Consent for companionship does not imply consent to sexual acts; coercion negates any claim of legitimate consent.

ORDER :

2025 IA No.5408 of 2024

1. This instant interlocutory application has been filed for suspension of sentence against the Judgment of conviction dated 14.07.2023 and order of sentence dated 24.07.2023 passed by learned A.J.C.-IV-Cum- Special Judge-POCSO-cum-Children Court, Ranchi, in connection with Children Case No.02 of 2019 (Arising out of Mahila P.S. Case No.34 of 2018), whereby and whereunder the appellant has been convicted under Sections 376 (D) of the IPC and sentenced to undergo for R.I. for twenty years and fine of Rs.10,000/- for the offence under Section 376(D) of the IPC and in default of payment of fine he was further directed to undergo simple imprisonment for six months and period already undergone during investigation and trial directed to be set off.

2. It has been contended on behalf of the appellant that it is a case where no ingredient of Section 376(D) of IPC is being made out and this does not come under the definition of rape under Section 375 of IPC, since, the victim on her own wish had accompanied the appellant which would be evident from the narration as has been recorded by the victim itself in the Statement under Section 164 of Cr.P.C. It has been contended that since, the consent is there and not only that she has admitted that she had on her own wish established the physical relationship with the appellant and as such it is not a case where ingredient of Section 376(D) of IPC is being attracted therefore it is a fit case for suspension of sentence.

3. While on the other hand, learned Addl. Public Prosecutor appearing for the respondent-State has vehemently opposed the prayer for suspension of sentence and has contended that if the statement of the victim so recorded under Section 164 of Cr.P.C. will be taken into consideration to the extent where she has shown her willingness to establish the physical relationship to that extent only it can be said that there is no ingredient of Section 376 (D) of IPC but as it would be evident from the statement of victim that she in good faith had gone to the forest where two other persons including the present appellant had established the physical relationship forcefully, hence it is incorrect on the part of the appellant to take the ground that there is no ingredient of Section 375 of IPC which contains the definition of rape.

4. Learned State counsel has submitted by referring the testimony of victim who has been examined as PW-3 that she has fully supported the prosecution version. A reference of the DNA profile has also been made wherein the DNA profile of the present appellant along with the two other co-accused have been found matched having found the sample over the garments of the victim.

5. The learned State counsel based upon the aforesaid ground submitted that it is not a fit case for suspension of sentence.

6. We have heard learned counsel for the parties and gone across the findings recorded by the learned trial court in the impugned Judgment as also the testimonies of the witnesses available in the LCR and other material exhibits available therein.

7. This Court on consideration of statement of the victim so recorded under Section 164 of Cr.P.C. has found that she had accompanied the appellant on her own wish. It has been stated by her that she voluntarily established the physical relationship with the appellant having trust upon the appellant, she on the dictate of the present appellant had gone to the forest where she was subjected to rape by two other accused persons, namely, Hem Singh Mahto @ Rahul and Naukishore Singh Munda along with present appellant. Therefore, the version has fully been supported by the victim who has been examined as PW-3.

8. This Court