The existence of a marriage and subsequent litigation initiated by the victim undermines the applicability of rape charges under Section 376 of the IPC.

ORDER :

I.A. No.417 of 2025

1. The instant interlocutory application has been filed under Section 430(1) of the BNSS for suspension of sentence dated 30.09.2024 passed by learned Additional Judicial Commissioner VII, Ranchi in connection with S.T. 600 of 2015 arising out of Kotwali (Sukhdeonagar) P.S. Case No.513 of 2015 whereby and whereunder, the appellant has been convicted for the offence under Sections 376(2)(n) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years with fine of Rs.10,000/- and in default of payment of fine, further S.I. for 12 months.

2. Mr. R.S. Mazumdar, learned senior counsel appearing for the appellant, assisted by Mr. Nishant Kumar Roy, has submitted that very falsity of the prosecution version so far as conviction of the appellant under Section 376 of the Indian Penal Code is evident on the face of the prosecution version which is from the mouth of the victim that she, even after the said illegal physical relationship, has solemnized marriage with the appellant and, thereafter, the case has been instituted under Section 498 A of the Indian Penal Code and even the litigation has been initiated by filing application under Section 125 Cr.P.C. by seeking maintenance from the appellant.

3. The question, therefore, has been raised that once the marriage has been solemnized and based upon that the litigation for maintenance has been filed and even the prosecution has been initiated under Section 498A of the Indian Penal Code on the behest of the present victim, then where is the question to attract the ingredient of Section 376 of the Indian Penal Code but the learned trial court, without taking into consideration the aforesaid aspect of the matter, has convicted the appellant under Section 376(2)(n) of the Indian Penal Code and, as such, it is a fit case for suspension of sentence.

4. While on the other hand, Mr. Shailesh Kumar Sinha, learned Additional Public Prosecutor appearing for State and Mr. Rahul Ranjan, learned counsel appearing for the informant have vehemently opposed the prayer for suspension of sentence.

5. Learned counsel appearing for the informant, particularly, has submitted that it is a case also of bigamy and hence, the chargesheet has also been submitted under Section 494 of the Indian Penal Code .

6. Learned counsel for the informant has further submitted that it is incorrect on the part of the appellant to take the ground that no ingredient of Section 376 I.P.C. is being attracted, it is for the reason that the victim was subjected to rape since very beginning and the same would be evident from the version of the victim who has been examined as PW-2.

7. Learned State counsel has also made opposition to the prayer for suspension of sentence by taking the ground that if the testimony of the entire witnesses will be taken into consideration together coupled with the testimony of the victim who has been examined as PW-2, it is not a fit case for suspension of sentence.

8. This Court has heard learned counsel for the parties, gone across the finding recorded by the learned trial court in the impugned judgment as also the testimony of witnesses available in the lower court record and the exhibits available therein.

9. This Court, in order to appreciate the argument advanced on behalf of the parties, has gone through the material available in the trial court record and found therefrom that as per the testimony of the victim herself, she has instituted a case under Section 498A of the Indian Penal Code as also has filed a case before the concerned family court for seeking maintenance by filing application under Section 125 Cr.P.C.

10. It is also admitted that the marriage was solemnized in between the victim and the appellant. But during the course of said marriage, the appellant has solemnized second marriage and hence, the case has also been instituted under Section 494 of the Indian Penal Code . But, there is acquittal under Section 494 I.P.C. due to want of evidence