JASMEET SINGH, J (ORAL)

1. This is an appeal seeking setting aside of the impugned judgment dated 13.09.2023 and order on sentence dated 08.12.2023 passed by the learned Additional Session Judge (SFTC) Dwarka Courts, New Delhi in SC No. 88/2020 arising out of FIR No. 597/2019 registered at PS Baba Haridas Nagar, wherein the appellant has been convicted for the offences under section 366 and 376 of IPC and sentenced for a period of 10 years of rigorous imprisonment.

2. As of today, the appellant has undergone 1 year 3 months 20 days, remission of 3 months, leaving an unexpired portion of the sentence of 8 years 5 months 10 days.

3. Notice was issued to the prosecutrix and the prosecutrix is present in Court today and states that she has nothing to urge in the matter and the appeal may be heard and decided on merits.

4. Brief facts, the FIR was registered by the father of the prosecutrix on the ground that his daughter aged about 20 years went missing on 03.11.2019. He suspected that she has gone with the appellant who was aged about 18 and a half years. Subsequently, they were found at Dharuhera, Haryana and the appellant was arrested.

5. After completion of investigation, a chargesheet was filed against the appellant and the charges were framed under section 366 and 376 of IPC.

6. Prosecution examined total 4 witnesses to prove their case beyond reasonable doubt and thereafter, the statement of the appellant was recorded under section 313 of CrPC.

7. Learned Trial Court, after analysing the evidence placed on record, convicted the appellant for the said charges and sentenced to 10 years of RI.

8. Hence the present appeal is filed by the appellant.

9. Mr. Arya, learned counsel for the appellant states that the present case is of consensual physical relations based out of love and affection and there is no criminality involved. Learned Trial Court failed to appreciate and consider that there was no physical relation between the prosecutrix and the appellant on the alleged promise of marriage.

10. Further, the prosecutrix accompanied the appellant to the hotel on 03.11.2019 out of her own free will and on an earlier occasion, the prosecutrix had even consumed poison when her father objected to her relationship with the appellant.

11. Learned counsel submits that the learned Trial Court failed to consider that the prosecutrix is elder to the appellant, which shows her maturity level that she cannot be persuaded by the appellant.

12. Mr. Chauhan, learned APP supports the impugned judgment and states that the testimony of the prosecutrix is clear and the learned Trial Court has correctly appreciated the evidence placed on record and the impugned judgment does not require any interference.

13. I have heard learned counsel for the appellant, learned APP as well as the prosecutrix.

14. It is necessary to refer to section 375 of IPC which reads as under:-

375. Rape.—A man is said to commit “rape” if he—

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—

First.—Against her will.

Secondly.—Without her consent.

Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes th