Consent given under a misconception of fact does not constitute valid consent; a prolonged consensual relationship negates claims of forceful sexual relations.

JUDGMENT :

NAVNEET KUMAR, J.

This appeal is directed against the judgment of conviction dated 13.09.2007 and order of sentence dated 15.09.2007 passed in S.T. No. 150 of 2005 arising out of Nimdih P.S. Case No. 35 of 2005 corresponding to G.R. Case No. 486 of 2005 by the Court of learned Additional Sessions Judge, Fast Track Court-II at Seraikella whereby and where under the appellant has been convicted for the offence punishable under Section 376 IPC and has been sentenced to undergo R.I. for 7 years with a fine of Rs. 2000/- and a default sentence of 2 months S.I.

2. The prosecution case arose in the wake of the written report of the informant- Victim (P.W.3), whose statement was recorded by the Officer-In-Charge, Nimdih Police Station on 09.06.2005, which is as under:

The informant-victim is a tribal girl aged about 19 years, resident of Village Tenagadih P.S. Nimdih, District- Seraikella-Kharwsawan, who has alleged that the appellant Kalu Singh, resident of the same village had established sexual relation with the victim for the last two years from the date of lodging of the F.I.R. as a result of which she became pregnant. It is further the case of the prosecution that accused Kalu Singh had given assurance to the victim that he would marry her but lastly, he refused to marry with her when the victim was carrying pregnancy of 6 months. She further stated that a meeting was convened under the chairmanship of Shankari Prasad Singh in village Bamani, but accused Kalu Singh had not accepted the decision of the said meeting and he fled away from the meeting hence she lodged the F.I.R. against the accused- appellant.

3. On the basis of the written report of the informant – P.W.3, Nimdih P.S. Case No. 35 of 2005 dated 09.06.2005 under Section 376 IPC was registered. After investigation, charge-sheet was submitted against accused person and the case was committed to the court of Sessions.

4. Thereafter, charge against the accused/appellant was framed on 13.04.2006 by the Learned A.D.J. Fast Track Court-II for the offence punishable under Section 376 IPC. The content of the charges was read over and explained to the accused person but the defence of accused was that he was quite innocent and falsely implicated and pleaded not guilty and innocent and claimed to be tried.

5. The learned trial court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal.

6. Heard learned Counsel for the appellants and the learned A.P.P.for the State.

Arguments advanced on behalf of the Appellant:

7. Learned counsel for the appellant has taken the following ground in defence:

a. The impugned judgment of conviction and order of sentence are not sustainable either in law or in the facts and circumstances involved in this case and the same is liable to be set aside.

b. The learned Court below has failed to take into consideration that the from bare perusal of the First Information Report it appears that the appellant had been establishing sexual relationship with the victim since long and both the parties were consenting parties.

c. The learned Court below has failed to take into consideration that there was inordinate delay in lodging the First Information Report and no plausible explanation has been given for such delay.

d. The learned Court below has failed to take into consideration that from the perusal of the First Information Report as well as deposition of the victim girl, it is crystal clear that the appellant had continued to establish sexual intercourse with the victim girl for a long period of time, however the victim girl did not discuss or disclose this fact to her parents which clearly proved that it was not a forceful physical relationship rather they are consenting parties, and therefore no offence under Section 376 of the Indian Penal Code is said to have made out.

e. The learned Court below has failed to take into consideration that the medical officer clearly s