that the consent of the victim for alleged physical relation falls within the ambit of cheating or deception or misconception of fact in the eye of law, as has been rendered by Hon’ble Apex Court in aforesaid case laws, therefore, physical relation made by the appellant with the victim does not fall within the ambit of rape, hence, the impugned judgment is not found to be sustainable, accordingly, I feel inclined to allow this appeal. 27. 27. Consequently, instant criminal appeal filed by the appellant is allowed. Impugned judgment of conviction and order of sentence dated 2-8-2022 (wrongly written as ‘02-08-2002’ in the impugned judgment) passed by learned Fast Track Court in Sessions case No. 57/2019 is set aside. Appellant is acquitted of the charge under Section 376(2)(n) of the IPC. 28. The appellant is reported to be on bail. The bail bonds furnished by him shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 21 29. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith. Sd/- (Naresh Kumar Chandravanshi) Judge Pathak