Consent in cases of sexual intercourse and the significance of the prosecutrix's conduct in determining consent.

This appeal arises out of the judgment and order dated 27-10-2007 passed by Additional Sessions Judge, Sakti District Janjgir Champa in Sessions Trial No. 117/2007 convicting the accused/appellant under Section 376 (1), IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 500/-, in default of payment of fine to further undergo rigorous imprisonment for three months.

2. In the present case, the prosecutrix (PW-6) was aged about 19 years on the date of incident. Case of the prosecution in brief is that on 14-3-2007, she lodged a written report Ex. P-5 alleging that one year prior to the date of incident, she was allured by the accused/appellant on the promise of marriage and since then she was being subjected to sexual intercourse by him on account of which she became pregnant. While carrying pregnancy of two months, her parents married her somewhere else but the moment her husband came to know about her pregnancy he dropped her at her parent’s house. Thereafter, the prosecutrix informed the accused/appellant about her pregnancy through him but even then giving the evasive reply of marriage he went on making physical relations with her. Finally, the accused/appellant is said to have refused for marriage and threatened to kill her. Based on this written report, FIR Ex. P-6 was registered on 16-3-2007 for the offences punishable under Sections 376 and 506, IPC. Prosecutrix was medically examined on 16-3-2007 itself vide Ex. P-4 and after investigation challan was filed by the police on 12-5-2007 for the said offences.

3. In support of its case, prosecution has examined as many as 15 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case.

4. After hearing the parties, the Court below has acquitted the accused/appellant of the charge under Section 506, IPC but convicted and sentenced him as mentioned in paragraph No.1 of this judgment.

5. Counsel for the appellant submits that present is a case of false implication and if not it is a clear case of consent where the prosecutrix had permitted the appellant for sexual intercourse with her. He submits that from the statement of the prosecutrix it is clear that she has not made any attempt to come out from the clutches of the accused/appellant. While making his submission, counsel for the accused/appellant referred to paragraph 10 of the evidence of the prosecutrix and submits that she has nowhere stated that she ever resisted to the act of the accused/appellant which went on for more than a year even after her becoming pregnant and thus it can safely be said that she was a consenting party. He further submits that undisputedly the prosecutrix was major at the time of incident as her age in the evidence has come as about 19 years. Counsel for the accused /appellant further submits that even after delivering a child, the physical relations between the accused and the prosecutrix continued which also shows that she was a consenting party. He submits that though the prosecutrix was aware of her pregnancy through the accused/appellant, she got married to Budhwar Singh (PW-14) and even after being left by him, her physical relations with the accused/appellant did not stop and went on during her pregnancy as well. He submits that in paragraph No.2 of her evidence, the prosecutrix has admitted that even after delivering a child, the accused/appellant used to visit her house and have sexual intercourse with her. Counsel for the accused/appellant further submits that there is inordinate delay on the part of the prosecutrix in lodging the report and no satisfactory explanation for that has come on record. In support of his contention, counsel for the appellant placed his reliance on the decisions of the Supreme Court in the matter of Pradeep Kumar Verma v. State of Bihar and another,