Consent obtained under a misconception of fact does not constitute valid consent for the purposes of rape under IPC, emphasizing the need for credible witness testimony.

JUDGMENT :

Heard Mr. Rana Vikram Singh, learned counsel duly assisted by Mr. Babu Nandan Prasad, learned counsel for the appellant and Mrs. Anita Kumari Singh, learned Additional Public Prosecutor for the State.

2. At the outset, on the request of learned counsel for the appellant, the matter is being taken up for final hearing in view of provision available under Section 374(4) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’), which has also not been objected by learned Additional Public Prosecutor for the State.

3. This appeal has been preferred by the appellant/convict under Section 374(2) of the Cr.P.C. challenging the impugned judgment of conviction dated 24.06.2024 and order of sentence dated 27.06.2024 passed by learned 1st Additional District & Sessions Judge, Patna in connection with Sessions Trial No. 244/2020 CIS No. 244/2020 arising out of Mahila P.S. Case No. 132 of 2018, whereby and whereunder learned trial court has been pleased to convict the appellant for the offence punishable under Section 376(1) of the Indian Penal Code (for the short the “I.P.C.”) and sentenced him to undergo rigorous imprisonment for ten (10) years and fine of Rs. 5,000/-, in default of payment of fine, has to further undergo imprisonment of six months and for the offence under Section 506 of the I.P.C., the appellant has been sentenced to undergo R.I. for two (2) years. The learned trial court ordered that all the sentences shall run concurrently.

4. The brief facts of the case as it appears from the written information of informant/victim (PW-3) that her marriage was already solemnized with one Raj Kumar Singh having two childrens from the said wedlock, but her husband had left Bihar in the year 2008 and did not returned back and thereafter got traceless. The victim further stated that the appellant/convict namely, Amresh Kumar @ Sonu was residing in the house of the victim since year 2013 as a tenant and he was known to the fact that the husband of the victim has left the victim/informant and solemnized another marriage. She further alleged that the appellant by taking advantage of her aforesaid condition established physical relation with her on the false pretext of marriage. She stated that in the month of October, 2016, the appellant said her that he was going to Bhagalpur for doing job and went away, but between a gap of one or two weeks, he used to come at her house and made consensual physical relationship with her. She further alleged that when she forced to appellant to marry her, he asked her to transfer the house in his name. Thereafter, when she came to know that the appellant was going to solemnize marriage with one another lady, she lodged a complaint with local police against him. She further alleged that the parents and family members of the appellant accepted the fault of the appellant and they promised her to marry with the appellant. Again, in the year 2018, the appellant stayed for two nights in the house of the victim/informant and insisted her to transfer the said house in his name, when she denied to do the same, the appellant denied to marry her. Thereafter, the informant/victim has lodged the present case against the appellant and his parents.

5. On the basis of aforesaid fardbeyan Mahila P.S. Case No. 132/2018 under Sections 376, 506, 509, 420 & 34 of the I.P.C. was lodged and police, after investigation submitted charge-sheet against the appellant and other accused persons vide charge-sheet no. 109/2019 dated 31.10.2019 under Sections 376, 506, 509, 420 & 34 of the I.P.C.

6. Learned trial court explained the aforesaid charges to appellant, which he pleaded “not guilty” and claimed trial.

7. To established its case before the learned trial court, prosecution has examined altogether five witnesses namely, PW-1 Bajrang Kumar (Teacher of the children of the informant); PW-2 Sheela Devi (mother of the victim); PW-3 victim, PW-4 Shashi Shekhar Singh (I.O.) and PW-5 Dr. Anuradha respectively.

8. The