Point of law : Presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained

JUDGMENT :

ASHOKKUMAR C. JOSHI

1. The State has filed this acquittal appeal challenging the judgment and order passed by the Principal Sessions Judge, Nadiad dated 05.10.2019 in Sessions Case No. 100 of 2014. The trial was held against the accused for having committed the offence punishable under Section 376 of the Indian Penal Code, 1860 (herein after referred to as “the IPC”).

2. Heard Mr. Hardik Soni, learned Additional Public Prosecutor for the appellant – State.

3. The learned Additional Public Prosecutor has taken this Court extensively through the judgment and order of the learned Sessions Judge, so also the relevant evidence, which are on record pursuant to the order of this Court dated 13.03.2020.

4. The learned Additional Public Prosecutor has submitted that the Sessions Judge has committed a grave error in not believing the case of the prosecution that on the basis of false promise to marry the victim, the accused got intimated with the victim, against her will and consent. He, drawing attention of the Court to the relevant evidence on record, vehemently submitted that though the prosecution witnesses have supported the case of the prosecution and though the case was proved by oral as well as documentary evidence, the conclusion arrived at by the Sessions Judge is erroneous one and the same needs to be interfered with by this Court.

4.1 In support of his case, the learned Additional Public Prosecutor has relied upon a decision of the Apex Court in Anurag Soni v. State of Chhattisgarh, AIR 2019 SC 1857.

4.2 It is submitted that this appeal be entertained.

5. Regard being had to the arguments advanced and having gone through the impugned judgment and order passed by the Sessions Court so also, considering the relevant material on record, it appears indisputably that the victim and the accused had got engaged and by virtue of that tie, he frequented the place of victim in the presence of her parents also, where he used to take her to the upstairs with a view to have some private conversations with the victim and then, allegedly, used to get intimate with victim against her wish and will. The learned Sessions Judge has disbelieved such story of the prosecution on the ground that the prosecution has failed to prove the same beyond reasonable doubt and there is no evidence on record that on false promise and premise, by cheating her, the accused committed rape on her without her wish and will. On the contrary, it is the case of the victim herself that the accused used to frequent her place in the presence of her parents, took her to the upstairs and keep physical relations with her. On appreciation of the evidence on record, the Sessions Judge has come to the conclusion that the accused and the victim had got engaged, however, the said engagement could not be materialized into marriage and accordingly, it cannot be said that on false promise to marry her, the accused had committed rape of victim. We find that, on the basis of the evidence on record and considering the totality, the Sessions Court cannot be said to have committed any error in that regard.

5.1 So far as the decision relied upon by the learned Additional Public Prosecutor in Anurag Soni (supra) is concerned, in paragraph 12, it is observed as under:

“12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the Accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the Accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the Indian Penal Code and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined Under Section 375 of the Indian Penal Code and can be convicted for the offence Under Section 376 of the Indian Penal Cod