JUDGMENT : Naresh Kumar Chandravanshi, J. 1. This criminal appeal has been preferred against judgment of conviction and order of sentence dated 21.02.2022 passed by Additional Sessions Judge (FTC), Bastar at Jagdalpur in Session Case No.50/2020, whereby the appellant has been convicted and sentenced in the following manner:- 2. The case of the prosecution, in brief, is that victim/prosecutrix lodged a written complaint (Ex-P/1) in Police Station Bastar at Jagdalpur to the effect that she is resident of village Mongrapal and her marriage was fixed with a person from village Kusma (Kondagaon) on 28.5.2020, but on 27.5.2020, Rupesh Kumar Puri, R/o. Mongrapal took her to his house on the promise that he will marry her and in the night he had physical relation with her. Despite her refusal he continued to have physical relationship with her on the promise of marriage, but on 07.8.2020 he ousted her by threatening and refused to marry her. Based on the written complaint (Ex.P/1), FIR (Ex-P/2) was lodged at Police Station Bastar against the appellant for the offence under Section 376 IPC. Statement of the witnesses were recorded. Statement of the victim under Section 164 CrPC was recorded before Judicial Magistrate First Class, Jagdalpur. Progress report (Article 01) of Class VIII of the victim was seized vide Ex-P/3. Spot Map (Ex-P/6) was prepared by Patwari. The victim was medically examined by Dr. Shrinkhala Jain (PW-3) and vide MLC report (Ex-P/9), she opined that any definite opinion regarding rape cannot be given. Vaginal smear slide and vaginal swab of the victim were seized vide Ex-P/10 and the same were sent to FSL for chemical examination. In which vide FSL report Ex.P/20 it was opined that no human spermatozoa was found in the vaginal smear and vaginal swab. The appellant was arrested vide Ex-P/17. The appellant was also got medically examined by Dr. RKS Raj (PW-6) and vide MLC report Ex-P/12, he opined that the appellant is not incapable to perform sexual intercourse. After completion of investigation, charge sheet for the offence under Section 376 IPC was filed against the appellant before Judicial Magistrate First Class, Bastar at Jagdalpur, who in turn committed the case to the Court of Sessions Judge, Bastar at Jagdalpur and the case was transferred to Additional Sessions Judge (F.T.C.), Bastar at Jagdalpur, who conducted the trial. 3. After completion of investigation, charge sheet for the offence under Section 376 IPC was filed against the appellant before Judicial Magistrate First Class, Bastar at Jagdalpur, who in turn committed the case to the Court of Sessions Judge, Bastar at Jagdalpur and the case was transferred to Additional Sessions Judge (F.T.C.), Bastar at Jagdalpur, who conducted the trial. 3. The learned Additional Sessions Judge (FTC), Jagdalpur framed charges under Section 376(2)(n) of IPC against the appellant/accused who denied the charges and claimed for trial. 4. In order to bring home the guilt of the appellant/accused, the prosecution has examined as many as 08 witnesses and exhibited 20 documents. Statement of the appellant/accused under Section 313 CrPC was recorded, in which he denied the incriminating circumstances appearing against him in the prosecution evidence and pleaded innocence. No witnesses have been examined by the appellant/accused in his defense. 5 . The trial Court upon appreciation of oral and documentary evidence available on record, vide its judgment dated 21.02.2022, finding evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant/accused for the offence under Section 376(2)(n) of IPC, as mentioned in the opening paragraph, against which this appeal has been filed by him. 6. Learned counsel for the appellant submits that the victim and the appellant are resident of same village and there was love affair between both the parties for long period. Earlier also under pressure of her maternal uncle (mama), the victim lodged FIR against the appellant for the offence under Section 354/34 IPC and Section 8 of the Protection of Children from Sexual Offences Act, in which the appellant has been acquitted by the trial Court vide judgment dated 14.8.2014. He further submits that even after that case, they both continued to be in relationship and the victim, who was aged about 21 years at the time of the incident of the instant case, had physical relationship with the appellant of her own free will and consent. He further submits that as per the case of the prosecution, both the parties are in consensual relationship for three months as per the FIR and even the victim was also residing in the house of the appellant. Learned counsel further submits that since the appellant was posted in CAF, 19 Pokhran Battalion Jagdalpur, therefore, he had gone to his duty leaving behind the victim along with his parents in his house. Learned counsel further submits that since the appellant was posted in CAF, 19 Pokhran Battalion Jagdalpur, therefore, he had gone to his duty leaving behind the victim along with his parents in his house. But because of quarrel between the victim and the parents of the appellant, the victim left the house of the appellant and under pressure of maternal uncle (mama), who is also working in Police Department and have property dispute with the family of appellant/accused, the victim lodged FIR. He further submits that the victim (PW-1) and her mother (PW-2) have admitted that if parents of the appellant would not have harassed her, then she would not have lodged FIR. Learned counsel further submits that it is not a case of rape, rather it is a case of long consensual physical relationship. Medical report of the victim does not support the case of the prosecution, despite that without any lawful evidence, the learned trial Court has convicted the appellant. Hence, it is prayed that the 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 would submit that though there had been love affair between the victim and the appellant, but the appellant deceived the victim. She further submits that marriage of the victim was fixed with a person namely Ishwar on 28.5.2020 (actual date 28.6.2020), but one day prior to that date i.e. on 27.6.2020, the appellant took the victim to his house and on the pretext of marriage, he sexually exploited her repeatedly for about 2½ months. Subsequently, he ousted her and refused to marry her. She further submits that keeping the victim for about 2½ months on the pretext of marriage and having physical relationship with her by the appellant cannot be termed that the victim was consenting party, as her consent was obtained by the appellant under the misconception of facts, i.e. on pretext of marriage. She further submits that impugned judgment is based on well appreciation of the evidence, hence, the appeal may be dismissed. 8. I have heard learned counsel for the parties and perused material available on record. 9 . She further submits that impugned judgment is based on well appreciation of the evidence, hence, the appeal may be dismissed. 8. I have heard learned counsel for the parties and perused material available on record. 9 . It is evident from case of prosecution as well as deposition of the victim that victim and appellant/ accused are resident of same village. Victim in her deposition has stated that her marriage was to be solemnized on 28.5.2020 (actual date 28.6.2020) with a person, resident of village Kusma, but, prior to one day of her marriage, appellant/ accused abducted her on pretext of marriage, took her to his house and sexually exploited her. She has further stated that appellant/ accused kept her in his house for about 2½ months, thereafter, he ousted her by beating her and also refused to marry. Therefore, she made written complaint (Ex. P/1), based on which, FIR (Ex.P/2) was lodged by Sub-Inspector Smt. Shail Pawar (PW8). 10 . PW2 is mother of victim and PW5 is father of victim, they have also stated in their deposition that one day prior to marriage of victim, appellant took her to his house, therefore, Panchayat was convened in the village, in which, it was decided that victim will reside with the appellant/accused in his house, which was also accepted by the appellant/accused. They have further stated that after few days, appellant ousted the victim, which was reported to the Police, who made to understand him, upon which appellant again kept the victim in his house. PW2 & PW5 have also stated that victim resided with the appellant for about 1½ months in his house. 11 . Dr. Shrinkla Jain (PW3) conducted medical examination of victim, in which, vide MLC report (Ex.P/9) she opined that, since no external or internal injury was found over the body of victim, definite opinion cannot be given with regard to rape of the victim. She (PW3) prepared two vaginal smear/slides and one vaginal swab of victim for chemical examination. Ex.P/20 is FSL report of that vaginal smear and vaginal swab which is found negative as no human spermatozoa has been reported to be found on aforesaid smear and swab, as such, medical report and FSL report are not supportive to the case of prosecution. 12 . Other witnesses are not witnesses of fact, rather they are formal witnesses. Ex.P/20 is FSL report of that vaginal smear and vaginal swab which is found negative as no human spermatozoa has been reported to be found on aforesaid smear and swab, as such, medical report and FSL report are not supportive to the case of prosecution. 12 . Other witnesses are not witnesses of fact, rather they are formal witnesses. Victim (PW1), mother of victim (PW2) and father of victim (PW5) are only material witnesses examined by the prosecution to prove the charge. These witnesses have clearly stated in their deposition that one day prior to marriage of victim, appellant/accused abducted her and took her to his house, where he kept her for about 1½ – 2½ months and also made physical relation with her. But, on perusal of cross-examination of victim and her parents, it is clear that alleged incident did not happen all of a sudden, rather victim herself has admitted in her cross-examination at paragraph 17 that she fell in love affair with the appellant/ accused prior to 2013 and they used to meet each-other. From the admission made by victim in her cross- examination at paragraph 5, it is found that earlier she had also lodged report against the appellant for which he had been tried, however that case has been closed now as during course of submission, learned counsel for appellant submitted that appellant had been acquitted in that case. 13 . Victim has admitted in her cross-examination at paragraph 6 that after closing of aforesaid case, she herself had sent friend request to the appellant in year 2020, thereafter, they used to chat on Facebook and also talk over phone. Mother of victim has also admitted in her cross-examination that victim and appellant liked each-other and that is why their marriage talk was also going on, but, they (family members of victim) refused for their marriage because of parents of appellant/accused. Thus, it is found proved from evidence of victim and her parents that since 2013 victim and appellant were in love affair, though, at one point of time, she has lodged criminal case against appellant, but, even after completion of that criminal case, victim herself again got engaged in affair with the appellant which is specifically admitted by her in suggestion taken by defense counsel at paragraph 6 of her cross-examination. From the suggestion taken by learned defense counsel in cross-examination, it is also found proved that one day prior to marriage of victim, appellant took her to his house and kept her for about 2 months and made physical relation with her, allegedly on pretext of marriage. 14 . Victim in her deposition has stated that after keeping her for about 2-2 ½ months, appellant ousted her by beating. She has admitted in her cross-examination that after going to the house of appellant quarrel started between them. She has further stated that appellant and his family members used to harass her, if they would not have quarreled and harassed her, then she would not have lodged the FIR. 15 . Mother of victim (PW2) has also admitted suggestion of defense counsel in her cross-examination that if parents of appellant would have kept the victim well, then they would not have lodged the FIR. Father of victim (PW5) has also admitted suggestion of learned defense counsel that since marriage of victim did not solemnize with Ishwar, Ishwar demanded Rs. 30,000/-, which was suggested by the Panchayat to be paid by appellant/accused, but, appellant denied to pay. Therefore, they themselves have paid Rs. 30,000/- to Ishwar. He has further admitted that if appellant would have paid Rs.30,000/- to Ishwar then they would not have lodged the FIR against appellant. 16 . Having considered whole evidence of victim and her parents, it is very well proved that one day prior to marriage of victim, appellant took her to his house and kept her for about 2 months and made physical relation. Victim herself has admitted in paragraph 14 that alleged physical relation was made with the will and consent of both the parties as they used to like each other very much. At the time of incident, appellant was posted as constable and he was entrusted duty in Armory of the 5 th Battalion, therefore, for about one month he could not get leave which somehow also get support from deposition of her (victim) parents. At the time of incident, appellant was posted as constable and he was entrusted duty in Armory of the 5 th Battalion, therefore, for about one month he could not get leave which somehow also get support from deposition of her (victim) parents. It seems that since after taking victim to his house, appellant was not granted leave for about one month because of his sensitive duty and on account of which, quarrel started between victim and parents of appellant, though it has been stated that sometimes in night appellant used to come and meet victim in aforesaid period and he used to had quarrel with victim and because of such quarrel and dispute, victim left his house. As victim and her mother herself has admitted in their cross- examination that if there would have been no quarrel and harassment with victim by parents of appellant, then they would not have lodged FIR against him. If appellant would not have interest in victim, then he would not have taken her to his house, rather, it is found evident that they had good relation between them, but, relation of victim with parents of appellant was not cordial, therefore, dispute arose and present FIR was lodge, hence, it cannot be said that appellant was not ready to marry victim, rather, in cross-examination of victim at paragraph 21, victim herself has stated that now if appellant wants to marry her despite that she does not want to marry him. 17 . Thus, victim herself as admitted in her cross-examination at paragraph 21 that whenever she made physical relation with appellant during their love affair, it was consensual and during affair they were ready to marry each-other. But it is found from the evidence as has been discussed above that under such love and affection she also accompanied appellant and resided in his house with her own free will, however, she was not satisfied with the behaviour of parents of appellant, therefore, their relation become sour. Hence, it cannot be said that appellant was not ready to marry her and willingness and consent of victim for alleged physical relation was obtained by appellant in misconception of fact, rather, it is found that victim herself indulged in such relation for long time with the appellant. 18. Recently in the case of Prithivirajan Vs. Hence, it cannot be said that appellant was not ready to marry her and willingness and consent of victim for alleged physical relation was obtained by appellant in misconception of fact, rather, it is found that victim herself indulged in such relation for long time with the appellant. 18. 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 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.” 19. 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. 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.” 20. 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 7 years. Relation for such a long period cannot be given colour of rape when victim herself accompanied the appellant/accused to his house 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 Additional Sessions Judge against the appellant/accused convicting him under Section 376(2)(n) of the IPC is not sustainable. Hence, I feel inclined to allow instant criminal appeal. 21. In the result, the criminal appeal is allowed . Conviction and sentence imposed on the appellant/accused by the impugned judgement under Section 376 (2)(n) of the IPC are set aside and he is acquitted of the said charge. The appellant/accused is on bail. He need not surrender. Hence, I feel inclined to allow instant criminal appeal. 21. In the result, the criminal appeal is allowed . Conviction and sentence imposed on the appellant/accused by the impugned judgement under Section 376 (2)(n) 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 a period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 22. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith.