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2009 Supreme(Chh) 338
2009(4) C.G.L.J. 361
HIGH COURT OF CHHATTISGARH, BILASPUR
Hon'ble Shri R.N. Chandrakar, J.
RAMLAL
Vs.
STATE OF C.G.
Criminal Appeal No. 80 of 2001
Decided on : 2-12-2009.
Shri N .P. Kostha, Advocate, for the Appellant.
Shri Akhil Agrawal, Panel Lawyer, for the State.
Consent in cases of sexual intercourse on the promise of marriage and the impact of prosecutrix's conduct on the applicability of Section 376 of the IPC.
Headnote:
Rape - Consent - Indian Penal Code, Section 376 - Summary: The court discussed the evidence of the prosecutrix, her brother, and father, and found that there was a love affair between the appellant and the prosecutrix. It noted the contradictions and omissions in the prosecutrix's statements and the inordinate delay in lodging the FIR. The court applied the legal principle that a full-grown girl consenting to sexual intercourse on a promise of marriage, until she becomes pregnant, is an act of promiscuity and not induced by misconception of fact. It also cited a similar case where the conviction under Section 376 was set aside due to the prosecutrix's conduct. Based on the evidence and legal principles, the court concluded that the prosecutrix was a consenting party and acquitted the appellant of the charge.
Fact of the Case:
The prosecutrix alleged that the appellant raped her and impregnated her after promising marriage. The FIR was lodged one year after the incident.
Finding of the Court:
The court found that the prosecutrix was a consenting party and acquitted the appellant of the charge.
Issues: Consent of the prosecutrix, inordinate delay in lodging the FIR, and the applicability of Section 376 of the IPC.
Ratio Decidendi: The court applied the legal principle that a full-grown girl consenting to sexual intercourse on a promise of marriage, until she becomes pregnant, is an act of promiscuity and not induced by misconception of fact.
Final Decision: The appeal was allowed, the impugned judgment was set aside, and the appellant was acquitted of the charge.
1. This appeal is directed against the judgment dated 20-12-2000 passed by 3rd Additional Sessions Judge, Bastar at Jagdalpur (CG) in Sessions Trial No.383 of 2000 convicting the appellant for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for ten years and to pay fine of Rs. 5000/-, in default of payment of fine to further undergo R.I. for one year.
2. Facts of the case, in brief, are that FIR (Ex.P/1) was lodged on 31-7-2000 in Police Station - Frezarpur by Surajbati prosecutrix (PW /1) alleging that before one year from the date of lodging the report when the prosecutrix namely Surajbati (PW/1) aged about 19 years was working in the field, the appellant came there and committed rape on her. When the prosecutrix Surajbati told him that she would report the matter to Police Station, the appellant convinced her on the assurance of marriage. Thereafter, the appellant regularly had sexual intercourse with the prosecutrix as a result of which she became pregnant. Thereafter, a Panchayat meeting was convened in the village in which the appellant accepted the allegation alleged against him and took her with him to his house. During this period, mother of the appellant started making efforts for his marriage. Therefore, prosecutrix Surajbati left for her maternal house and panchayat meeting was again held in which the appellant gave in writing that he would take her with him. Thereafter, the prosecutrix delivered a child who died and again village panchayat was held in which also the accused appellant gave in writing that he would marry the prosecutrix. At last, the appellant did not marry the prosecutrix Surajbati. Therefore, the prosecutrix lodged the report against him on 31-7-2000 at Police Station, Frazerpur on the basis of which crime was registered under Section 376 of the IPC vide F.I.R. (Ex.P/1) and the matter was investigated.
3. After completion of usual investigation, charge sheet was filed in the competent Court which in turn committed the case to the Sessions Court from where the case was received on transfer by 3rd Additional Sessions Judge, Bastar at Jagdalpur who framed charge against the accused/appellant under Sections 376 of the IPC. The accused abjured the guilt. The learned trial Judge after due trial convicted and sentenced the accused/appellant as mentioned in para 1 of the judgment.
4. Learned counsel appearing for the appellant submits that the impugned order is illegal, unwarranted and against the requirement of law and procedure which cannot be sustained in the eyes of law. He further submits that court below has wrongly come to conclusion about the guilt of the appellant, whereas the prosecutrix was a consenting party and FIR was lodged after one year of the date of incident. The prosecution failed to prove its case beyond reasonable doubt and the trial Court passed the judgment of conviction, despite there being conjecture and surmises which is bad in law. Learned counsel lastly submits that considering all the facts and circumstances, the instant appeal deserves to be allowed, the judgment of the trial Court be set aside and the appellant be acquitted of the charge.
5. Per contra, learned counsel appearing for the respondent/State argued the case in support of the impugned judgment of the trial court.
6. Having heard learned counsel for the parties, I have perused the records of the trial court and also the impugned judgment.
7. The prosecution in order to prove the guilt against the accused/appellant, examined seven witnesses.
8. It is undisputed that the age of the prosecutrix was more than 16 years at the time of incident as is clear from the FIR as well as the mark sheet (Ex.P/4). Thus, the only question which remains to be considered in this case is whether the prosecutrix was a consenting party or not. On this point the evidence of the prosecutrix, Sahadev (PW/4) and Somaru (PW/5) are relevant.
9. PW /1 Surajbati, the prosecu
