Consent obtained through deception is invalid, rendering the act as rape under IPC Sections 375 and 376.

JUDGMENT :

(Ananda Sen, J.)

The appellant has preferred this appeal against the Judgment of Conviction and Order of Sentence dated 21st February, 2013 passed by the Principal District & Sessions Judge, Seraikella-Kharsawan in Sessions Trial No.128 of 2011, whereby the appellant has been held guilty and convicted for the offence punishable under Sections 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.10,000/-.

2. Learned counsel for the appellant submits that from the evidence recorded by the prosecution in this case, appellant could not have been convicted under Section 376 of the Indian Penal Code. Further, it is his contention that when the Trial Court has acquitted the appellant for the charge under Section 420 of the Indian Penal Code, then there could not have been conviction under Section 376 of the Indian Penal Code on the facts of the case as narrated by the prosecution witnesses. As per the appellant, admittedly, the victim is major and the sexual relationship which was entered by the appellant with the victim is consensual. When there is consensual relationship between the appellant and the victim, the conviction under Section 376 of the Indian Penal Code is bad.

3. Learned counsel appearing on behalf of the State submits that though the parties are major, yet by committing fraud, consent for sexual relationship was obtained, thus, the said consent cannot be treated to be consent. Since the said consent cannot be said to be consent, the Trial Court had rightly convicted the appellant under Section 376 of the Indian Penal Code.

4. We have heard the learned counsel for the appellant and the learned counsel for the State and have also gone through the records and the entire evidence.

5. Prosecution case is based on the written report of the informant/ prosecutrix addressed to the Officer-in-Charge, Rajnagar Police Station, East Singhbhum, stating that sexual relationship was established by the appellant since last two years on the pretext of marriage. She has stated that the appellant has on many occasions stayed with the informant in her home at her village. She has also stayed with the appellant at many places viz. Tata, Chaibasa and in a lodge. She stated that she has also lived with the appellant and his sister in his home for 45 days. She has stated that the appellant has assaulted her on Sunday at 4.00 p.m. and ousted her from his house. She stated that this happened after false promise of marriage was given by the appellant.

6. On the basis of the written report of the informant, Rajnagar Police Station Case 24 of 2010 was registered for offences under Sections 420, 494 and 376 of the Indian Penal Code. Police took up the investigation and on completion of the investigation, filed chargesheet No.28 of 2011 on 20.06.2011 under Sections 420/376 of the Indian Penal Code. Cognizance of the offence was taken and case was committed to the Court of Sessions. Charge under two heads against the appellant was framed on 13.09.2011 for offences under Sections 376 and 420 of the Indian Penal Code. Charge, so framed, was read over and explained to the appellant, to which he pleaded not guilty and claimed to be tried, thus the appellant was put on trial.

7. To bring home the charge, the prosecution examined altogether 7 witnesses, namely, P.W.1 the informant/prosecutrix herself, P.W.2 Somay Tudu, P.W.3 Prasad Tudu, P.W.4 Raju Tudu, P.W.5 Jitmohan Murmu, P.W.6 Amin Hembram (Investigating Officer) and P.W.7 Mangal Soren.

The prosecution also produced the following documentary evidence, which were marked exhibits: -

8. P.W.1 is the informant/prosecutrix. She has identified her signature on the written report, which has been marked Exhibit 1. She has stated that she has filed case against the appellant. She has stated that the appellant