Consent for sexual intercourse must be voluntary and not procured through a misconception of fact, as established under Section 375 and Section 90 of the Indian Penal Code.

JUDGMENT

Ajay Kumar Gupta, J.

1. The instant appeal has been assailed by the appellant against the judgment and order of conviction dated 30.03.2016 and 31.03.2016 passed by the Assistant Sessions Judge, 2nd Court, Krishnanagar, Nadia in Sessions Trial No. XI of March, 2013 arising out of Sessions Case No. 92(2) of 2013 convicting the appellant under Section 376/417 of the Indian Penal Code and sentencing to suffer rigorous imprisonment for 10 years and also sentenced to pay a fine of Rs. 50, 000/-, in default, to undergo rigorous imprisonment for a period of six months for the offence punishable under Section 376 of the I.P.C. and further sentenced to suffer rigorous imprisonment for one year and also to pay a fine of Rs. 5,000/-, in default, to undergo rigorous imprisonment for three months for the offence punishable under Section 417 of the I.P.C. Both the sentences shall run concurrently.

2. Gist of the prosecution case is that on 03.09.2009 an F.I.R. was lodged under Section 420/120B/417/323 of the I.P.C. against the appellant as per the direction passed by the Learned Chief Judicial Magistrate, Nadia arising out of a Court complaint made by the victim girl under Section 156 (3) of the Criminal Procedure Code alleging that the appellant intimate association with her and had cohabited with her on the false promise to marry. She became pregnant and gave birth to a female child on 18th December, 2009. Appellant took her to the hospital during her pregnancy and prepared a health card for treatment but he did not marry her despite of given assurance and finally drove her away on 10.07.2009 after assaulting her when she was six months’ pregnant. This resulted in registration of Nakashipara Police Station Case No. 424 of 2009 dated 03.09.2009 under Section 420/120B/417/323 of the I.P.C. against the appellant.

3. After conclusion of the investigation, charge sheet was filed against the appellant. Upon hearing the parties, the Trial Court framed charges against the appellant under Section 376/417 of the I.P.C. Contents of the charges were read over and explained to him to which he pleaded not guilty and claimed to be tried. Defence case of the appellant was that he was innocent and had been falsely implicated by the de-facto complainant. During trial, prosecution examined 13 witnesses and exhibited number of documents as Exhibit Nos. 1 to 11 respectively to prove its case.

4. On the basis of evidence brought before the Trial Court, the Trial Court convicted and sentenced the appellant as aforesaid.

5. The appellant preferred this appeal praying for setting aside the impugned judgment and order of conviction and sentence passed by the Trial Court.

6. Learned counsel appearing on behalf of the appellant submitted that the appellant is innocent and the allegation of rape against the appellant has not been proved. Judgment and order passed by the Trial Court is based on surmises and conjectures. Furthermore, he submitted even if for the sake of argument, it is accepted there was a sexual intercourse between them then it ought to be treated as consensual as the victim was a fully grown up lady and had given her consent to such physical relations for a long period till she conceived. No case of forcible rape is proved. Lastly, the learned counsel submitted earlier similar allegation was levelled against the appellant and on the basis of such allegation, a full-fledged trial was conducted. After conclusion of trial and hearing the parties, Learned Trial Court had acquitted the appellant of the charges levelled against him.

7. Learned counsel appearing on behalf of the State, on the other hand, submitted that earlier case was disposed of on the basis of compromise between the parties. Thereafter, appellant again gave assurance to marry and resided as husband and wife. However, he did not marry the victim. She became pregnant again. She gave birth to a female child. DNA test confirmed the child is the biological daughter of the appellant. Accordin