1 2025:CGHC:61514 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 647 of 2022 Upendra Yadav S/o Ramji Yadav, Aged About 27 Years R/o Patpar, Baghel Nagar, P.S. Bhatapara Shahar, District Baloda Bazar Bhatapara (Chhattisgarh) ... Appellant versus State Of Chhattisgarh Through The Police Station City Kotwali, District Baloda Bazar Bhatapara Chhattisgarh ... Respondent For Appellant : Mr. Parth Kumar Jha, Advocate For Respondent/State : Ms. Anuradha Jain, Panel Lawyer (Hon’ble Shri Justice Naresh Kumar Chandravanshi) Judgment on Board 17.12.2025 1. This criminal appeal has been preferred against judgment of conviction and order of sentence dated 28.3.2022 passed by First Upper Sessions Judge (FTC), Baloda Bazar, Distt. Baloda Bazar-Bhatapara (henceforth referred as ‘trial Court’) in Case No.06-2019 (CNR NO.CGBB01- 000061-2019), whereby the appellant has been convicted and sentenced in the following manner:- Sl. No. Conviction u/S. Jail sentence Fine Sentence Default stipulation 01. 376 IPC RI for 10 years Rs.5000/- RI for 01 year 02. 506 IPC RI for 03 years Rs.500/- RI for 01 month BINI PRADEEP Digitally signed by BINI PRADEEP Date: 2026.01.02 15:39:37 +0530 2 2. The case of the prosecution, in brief, is that on 13.9.2017, victim/ prosecutrix made written complaint (Ex-P/3) in Police Station City Kotwali, Baloda Bazar, alleging therein that in the year 2011, she and the appellant were residing in the quarters of Ambuja Cement Factory, Village Revan. On 03.12.2011, when she was alone in her house, the appellant came there and sexually exploited her. When she told him that she would inform about the incident to her family members, the appellant proposed to marry her. Thereafter, on the pretext of marriage, the appellant sexually exploited her till 2017. When the victim asked the appellant to marry her, he would say that his family members are not ready for an inter caste marriage. Ultimately on 22.4.2017, the appellant refused to marry her, therefore, written complaint (Ex-P/3) was made by the victim, based on which, FIR (Ex-P/4) was lodged in Police Station Baloda Bazar Distt. Baloda Bazar-Bhatapara. During the course of investigation, statement of the victim under Section 164 CrPC was got recorded from concerned Judicial Magistrate vide Ex-P/7, spot map (Ex- P/5) was prepared, the victim was medically examined by Dr. Neha Gangeshri (PW-1), she prepared two vaginal slides of the victim, which were seized by the police vide Ex-P/8. The appellant was arrested on 22.12.2017 vide Ex-P/11. The appellant was also medically examined by Dr. Abhijit Banerjee (PW-6), in which he reported positive vide his report (Ex-P/9). After completion of investigation, charge sheet for the offence under Sections 376 & 506 IPC was filed before the Chief Judicial Magistrate, who committed the case to the Sessions Judge. Thereafter, the case was transferred to First Upper Sessions Judge, Baloda Bazar for its trial. 3. The learned First Upper Sessions Judge framed charges under Sections 376 and 506 IPC, against the appellant, who denied the charges and claimed for trial. 3 4. In order to bring home the guilt of the appellant/accused, the prosecution has examined as many as 09 witnesses and exhibited 12 documents along with Articles Ex-C/1 & C/2. Statement of the appellant/ accused under Section 313 CrPC was recorded, in which, he denied all the incriminating circumstances appearing against him and pleaded innocence. He has also examined himself in his defence. 5. The trial Court upon appreciation of oral and documentary evidence available on record, vide its judgment dated 28.3.2022, finding evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant/accused, as has been mentioned in the opening paragraph of this judgment, against which this appeal has been filed by him. 6. Learned counsel for the appellant submits that at the time of the incident, the victim was an adult lady studying in the College, thus, she was very well aware of her well beings. He further submits that in the year 2011, both parties were living with their parents at Ambuja Cement Factory colony, Revan, and were neighbours. Therefore, they met occasionally, but the victim pressurized the appellant to marry her, which he consistently refused. When the appellant was transferred and moved to Gujarat, the victim also went there under the garb of pursuing her studies. There also she used to pressurize the appellant to marry her and this fact was informed by the appellant to the victim’s father. Learned counsel next submits that the appellant never had physical relation with the victim, despite that he has been falsely implicated in the instant case and only considering the face value of the deposition of the victim, without any corroboration of the medical evidence or any other evidence, the learned trial Court, completely relying upon the deposition of the victim, has convicted the appellant, which is perverse to the evidence available on record, hence, it is prayed that the 4 appeal may be allowed by setting aside impugned judgment of conviction and order of sentence passed by the trial Court and the appellant may be acquitted of the charges. 7. Per contra, learned counsel for the State supports the impugned judgment as well as the sentence part also. 8. I have heard learned counsel for the parties and perused material available on record. 9. As per the written complaint (Ex-P/3), statement of the victim recorded under Section 164 CrPC (Ex-P/7) and deposition of the victim, the victim and the appellant were in physical relation from 2011 to initial months of 2017, i.e. for about 05 years. But surprisingly, both of them have denied that they were in love affair with each other. The victim has stated in her deposition that the appellant made physical relation with her for the first time on 03.12.2011, thereafter, on the pretext of marriage, he repeatedly sexually exploited her for more than five years. If it was so, then without any love affair, how such physical relation will go on. But denying love affair by the victim shows that she has not approached the Court with clean hands. 10. As per the deposition of the victim, on the pretext of marriage, the appellant sexually exploited her for more than 05 years at various places, i.e. in her house, in the house of the appellant, Bhilai as well as at Gujarat, where the appellant was posted. She has stated that the appellant got job in the year 2013, thereafter when she proposed him for marriage, he told her that after completion of her graduation, he will marry her. She has further stated that after completion of her graduation, she again asked the appellant to marry her, then he said that his family members are not ready for inter caste marriage, therefore, he could not marry her, as both belong to different caste. Proposal of marriage by the victim was allegedly avoided by the 5 appellant in the year 2013 as also after passing her graduation, despite that, she indulged in physical relation with him for a long period. 11. Father of the victim (PW-2) has stated that the victim informed him about the alleged sexual exploitation by the appellant in the year 2015- 16. He also asked the appellant to marry the victim, but he refused, despite that, the victim and the appellant remained in physical relation. As per the FIR (Ex-P/4), the appellant had lastly refused to marry the victim on 22.4.2017, despite that, report was lodged on 13.9.2017, i.e. after about 05 months after the appellant's alleged last refusal. Except the deposition of the victim and her father, there is no other witnesses examined by the prosecution to substantiate the factual aspects of the case. Dr. Neha Gangeshri (PW-1) has examined the victim and vide her report (Ex-P/1), she opined that she did not find any injury on her person, therefore, she has not given any opinion about intercourse with the victim. She prepared two vaginal slides of the victim, which were seized by the police vide Ex-P/8. But it has neither been proved that those slides were sent to FSL for chemical examination nor the report has been filed/proved. 12. Thus, except the deposition of the victim and her father (PW-2), there is no other evidence about alleged physical relation between the parties. The appellant has also examined himself as his defence witness, but he has also not stated that they were in love affair and indulged in physical relation for a long period. If the evidence of the victim and her father is taken into consideration, then it is found that it is a case of physical relation between two adult persons for long period of 05 years. 13. Hon’ble Supreme Court in the case of Pramod Suryabhan Pawar v. State of Maharashtra (2019) 9 SCC 608, while considering the consent in similar situation has observed as under: 6 “12. This Court has repeatedly held that consent with respect to Section 375 IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action. In Dhruvaram Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : 2018 SCC OnLine SC 3100] which was a case involving the invoking of the jurisdiction under Section 482, this Court observed : (SCC para 15) “15. … An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of.” This understanding was also emphasised in the decision of this Court in Kaini Rajan v. State of Kerala [Kaini Rajan v. State of Kerala, (2013) 9 SCC 113 : (2013) 3 SCC (Cri) 858] : (SCC p. 118, para 12) “12. … “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of the moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.” X X X X 14. In the present case, the “misconception of fact” alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v. State of Chhattisgarh [Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1 : 2019 SCC OnLine SC 509] , this Court held : (SCC para 12) “12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry 7 and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 IPC and can be convicted for the offence under Section 376 IPC.” Similar observations were made by this Court in Deepak Gulati v. State of Haryana [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] (Deepak Gulati) : (SCC p. 682, para 21) “21. … 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;” X X X X 16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman's “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] this Court observed : (SCC pp. 682-84, paras 21 & 24) “21. … 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 8 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. * * * 24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance”. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, [Ed. : The matter between two asterisks has been emphasised in original.] unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her [Ed. : The matter between two asterisks has been emphasised in original.] .” 9 X X X 18. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.” 14. The Hon’ble Supreme Court in the case of Uday v. State of Karnataka (2003) 4 SCC 46, while dealing with factual circumstances exists in the said case has observed as under/: 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. X X X 23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up 10 girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact. x x x 25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by 11 the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. 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 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. 15. Recently in the case of Prithvirajan Vs. State, represented by Inspector of Police and Another (2025) SCC Online SC 696, has held in para 6 & 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 10 Maharashtra 2024 SCC OnLine SC 3471] 12 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 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. Reverting to the facts of the instant case, it is also a case of consensual relation for more than five years, despite being different castes; 13 despite 2-3 times refusal by the appellant to marry the victim, who is well educated lady, she continued the alleged physical relation with him for more than five years, therefore, it cannot be considered that consent was obtained by the appellant under misconception of facts. Further, the victim has represented before this Court by her counsel Ms. Ashwini Goverdhan and her counsel has also filed affidavit dated 20.5.2024 of the victim, in which she has stated that she is married to another person and living happily, therefore, she does not want to prosecute this case any more. Even otherwise, no cogent evidence is found in the case to uphold impugned judgment of conviction and sentence of the appellant for the offence under Sections 376 and 506 IPC. Therefore, the impugned judgment is not found sustainable. Hence, I feel inclined to allow instant criminal appeal. 18. In the result, the criminal appeal is allowed. Impugned judgment of conviction and order of sentence passed against the appellant for the offences punishable under Sections 376 and 506 IPC are set aside and the appellant is acquitted of the said charges. 19. The appellant is on bail. The bail bonds furnished by the appellant shall remain in operation for a period of 06 months from today, in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 20. Let a certified copy of this judgment along with record of the concerned Court below be transmitted forthwith for compliance and needful, if any. Sd/- (Naresh Kumar Chandravanshi) Judge Bini 14