1 CRA No.280 of 2017 2025:CGHC:59104-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 280 of 2017 Ashwani Kumar S/o Narayan Yadu, Aged About 25 Years R/o Kochwahi, Police Station Gurur, District Balod, Chhattisgarh., Chhattisgarh Appellant(s) Versus State Of Chhattisgarh Through Station House Officer, Police Of Police Station Gurur, District Balod, Chhattisgarh., Chhattisgarh Respondent(s) (Cause-title taken from Case Information System) For Appellant(s) : Mr. B.P. Singh, Advocate For Respondent(s) : Mr. Shailendra Sharma, PL Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Bibhu Datta Guru, Judge Judgment on Board Per Bibhu Datta Guru , Judge 05/12/2025 1. The present appeal has been filed under Section 374 (2) of the Code of Criminal Procedure, 1973, against the judgment of conviction and sentence dated 08/02/2017 passed by learned Sessions Judge, Balod, District Balod (C.G.) in Sessions Trial No. 53/2016 whereby the appellant has been convicted under Sections 376 & 417 of the IPC and RAHUL JHA Digitally signed by RAHUL JHA Date: 2025.12.09 10:17:49 +0530 2 CRA No.280 of 2017 sentenced to undergo life imprisonment with fine of Rs. 5000/- along with default stipulation & rigorous imprisonment for one year with fine of Rs. 1000/- with default stipulation, respectively. 2. Brief facts of the case are that the prosecutrix, a resident of village Chhiniri, Police Station Charama, District Kanker, was pursuing Class 12 through the Charama Open School, while the accused was an M.A. (Private) student there in the year 2014. It is alleged that the accused initially asked for her mobile number, which she refused to share, but later they began talking and developed friendship, during which the accused induced her with promises of marriage. Believing his assurances, on 11.05.2014 the prosecutrix accompanied him to Markatola, where he allegedly took her to a forested area above the valley and forcibly subjected her to sexual intercourse. In August 2015, he again took her to Kurkura Pahadi Jogi Mandir, applied vermilion on her forehead, and thereafter they continued to meet, during which he repeatedly had sexual relations with her for 2–3 years on the pretext of marriage. On 15.04.2016, the prosecutrix learnt that the accused was marrying another girl and that the invitation cards had already been printed. She then approached Rohit Yadav, Sarpanch of village Kochwahi (PW3), narrated the incident, and played the recorded conversation on her mobile. A meeting of village elders was convened, attended by the Sarpanch, the village Patel Vishnuram (PW4), and others, where the prosecutrix again narrated the events; the accused allegedly admitted before them to having a love relationship and 3 CRA No.280 of 2017 physical relations with her but refused to marry her. Based on her report dated 17.04.2016, FIR No. 288/2016 (Ex. P-1) was registered at Police Station Gurur, following which her medical examination was conducted with consent, her underwear was seized and sent for examination (Ex. P- 5), her statement under Section 164 CrPC was recorded, and statements of other witnesses were taken. The marriage card relating to the accused’s proposed marriage with another girl, Sunita, was seized from Sarpanch Rohit Yadav (Ex. P-8), the prosecutrix’s mobile was seized (Ex. P-4), spot map and site plan were prepared (Ex. P-3), and the accused’s medical examination was also conducted with seizure of his underwear for forensic analysis; his mobile phone was seized (Ex. P-23). The accused was arrested, and necessary seized articles including medical slides were sent for chemical examination via memo Ex. P-15, for which acknowledgment (Ex. P-16) and the FSL report (Ex. P-17) were received. Upon completion of investigation, a charge-sheet was filed before the Court. As the accused denied the charges, the prosecution examined nine witnesses. In his statement under Section 313 CrPC, the accused denied all incriminating circumstances and claimed innocence, and he did not lead any evidence in defence. 3. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in opening paragraph of this judgment. Hence this appeal. 4 CRA No.280 of 2017 4. Learned counsel for the appellant submits that the prosecution story is wholly unreliable, exaggerated, and suffers from serious inconsistencies and omissions that strike at the root of the case. It is urged that the prosecutrix was a major, educated woman who admittedly maintained a long, voluntary relationship with the appellant for nearly two years, frequently met him at different places, and never raised any allegation of force or coercion during that period, thereby demonstrating that the relationship, if any, was consensual. The alleged incident of forcible intercourse in 2014 is unsupported by any prompt report, medical evidence, or independent witness, and the belated FIR in 2016, lodged only after the prosecutrix came to know of the appellant’s proposed marriage with another girl, clearly reflects mala fide intention and an afterthought. The so-called village meeting and alleged extra-judicial confession are neither proved through independent witnesses nor reliable in law. The medical evidence and FSL report also do not corroborate the allegation of sexual assault. It is contended that the prosecution has failed to establish any dishonest inducement or intention to deceive from the very beginning, which is a necessary ingredient for the offence alleged. In view of these material contradictions, absence of statutory proof, and the clear possibility of false implication due to personal grievance, learned counsel submits that the appellant is entitled to benefit of doubt and deserves to be acquitted of all charges. 5. Learned State counsel submits that the prosecutrix has consistently and credibly narrated the sequence of events, and her testimony is fully 5 CRA No.280 of 2017 supported by the surrounding circumstances, including the village meeting where the appellant admitted to maintaining a physical relationship with her. It is argued that the appellant continuously exploited the prosecutrix’s trust by giving repeated assurances of marriage and used this deception to establish physical relations over a prolonged period, which clearly attracts the offence alleged. The delay in lodging the FIR is satisfactorily explained, as the prosecutrix acted only after learning of the appellant’s impending marriage with another girl. The investigation is complete, the material witnesses support the prosecution case, and no plausible defence has been raised. Hence, the conviction is justified and deserves to be upheld. 6. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 7. Since the prosecutrix was a major, the question that would arise for consideration is whether the appellant forcibly committed sexual intercourse with her or whether the acts were consensual in nature. 8. PW-5, Dr. S.P. Khan, Medical Officer, CHC Arjunda, deposed that on 17.04.2016 at about 09:09 PM, Woman Constable Saraswati Sahu brought the prosecutrix for medical examination. The witness stated that the prosecutrix was a healthy young woman of average build, with fully developed breasts and axillary hair. As per her disclosure, her last menstrual period was on 17.04.2016. No external injuries were found on 6 CRA No.280 of 2017 her body. Since she was menstruating, bleeding was present from the vagina. On internal examination, the hymen was found to be torn/ruptured. Two slides of vaginal discharge were prepared and handed over to the constable for chemical examination. The doctor opined that without chemical analysis, no definite opinion regarding recent sexual intercourse could be given. The report prepared by her is Ex. P-11 bearing her signatures. On the same day, the constable produced a sealed packet containing an underwear, which the doctor examined and found bloodstains on it. The garment was re-sealed and handed over for chemical examination, and the corresponding report is Ex. P-12. In cross-examination, the doctor admitted that without chemical examination it cannot be determined whose stains were present on the underwear. 9. The FSL report in the instant case is Ex.P/17. According to the report, Article-A i.e. vaginal slides of the prosecutrix; Article-B i.e. underwear of the prosecutrix; Article-C i.e. underwear of the appellant and Article- E i.e. public hair of the appellant do not contain human sperm. Though, Article-D i.e. slide of the appellant contain human sperm. 10. Prosecutrix (PW1) stated that she first met the accused Ashwani Kumar Yadu at Charama while appearing for her Class 10th Open School examination, where he asked for her mobile number. She initially gave him a wrong number as she did not want friendship with him but later gave her correct number, after which they spoke regularly and met on several occasions. She stated that on 11.05.2014, the accused met her 7 CRA No.280 of 2017 near a photo studio at Charama and took her on his motorcycle towards Markatola forest, where he attempted to hold her hand. About six months later, at Jogi Mandir on Kurkura hill and later at a temple in Nayagaon, the accused applied sindoor in her hairline and told her that they were married. Relying on this, he took her to various places, including Ishan forest, and established physical relations, and over the next three years continued physical relations with her on the pretext that they were husband and wife. When she came to know that the accused was trying to marry another girl, she went with villagers and lodged the report at P.S. Gurur (Ex. P-1). In cross-examination, she admitted that she travelled with the accused willingly on his motorcycle, never informed her parents that he was taking her forcibly, and believed that she went with him because they were married. She admitted that physical relations took place at different locations including Markatola Ghat, an abandoned structure near her house at Chinori, and at Charama, and she never made any complaint earlier. She accepted that they belong to different castes and that she continued to apply sindoor after the alleged temple marriage but hid it from her parents. She further admitted that she would not have lodged the report if the accused had taken her to his house, and that she complained only after learning that he intended to marry someone else, acknowledging also that regular phone conversations led to friendship and that she did not resist accompanying him to different places. She, however, denied that the physical relations were consensual due to 8 CRA No.280 of 2017 friendship and maintained that they occurred because she believed they were married. 11. PW-2, the father of the prosecutrix, stated that his daughter was appearing in Class 12th through correspondence. Two to three months prior to the incident, she had gone for her examination but did not return home, and upon inquiry he came to know that she had gone to village Kochwahini. When he reached there around 7–8 PM, a meeting was underway in the presence of the Sarpanch and villagers, where his daughter stated that the accused had told her he would marry her and therefore she had come there; however, the accused refused to marry her. He further learnt that the accused was marrying another girl and was not willing to keep his daughter, and as no decision was taken in the meeting, he lodged a report at P.S. Gurur. He identified his signatures on the consent form for medical examination (Ex. P-02) and stated that his daughter had never told him anything about physical relations with the accused. He was declared hostile and confronted with his police statement, wherein it was recorded that the accused admitted love and physical relations with the girl before the villagers but refused marriage. In cross-examination, PW-2 admitted that his daughter had gone alone to village Kochwahini and that he first came to know of her love relationship with the accused only on reaching there. He admitted that she was insisting in the meeting that she would marry the accused, and also that marriages between castes of accused and victim are not socially accepted. He further admitted that his daughter had never told him about 9 CRA No.280 of 2017 any temple marriage, sindoor-ceremony, or any allegation of forcible sexual relations, and also that no marriage invitation card of the accused ever came to their house. 12. PW-3 Rohit Yadav stated that he knew the accused Ashwani, who belongs to his village, and he also knew the prosecutrix from the date of the incident. In April of the same year, the prosecutrix came to their village around 5 PM and told him that she had lodged a report at Charama against the accused, explaining that she had a love relationship with him. This witness then called the village Patel Vishnu Thakur and the accused’s father, and 10–15 villagers gathered for a meeting in which the accused was also called. In the meeting, the prosecutrix stated that the accused had married her, had physical relations with her, and assured her that he would keep her as his wife, while the accused described her only as a friend. This witness stated that when asked for proof, the prosecutrix could not show any evidence, but she did produce the accused’s marriage card showing that he was getting married to another girl. As no decision could be taken in the meeting, the prosecutrix went to the police station with her father. In cross-examination, PW-3 admitted that during the village meeting, the prosecutrix was not wearing sindoor in her hairline and that she had mentioned being in a love relationship with the accused for two to three years. He further admitted that he did not know from where the marriage card was brought, and that the mobile phone was not seized in his presence. 10 CRA No.280 of 2017 13. PW-4 Vishu Ram, the Patel of village Kochwahi, stated that he knows the accused Ashwani and also knows the prosecutrix from the date of the incident. One evening around 5 PM in April, the Sarpanch called him to a gathering near his house where the prosecutrix was claiming that she had a relationship with the accused. The Sarpanch called the accused’s father and then the accused. In the meeting, the prosecutrix stated that she was married to the accused and wanted to stay with him, whereas the accused denied having any relationship with her. He stated that prior to the meeting, the prosecutrix had already lodged a report at Charama police station. She did not produce any proof of relationship in his presence. He had seen the accused’s wedding invitation card. In cross-examination, he stated that the prosecutrix had told the village gathering that she had come after lodging a report at the police station, and that she had also said she was in a love relationship with the accused and wanted to marry him. He admitted that he did not know whether marriage between them was possible according to customary norms. He stated that the prosecutrix had not produced the wedding card before him, nor was the card seized in his presence. He denied the suggestion that he had given no police statement and stated that the police had asked him about the incident. 14. It is an admitted position from the deposition of PW-1 that she was a major throughout the period of the alleged relationship. She has categorically admitted in cross-examination that she travelled with the appellant willingly on his motorcycle on multiple occasions; she never 11 CRA No.280 of 2017 informed her parents or any other person that the appellant was taking her forcibly; she concealed the alleged temple-marriage and did not disclose the relationship to anyone for nearly two years; and she continued to meet the appellant at different places, including forests, abandoned houses, and Charama, without any protest. She also admitted that she would not have lodged the report if the appellant had taken her to his house and that she did so only after learning of his proposed marriage with another girl. These admissions strongly reflect voluntary participation and negate the allegation of any immediate coercion, force, or deception at the initial stage. 15. The prosecutrix further admitted that the relations continued over 2–3 years and that she believed herself to be married to the appellant. However, no material was produced to substantiate a marriage ceremony, nor was any complaint made during this prolonged period. PW-2 (father), PW-3 (Sarpanch), and PW-4 (Patel) all stated that she did not disclose any allegation of force or temple-marriage prior to arriving at Kochwahi on the date of the village meeting. The prosecutrix was not wearing sindoor during the meeting, which also runs contrary to her claim of continuous belief in a valid marriage. 16. The trial Court relied heavily on the alleged extra-judicial confession made during the village meeting. However, PW-3 and PW-4, the only independent witnesses present, clearly stated that the appellant denied any marital relationship with the prosecutrix. PW-3 also stated that she 12 CRA No.280 of 2017 produced no proof of marriage. The extra-judicial confession is thus neither proved nor trustworthy in law. 17. Regarding the allegation of forcible intercourse on 11.05.2014, the prosecutrix did not lodge any report for nearly two years. There is no medical evidence, contemporaneous record, or independent witness to support this allegation. The long and unexplained delay seriously erodes the credibility of this allegation. 18. The medical evidence also does not support the prosecution. PW-5 found no external injuries. The FSL report (Ex. P-17) shows no presence of spermatozoa on the prosecutrix’s vaginal slides or underwear. The appellant’s underwear and his pubic hair sample also did not contain spermatozoa. Such negative forensic findings are consistent with consensual relations at unspecified earlier times and do not support a case of recent forcible intercourse. 19. It is the trite law that a conviction for rape can be sustained solely on the testimony of the prosecutrix/victim, provided that her evidence inspires confidence in the mind of the Court and appears to be natural and truthful. However, if the version given by the prosecutrix is inconsistent, unsupported by any medical evidence, or the whole surrounding circumstances are highly improbable and believable in the case set up by the prosecutrix, the Court shall not act on the solitary evidence of the prosecutrix. (See: Birka Shiva v The State of Telangana decided on 16- 7-2025 in SLP (Cr.) No.1445 of 2025). 13 CRA No.280 of 2017 20. In view of these material contradictions, unexplained delay in lodging the FIR, absence of medical or ocular corroboration, and the complete lack of proof of any threat or force exerted upon the prosecutrix, this Court is of the considered view that the prosecution has not proved its case beyond reasonable doubt. The appellant is entitled to the benefit of doubt. 21. The Supreme Court has consistently held that a consensual relationship between adults, even if based on a promise to marry which later fails, does not amount to rape unless the promise was false from the very beginning and made solely to obtain sexual consent. Nothing on record in the present case establishes that the appellant entertained any dishonest intention from the inception. The prosecution has failed to prove the essential ingredients required for conviction under Sections 376 or 417 IPC. 22. From the evidence adduced by the prosecution, particularly the statement of the prosecutrix who has categorically stated that the appellant has done sexual intercourse with her on the pretext of marriage and whenever the appellant has done the sexual intercourse she has not raised any objection and also did not make any noise to escape from the hands of the appellant on the count that the appellant will marry with her. She has also stated that she knew the accused. The evidence of the prosecutrix would clearly demonstrate that there was consensual sexual inter course. Since the prosecutrix was not below the age 16 years and the evidence brought on record would demonstrate that she is a 14 CRA No.280 of 2017 consenting party, therefore, on the pretext of marriage, sexual inter course committed by the appellant will fall within the ambit of rape or not, has been examined by the Hon'ble Supreme Court in the case Maheshwar Tigga v State of Jharkhand (2020)10 SCC 108 wherein the Supreme Court has held paragraph 17,18, 19 and 20 which is as under:- 17. This court recently in Dhruvaram Murlidhar Sonar vs. The State of Maharashtra and Others, AIR 2019 SC 327 and in Pramod Suryabhan Pawar vs. State of Maharashtra and another, (2019) 9 SCC 608 arising out of an application under Section 482 Cr.P.C. in similar circumstances where the relationship originated in a love affair, developed over a period of time accompanied by physical relations, consensual in nature, but the marriage could not fructify because the parties belonged to different castes and communities, quashed the proceedings. 18. We have given our thoughtful consideration to the facts and circumstances of the present case and are of the considered opinion that the appellant did not make any false promise or intentional misrepresentation of marriage leading to establishment of physical relationship between the parties. The prosecutrix was herself aware of the obstacles in their relationship because of different religious beliefs. An engagement ceremony was also held in the solemn belief that the societal obstacles would be overcome, but unfortunately differences also arose whether the marriage was to solemnised in the Church or in a Temple and ultimately failed. It is not possible to hold on the evidence available that the appellant right from the inception did not intend to marry the prosecutrix ever and had fraudulently misrepresented only in order to establish physical relation with her. The prosecutrix in her letters acknowledged that the appellant's family was always very nice to her. 15 CRA No.280 of 2017 19. The appellant has been acquitted of the charge under Section 420 and 504 IPC. No appeal has been preferred against the acquittal. There is no medical evidence on record to sustain the conviction under Section 323 I.P.C. No offence is made out against the appellant under Section 341 I.P.C. considering the statement of prosecutrix that she had gone to live with the appellant for 15 days of her own volition. 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: "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 desired In marry her, but because she also it. circumstances it would be very these difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not 16 CRA No.280 of 2017 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." 23. Recently, the Supreme Court in the matter of Mahesh Damu Khare v. State of Maharashtra & Anr. (2024) 11 SCC 398, held thus at para 34: “34. In our opinion, the longer the duration of the physical relationship between the partners without protest and insistence by the female partner for marriage would be indicative of a consensual relationship rather than a relationship based on false promise of marriage by the male partner and thus, based on misconception of fact.” 24. The Supreme Court in the matter of Deepak Gualti v. State of Haryana, (2013) 7 SCC 675 has held as under at paras 21, 26 & 27:- "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 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 17 CRA No.280 of 2017 accused, and not solely on account of mis-representation 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. XXX XXX XXX XXX XXX 26. To conclude, the prosecutrix had left her home voluntarily, of her own free will to get married to the appellant. She was 19 years of age at the relevant time and was, hence, capable of understanding the complications and issues surrounding her marriage to the appellant. According to the version of events provided by her, the prosecutrix had called the appellant on a 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 also waited for him for a long time, and when he finally arrived she went with him to the Karna lake where they indulged in sexual intercourse. She did not raise any objection at this stage and made no complaints to any one. Thereafter, she also went to Kurukshetra with the appellant, where she lived with his relatives. Here to, the prosecutrix voluntarily became intimate with the appellant. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the appellant at the Birla Mandir. Thereafter, she even proceeded with the appellant to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married in court at Ambala. However, here they were apprehended by the police. 27. If the prosecutrix was in fact going to Ambala to marry the appellant, as stands fully established from the evidence on record, 18 CRA No.280 of 2017 we fail to understand on what basis the allegation of "false promise of marriage" has been raised by the prosecutrix. We also fail to comprehend the circumstances in which a charge of deceit/rape can be leveled against the appellant, in light of the afore-mentioned fact situation." 25. In light of evidence brought on record and on above stated legal position, it is quite clear that on the pretext of marriage sexual intercourse is not a rape, therefore, appellant deserves to be acquitted of the charges framed under Section 376 IPC. 26. For the charge under Section 417 IPC (cheating), the prosecution must establish that from the very inception, the appellant never intended to marry the prosecutrix but induced her solely for sexual relations. In the present case, the conduct of the prosecutrix her voluntary meetings, prolonged relationship, and admissions in cross-examination do not support the theory of initial deception. On the contrary, the evidence indicates a mutual relationship between two adults, which turned sour only when the appellant decided to marry another woman. Such subsequent refusal cannot retroactively convert a consensual relationship into rape. 27. In view of the foregoing analysis, this Court is of the considered opinion that the prosecution has failed to establish, beyond reasonable doubt, that the appellant committed forcible sexual intercourse with the prosecutrix or that he induced her into sexual relations through a fraudulent promise of marriage made with dishonest intent from the inception. 19 CRA No.280 of 2017 28. Consequently, the conviction of the appellant under Sections 376 and 417 of the IPC cannot be sustained and is liable to be set aside. 29. For the foregoing reasons, this criminal appeal is allowed and the conviction of the appellant under 376 and 417 of the IPC is hereby set aside. The appellant is acquitted of the said charges levelled against him. The appellant is reported to be on bail. His bail bonds shall remain operative for a period of six months in view the provisions of Section 481 BNSS, 2023. 30. 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/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Rahul/Gowri