The quality of evidence and the requirement of 'sterling' quality in establishing the elements of the offence.

JUDGMENT :

1. This Criminal Appeal is filed by the appellant/accused, aggrieved by the judgment in S.C.No.304 of 2017 dated 11.10.20201 passed by the Special Sessions Judge for Fast Tracking the Cases Relating to Atrocities Against Women-cum-XI Additional Metropolitan Sessions Judge, Hyderabad wherein the appellant was convicted for the offence under Section 376(2)(n) of IPC and sentenced to undergo rigorous imprisonment for a period of ten years and also fine of Rs.1,000/-, further sentenced to undergo imprisonment for a period of seven years under Section 420 of IPC and fine of Rs.1,000/- and also sentenced to undergo simple imprisonment for a period of two years under Section 506 of IPC and also to pay fine of Rs.2,000/-.

2. P.W.1 is the victim girl. She lodged a complaint on 08.08.2016 stating that she was acquainted with the appellant herein since six years. The appellant followed her saying that he was in love and want to marry her. Believing the version of the appellant, she also loved the appellant. The appellant pressurized for sexual intercourse and since the appellant promised to marry, they had sexual intercourse several times. However, the appellant was postponing the marriage on one pretext or the other. After dodging the issue for some time, the appellant refused to marry her. Since appellant refused to marry, complaint was filed with the police.

3. On the basis of the complaint, the police registered the case for the offence under Section 376(2)(n), 420 and 506 of IPC. After investigation, charge sheet was filed.

4. Learned Sessions Judge examined P.Ws.1 to 22. Exs.P1 to P29 were brought on record by the prosecution during the course of trial.

5. Learned Sessions Judge having considered the evidence, convicted the accused.

6. Learned counsel appearing for the appellant would submit that in the entire evidence of P.W.1, there is no mention that she had given consent for physical relation under the misconception of fact that the appellant would marry her. There are several contradictions in the evidence of P.W.1 which are elicited during cross-examination. The said contradictions in the evidence go to the root of the case to show that P.W.1 had developed the case only to implicate the appellant. Even admitting that the narration given by P.W.1 was correct, none of the ingredients of Section 376(2)(n), 420 of IPC are made out.

7. Learned counsel further submits that there is an inordinate delay of nearly five years in lodging the complaint. There are no reasons explained as to why the delay occurred.

8. Learned counsel relied on the judgment of Naim Ahamed v. State (NCT of Delhi) : 2023 (1) ALT (CRI.)(SC) 249 (D.B), wherein the Hon’ble Supreme Court held that unless consent was given under the misconception of promise of marriage, it does not amount to rape.

9. In Pramod Suryabhan Pawar v. The State of Maharashtra and others : (2019) 9 SSC 608, the Hon’ble Supreme Court held that in the case of consensual physical relation, there cannot be any criminality. Similar view was taken by the Hon’ble Supreme Court in the case of Maheshwar Tigga v. State of Jharkhand : 2020 (10) SCC 108. In Manik Taneja and another v. State of Karnataka and another : (2015) 7 SCC 423, the Hon’ble Supreme Court held that mere allegation of abuse without any specific narration will not amount to an offence under Section 506 of IPC. Reliance was also placed in the case of Anjan Kumar Sarma v. State of Assam : (2017) 14 SCC 359, to support his argument that suspicion cannot take place of legal proof.

10. On the other hand, learned Additional Public Prosecutor would submit that the victim/P.W.1 has narrated in detail that the appellant was following her and promised to marry her, pursuant to which, they had physical relationship over a period of time. In fact, P.W.1/victim had suffered miscarriage on account some tablets being given by the appellant. Promising to marry and having physical relationship over a period of time would amount to makin