HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.238 OF 2010
JUDGMENT:
This Criminal Appeal is filed by the Appellant/Accused aggrieved by the conviction recorded by the Assistant Sessions Judge at Siddipet, in S.C.No.274 of 2008 dt.08.02.2008, convicting the accused for the offences punishable under Section 376 of the Indian Penal Code and sentence of Rigorous Imprisonment of ten years and a fine of Rs.5,000/-.
2. Heard and perused the record.
3. Briefly, the case of the prosecution is that PW1 was acquainted with the appellant since one year prior to the complaint. On several occasions, PW1 had sexual intercourse with the appellant. She consented for the reason of promise made by the appellant that he would marry her. However, on refusal to marry, the present complaint was filed.
4. On the basis of the complaint, the Police investigated and filed charge sheet for the offence under Section 376 and 420 of the Indian Penal Code.
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5. The learned Sessions Judge having examined PWs.1 to PW10 and marked Exs.P1 to P11, found the appellant guilty of the offense under Section 376 of the Indian Penal Code.
6. Learned Counsel appearing for the appellant would submit that even according to PW1, the relation was consensual, as such, the offence under Section 376 of the Indian Penal code is not attracted and prayed to reverse the conviction.
7. On the other hand learned Additional Public Prosecutor Sri S.Sudershan, would submit that on a false promise of marrying PW1, the appellant/accused had physical relation with PW1.
8. From the evidence on record, it is apparent that PW1 who was a major had physical relation over a period of one year with the appellant. During the course of her examination in the Court, she had narrated six instances, when she accompanied the appellant. During the course of her cross-examination, she specifically stated that she on her own consent went along with the appellant and had sexual intercourse.
9. To attract an offence of rape punishable under Section 376 of the Indian Penal Code, it would not suffice to mention that the victim consented to sexual intercourse on mis-conception of fact, 3 but also, the mis-conception should be proximate to the occurrence. It cannot be said that when the victim and the appellant had physical relation over a period of one year and PW1-victim admitting that it was consensual, such consensual act will not amount to an offence of rape. At the most, such false promise made and having physical relation over a period of one year may attract the offence under Section 420 of the Indian Penal Code. However, the learned Sessions Judge has acquitted the appellant for the said offence.
10. The State has not preferred any appeal against acquittal of the appellant under Section 420 of the IPC.
11. For the above mentioned reasons, since prosecution has failed to prove on facts that the appellant had committed rape on the victim-PW1, the conviction under Section 376 of the Indian Penal code, is set aside.
12. Accordingly, the Criminal Appeal is allowed. Since the appellant is on bail, his bail bonds shall stand cancelled.
Miscellaneous applications, if any, pending shall stand dismissed.
__________________ K.SURENDER, J Dt.:16.11.2022 tk 4 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No. 238 OF 2010 Dt. 16.11.2022 tk