t..-., CF0000060394 IN THB HIQH CDURT OF JUDICMURS AT JABM»PUR Cr.A.No. \ V\o (o of 1996 Ap.pelleBtt ^ccused (In Ja-Ll) R^spond.entt Rishifam K.^mie^ aged 35"years.^. son of ShaUKr^m Kamde, resident of Dorxdi, P^S^Dondi^ Tahsil Balod, Distriet Durg,M.P. versus The State of M.P. ^ CRIMIN,AL A'PPSM. UNDER SECTION 374 ( 2 ) OF_THS COD?,OF CRIMINAL PSOCEDURS,1973 N HIGH COURT OF CHHATTISGARH, BILASPUR SINGLEJBjMTCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. Criminal Appeal Np.1406 of 1996 APPELLANT Rishiram Kamde Versus RESPONDENT: State of M. P. (Criminal Appeal under Sectjon 374 (21 of the Cr.P.Cl JUDGMENT ./A_ POST ON /^'NOVEMBER, 2010 Sd/- Manindra Mohan Shrivastava Judge ^ 'J A .^<^?[r5^ ^^^Si^^^ l i'•^ii^!s^ j ^. ^s^- '^^ HIGH COURT OF CHHAmSGARH : BILASPUR Single Bench : Hon'ble Shri Manindra Mohan Shrivastava, J. Cruninal Appeal No.1406 of 1996 APPELLANT RESPONDENT: Rishiram Kamde Versus State of M. P. (Criminal Appeal under Section 374 (21 of the Cr.P.Cl Appearance: Shri Ravi Kumar Bhagat, counsel for the appellant. Shri Sushil Dubey, Govt. Advocate for the State. JUDGMENT (Delivered on /9 November. 2010) 1. This appeal is directed against the judgment of conviction and order of sentence dated 14th August, 1996 passed by learned 3rd Additional Sessions Judge, Durg in S.T. No. 192/95, whereby the learned trial Court, after holding the appellant guilty of commission of offence under Sections 376 (1) of the IPC, has sentenced him to undergo R.I. for 7 years with fine of Rs.20,000/- and in default ofpayment offine, additional R.I. for 1 year. 2. Case of the prosecution, in brief, is that the prosecutrbc (P.W.l) used to go for teaching under Literacy Mission in the year 1992 and the appellant was her senior officer. The appellant and the prosecutrbc became familiar and appellant started frequently visiting the house of the prosecutrix. The appellant expressed his .^- ...£"•;". '"^ ^i^^ '^ ^ desire to have sexual intercourse by stating that he would marry her. On around 15-16 February, 1994 when the prosecutrbc was alone in her house, the appellant committed sexual intercourse and thereafter, as and when the prosecutrbc was alone, the appellant used to come and have sexual intercourse. The prosecutrbc later on conceived and became pregnant. The mother of the prosecutrbc scolded the appellant and finally a report was lodged in the police station on 23.8.1994 (Ex.P-1) that by giving lure and false assurance of marriage, the appellant committed sexual intercourse and later on refused to inarry. 3. During investigation, wearing apparels and other articles of the prosecutrbc were seized vide Ex.P-2 and P-3. Clothes and articles were sent for medical examination and Dr. (Smt.) Alpana Agrawal (P.W.5) gave her report in Ex.P-7, stating that the prosecutrbc was carrying pregnancy of 26 weeks at the time of her examination. Vide Ex.P-8, medicines alleged to be given by the appellant to the prosecutrbc, which were handed-over by the prosecutrbc to the Panchayat, were seized from Krishna Meshram, member of Panchayat. Clothes of the appellants were seized vide Ex.P-9 and were sent for raedical exaraination to Dr. R. Ramteke (P.W.9), who, in his report (Ex.P-11) opined that the appellant was capable of sexual intercourse. Case diary statements were taken by the investigating officer and after usual investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Balod, who, in turn committed the case to the Court of Sessions, Durg, from where, learned 3rd Additional Sessions Judge, Durg received the same for trial. -/ r 4. In order to prove its case, the prosecution examined as many as 10 witnesses including the prosecutrbc (P.W.l). The appellant in his examination under Section 313 of Cr.P.C., denied the evidence and circumstances appearing against him and pleaded innocence and false implication. No defence witness was led by the appellant. Vide impugned judgment of conviction and sentence, the learned trial Court held that the appellant committed rape on the prosecutrbc and thereby committed the offence under Section 376 (1) of the IPC and sentenced him as mentioned in paragraph 1 of the judgraent. 5. Conviction of the appellant has been challenged on the submission that the appellant and the prosecutrbc were known to each other and were having love affair and during that affair the prosecutrbc had the sexual intercourse with the appellant for which, there was consent and therefore, present is not a case of rape at all. 6. Learned counsel for the appellant relied upon the decisions in the cases of Udav Vs. State of Karnataka1, State of Raiasthan Vs. Kishanlal2, Dilip and another Vs. State of M.P.3, Radhu Vs. State of Madhva Pradesh4, Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and another5 & Ramdhan Vs. State of Raiasthan6. '2003STPL(LE)31953SC 22002STPL(LE)31143SC 3 2001 STPL (LE) 30301 SC 4 (2008) 2 SCC (Cri.) 207 s 2003 STPL (LE) 31869 SC 62010CRIL.J.2652 •^te;.-.':-^ .•eC''""^ lf'i'^ T .'? n' i tis^^^^'"'"'\i3 iJl %.. ^_....,^ ^' ^. ^. se,^ 7. On the other hand, learned counsel for the State has supported the impugned judgment of conviction and order of sentence and placed reliance upon the judgments in the cases of Anil Alias Maneu & Ors Vs. State of C.G.7, Pradeep Kumar (% Pradeeo Kumar Verma Vs. State ofBihar andAnr.8 & State^ofM.P^^. Babulal9. 8. I have considered the rival submissions made by learned counsel for the parties and perused the records. 9. The prosecutrbs (P.W.l) has proved the FIR Ex. P-1 lodged by her. In the said FIR, it has been stated that the prosecutrK used to go for teaching under Literacy Mission and she had developed relations with the appellant, who assured her to marry. In the FIR, it has been also recorded that on 12th February, 1994, accused/appellant canie to her house in the night when she was all alone as her mother and brother had gone out of station and on that day, the appellant committed sexual intercourse and she did not raise any objection as the appellant wanted to marry her and thereafter as and when she was alone, the appellant used to come and perform sexual intercourse and this relation was not stated to anybody and later on, it was revealed that she conceived child, at which moment, the appellant gave her pills to get pregnancy aborted. At this stage, she disclosed to her raother and her mother scolded the appellant, whereafter, the appellant refused to marry. The matter was taken to the community meetings and finally report was lodged in the police station. In her 7 2006 (3) C.G.L.J. 463 8 2007 (3)Crimes 346 (SC) 92008(3)C.G.L.J.217(SC) testiraony, prosecutrbc (P.W.l) has stated that she had sexual intercourse with the appellant on 12th February, 1994 saying that he will marry her. From her testimony, it is also proved that the prosecutrbc did not disclose this relationship until she became pregnant and when the appellant suggested abortion and gave her pills, upon which she also consumed the pills. When she became sick, she stopped taking medicines. She has further deposed that later on, the appellant did not agree to marry her, whereafter, matter was taken to the community in its meeting. In her cross-examination the prosecutrbc has stated that on the date the appellant performed sexual intercourse, her mother was not present at home, but, her sister Asha was present along with her child. She has also stated in her cross-examination that her house consists of one room and a kitchen. She has also stated that the appellant even before the date of sexual intercourse was committed had been saying that he would marry her. 10. From the entire testimony of the prosecutrbc, it is proved that the prosecutrbc and the appellant had developed affair and during that affair, the prosecutrbc also had physical relations with the appellant. Even in the FIR, which has been proved by the prosecutrbc herself, it has been stated that on 12th February, 1994, the prosecutrbs: had sexual intercourse with the appellant and she did not object to it and thereafter, as and when she used to be alone, the prosecutrbc and the appellant used to have sexual intercourse. Though, in her examination-in-chief, she has stated that she had objected to intercourse, the appellant threatened her that he will strangulate, it does not inspire confidence firstly ,^ss^'^ ^ ^' .-;^'^, % %-. ^y ^^s^gsv' because it has not been stated in the FIR (Ex. P-1) and even in her case diary statement, no such statement has been made. In her cross-examination, it has clearly come out in the evidence that in her house, there is only one room and one kitchen and on the date the intercourse was committed by the appellant, her sister Asha was also present in the house along with her child. The story of the prosecutrbc that she had objected to the sexual intercourse, upon which, the appellant threatened to strangulate, clearly suffers from serious omission as she has stated in her cross-examination that this was not stated by her in her case diary stateraent to the police and for the first tirae, it is being stated in the Court. From the prosecutrbc own version, it is clear that she did not disclose this incident until she conceived pregnancy and became sick after consuraing pills for abortion and when the matter was finally disclosed to her mother, the dispute arose. It has also come in the evidence of the prosecutrbc that even after the disclosure, the prosecutrix had been insisting upon the appellant to marry and even cominunity raeeting was held, but the dispute was not resolved. It cannot be ignored that the offence is alleged to have been comniitted for the first tiine on 12th February, 1994 and thereafter, on various dates but the FIR was lodged as late as on 23rd August 1994. 11. Manki Bai (P.W.2), who is mother of the prosecutrix has also clearly deposed that the appellant had developed relations and used to come frequently and they became familiar. In the month of February, 1994 when the prosecutrbc became sick she came to know that the prosecutrbc has became pregnant, upon which she ^. 'y:< % "•• ^... asked the appellant and the appellant has stated that he would marry her daughter and when finally they came to know that the appellant is contacting marriage, report was lodged in the police station. Smt. Asha Bai (P.W.4) who is the sister of the prosecutrbc has also deposed that the appellant used to frequently come to their house and when she had delivered child and stayed in the house of her mother, where the prosecutrbc also resided, when her mother and brother were .not there, she slept in the room along with her child and next morning she saw the appellant sleeping with her sister in her room and she has also deposed that the appellant used to tell Usha that he will marry her. 12. From the entire evidence of the prosecution which has come on record, it is established that the prosecutrbc and the appellant had an affair and during that affair, on 12th February, 1994 the appellant first committed sexual intercourse with the consent of the prosecutrbc and thereafter used to have sexual intercourse with the prosecutrbc as and when she was alone. On 12th February, 1994, the sister ofthe prosecutrbc namely Asha (P.W.4) was present in the house in the night. According to the prosecutrbs: (P.W.l), her house consists of one room and one kitchen and it appears wholly improbable that the appellant would have raped her and she would not have called out for any help and her sister would not know about the whole incident. The testimony of the prosecutrbs that she had objected to sexual intercourse, upon which the appellant threatened her to strangulate is liable to be disbelieved and is not trustworthy as neither in the FIR nor in her case diary statement, any such version has come out and for the first time in her testimony in the Court this has been added. Even if it is assumed that on that date she was threatened and she could not oppose sexual intercourse, there is no explanation as to why the prosecutrbc did not disclose this incident after her niother and brother returned frora outstation. On the contrary, the prosecutrbc herself has deposed that affer 12th February, 1994 as and when she used to be alone, she and appellant used to have sexual intercourse. It is the evidence led by the prosecution witnesses themselves that the affair and physical relations maintained between the appellant and the prosecutrbc ultimately came to be disclosed only when the prosecutrbc became pregnant and became sick and it was revealed to her mother. Therefore, this Court is inclined to hold that present is a case of clear consent and there is no element of rape and the prosecution has failed to prove essential ingredients of the rape as defined under Section 375 of IPC. 13. In the case of Uday (supra), the Supreme Court dealt with similar situation where the prosecutrbs having fallen in love with the accused and under a promise of marriage gave her consent. After considering various decision and authorities, the Supreme Court held as under : a21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrbc 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 misconcepfion of fact. A false promise is not a fact within the raeaning of the Code. We are inclined to ^s^^ agree with this view, but we raust add that there is no straitjacket formula for determining whether consent given by the prosecutrbc to sexual intercourse is voluntary, or whether it is given under a raisconception of fact. In the ultiraate 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 circunistances, 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 theni.w Moreover, present is a case where the prosecutrbc has come out to lodge the report as lat as on 23.8.1994 when all attempts to bring about niarriage between the parties failed. 14. Reliance placed by learned counsel for the State/respondent in the cases of Anil (sputa), Pradeep Kumar (supra) 85 Babulal (supra) are not applicable as they are distinguishable in view of the peculiar evidence which has conie on record in the present case that the prosecutrbc has a long love affair and sexual relations with the appellant and it is only when the prosecutrbc became pregnant that the affair was disclosed and when the appellant refused to marry, FIR was lodged. ^ 10 15. As an upshot of discussions as above, the impugned judgment of conviction and order of sentence cannot be sustained in law and the same is therefore set aside and the appellant is acquitted of the charge levelled against him. The appellant is on bail. He need not surrender. His bails bonds stand discharged. 16. The appeal is accordingly allowed. Sd/- Manindra Mohan Shrwastava Judge Praveen