1 2025:CGHC:57156-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 322 of 2017 Sandeep Kumar Sahu (Ganjeer) S/o Ramadhar Sahu, Aged About 19 Years R/o Village Kapsi, Police Station Dondi Lohara, District - Balod Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Of Police Station Dondi Lohara, District Balod Chhattisgarh , Chhattisgarh ... Respondent For Appellant : Mr.Sunil Sahu, Advocate For Respondent : Mr.Saumya Rai, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Per Ramesh Sinha, CJ 25/11/2025 1. The criminal appeal arises out of the judgment of conviction and order of sentence dated 18.01.2017 passed by the Special Sessions Judge, Scheduled Caste & Scheduled Tribe (Prevention of Atrocities), Act, Balod, District Balod in Special Session Trial BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR 2 No.43/2016, whereby the appellant has been convicted and sentenced in the following manner : Sl. No. Conviction Sentence 1. Under Section 376 of the IPC Life imprisonment and fine of Rs.10,000/-, in default of payment of fine to further undergo RI for 1 year. 2. Under Section 417 of the IPC RI for 1 year and fine of Rs.1000/-, in default of payment of fine to further undergo RI for 1 month. 3. Under Section 506 Part-II of the IPC RI for 3 years and fine of Rs.1000/-, in default of payment of fine to further undergo RI for 1 month. 4. Under Section 3(2)(v) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 Life imprisonment and fine of Rs.10,000/-, in default of payment of fine to further undergo RI for 1 year. 2. The prosecution story, in brief, is that the appellant deceived the victim, a 19-year-old, by professing love and promising to marry her. The appellant, who was familiar with the victim’s household, would visit her home when her family members were away and engage in sexual intercourse with her. He would also secretly visit her at night and have sex with her, repeatedly promising to marry her soon whenever she objected. When the victim became pregnant and pressured him to marry her after a medical check-up, he refused. She then informed her mother, and a village meeting 3 was held, but the appellant denied the pregnancy. He threatened to kill her if she told her parents about the incident. 3. Upon the appellant refusing to marry her, the victim made a written report (Ex.P-1), based on which an FIR (Ex.P-2) was registered at Doundilohara Police Station on April 6, 2016. With the consent of the victim and her guardians, a medical examination was conducted, a site plan was prepared, and relevant documents like her school marksheet (Article A-1) and caste certificate (Article C-1) were seized. The patwari prepared a map, the victim’s underwear was seized and tested, and a sonography report was obtained. 4. The appellant was arrested, medically examined, and his underwear was seized and tested. The seized items were sent for forensic analysis. The complainant's statement was recorded under Section 164 Cr.P.C., and she gave birth to a daughter. With Court permission, DNA tests were conducted on the appellant/accused, the victim, and the child at a Hyderabad laboratory. The investigation was completed, and upon completion of investigation, charge-sheet was submitted before the Court concerned. 5. In order to establish the charge against the appellant, the prosecution examined 10 witnesses. The statement of the appellant under Section 313 of the CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trail Court 4 has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 6. Learned counsel for the appellant argued that the conviction of the appellant under Sections 376, 417, 506-II of the Indian Penal Code (hereinafter called as ‘IPC’ and Section 3(2)(5) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter called as ‘Atrocities Act’) is unsustainable in law even if the entire evidence of the prosecution is taken as it is because the victim has clearly admitted in her examination that she had long standing affair with the appellant and they had entered into sexual intercourse with her consent. According to learned counsel for the appellant, there is no specific allegation of the appellant having obtained consent under fear of injury or any misconception of fact and there is improvement in the Court statement and the victim was confronted with her case diary statement in which such allegation of any fear of injury or misconception of fact. During the period, the appellant and the prosecutrix had maintained physical relation for one year, is absent and not even in the FIR. He further submitted that the FSL report is positive, confirming that the appellant is the biological father of the minor, whose date of birth is 02.05.2016, and who is presently residing with the appellant. This fact has also been certified by the letter dated 25.11.2025 sent by the Station House Officer, Police Station Dondilohara, District Balod, which has been taken on record. As such, criminal appeal deserves to be allowed. 5 7. On the other hand, learned Panel Lawyer appearing for the respondent / State opposes the submissions made by learned counsel for the appellant and submits that the victim belongs to scheduled tribe and the contents of the proved FIR and Court statement proves that the victim had consented for sexual intercourse with the appellant as the appellant had assured her to marry, therefore, on the pretext of marriage, consent was obtained and therefore, it cannot be said to be free consent. As such, criminal appeal deserves to be dismissed. 8. We have heard the learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 9. In the present case, the victim has been examined as PW-1. In para 1 of her Court statement, she stated that she recognize the accused standing in Court; he is a resident of her village, Kapsi. She has known him since January 2015, when she was a 12th grade student at Doundilohara School. The accused would tease her on her way to and from school, saying, "If you don't love me, I will drink poison and die in your name." She agreed under pressure. In para 2 of her statement, she stated that he gave her a mobile phone, and they would talk. He promised to marry her and had sexual relations with her. He would visit her house during the day when her parents were out in the fields, and at night when everyone was asleep. In para 4 of her statement, she stated that On March 9, 2016, he said he would elope and marry her. When 6 she tried contacting him afterward, his phone was off. She left a note at his house that night, saying, "Marry me, there is an 8- month-old child in my womb." His mother, Ganga Bai, read the note. In para 11 of her cross-examination, she admitted that her house is in School Para, a populated area with many houses nearby. She further admitted that Kapsi village is in the middle of a residential area. She also admitted that the accused's house is about 500 meters from her house. 10. In the present case, the MLC of the victim was produced before the trial court, but the doctor was not examined to prove the report. The MLC has not been exhibited, and only the application for conducting the MLC has been proved through Smt. Hemlata Netam (PW-7). 11.Before lodging the report, the victim had taken treatment from Dr. Smt.Chetna Maheshwar (PW-5) and had obtained a sonography report on 05.02.2016. This document has been seized and proved. On that date, the victim was 7 months pregnant. She was undergoing treatment, yet she did not inform anyone about it and did not lodge any report, which is sufficient to establish her consent in the matter. 12.The FSL report is positive, confirming that the appellant is the biological father of the minor, whose date of birth is 02.05.2016. The child is presently 9 years old, residing with the appellant, and studying in SAGES, Doundilohara. After leaving the minor at the 7 appellant’s house, the victim married within her community in 2017. The victim’s date of birth is 15.11.1996, and as per her report, the first incident occurred one year prior to lodging the FIR on 06.04.2016. On that day, she was about 19 years and 5 months old. 13.Before lodging the FIR, she wrote a letter and threw it into the appellant’s house on 09.03.2016. The letter was read by the appellant’s mother, and village meetings were convened twice. Thereafter, on the advice of the Panchas, the report was lodged. There is no explanation for delay in lodging the report. 14.In her court statement, the victim (PW-1) clearly stated that the appellant had given her a mobile phone through which she used to talk to him, and that when she was alone at home, the appellant would visit her and physical relations developed. There is no evidence on record to establish that the first instance of physical intimacy occurred on a false promise of marriage. This aspect has not been considered by the learned trial court. The parents of the victim have not been examined, though they were important witnesses to prove the prosecution case considering the victim’s statements and the place of incident, which was the victim’s house. 15.The Supreme Court in the matter of Deepak Gualti v. State of Haryana, (2013) 7 SCC 675 has held 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 8 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 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. 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 9 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, 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.” 16. Learned trial court convicted the appellant under Section 3(2)(v) of the Atrocities Act and imposed life imprisonment, even though the victim has nowhere stated in her testimony that the offence was committed on the ground that she belongs to a particular caste or community. On the contrary, her statements show that she used to talk to the appellant and engaged in physical relations of her own 10 free will. Therefore, the provisions of the Atrocities Act are not attracted. 17. The Supreme Court in the matter of Dinesh @ Buddha v. State of Rajasthan, 2006 AIR SCW 1123 has held as under:- “15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.” 18.Having considered the submissions of learned counsel for the parties, evaluated the evidence on record, and examined the legal position laid down by the Hon’ble Supreme Court, this Court is of the considered view that the conviction of the appellant is unsustainable. 19.The prosecution case is premised on the allegation that the appellant obtained the consent of the victim on a false promise of marriage. However, the material on record does not establish that the appellant, at the inception, had any mala fide intention or that the promise of marriage was false from the very beginning. On the contrary, the evidence demonstrates that the victim, aged about 19 11 years and 5 months at the time of the first incident, was voluntarily engaged in a long-standing relationship with the appellant. She used to converse with him on a mobile phone given by him, she permitted him entry into her house in the absence of family members, and their physical relations continued for nearly one year without any protest or disclosure to her parents. 20.The sonography report establishes that the victim was 7 months pregnant before lodging the FIR, yet she neither disclosed the fact to anyone nor made any complaint, clearly indicating her volition in maintaining the relationship. The delay in lodging the FIR is unexplained, despite two village meetings having already occurred. There is also no allegation in the FIR or in her Section 164 CrPC statement that the initial consent was obtained by fear of injury or by misconception of fact relating to a promise of marriage. 21.The Supreme Court in Deepak Gulati (supra) has categorically held that consensual intimacy arising out of love, passion, and a sustained relationship cannot later be termed as rape on the mere ground that the promise of marriage was not ultimately fulfilled. The distinguishing factor, as laid down by the Supreme Court, is the existence of mala fide intention at the very inception of the relationship something completely absent in the present case. The conduct of the victim, as revealed from the evidence, falls squarely within the principles laid down in the aforesaid judgment. 12 22.As regards the conviction under Section 3(2)(v) of the Atrocities Act, there is not even a whisper in the testimony of the victim that the alleged acts were committed on the ground that she belonged to a Scheduled Tribe. In the absence of such foundational evidence, the essential ingredient of Section 3(2)(v) of the Atrocities Act remains unproved. The Supreme Court in Dinesh @ Buddha (supra), has held that unless the offence is shown to have been committed because of the victim’s caste, the section has no application. Therefore, the conviction under the Atrocities Act is wholly untenable. 23.The trial court failed to appreciate the evidence in its correct legal perspective. The relationship was clearly consensual, and no evidence exists to show that the consent was vitiated by misconception of fact or coercion. The essential ingredients of the offences under Sections 376, 417 and 506 Part-II of the IPC as well as Section 3(2)(v) of the Atrocities Act, are not established beyond reasonable doubt. This Court is constrained to hold that the prosecution has failed to prove its case against the appellant. 24.For the foregoing reasons, criminal appeal is allowed and the impugned judgment dated 18.01.2017 passed by the Special Sessions Judge, Scheduled Caste & Scheduled Tribe (Prevention of Atrocities), Act, Balod, District Balod in Special Session Trial No.43/2016 is hereby set aside. The appellant is acquitted of the charges under Sections 376, 417 and 506 Part-II the IPC and Section 3(2)(v) of the Atrocities Act. The appellant is on bail. He is 13 not required to surrender. His bail bonds are cancelled and sureties stands discharged. 25. Keeping in view of the provisions of Section 437-A CrPC (Now Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023), the appellant is directed to furnish a personal bonds in terms of from No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith 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 thereon shall appear before the Hon’ble Supreme Court. 26. The Trial Court record alongwith the 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 Bablu