A woman cannot claim that her consent was wrongfully obtained on a false promise, if she continued to engage in sexual intercourse with the accused for many years: High Court of Chhattisgarh

HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No.517 Judgment Reserved on : 5.7.2021 Judgment Delivered on : 16.7.2021 Naiharsay son of Nouharsay aged about 28 years resident of Village Kumarta Police Station Kapu District Raigarh Chhattisgarh Presently resident of Village Thakur Podi Police Station Kapu District Raigarh State of Chhattisgarh through Police Station Kapu District Raigarh Appellant Respondent Shri Awadh Tripathi Advocate Shri Amit Singh Panel Lawyer : Hon ble Shri Justice Arvind Singh Chandel C.A.V. JUDGMENT The instant appeal has been preferred against judgment dated 21.12.2016 passed by the Additional Sessions Judge Raigarh in Sessions Trial No.1112 whereby the Appellant has been convicted and sentenced as under: Under Section 376 of the Indian Penal Code Rigorous Imprisonment for 10 years and fine of Rs.10 000 with default Case of the prosecution in short is that on 30.4.2012 i.e. the date of registration of First Information Reportthe prosecutrix PW3) was 24 years old. On 30.4.2012 itself she made a written complaintalleging therein that she got acquainted with the Appellant in July 2009. She met with him at Village Thakur Podi In 2009 on the day of Dhanteras Festival at about 7:30 p.m. the Appellant made forcible physical relationship with her. Thereafter he apologised for his act and promised to marry her. Considering his apology to be genuine she did not make any complaint. Next day he took her to his house. There his parents also assured her that on completion of her studies they will perform her marriage with the Appellant. It is further alleged that thereafter the Appellant took her to many villages namely Patarapara Kumrata Miriguda Dharamjaigarh Surungpani and Gerwani and introduced her there as his wife. He also committed sexual intercourse with her there Thereafter surprisingly in December 2011 he refused to marry her. Prior to that in July 2011 a social meeting was convened in Kilkila Temple in which also he admitted his guilt. On the basis of the written complaintFirst Information Reportwas registered. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. On completion of the investigation a charge sheet was filed against the Appellant. A charge was framed against him To bring home the offence the prosecution examined as many as 13 witnesses. Statement of the Appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the guilt pleaded innocence and false implication. No witness has been examined in his defence. On completion of the trial the Trial Court vide the judgment under challenge convicted and sentenced the Appellant as mentioned in 1st paragraph of this judgment. Hence this appeal. Learned Counsel appearing for the Appellant submitted that it is not in dispute that at the time of alleged incident the prosecutrix was a major girl. According to her deposition the first incident of sexual intercourse was done with her by the Appellant on the day of Dhanteras Festival in July 2009. The written complaint it is established that physical relationship continued between her and the Appellant for a long period of about 3 years. Both also visited various places as husband and wife. But during this long period she never raised any complaint against the Appellant. In July 2011 when the Appellant admitted his guilt in a social meeting convened in a temple at that time also she did not raise any complaint against him. In December 2011 when the Appellant refused to marry her at that time also she did not make any complaint. Therefore it is clear that she was a consenting party and the physical relationship continued between them with her consent. Placing reliance on 2020) 10 SCC 108it was submitted that misconception of fact has to be in proximity of time to the occurrence and cannot be spread over years Therefore it was argued that it cannot be accepted that the prosecutrix consented to the Appellant for commission of sexual intercourse for a long period of 3 years on a false promise of marriage. Since the prosecutrix was a major girl and was a consenting party the conviction is not sustainable. On the contrary Learned Counsel appearing for the State opposed the submissions put forth on behalf of the Appellant and supported the impugned judgment. I have heard Learned Counsel appearing for the parties and minutely perused the entire material available on record including the statements of the prosecutrix and other witnesses. It is not in dispute that at the time of first incident i.e. on the day of Dhanteras Festival in 2009 the prosecutrixwas 21 years old. According to her Court statement at the time of first incident the Appellant committed forcible sexual intercourse with her. Her statement in this regard is also supported by her sister Shakuntala PW8) and brother in law Mohanlal she and the Appellant visited Villages Patarapara Kumrata Miriguda Dharamjaigarh Surungpani and Gerwani and the Appellant introduced her there as his wife and made physical relationship with her there. She further deposed that a social meeting was convened in Kilkila Temple in July 2011 in which the Appellant admitted his guilt. Thereafter finally in December 2011 he refused to marry her. But she did not make any report in July 2011 or in December 2011. When engagement of the Appellant with another girl took place and his marriage was fixed then she made the written complaintin April 2012. From her above conduct it appears that whatever relation continued between her and the Appellant her consent was involved therefor. From her statement it is established that the physical relationship continued between her and the Appellant for a long period of 3 years. In July 2011 the Appellant admitted his guilt in the social meeting and in December 2011 he finally refused to marry her but she did not make any complaint against the Appellant on those occasions. Furthermore from her statement it is clear that the physical relationship continued between them during the period from July 2011 to December 2011 also. Even after admitting his guilt by the Appellant in the social meeting convened in July 2011 she allowed him to make physical relationship with her and she did not make any complaint against him. In December 2011 also when he finally refused to marry her she did not make any complaint against him. She made the complaint only after his engagement for marriage with another girl took place. Therefore her statement that she consented for the physical relationship on a false promise of marriage is not acceptable. The evidence clearly establishes that there was her consent for the physical relationship for the long period of 3 years. Since she was a major girl and was a consenting party the conviction under Section 376 of the Indian Penal Code imposed upon the Appellant is not sustainable. Consequently the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellant is acquitted of the charge framed against him. Sd (Arvind Singh Chandel JUDGE 

Summary: If a woman is has consented to sexual intercourse with a man because he falsely promised to marry, she is required to file a complaint soon after. She will lose the right to file this complaint if she continues to engage in sexual relations for many years later. This was held in the judgement passed by a bench of High Court of Chhattisgarh consisting of Justice Arvind Singh Chandel in the case of Naiharsay v State of Chhattisgarh [Criminal Appeal No. 51 of 2017] on 16th July 2021. The appellant, Naiharsay and the prosecutrix met in 2009 in Village Thakur Podi. Soon after during Dhanteras celebration. The appellant attempted to forcibly initiate physical relationship with her but thereafter apologised and promised to marry her. Considering his apology and promise to be genuine, she continued to meet him and did not make any complaint. The two of them travelled to numerous villages, where they continued to have sexual relations. 2 years later, in July 2011, while they were at Kilkila temple, the appellant admitted that he had no intention of marrying the prosecutrix. They continued to have sexual intercourse until the end of 2011, when the appellant outright refused to marry the prosecutrix. In April 2012, the appellant got engaged and fixed his marriage with another girl. The prosecutrix filed rape charges against the appellant as she claimed that she had consented to sex with him only because he promised to marry her and he had introduced her to many people as his wife. The Additional Sessions Judge, Raigarh convicted the appellant under Section 376 of the Indian Penal Code on grounds that his consent was conditional to a false promise made by him, which would make him guilty of rape. The learned counsel for the appellant submitted that the prosecutrix was a major woman fully capable of giving her consent for sexual intercourse since before she started her relations with the appellant in 2009. The counsel pointed out that the prosecutrix’s delay in filing a complaint was inexplicable. The case of Maheshwar Tigga v State of Jharkhand [10 SCC 108 of 2020] was cited where it was held that “misconception of a fact has to be in proximity of time to the occurrence and cannot be spread over years”. The appellant’s counsel concluded that the prosecutrix’s argument that she consented to sexual intercourse for a long period of three years solely on a false promise of marriage. The High Court of Chhattisgarh noted that the prosecutrix had not filed any complaint upon knowing that the appellant would not marry her, but only did once he became engaged for marriage to another girl.