Prolonged consensual relationships undermine claims of rape under false promises, indicating that consent may not be vitiated by misconception of fact.

JUDGMENT :

NAVNEET KUMAR, J.

Challenge in the appeal:

This appeal is directed against the judgment of conviction dated 13.09.2006 and order of sentence dated 15.09.2006 passed by the Court of Learned Additional Sessions Judge, (Fast Track Court-II) Saraikella –Kharsawan in S.T. Case No. 121 of 2003, arising out of Chandil P.S. Case No. 67 of 2003, corresponding to G.R Case No.301/2003 whereby and whereunder the appellant was convicted under sections 376 and 313 of IPC and sentenced to undergo R.I. for 7 years as well as, a fine of Rs.2,000/- separately for the both the offence under Section 376 and 313 of IPC. In default of payment of fine the convict was further sentenced to undergo six months simple imprisonment & both sentences were directed to run concurrently and the period undergone was directed to be set off.

Prosecution Story:

2. The prosecution story in brief is that the informant, the victim (name withheld to maintain confidentiality) herself was the resident of Choulibasa, P.S. Chandil, Dist. Seraikella-Kharsawan. She stated that she was the labourer and she was belonging to a very poor family. It was further case of the prosecution that the informant as well as, the accused (Putul Bhuiyan) both used to work as Labourer in the same truck and one day all of suden while the informant along with accused Putul Bhuiyan, were returning back to their house from their duty, accused (Putul Bhuiyan) committed rape upon the informant/victim against her will. While the informant raised hulla, the accused promised to marry her according to the social rites. On the condition when she would not tell the matter to anyone. It is further case of the prosecution that the accused was having sexual intercourse with the victim for the last three years under the pretext of marriage. The victim further alleged that, as a result, the informant/victim became pregnant, but the accused advised her for termination of pregnancy so that she could marry with accused and her pregnancy was terminated. It is further case of the prosecution that accused had got married with another girl, that’s why, she (informant) had lodged this case against him.

3. On the basis of the aforesaid written report of the PW-1, the victim, the case was registered under sections 493, 376 of IPC vide Chandil P.S. Case No.67 of 2003 dated 05.05.2023 and investigation of the case was commenced and after completion of investigation, the charge-sheet was submitted on 30.06.2003 vide chargesheet No. 79 of 2003 and the case was committed to the Court of Sessions where the charge was framed on 08.12.2003 under Sections 376, 493 and 313 of the IPC by the Learned A.D.J. (F.T.C.) Seraikella to which the appellant pleaded not guilty and claimed to be tried.

4. 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.

5. Heard the learned defence counsel Mr. R.C.P. Sah appearing for the appellant and the Mr. Naveen Kumar Ganjhu, appearing for the State.

Arguments advanced on behalf of the appellant

6. It is submitted on behalf of the appellant that the victim women (PW-1) was a major at the time of the occurrence between 18-20 years of age and there has been a delay of three year in instituting the F.IR., and no explanation has been given for causing the delay. Further, it has also been pointed out that I.O. in this has not been examined and therefore neither the place of occurrence nor the formal F.I.R. has been proved.

7. Further it has also been pointed out that non-examination of the I.O had caused serious prejudice to the appellant because the appellant failed to confront the earlier statements given by the victim before the I.O. during the course of the investigation, as the victim PW-1 had stated in para 14 of her deposition that she stated to the police that appellant/accused had put cloth in her mouth and committed rape on her. While all these allegations are false and fabrica