JUDGMENT : Sanjay K. Agrawal, J. 1. Invoking the criminal appellate jurisdiction of this Court under Section 374(2) of the CrPC, the sole appellant herein has preferred this appeal calling in question legality, validity and correctness of the impugned judgment & order dated 26-4-2019 passed by the 2 nd Additional Sessions Judge, Korba in Sessions Trial No.84/2017, by which he has been convicted for offences under Sections 376(2)(n) of the IPC & 67 of the Information Technology Act, 2000 (for short, ‘the IT Act’) and sentenced to undergo imprisonment for life & pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for two months and rigorous imprisonment for four years & fine of Rs. 1,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for two months, respectively, with a direction that both the sentences will run concurrently. 2. Case of the prosecution, in short, is that approximately one year prior to 20-6-2017, the appellant committed multiple sexual assaults against the major victim (PW-3) in his house and at other places and threatened to viral her objectionable photographs, and thereby committed the offence. Written report was lodged by the victim (PW-3) vide Ex.P-3. Dehati FIR was lodged at the instance of the victim vide Ex.P-4 and regular FIR was registered vide Ex.P-22. A mobile phone having objectionable content was seized from the victim vide seizure memo Ex.P-6. Pen-drive and CD containing objectionable photographs were seized vide Ex.P-9. MLC of the victim (PW-3) was conducted by Dr. Kiran Sonkar (PW-5) vide Ex.P- 10 who opined that no definite opinion about the sexual intercourse can be given. Objectionable contents were viewed and panchnama was prepared vide Ex.P-13. A mobile phone containing objectionable photographs was seized at the instance of the accused/appellant vide Ex.P-14. Crime details form Ex.P-24 was prepared by the Investigating Officer and spot map Ex.P-8 was prepared by the Patwari. 3. Statements of the witnesses were recorded under Section 161 of the CrPC. After usual investigation, the accused/appellant was charge- sheeted for offences under Sections 376(2)(n), 384 of the IPC & 67 of the IT Act and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions, Korba from where the learned 2 nd Additional Sessions Judge, Korba received the case on transfer for trial. 4. 4. The accused/appellant abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as fifteen witnesses and exhibited 27 documents. The defence has neither examined any witness nor exhibited any document in support of its case. 5. The trial Court upon appreciation of oral and documentary evidence on record, convicted the appellant under Section 376(2)(n) of the IPC primarily relying upon the evidence of the victim (PW-3) that the accused had repeatedly committed forceful sexual intercourse upon her without her consent, invoking Section 114A of the Indian Evidence Act, 1872 (for short, ‘the Evidence Act’) to presume that the victim did not consent to the sexual intercourse. The trial Court also invoked Section 90 of the IPC holding that the evidence available on record indicated that the appellant obtained the consent of the victim under fear of injury. On the aforesaid basis, the trial Court proceeded to convict and sentence the appellant under Sections 376(2)(n) of the IPC & 67 of the IT Act in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred. 6. Mrs. Indira Tripathi, learned counsel appearing on behalf of the appellant, would submit that the victim is a grown up girl aged about 24 years at the time of examination and the incident kept on happening for a period of two years prior to her examination, therefore, at that point of time also, she was more than 18 years of age. She would further submit that there is no evidence on record to hold that consent of the victim was obtained under fear of injury, therefore, the trial Court has rightly invoked Section 90 of the IPC. As such, there is no medical evidence and therefore the appellant is entitled for acquittal. 7. Mr. Pankaj Singh, learned Panel Lawyer appearing on behalf of the respondent/State, would support the impugned judgment and oppose the appeal. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record with utmost circumspection. 9. 7. Mr. Pankaj Singh, learned Panel Lawyer appearing on behalf of the respondent/State, would support the impugned judgment and oppose the appeal. 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also gone through the record with utmost circumspection. 9. Admittedly, the victim (PW-3) was major aged about 24 years at the time of incident and to establish the case of rape against the appellant, the prosecution was required to establish beyond reasonable doubt that the consent of the victim (PW-3) was obtained by the appellant under fear of injury and for the said reason, such consent was an invalid consent under Section 90 of the IPC. The trial Court has primarily relied upon the evidence of the victim (PW-3) to hold and conclude that her consent to sexual relations was obtained by the appellant under fear of injury and the said finding of fact was the basis for conviction under Section 376(2)(n) of the IPC. Explanation 2 to Section 375 of the IPC defines consent in the context of the offence of rape which states as under: - “Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.” 10. A careful perusal of the aforesaid Explanation would show that consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act; provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Thus, consent as defined under Section 375 of the IPC includes verbal and non-verbal communication. 11. The Supreme Court in the matter of State of H.P. v. Mango Ram , (2000) 7 SCC 224 while examining the idea of ‘consent’ in the context of Section 375 of the IPC, held as under: - “13. … Submission of the body under the fear of terror cannot be construed as a consented sexual act. 11. The Supreme Court in the matter of State of H.P. v. Mango Ram , (2000) 7 SCC 224 while examining the idea of ‘consent’ in the context of Section 375 of the IPC, held as under: - “13. … Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and 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. ...” 12. At this stage, it would be appropriate to notice Section 90 of the IPC, which is couched in a negative language. It states as under: - “ 90. Consent known to be given under fear or misconception .—A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person .—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child .—unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.” 13. Though Section 90 of the IPC provides that the consent obtained by way of ‘fear of injury’ would not constitute a legally valid consent, the provision does not detail the specifics of ‘fear of injury’. However, Section 44 of the IPC defines ‘injury’ as under: - “ 44. “Injury” .—The word “injury denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.” Similar is the definition of ‘injury’ under Section 2(14) of the Bharatiya Nyaya Sanhita, 2023. As such, the term ‘injury’ covers harm not only to the body but also to mind, reputation and property. 14. “Injury” .—The word “injury denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.” Similar is the definition of ‘injury’ under Section 2(14) of the Bharatiya Nyaya Sanhita, 2023. As such, the term ‘injury’ covers harm not only to the body but also to mind, reputation and property. 14. The Supreme Court in the matter of Pradeep Kumar alias Pradeep Kumar Verma v. State of Bihar and another , (2007) 7 SCC 413 while elucidating the concept of 'consent' as engrafted in Section 90 of the IPC, held that 'consent' is in two parts, fear of injury and misconception of fact, and observed as under: - 10. xxx xxx xxx 19. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.” xxx xxx xxx 11. “21. In most of the decisions in which the meaning of the expression ‘consent’ under the Penal Code was discussed, reference was made to the passages occurring in Stroud's Judicial Dictionary, Jowitt's Dictionary on English Law, Words and Phrases, Permanent Edn. and other legal dictionaries. Stroud defines consent as ‘an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side’. Jowitt, while employing the same language added the following: ‘Consent supposes three things—a physical power, a mental power and a free and serious use of them. and other legal dictionaries. Stroud defines consent as ‘an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side’. Jowitt, while employing the same language added the following: ‘Consent supposes three things—a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.’ xxx xxx xxx xxx xxx xxx xxx xxx xxx” 15. Similarly, in the matter of Satpal Singh v. State of Haryana , (2010) 8 SCC 714 their Lordships of the Supreme Court have defined the term ‘consent’ as under: - “ 30. It can be held that a woman has given consent only if she has freely agreed to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to, it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. An act of helplessness in the face of inevitable compulsions is not consent in law. More so, it is not necessary that there should be actual use of force. A threat of use of force is sufficient.” 16. In view of the aforesaid discussion, having noticed the definition of 'consent' and the principles of law laid down by the Supreme Court in Pradeep Kumar (supra) and Satpal Singh (supra), the moot question would be, whether the victim's (PW-3) consent to repeated sexual intercourse was not valid because it was allegedly obtained by the appellant under 'fear of injury' within the meaning of Section 90 of the IPC, thereby rendering the sexual acts "rape" under Section 375 of the IPC? 17. Admittedly, the victim (PW-3) was a major through the period in question i.e. approximately one year prior to 20-6-2017. Thus, for the offence of rape to be made out, the prosecution was required to prove beyond reasonable doubt that the ostensible consent was not valid in law having been obtained by the appellant under 'fear of injury'. 18. 17. Admittedly, the victim (PW-3) was a major through the period in question i.e. approximately one year prior to 20-6-2017. Thus, for the offence of rape to be made out, the prosecution was required to prove beyond reasonable doubt that the ostensible consent was not valid in law having been obtained by the appellant under 'fear of injury'. 18. A careful analysis of the statement of the victim (PW-3) before the Court would reveal that the first incident of sexual intercourse occurred when she voluntarily visited the residence of the appellant. She has admitted that at the relevant time, both of them had developed an affection for each other. Although the victim has stated that the first act of sexual intercourse was without her consent, she has simultaneously deposed that she did not register any protest, as she had affection and feelings for the appellant. This admission weakens the assertion that her will was obtained by fear at the inception. The victim (PW-3) has further stated that the appellant had taken objectionable photographs during the first incident and had thereafter used them to coerce her for maintaining the sexual relationship for the next one and half year. However, the mere assertion of such fear, without corresponding conduct that reflects helplessness or coercion, is insufficient to displace the presumption of voluntariness, particularly where the surrounding circumstances indicate otherwise. 19. In the present case, the conduct of the victim (PW-3) throughout the subsistence of relationship is inconsistent with a state of sustained fear or coercion. She has admitted in her cross-examination that she remained in a romantic relationship with the appellant for two years and multiple acts of sexual intercourse occurred during that period owing to her love and affection for him. She has also stated that she had frequently visited the house of the appellant, interacted respectfully with his mother and was treated by the family as a prospective daughter-in-law. No conduct indicative of apprehension, emotional distress or continual coercion emerges from her testimony. On the other hand, the victim (PW-3) has candidly admitted that she desired to marry the appellant and her family disapproved of the relationship on account of perceived social inequality. No conduct indicative of apprehension, emotional distress or continual coercion emerges from her testimony. On the other hand, the victim (PW-3) has candidly admitted that she desired to marry the appellant and her family disapproved of the relationship on account of perceived social inequality. Her evidence further reveals that the filing of FIR was immediately preceded by an altercation between Ismail Sona (PW-2) – brother of the victim and the appellant's friends, suggesting external pressure and familial tension rather than fear of injury emanating from the appellant. 20.The Supreme Court in Mango Ram's case (supra) has clearly held that submission of the body under terror does not amount to consent, but whether consent is voluntary must be determined from the totality of circumstances. 21. In the present case, the conduct of the victim (PW-3), her admissions of affection, her desire to marry the appellant and her continued voluntary association with him over an extended period, demonstrate that the alleged fear was neither constant nor the operative reason for her participation in the sexual acts. 22.In view of the aforesaid discussion, it is unsafe to conclude that the victim (PW-3) harboured such apprehension of harm to her reputation as would render her incapable of exercising her free will for nearly one and half year. 23.Now, the question is, whether the accused/appellant knew/had reason to believe that consent was fear-induced? 24.The second limb of Section 90 of the IPC requires the accused/appellant to know, or have reason to believe, that the alleged consent was given under fear. The evidence on record does not establish this essential ingredient, nor has a finding of fact in respect to the said consent has been recorded by the learned trial Court. Rather the continued romantic relationship, the desire for marriage expressed by the victim (PW-3) and her regular visits to the appellant’s house would reasonably lead the appellant to believe that the sexual relationship was consensual and a natural incident of their mutual affection. Thus, there is no evidence that the victim (PW-3) revealed the alleged threat to any third party, even when her family grew suspicious of the relationship. These circumstances would negate the inference that the appellant was conscious of any fear-induced submission. Thus, there is no evidence that the victim (PW-3) revealed the alleged threat to any third party, even when her family grew suspicious of the relationship. These circumstances would negate the inference that the appellant was conscious of any fear-induced submission. 25.In the aforesaid cumulative circumstances, the prosecution has failed to prove that the consent of the victim (PW-3) was vitiated by ‘fear of injury’ within the meaning of Section 90 of the IPC. Her testimony, read as a whole, depicts a consensual romantic relationship rather than sexual acts compelled by threats or coercion. Equally, it is not reflected from the record that the appellant possessed the requisite knowledge that her consent was caused by fear. In that view of the matter, it is difficult to sustain the finding of absence of consent recorded by the trial Court and it is also difficult to sustain the finding of conviction recorded by the trial Court. 26. Similarly, the testimonies of mother of the victim – Rut Sona (PW-1), brothers of the victim – Ismail Sona (PW-2) & Ishak Sona (PW-4) and her relative Atul Kumar (PW-9) also point towards a conclusion that the victim (PW-3) was in a relationship with the appellant, which continued for a substantial time. 27. Furthermore, the statement of the victim (PW-3) before the Court is marred by inconsistencies and contradictions which prevent her from being considered as a ‘sterling witness’. The threshold of a ‘sterling witness’ has been laid down by the Supreme Court in the matter of Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21 by holding as under: - “ 22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 28.Similarly, in the matter of Tameezuddin alias Tammu v. State (NCT of Delhi) , (2009) 15 SCC 566 their Lordships of the Supreme Court have held that though evidence of prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter, and observed as under: - “ 9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that the story is indeed improbable.” 29.In that view of the matter, we are unable to sustain the conviction of the appellant for offence under Sections 376(2)(n) of the IPC & 67 of the IT Act and more particularly, the finding of the trial Court that consent of the victim (PW-3) was obtained by the appellant under fear of injury as mandated under Section 90 of the IPC. 30.Consequently, we set aside the conviction so recorded and the sentences so awarded by the trial Court to the appellant vide the impugned judgment dated 26-4-2019. The appellant is acquitted of the charges under Sections 376(2)(n) of the IPC and 67 of the IT Act. He is on bail. He need not surrender. 30.Consequently, we set aside the conviction so recorded and the sentences so awarded by the trial Court to the appellant vide the impugned judgment dated 26-4-2019. The appellant is acquitted of the charges under Sections 376(2)(n) of the IPC and 67 of the IT Act. He is on bail. He need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC. 31. The appeal stands allowed.