1 2026:CGHC:8182 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2123 of 2025 (Arising out of judgment dated 15/09/2025 passed by learned Additional Sessions Judge (FTC), Durg, Chhattisgarh in Sessions Case No.51/2025) Daneshwar Yadu @ Chhotu S/o Shyamacharan Yadu aged about 31 years, R/o Village Dhuma Bhathapara, P.S. Patan, District : Durg, Chhattisgarh ... Appellant versus State of Chhattisgarh, through Station House Officer, Police Station Padmanabhpur, District : Durg, Chhattisgarh ... Respondent For Appellant : Mr. Chandresh Shrivastava, Advocate For Respondent/State : Mr. Karan Kumar Bahrani, P.L. Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board 13.02.2026 1. This Criminal Appeal under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 challenges the judgment dated 15/09/2025 (hereinafter referred to as "the impugned judgment") passed by learned Additional Sessions Judge (FTC), Durg, Chhattisgarh in Sessions Case No.51/2025 (State of Chhattisgarh vs. Daneshwar Yadu @ Chhotu), whereby, the appellant/accused has been convicted and sentenced as under:- SHUBHAM SINGH RAGHUVANSHI Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2026.02.18 16:52:04 +0530 2 Conviction Sentence Under Section 376(2)(n) of the Indian Penal Code 1860 10 years rigorous imprisonment and fine of Rs.25,000/-, in default of payment of fine, additional 3 months simple imprisonment. 2. The prosecution's case, summarized as follows: the 26-year-old prosecutrix (PW-1) is a resident of Dallirajhara, District Balod. She alleged that the appellant had engaged in physical relations with her for the past eight years under false promises of marriage, and later refused to marry her. He thereby subjected her to physical and mental torture. According to the prosecutrix, the appellant first had physical relations with her in May 2017 at a rented house in Dhanora village and subsequently continued to have physical relations with her at various locations, promising marriage. Whenever the prosecutrix discussed for marriage, the appellant kept postponing it, claiming that his parents would not agree to the marriage and would throw him out of the house, preventing him from marrying her. When the appellant finally refused to marry her, the prosecutrix informed her family about the entire incident. Subsequently, a telephone conversation took place between the families of both parties, in which the accused threatened to kill. Subsequently, a written complaint (Exhibit P-1) was submitted to the Padmanabhpur police station on 20.01.2025, based on which First Information Report (Exhibit P-2) was registered. During the investigation, the prosecutrix underwent a medical examination, prepared slides were sent for chemical testing, a scene map was prepared, witnesses' statements were taken, and after a thorough investigation, a charge sheet was filed. 3. During the trial, to prove the charges, the prosecution examined a total of 05 witnesses and exhibited 26 documents in support of its case. In the statement under Section 313 of the Code of 3 Criminal Procedure, the accused denied the statements of the witnesses who came against him pleaded innocence and false implication. However, no defence witness has been examined by him in his defence. Thereafter, the Trial Court, after hearing both the parties, convicted and sentenced the appellant/accused as mentioned in opening paragraph of this judgment, which has been challenged in this appeal. 4. The learned counsel for the appellant/accused argued that the prosecutrix (PW-1) was a fully adult, educated, and intelligent woman, with a postgraduate education and capable of fully understanding her own interests and harms. She was a consenting party throughout the entire incident, having freely entered into relations with the accused on numerous occasions. During this period, she did not lodge any complaints. She has made exaggerated statements before the Court. It was also argued that during cross-examination, the prosecutrix admitted that she had not mentioned in her police statement the facts she elaborated upon during the main examination. The learned Counsel also argued that social meetings or panchayats are generally held to resolve marital or family disputes, but in this case, no such attempt was made by the prosecutrix. The prosecutrix was a fully consenting party throughout the entire incident, which is clearly reflected in her entire testimony. Despite this, the trial Court erroneously convicted and sentenced the appellant/accused, failing to properly evaluate his evidence. The impugned judgment in question is not sustainable. Therefore, the appeal may be allowed and the accused may be acquitted. The learned counsel cited the judgment in Ravish Singh Rana v. State of Uttarakhand and another1, in support of his argument. 5. The learned counsel for the respondent/State opposed this appeal, arguing that the prosecution witnesses fully supported the prosecution case and there is no reason to disbelieve it. The 1AIR Online 2025 SC 441 4 impugned judgment was based on a proper discussion of the evidence. The prosecution has proved its case against the appellant beyond a reasonable doubt. The arguments raised by the appellant in the appeal are not tenable. Therefore, the appeal may be dismissed. 6. Heard arguments of both the parties and perused the entire record minutely. 7. Admittedly, the prosecutrix (PW-1) was major aged about 26 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 prosecutrix (PW-1) was obtained by the appellant under some influence 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 prosecutrix (PW-1) to hold and conclude that her consent to sexual relations was obtained by the appellant under pretext of marriage 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.” 5 8. 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. 9. The Supreme Court in the matter of State of H.P. v. Mango Ram 2 , 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…. . ” 10. 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 2 (2000) 7 SCC 224 6 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.” 11. The Supreme Court in the matter of Pradeep Kumar alias Pradeep Kumar Verma v. State of Bihar and another 3 , 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: - 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 3 (2007) 7 SCC 413 7 “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: 12. ‘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” 13. Similarly, in the matter of Satpal Singh v. State of Haryana 4 , 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.” 14. The Honorable Supreme Court, in judgment Ravish Singh Rana (supra), clearly stated that where the parties 4 (2010) 8 SCC 714 8 have a long-term and consensual relationship, consent cannot be considered a misconception merely because the marriage has not been consummated. The accused cannot be held guilty of rape. The principle expressed in this regard is as follows: “10. An overview of the facts makes it clear that relationship between the appellant and the second respondent (the informant) had been there since 2021. This relationship was not merely of knowing each other but of living together as a couple under one roof in a rented accommodation. The FIR does not allege that physical relationship was established only because there was a promise of marriage. Besides, physical relationship continued for over two years without a complaint in between. In such circumstances, a presumption would arise of there being a valid consent for initiating and maintaining the physical relationship that spanned over two years. 11. In Pramod Suryabhan Pawar v. State of Maharastra and another, (2019) 9 SCC 608, this Court held that 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”. However, a mere breach of a promise cannot be said to be a false promise. Therefore, to establish a false promise, it would have to be demonstrated that the maker of the promise had no intention of upholding his word at the time of making the promise.” 15. In Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, this Court observed: 9 “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 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 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 fully understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutor 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. An accused can be convicted for rape only if the court reaches to a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.” 16. A review of all the evidence on record clearly demonstrates that the prosecutrix (PW-1) was an adult woman. In her statement, she admitted that she has a postgraduate education and has been employed. She is capable of making informed decisions regarding her life. She also admitted that she had physical relations with the 10 accused approximately 100 to 150 times at various locations between 2018 and 2025, but during that period, she did not file any complaint against him before any person or authority. She also admitted that she was an adult when she first had physical relations with the accused. The prosecutrix admitted that they regularly communicated via mobile phone on Instagram and WhatsApp, but she never filed a police complaint alleging that the accused had lured her into a relationship with him under the pretext of marriage. She also admitted that the accused met her needs, recharged her mobile phone, and made online payments for purchased items. The prosecutrix stated in her examination-in-chief that the police officer did not record her entire statement, but she also admitted that she did not file any complaint with any senior police officer in this regard. 17. Similarly, the prosecutrix has admitted that she had not disclosed any information to the police regarding the alleged threat to close down Hotel Alka Palace and the division of ancestral property, which she made for the first time in Court during examination-in-chief. Thus, a perusal of the prosecutrix's entire evidence clearly demonstrates that she was not under any pressure, compulsion or misconception during the relationship established, but was acting as a willing consenting party. 18. In light of precedents and on discussion of the evidence, this Court finds that the prosecutrix (PW-1) was an adult woman and that any physical relationship she had with the accused was with her free consent. Thus, the prosecutrix was a consenting party. 11 19. In such circumstances, the appellant's conviction and sentence are not found to be sustainable. Therefore, the appeal is allowed. The impugned judgment of conviction and order of sentence is set aside, and the appellant is acquitted. 20. The appellant, Daneshwar Yadav alias Chhotu, is said to be in jail. He be released forthwith unless he is not required to be detained in any other case/s. 21. The original record along with a copy of the judgment be sent to concerned trial Court and a true copy of the judgment be also sent to the concerned jail Superintendent, for information and compliance. Sd/- (Sanjay Kumar Jaiswal) Judge Shubham