1 2025:CGHC:51402 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No.474 of 2008 1 - Arun Kumar Baul, S/o Amulya Baul, aged about 24 years, Occupation Student, R/o Quarter No.10-B, Street No.16, Sector-5, Bhilai, Police Station Bhilai Nagar, District Durg (C.G.) Appellant (s) versus 1 - State Of Chhattisgarh through Police Station Old Bhilai, District Durg (C.G.) Respondent(s) For Appellant (s) : Mr. Shubhank Tiwari, Advocate For Respondent(s) : Ms. Sunita Sahu, PL Hon’ble Smt. Justice Rajani Dubey Judgment on Board 15/10/2025 1. The present appeal is directed against the judgment of conviction and order of sentence dated 30.04.2008 passed by the learned Special Judge and Additional Session Judge, Durg (C.G.) in Special Case No.34/2007, whereby the appellant has been convicted under Section 376 (1) of IPC and sentenced to undergo RI for 10 years and fine of Rs.2000/- with default Digitally signed by R NIRALA 2 stipulations. 2. The prosecution case, in brief, is that the prosecutrix and the accused were the students of Government IT.I. Bhilai and the prosecutrix was senior to the accused/appellant. During the education, they fell in love and intimacy developed. The accused/appellant convinced the prosecutrix that he would marry. On believing such, the prosecutrix had gone with the accused/appellant at Village Dhangaon, Post Tatapani, District Surguja. Where they resided in a rented house. The accused/appellant put Sindoor (Vermilion) on her forehead and told that now she is his wife. Thereafter the appellant/accused committed sexual intercourse with the prosecutrix for sometimes. When the prosecutrix insisted the accused/appellant to marry and in this purpose, they filed an application for Court Marriage before the Office of Marriage Registration Officer Durg, but the appellant/accused ultimately refused to marry. Being refused by the appellant/accused the prosecutrix lodged written report Ex.P/1 to the concerned Police Station. Upon such report, a case was registered against the accused and he was arrested. After completion of investigation, the charge sheet was filed against the appellant before the Magistrate concerned. 3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. The learned Trial Court did not appreciate 3 the oral and documentary evidence properly and did not consider omissions and contradictions in the statements of the prosecution witnesses. The prosecutrix is a major lady and is consenting party. She herself went with the accused and stayed with him and developed sexual relation but did not raise any alarm. She herself admitted that she is in love with the appellant and she wanted to marry the appellant but he refused to marry as such the appellant was wrongly implicated in the false case, but the learned Trial Court did not appreciate the said aspects of the matter. Therefore, the impugned judgment is liable to be set aside. Reliance has been placed on the judgment rendered by this Court dated 28.03.2025 passed in CRA No.1859/2020 in between Animesh Pandey vs State of Chhatisgarh and judgment dated 18.07.2025 passed in CRA No.111/2009 in between Shiv Ram @ Golu vs State of Chhattisgarh. 4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant, as such no interference is called for. Therefore, the appeal deserves to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Sections 417, 496 & 4 376 of IPC and Section 3 (1) (12) of SC/ST (Prevention of Atrocities) Act. After appreciation of oral and documentary evidence available on record, the learned Trial Court acquitted the appellant of the charges under Sections 417 & 496 of IPC and Section 3 (1) (12) of SC/ST (Prevention of Atrocities) Act and convicted and sentenced him under Section 376 (1) of IPC, as mentioned in para 1 of the judgment. 7. The prosecutrix (PW-1) stated that she was taking training in the Government ITI College in electric branch and was studying in the 2nd year and the appellant was also taking training of welding and they both interacted to each other and he told her that he wanted to marry her and on 08.08 he put vermilion on her in a temple and after that they stayed for 4 months together at Tatapani where he committed sexual intercourse with her. She further stated that on 05.12.2006, they gave application for marriage at Collector Office, Durg and 17.1.2007 was fixed for marriage. On 16.01.2007 they again went to Tatapani on appellant’s saying and on 17.01.2007 they again came to Durg but the appellant left away by saying that for marriage school certificate would be required but he did not come back. Thereafter, she searched him but could find and ultimately on 21.12.2006 she lodged report (Ex-P/1) at Police Station Bhilai, on the basis of which FIR (Ex-P/2) was lodged. In the cross- examination she admitted this suggestion of defence that she herself stayed with the appellant for 4 months and when she left 5 her house she did not inform anybody in her home. She also admitted that she was senior to the accused in the age and in ITI also. She also admitted that when she stayed with the appellant, she did not complain anything to anybody. In para 12, she admitted that from 05.12.2006 to 21.12.2006, she resided with the accused in the house of her brother-in-law (jija) but she did not go with him for lodging report. She admitted that when Ex-P/1 application was typed by her, then there was no pressure upon her. 8. PW-2 father of the prosecutrix stated that her daughter eloped with the appellant and came back after 4 months and when he enquired the same then she told that the accused had told her that he would marry her, as such she eloped with him. In the cross-examination, he admitted that he had lodged missing report of her daughter and when her daughter was going from home she told that she is going to tailor. 9. PW-6 brother-in-law of prosecutrix stated that in December, 2006 the accused and prosecutrix came to his house and stayed there and gave application for marriage at Collectorate Office, Durg, but the accused fled away by saying that he is going to take school certificate. 10. Dr. Smt. Shail Khare (PW-8) examined the prosecurix and she did not find any internal or external injuries and found that she is habitual of sexual intercourse and gave her report (Ex-P/10). 11. It is clear that the prosecutrix is a major lady aged about 24 years 6 and indisputably she continued to have physical relation with the accused for 4 months. She went with the appellant on her free will and consent and without any pressure. The prosecutrix stated that she had given her consent for sexual relationship under the misconception of fact, as the accused had given false promise to marry her and subsequently he did not marry her. 12. This Court in Animesh Pandey (supra) held in para 17 as under:- “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 Section10 depend upon its proved facts before the court.” 13. This Court in Shiv Ram @ Golu (supra) held in para 14 as under:- 7 “14. The Hon’ble Supreme Court in the matter of Deepak Gulati (supra) held in paras 21 & 23 of its judgment as under: “21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives. 23. This Court, while deciding Pradeep Kumar (2007) 7 SCC 413, placed reliance upon the judgment of the Madras High Court in N. Jaladu, In re ILR (1913) 36 Mad 4538 been observed: (Pradeep Kumar cases, SCC pp. 418-19, para 11) "11. '26. ..."... We are of opinion that the expression 'under a misconception of fact' is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act Illustration (d) [states] that a person has a certain intention is treated as a fact. So, here the fact about which the second and 8 third prosecution witnesses were made to entertain a misconception was the fact that the second accused intended to get the girl married. … ‘thus … if the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person'.... Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of Section 90 IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence." (N. Jaladu, In re case, ILR pp. 456-57)' (Deelip Singh case (2005) 1 SCC 88, SCC pp. 101-02, para 26)" 14. In light of the above, if the facts and evidence emerging in the present case are examined, it is clear that the prosecutrix was having love affair with the appellant and she admitted that she lived with the appellant for more than 4 months at Tatapani. The father of the prosecutrix also admitted that his daughter ran away with the boy belonging to different caste. The prosecutrix is aged 24 years and she is trainee of ITI and is consenting party to the act of the appellant. From the evidence on record coupled with the conduct of the prosecutrix during the incident and subsequent thereto, it does not appear that her consent for sexual indulgence was obtained by the appellant under any misconception of fact or through any false promise of marriage or consent was given under any misconception. 15. Consequently, the appeal is allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of the charges under Section 376 (1) of IPC. 16. The appellant is reported to be on bail. 9 17. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs.25,000/- before the Court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 18. The Trial Court’s record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Rajani Dubey Judge Nirala