IMPORTANT POINT
Rape – Mere assertion or claim on part of victim to have been impregnated by appellant without proper evidence in case of consenting parties to a sexual relationship cannot possibly indict a person.

JUDGMENT

Ananya Bandyopadhyay, J.—This appeal is preferred against judgment and order dated 12.07.2011 passed by the Learned Additional Sessions Judge, 2nd Court, Bankura in Sessions Trial No.11(3)2010 arising out of Sessions Case No.8(2)2010, thereby convicting the appellant for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 7 years and to fine of Rs.1000/- and in default to suffer simple imprisonment for another 3 months.

2. The prosecution case precisely stated the victim lodged a written complaint at Chhatna P.S., inter alia, alleging the complainant and the appellant being romantically involved, had eloped. On an assurance of marriage the appellant and the complainant indulged in physical relationship several times at her house in the absence of her parents and thereafter the complainant became pregnant. The appellant insisted her to abort and refused to marry her and the complainant on the ninth month of her pregnancy lodged the complaint.

3. On completion of the investigation, charge-sheet was submitted on 22.07.2009 against the appellant under Sections 376/493/417 of the Indian Penal Code.

4. Charges were framed under Sections 376/417 of the Indian Penal Code to which the appellant pleaded not guilty and claimed to be tried.

5. The prosecution cited 9 witnesses and exhibited certain documents.

6. Learned Advocate for the appellant submitted as follows: –

i. PW-1 being the victim girl as well as the de facto complainant stated in the complaint, as well as in her testimony that she did not raise any objection to the physical intimacy and consented to the same and as such in no way the said incident can be termed as rape as it was a consensual act between the victim as well as the appellant. The victim girl also deposed that she narrated the fact of intimacy to her friend namely Makali Soren but the said Makali Soren was not examined.

ii. It was further submitted that Section 375 of the Indian Penal Code stated that a man was said to commit “rape” who, except in the case hereinafter excepted, had sexual intercourse with a woman under circumstances falling under any of the six following descriptions – (i) Against her will. (ii) Without her consent. (iii) With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. (iv) With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. (v) With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. (vi) With or without her consent, when she is under sixteen years of age.

iii. It was further submitted that a belief that the promise of marriage was meant to be fulfilled was not a misconception of fact. The question of misconception of fact will arise only if the act consented to, is believed by the person consenting to be something else, and on that pretext sexual intercourse is committed. In such cases it could not be said that she consented to sexual intercourse but in this instant case the consent was not obtained by fraud rather on a promise of an act at a future uncertain date and the same did not fall within the definition of rape and from the said complaint it could never be construed that the consent of the victim was obtained on the basis of false promises and only for sexual pleasure and as such the allegations against the appellant were unjustified.

iv. Reliance was placed by the Learned Advocate for the appellant upon the judgment of Hon’ble Apex Court in Uday Vs. State of Karnataka and in Jayanti Rani Panda vs. State of West Bengal of this