IMPORTANT POINT
Consensual sexual intercourse with a mature lady cannot constitute offence of rape.

Judgment

V. Gopala Gowda, J.

Leave granted.

2. This criminal appeal is directed against the impugned judgment and order dated 06.01.2015 passed by the High Court of Himachal Pradesh at Shimla in Criminal Appeal No. 369 of 2012 whereby it has partly allowed the said Criminal Appeal filed by the respondent-State and has upheld the acquittal order passed by the trial court in favour of the appellant herein for the offence punishable under Section 376 of Indian Penal Code (for short “IPC”). However, it has convicted the appellant for offences punishable under Sections 417 and 506 part I of IPC but instead of imposing sentence on the appellant for the aforesaid offences, vide order dated 17.03.2015 the High Court has released him under Section 4 of the Probation of Offenders Act, 1958 on his entering into a personal bond in the sum of Rs. 25,000/-with two sureties in the like amount.

3. Brief facts of the case are stated hereunder to appreciate the rival legal contentions urged on behalf of the parties:

On 06.01.2010, the Assistant Sub-inspector of Police (ASI), Chamba (H.P.) received a complaint from prosecutrix through the office of Deputy Superintendent of Police (DSP), Shri. K.D. Sharma, Chamba (H.P). In the said complaint, it was alleged by her that on 01.01.2010 she was raped and physically assaulted by the appellant. It was also alleged by her that when she went to the police station to register her complaint regarding the offence of rape she was threatened with dire consequences by the appellant on phone. Allegation of sexual exploitation on the pretext of marriage was also made by her in the said complaint.

4. On the basis of said written complaint FIR No. 6 of 2010 was registered by the ASI under Sections 376, 417 and 506 of IPC and investigation was conducted by the investigation officer. After investigation a report under Section 173 of Code of Criminal Procedure, 1973 was filed.

5. The case of the prosecution is that the appellant developed intimacy with the prosecutrix (PW 2) about two years prior to the incident. He allured her on the pretext of marriage. On 01.01.2010 the appellant sexually violated the person of prosecutrix in her residential accommodation in Karian, Chamba. At the same time, he not only ravished her but also physically assaulted her by slapping her and twisting her arm.

6. On the next day i.e., on 02.01.2010, the prosecutrix decided to approach the Police Station, Chamba to get FIR registered against the appellant for the offence of rape. However, at about 6 AM when she reached near Police Station the appellant threatened her against making any complaint or report about him to the police officials otherwise he would kill the prosecutrix. Thereafter, she did not make any complaint.

7. On the same day, the appellant met prosecutrix near the Regional Hospital, Chamba and offered to take her to his home. He persuaded her not to lodge FIR against him and even promised in writing to marry her. He assured her that both of them would stay as husband and wife. However, instead of taking her to his house he dropped her at her residence with a promise that he would return soon. The appellant did not return thereafter. Feeling cheated thereby, on the same day, she reported the matter to Sh. K.D. Sharma, DSP, Chamba.

8. On 05.01.2010, both the appellant and the prosecutrix were called in the office of DSP, wherein the appellant agreed in presence of DSP, Chamba and one Yoginder Mohan (PW 3) to marry the prosecutrix the next day i.e., on 06.01.2010. On 06.01.2010, when the prosecutrix along with her family came forward for solemnization of marriage, the appellant did not turn up. The same day FIR No. 06 of 2010 was registered against the appellant. He was booked for the offences punishable under Sections 376, 417 and 506 of IPC.

9. The Court of Sessions, Chamba in sessions trial no. 40 of 2010, after examination of the evidence on record, vide its judgment and order dated 30.04.2012 acquitted the appellant-accused of all