1 2025:CGHC:49325 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 382 of 2022 1 - Pushpak Mahapatra S/o Minketan Mahapatra Aged About 22 Years Caste Brahaman R/o Village Chapka Thana- Bhanpuri And District Bastar (Chhattisgarh) ... Appellant versus 1 - State Of Chhattisgarh Through- S. H. O. Ghotiya/ Ajak Jagdalpur Tahsil Jagdalpur District Bastar Chhattisgarh ... Respondent For appellant : Mr. Praveen Kumar Tulsiyan, Adv. For Respondent/State : Ms. Anuradha Jain, Panel Lawyer. (Hon’ble Mr. Naresh Kumar Chandravanshi, J ) Judgment on Board 25/09/2025 1. This criminal appeal has been preferred against judgment of conviction and order of sentence dated 7-2-2022 passed by Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Bastar at Jagdalpur (henceforth referred to as ‘Special Judge’) in Special Case No.07/2020, whereby the learned Special Judge, after holding the appellant/accused guilty, convicted and sentenced him in the following manner :- Digitally signed by AVANISH KUMAR PATHAK Date: 2025.10.07 11:06:14 +0530 2 Conviction under Section Jail Sentence Fine Sentence Default stipulation 376, IPC RI for 10 year Rs. 2,000/- RI for 3 months 2. The case of the prosecution, in brief, is that, victim/prosecutrix, aged about 23 years and the appellant/accused, aged about 22 years, were working in different garment shops at Jagdalpur. In the year 2017, they came in contact and developed love affair with each other. It is alleged that, appellant/accused on pretext of marriage, took her at various places and sexually exploited her from 26-1-2017 till February, 2020. Subsequently, he refused to get married her, therefore, she made written complaint (Ex. P-1) in PS Kotwali, Jagdalpur, district Bastar, based on which, FIR (Ex. P-2) was lodged for the offence under Sections 376, 506 and 34 of the Indian Penal Code (henceforth referred to as ‘IPC’) against the appellant and co-accused Mahendra Pandey, who threatened the victim/prosecutrix. Statement (Ex. P-13) of prosecutrix under Section 164 of the Cr.P.C. was recorded. During the course of investigation, spot map (Ex. P-4) was prepared by police, spot map (Ex. P-5) was prepared by Patwari, victim/prosecutrix was examined by Dr. Sushma Rakhunde (P.W. 17), in which, vide Medical report (Ex. P-32), she opined that, since no external or internal injury was found on person or the private part of victim/prosecutrix, therefore, no definite opinion can be given with regard to rape upon her. A vaginal swab and two vaginal smear slides of victim/prosecutrix were prepared for medical examination. Appellant/accused was also medically examined by Dr. Shailendra Bhagat (P.W. 7), who opined 3 vide report (Ex. P-21) that he could not detect any abnormality which could suggest that appellant/accused cannot perform sexual intercourse in ordinary course. Statements of witnesses were recorded under Section 161 of the Cr.P.C. Her caste certificate (Ex. P-9) was seized vide seizure memo (Ex. P-8). The accused persons were arrested vide Ex. P-33 and P-36. After due investigation, a charge- sheet under Sections 376, 506, 34 of the IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (henceforth, referred to as ‘SCST Act’) was filed by the police before the Special Court (Atrocities), Jagdalpur, Distt. Bastar against the appellant/accused and co-accused Mahendra Panigrahi. 3. Charges under Section 376 of IPC and Section 3(2)(v) of the SCST Act were framed against the appellant/accused and charges under Section 506B of the IPC and Section 3(2)(v) of the SCST Act were framed against the co-accused, they abused their guilt and claimed trial. 4. In order to prove the guilt of accused persons, the prosecution examined as many as 18 witnesses and exhibited 37 documents, statements of the accused persons under Section 313 of the Cr.P.C. were recorded in which, they denied all the circumstances appearing against them, pleaded innocence and their false implication, but they have not examined any witness in their defence. 5. Learned trial Court after appreciating the evidence adduced by the prosecution, acquitted co-accused of all the offences and also acquitted appellant/accused of the offence under Section 3(2)(v) of the 4 SCST Act but convicted him under Section 376 of the IPC and sentenced him as mentioned in opening paragraph of this judgment. Hence, this appeal. 6. Learned counsel for the appellant/accused would submit that, victim was an adult lady aged about 23 years at the time of incident, as such, she was competent to know about her well being, despite that, she fell in love with the appellant/accused, who is also an adult person. Thereafter, they were in a consensual relationship for 3 years. They also visited various places, but prior to 22-5-2020, she never made any complaint or lodged any FIR against the appellant/accused. If said relation would have been established on pretext of marriage, then instead of continuing in such relation for such a long period, the victim would have asked the appellant/accused to get married with her at the earliest from their initial relation, but she did not do so, rather, indulged in relation for long period of 3 years. He further submits that, in catena of judgments, Hon’ble Apex Court has held that, long physical relation with adult person would not amount to offence of rape until and unless, prosecution does not prove that, consent of victim was obtained in mis-conception of fact. He lastly prayed that it was a completely consensual relation, hence it does not fall in the category of offence of rape. Despite that, the learned Special Judge has convicted the appellant/accused, which is perverse to the evidence available on record and the law established by Hon’ble Apex Court. Hence, the appeal may be allowed and the appellant/accused may be acquitted. 7. Per contra, learned counsel appearing for the State would submit that, 5 though it was a long relation between victim/prosecutrix and appellant/ accused, but consent of victim was obtained under mis-conception of fact, as when ever, the victim asked the appellant-accused to get married, he evaded, therefore, in such condition, it cannot be termed as consent and free will of victim. The impugned judgment passed by the Special Judge has been passed based on the evidence available on record, which does not suffer from any perversity or illegality. 8. I have heard learned counsel for the parties and perused the material available on record of the trial Court. 9. In the instant case, the victim was an adult lady aged about 23 years and the appellant/accused was also an adult person aged about 22 years. Thus both of them were adults prior to the date of incident. Since they were working in different garment shops at Jagdalpur, hence they fell in love. These facts have also been proved by the victim (P.W. 1) in her deposition, which also gets support from deposition of P.W. 2, who was a colleague of the victim. Smt. Manirao (P.W. 4) has also supported the fact that, victim and appellant/accused fell in love and they used to go to visit different places. 10. The Victim (P.W. 1) has deposed that on 26-1-2017, the appellant/accused had taken her at Tirtha for picnic and made physical relation with her on pretext of marriage. Thereafter, on the same pretext, he made physical relations with her repeatedly for about 3 years. Subsequently, the appellant/accused refused to marry her and also refused to talk to her on mobile phone. Therefore, an FIR has been lodged. 6 11. About physical relation, Smt. Gayatri Yadav (P.W. 2), who is a colleague of the prosecutrix (P.W. 1), has deposed that, victim/prosecutrix has told her about illicit relations made by the appellant/accused with her. Brother of victim/prosecutrix (P.W. 3) has also deposed that prosecutrix has told him that appellant/accused has made physical relation with her. Smt. Mani Rao (P.W. 4), who worked in the same garment shop where appellant/accused was working, has deposed that appellant/accused had told her that he loved the victim/ prosecutrix. Sachin Gauwli (P.W. 5) has deposed that, his wife (P.W. 2 Smt. Gayatri Yadav) has told him about the love affair of the appellant/ accused and victim/ prosecutrix. Naresh Kashyap (P.W. 6), friend of brother of victim, has stated that, brother of victim has told him about the love affair of appellant/accused and the victim. Thus, these witnesses are hearsay witnesses about the relation of appellant/accused and the victim/prosecutrix. 12. Except the victim (P.W. 1), Smt. Gayatri Yadav (P.W. 2), brother of prosecutrix (P.W. 3), Smt. Mani Rao (P.W. 4), Sachin Gauwli (P.W. 5) and Naresh Kashyap (P.W. 6), other witnesses are not witnesses of fact of the incident, rather they are formal witnesses. 13. Dr. Shshma Rakhunde (P.W. 17) medically examined the victim on 22- 5-2020 vide Ex. P-32, in which, she found that there is no internal or external injury on the private part of the victim, her hymen was old ruptured, there was no injury on her person. She prepared two vaginal smear slides and one swab for chemical examination. She has proved medical report Ex. P-32. Prosecution has filed FSL report of vaginal 7 swab (Article ‘A’) and vaginal smear (Article ‘B’) of the victim. Though it has not been exhibited, but it is admissible and readable under Section 293 of the Evidence Act, however, it is not supportive to the case of prosecution, as no semen stains and human spermatozoa have been reported to be found in Vaginal swab (Article ‘A’) and vaginal smear (Article ‘B’) of the victim. Thus, no such evidence adduced by the prosecution is available on record to prove charge of rape levelled against the appellant/accused. 14. From the documentary evidence of prosecution as well as oral evidence, it is found proved that, it is a case of consensual relation, that too, for a long period of 3 years. Though, the victim has deposed that, she consented on the pretext of marriage, but it cannot be supposed that, such mis-conception of fact would be for such a long period of 3 years. Therefore, it can be held safely that, the victim was a fully consenting party in the said relation with the appellant/accused. 15. 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 8 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. 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.” 16. 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 9 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.” 17. In view of aforesaid law rendered by Hon’ble Supreme Court, if facts of instant case are examined, then as has been discussed above in preceding paragraphs, it is a case of consensual physical relation between the victim and appellant/accused for a long period of 3 years. Relation for such a long period cannot be given colour of rape when victim herself accompanied the appellant/accused at various places on her free will. In view of the above discussion, in the considered opinion of this Court, the impugned judgment of conviction and order of sentence passed by the Special Judge against the appellant/accused convicting him under Section 376 of the IPC is not sustainable. Hence, I feel inclined to allow instant appeal. 18. In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant/accused by the impugned judgement under Section 376 of the IPC are set aside and he is acquitted of the said charge. The appellant/accused is on bail. He need not surrender. The bail bonds furnished by the appellant/accused shall remain in operation for 10 a period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 19. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith. 20. The Criminal Appeal is allowed. Sd/- (Naresh Kumar Chandravanshi) Judge pathak