Jharkhand High Court
Kalu Singh vs The State Of Jharkhand on 19 February, 2025
Author: Navneet Kumar
Bench: Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 1417 of 2007
-----
(Against the judgment of conviction dated 13.09.2007 and order of sentence
dated 15.09.2007 passed in S.T. No. 150 of 2005 arising out of Nimdih P.S. Case
No. 35 of 2005 corresponding to G.R. Case No. 486 of 2005 by the Court of
learned Additional Sessions Judge, Fast Track Court-II at Seraikella)
Kalu Singh, son of late Lakhan Singh, resident of Tengadih, P.S.- Nimdih,
District- Seraikella- Kharsawan --- --- Appellant
Versus
1. The State of Jharkhand
2. Ms. X through her guardian Sh. Jalan Singh, Village- Tengadih , P.S. Nimdih,
District-Seraikella Kharsawan --- --- Respondents
.......
For the Appellant : Mrs. Jasvinder Mazumdar, Advocate
For the State : Mr. Vandana Bharti, A.P.P.
PRESENT
HON'BLE MR. JUSTICE NAVNEET KUMAR
JUDGMENT
19.02.2025 This appeal is directed against the judgment of conviction dated
13.09.2007 and order of sentence dated 15.09.2007 passed in S.T. No.
150 of 2005 arising out of Nimdih P.S. Case No. 35 of 2005
corresponding to G.R. Case No. 486 of 2005 by the Court of learned
Additional Sessions Judge, Fast Track Court-II at Seraikella whereby
and where under the appellant has been convicted for the offence
punishable under Section 376 IPC and has been sentenced to undergo
R.I. for 7 years with a fine of Rs. 2000/- and a default sentence of 2
months S.I.
2. The prosecution case arose in the wake of the written report of the
informant- Victim (P.W.3), whose statement was recorded by the Officer-
In-Charge, Nimdih Police Station on 09.06.2005, which is as under:
The informant-victim is a tribal girl aged about 19 years, resident
of Village Tenagadih P.S. Nimdih, District- Seraikella-Kharwsawan, who
has alleged that the appellant Kalu Singh, resident of the same village
had established sexual relation with the victim for the last two years
from the date of lodging of the F.I.R. as a result of which she became
pregnant. It is further the case of the prosecution that accused Kalu
Singh had given assurance to the victim that he would marry her but
lastly, he refused to marry with her when the victim was carrying
pregnancy of 6 months. She further stated that a meeting was convened
under the chairmanship of Shankari Prasad Singh in village Bamani, but
accused Kalu Singh had not accepted the decision of the said meeting
and he fled away from the meeting hence she lodged the F.I.R. against
the accused- appellant.
3. On the basis of the written report of the informant - P.W.3,
Nimdih P.S. Case No. 35 of 2005 dated 09.06.2005 under Section 376
IPC was registered. After investigation, charge-sheet was submitted
against accused person and the case was committed to the court of
Sessions.
4. Thereafter, charge against the accused/appellant was framed on
13.04.2006 by the Learned A.D.J. Fast Track Court-II for the offence
punishable under Section 376 IPC. The content of the charges was read
over and explained to the accused person but the defence of accused was
that he was quite innocent and falsely implicated and pleaded not guilty
and innocent and claimed to be tried.
5. 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.
6. Heard learned Counsel for the appellants and the learned A.P.P.
for the State.
Arguments advanced on behalf of the Appellant:
7. Learned counsel for the appellant has taken the following ground
in defence:
a. The impugned judgment of conviction and order of sentence are
not sustainable either in law or in the facts and circumstances
involved in this case and the same is liable to be set aside.
b. The learned Court below has failed to take into consideration that
the from bare perusal of the First Information Report it appears
that the appellant had been establishing sexual relationship with
the victim since long and both the parties were consenting parties.
c. The learned Court below has failed to take into consideration that
there was inordinate delay in lodging the First Information Report
and no plausible explanation has been given for such delay.
d. The learned Court below has failed to take into consideration that
from the perusal of the First Information Report as well as
deposition of the victim girl, it is crystal clear that the appellant
had continued to establish sexual intercourse with the victim girl
for a long period of time, however the victim girl did not discuss
or disclose this fact to her parents which clearly proved that it
wasnot a forceful physical relationship rather they are consenting
parties, and therefore no offence under Section 376 of the Indian
Penal Code is said to have made out.
e. The learned Court below has failed to take into consideration that
the medical officer clearly stated that the age of the victim girl
was more than 18 years and so she was a major and not a minor
and therefore, no offence under Section 376 of the Indian Penal
Code can be attributed against the appellant.
f. The learned Court below has failed to take into consideration that
no offence under Section 376 of the Indian Penal Code is made
out against the appellant rather only offence that can be attributed
to the appellant is for cheating or deceit.
g. The learned Court below has failed to take into consideration that
no DNA test has been conducted in order to prove that the child
born was due to the sexual intercourse of the appellant.
h. The learned Court below has failed to take into consideration that
there is major contradiction in the prosecution version and
appellant has been implicated in this case due to village politics.
i. The learned Court below has failed to take note of the fact that
almost all the prosecution witnesses, except two witnesses, are
close relatives of the informant.
j. The learned Court below has failed to take into consideration that
the prosecution has not been able to prove the case beyond
shadow of all reasonable doubt.
k. The learned Court below has failed to take note that while the
alleged sexual relationship continued for long two years, neither
the relatives nor even the villagers could come to know about the
same for a long two years;
And therefore, pleaded that the impugned judgment of conviction and
order of sentence is fit to be set aside.
Arguments advanced on behalf of the State.
8. On the other hand, learned A.P.P. appearing on behalf of the State
has opposed the contentions raised on behalf of the appellant and
submitted that it is a clear-cut case for the offence punishable under
Section 376 IPC under which appellant has been convicted. The learned
trial court has rightly appreciated the deposition of P.W.3, who is the
victim in the present case, who has categorically stated in her deposition
that she had been establishing physical relationship with the appellant
under the false promise of marriage and therefore, it is a case within the
meaning of Section 376 IPC. Therefore, there is no legal evidence to
interfere with the impugned judgment of conviction and order of
sentence and the instant criminal appeal is fit to be dismissed.
Appraisal & Findings
9. Having heard the parties, perused the record of the case including
the Trial Court Records.
10. In order to prove its case, prosecution has been able to examine
altogether 10 witnesses who are as under:
1. P.W.1-Jalan Singh, father of the Informant
2. P.W.2-Gurupodo
3. P.W.3-Victim
4. P.W.4-Aladi Singh
5. P.W.5-Alo Mani
6. P.W.6-Navin Singh Sardar
7. P.W.7-Birchand Singh
8. P.W.8-Karam Singh Sardar
9. P.W.9- Dr. Manorma Sidhesh (The doctor)
10. P.W.10- Dhananjay Singh, Investigating Officer of the case.
Apart from the oral evidences the prosecution has proved some
documentary evidences also which are as under: -
Exhibit-1- Signature of Karam Singh Sardar on the written report
Exhibit-1/1- All statements and beyan of written report
Exhibit-2- Medical examination Report of victim.
Exhibit-3- Signature of the Investigating Officer Dhananjay Singh on
the formal F.I.R
Exhibit-4- Identification of the written report by the Investigating
Officer Dhananjay Singh
Exhibit-4/1- Signature of the Investigating Officer Dhananjay Singh
on the written report.
11. It is an admitted case of the prosecution that the appellant and the
victim had been establishing physical relationship willingingly and
voluntarily for the last 2 years from the date of lodging of F.I.R. It is
further case of the prosecution that the accused/ appellant had given
assurance to the victim that he would marry with her but lastly when he
refused to marry her and the victim became pregnant, then the F.I.R was
instituted. From the F.I.R it is found that there has not been any forceful
relationship even at the first instance between the appellant and the
victim and it was consensual relationship between both of them for a
long period of continuous 2 years. P.W.3-victim in her deposition has
categorically stated that she was in sexual relationship with the appellant
continuously for 3 years and when the appellant refused to marry her,
then this case was instituted.
12. For better appreciation the relevant portion of written report of
FIR and her deposition is quoted hereunder-
13. In FIR she reported that:
"हमारे गााँव के श्री कालू ससह पिता स्वगीय लखन ससह ने दो
साल िहले शादी करने की प्रलोभन देकर मेरे साथ शारीररक संबंध
ककया तथा दो साल तक लगातार यौन शोषण ककया । जब मैं
गभभवती हो गई तो श्री कालू ससह शादी करना अस्वीकार ककया ।
अभी मैं छह महीने की गभभवती हाँ । "
14. In her deposition in para 1 she stated that:
"लगभग 3 साल िहले मैं तालाब दोिहर के समय नहाने गई थी
। तालाब जो मेरे गााँव मे है तथा नया बााँध के नाम से जाना
जाता है । कालू ससह अपभयुक्त जो उस तालाब िर आया था ।
मुझे अके ले िाकर मेरे साथ बलात्कार ककया। मैं पवरोध की तो वह
बोला कक मैं तुम्हारे साथ शादी कराँगा । अपभयुक्त कालू ससह तीन
साल तक शादी का झासा देकर बलात्कार करता रहा । मैं गभभवती
हो गयी।"
15. Further in para 2 she stated that:
"जब मैं गभभवती हो गयी तो कालू ससह को शादी करने के पलए
बोला तो वह शादी करने से इंकार कर कदया ।"
16. In view of the aforesaid statement of the victim, it is found that it
is not a case under Section 376 IPC and at most it is a case of cheating
and deceit because there was long established relationship between the
appellant and the victim continuously for 2 years and this fact has been
stated by the father of the victim P.W.1 Jalan Singh , P.W.2-Gurupado,
P.W.4 Aladi Singh, P.W.5-Alo Mani, P.W.6 Navin Singh Sardar, P.W.7-
Birchand Singh and P.W.8- Karam Singh Sardar. In view of the aforesaid
fact, the deposition of P.W.9-Dr. Manorma Sidhesh and P.W.10-
Dhananjay Singh, I.O. are not very much relevant.
17. For the better appreciation of the charges levelled against the
appellant, the relevant provisions contained in Sections 90 and 375 are
reproduced below :-
―90. Consent known to be given under fear or
misconception.--A consent is not such a consent as is intended
by any section of this Code, if the consent is given by a person
under fear of injury, or under a misconception of fact, and if the
person doing the act knows, or has reason to believe, that the
consent was given in consequence of such fear or
misconception; or
Consent of insane person.--if the consent is given by a person
who, from unsoundness of mind, or intoxication, is unable to
understand the nature and consequence of that to which he
gives his consent; or
Consent of child.--unless the contrary appears from the
context, if the consent is given by a person who is under twelve
years of age.
........
―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
that he is another man to whom she is or believes herself to be
lawfully married.
Fifthly.--With her consent when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she
gives consent.
Sixthly.--With or without her consent, when she is under
eighteen years of age.
Seventhly.--When she is unable to communicate consent.
Explanation 1.--For the purposes of this section, ―vagina‖
shall also include labia majora.
Explanation 2.--Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form of
verbal or non-verbal communication, communicates willingness
to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act
of penetration shall not by the reason only of that fact, be
regarded as consenting to the sexual activity.
Exception 1.--A medical procedure or intervention shall not
constitute rape.
Exception 2.--Sexual intercourse or sexual acts by a man with
his own wife, the wife not being under fifteen years of age, is not
rape.‖
18. Reference of a few decisions of the Hon‟ble Apex Court
dealing with the different dimensions and angles of the word
„consent‟ in the context of Sections 90 and 375 would be beneficial
for deciding this appeal in hand.
19. In Naim Ahamad Vs. State (NCT of Delhi) (2023) 15 SCC 385
under the circumstances of this case, the Hon‟ble Supreme held as
under:-
―10. It would be germane to note that the basic principles of
criminal jurisprudence warrant that the prosecution has to
prove the guilt of the accused beyond reasonable doubt by
leading cogent evidence, however, considering the ethos and
culture of the Indian Society, and considering the rising graph
of the commission of the social crime - ‗Rape', the courts have
been permitted to raise a legal presumption as contained in
Section 114A of the Evidence Act, 1872. As per Section 114A, a
presumption could be raised as to the absence of consent in
certain cases pertaining to Rape. As per the said provision, if
sexual intercourse by the accused is proved and the question
arises as to whether it was without the consent of the woman
alleged to have been raped, and if she states in her evidence
before the court that she did not consent, the court shall
presume that she did not consent.
11. It cannot be gainsaid that a consent given by a person
would not be a consent as intended by any Section of the Penal
Code, if such consent was given by the person under the fear
of injury, or under a misconception of fact as contemplated in
Section 90 IPC. Further, Section 375 also describes certain
acts which if committed by the accused under the
circumstances mentioned therein, as the commission of ‗Rape',
even though committed with the consent of the prosecutrix. In
our opinion, the expression ―misconception of fact‖ contained
in Section 90 IPC is also required to be appreciated in the
light of the Clauses - contained in Section 375 IPC, more
particularly the Clauses - Thirdly, Fourthly and Fifthly thereof,
when the accused is charged for the offence of ‗rape'. The
circumstances described in the said three Clauses are wider
than the expression ―misconception of fact‖, as contemplated
in Section 90 of IPC.
12. Section 375 describes seven circumstances under
which the ‗rape' could be said to have been committed. As per
the Clause - Thirdly, a rape could be said to have been
committed, even with her consent, when the consent of the
prosecutrix is obtained by putting her or any person in whom
she is interested in fear of death or of hurt. As per the Clause -
Fourthly, with her consent, when the man knows that he is not
her husband and that her consent is given because she believes
that he is another man to whom she is or believes herself to be
lawfully married; and as per the Clause - Fifthly, with her
consent when at the time of giving the consent, the prosecutrix
by reason of unsoundness of mind or intoxication or the
administration of stupefying or unwholesome substance by the
accused or through another, she is unable to understand the
nature and consequences of that to which she gives consent.
Thus, apart from the prosecutrix being under the
misconception of fact as contemplated in Section 90, her
consent would be treated as ‗no consent' if she had given her
consent under any of the circumstances mentioned in Section
375 of IPC.
13. The exposition of law in this regard is discernible in
various decisions of this Court, however the application of
such law or of such decisions would depend upon the proved
facts in each case, known as legal evidence. The ratio laid
down in the judgements or the law declared by this Court do
provide the guidelines to the judicial mind of the courts to
decide the cases on hand, but the courts while applying the
law also have to consider the evidence before them and the
surrounding circumstances under which the alleged offences
are committed by the accused.
20. In Uday Vs. State of Karnataka (2003) 4 SCC 46, where the
prosecutrix aged about 19 years had given her consent for having a
sexual intercourse with the accused with whom she was deeply in love,
and it was alleged by the prosecution that the prosecutrix continued to
meet the accused as the accused had given her a promise to marry her
on a later date. The prosecutrix became pregnant and the complaint was
lodged on failure of the accused to marry her. This Court while holding
that under the circumstances, the consent could not be said to have
been given under a misconception of fact under section 90 of IPC, held
in para 21 and 23 as under :-
―21. It therefore appears that the consensus of judicial opinion
is in favour of the view that the consent given by the
prosecutrix to sexual intercourse with a person with whom she
is deeply in love on a promise that he would marry her on a
later date, cannot be said to be given under a misconception of
fact. A false promise is not a fact within the meaning of the
Code. We are inclined to agree with this view, but we must add
that there is no straitjacket formula for determining whether
consent given by the prosecutrix to sexual intercourse is
voluntary, or whether it is given under a misconception of fact.
In the ultimate analysis, the tests laid down by the courts
provide at best guidance to the judicial mind while considering
a question of consent, but the court must, in each case,
consider the evidence before it and the surrounding
circumstances, before reaching a conclusion, because each
case has its own peculiar facts which may have a bearing on
the question whether the consent was voluntary, or was given
under a misconception of fact. It must also weigh the evidence
keeping in view the fact that the burden is on the prosecution
to prove each and every ingredient of the offence, absence of
consent being one of them.
22. xxxx xxxx xxxx xxxx
23. Keeping in view the approach that the court must adopt in
such cases, we shall now proceed to consider the evidence on
record. In the instant case, the prosecutrix was a grown-up girl
studying in a college. She was deeply in love with the
appellant. She was, however, aware of the fact that since they
belonged to different castes, marriage was not possible. In any
event the proposal for their marriage was bound to be
seriously opposed by their family members. She admits having
told so to the appellant when he proposed to her the first time.
She had sufficient intelligence to understand the significance
and moral quality of the act she was consenting to. That is why
she kept it a secret as long as she could. Despite this, she did
not resist the overtures of the appellant, and in fact succumbed
to them. She thus freely exercised a choice between resistance
and assent. She must have known the consequences of the act,
particularly when she was conscious of the fact that their
marriage may not take place at all on account of caste
considerations. All these circumstances lead us to the
conclusion that she freely, voluntarily and consciously
consented to having sexual intercourse with the appellant, and
her consent was not in consequence of any misconception of
fact.‖
21. In Deelip Singh VS. State of Bihar, (2005) 1 SCC 88, the
Hon‟ble Supreme Court after discussing various earlier decisions of the
Hon‟ble Supreme Court and other High Courts, further explained the
observation made in Uday Vs. State of Karnataka, (2003) 4 SCC 46
and observed as under :-
―28. The first two sentences in the above passage need some
explanation. While we reiterate that a promise to marry
without anything more will not give rise to ―misconception of
fact‖ within the meaning of Section 90, it needs to be clarified
that a representation deliberately made by the accused with a
view to elicit the assent of the victim without having the
intention or inclination to marry her, will vitiate the consent. If
on the facts it is established that at the very inception of the
making of promise, the accused did not really entertain the
intention of marrying her and the promise to marry held out by
him was a mere hoax, the consent ostensibly given by the
victim will be of no avail to the accused to exculpate him from
the ambit of Section 375 clause secondly. This is what in fact
was stressed by the Division Bench of the Calcutta High Court
in Jayanti Rani Panda which was approvingly referred to in
Uday case. The Calcutta High Court rightly qualified the
proposition which it stated earlier by adding the qualification
at the end (SCC Online Cal Para 7) -- ‗unless the court can be
assured that from the very inception the accused never really
intended to marry her'. In the next para, the High Court
referred to the vintage decision of the Chancery Court which
laid down that a misstatement of the intention of the defendant
in doing a particular act would tantamount to a misstatement
of fact and an action of deceit can be founded on it. This is
also the view taken by the Division Bench of the Madras High
Court in Jaladu case (vide passage quoted supra). By making
the solitary observation that ―a false promise is not a fact
within the meaning of the Code‖, it cannot be said that this
Court has laid down the law differently. The observations
following the aforesaid sentence are also equally important.
The Court was cautious enough to add a qualification that no
straitjacket formula could be evolved for determining whether
the consent was given under a misconception of fact. Reading
the judgment in Uday case as a whole, we do not understand
the Court laying down a broad proposition that a promise to
marry could never amount to a misconception of fact. That is
not, in our understanding, the ratio of the decision. In fact,
there was a specific finding in that case that initially the
accused's intention to marry cannot be ruled out.‖
22. In Deepak Gulati Vs State of Haryana 2013 7 SCC 675, the
Hon‟ble Apex Court gave one more dimension of the word consent by
distinguishing „rape‟ and „consensual sex‟ and observed as under:-
"21. Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit. Consent is an
act of reason, accompanied by deliberation, the mind
weighing, as in a balance, the good and evil on each side.
There is a clear distinction between rape and consensual sex
and in a case like this, the court must very carefully examine
whether the accused had actually wanted to marry the victim,
or had mala fide motives, and had made a false promise to this
effect only to satisfy his lust, as the latter falls within the ambit
of cheating or deception. There is a distinction between the
mere breach of a promise, and not fulfilling a false promise.
Thus, the court must examine whether there was made, at an
early stage a false promise of marriage by the accused; and
whether the consent involved was given after wholly
understanding the nature and consequences of sexual
indulgence. There may be a case where the prosecutrix agrees
to have sexual intercourse on account of her love and passion
for the accused, and not solely on account of
misrepresentation made to her by the accused, or where an
accused on account of circumstances which he could not have
foreseen, or which were beyond his control, was unable to
marry her, despite having every intention to do so. Such cases
must be treated differently. An accused can be convicted for
rape only if the court reaches a conclusion that the intention of
the accused was mala fide, and that he had clandestine
motives.
22. xxxx xxxx xxxx xxxx
23. xxxx xxxxx xxxx xxxx
24. Hence, it is evident that there must be adequate evidence to
show that at the relevant time i.e. at the initial stage itself, the
accused had no intention whatsoever, of keeping his promise to
marry the victim. There may, of course, be circumstances,
when a person having the best of intentions is unable to marry
the victim owing to various unavoidable circumstances. The
―failure to keep a promise made with respect to a future
uncertain date, due to reasons that are not very clear from the
evidence available, does not always amount to misconception
of fact. In order to come within the meaning of the term
―misconception of fact‖, the fact must have an immediate
relevance‖. Section 90 IPC cannot be called into aid in such a
situation, to pardon the act of a girl in entirety, and fasten
criminal liability on the other, unless the court is assured of the
fact that from the very beginning, the accused had never really
intended to marry her‖.
23. Again in Dhruvaram Murlidhar Sonar VS State of
Maharashtra, (2019) 18 SCC 191 this Court interpreting Section 90
and clause secondly in Section 375 of IPC observed as under :-
―23. Thus, there is a clear distinction between rape and
consensual sex. The court, in such cases, must very carefully
examine whether the complainant had actually wanted to
marry the victim or had mala fide motives and had made a
false promise to this effect only to satisfy his lust, as the latter
falls within the ambit of cheating or deception. There is also a
distinction between mere breach of a promise and not fulfilling
a false promise. If the accused has not made the promise with
the sole intention to seduce the prosecutrix to indulge in sexual
acts, such an act would not amount to rape. There may be a
case where the prosecutrix agrees to have sexual intercourse
on account of her love and passion for the accused and not
solely on account of the misconception created by accused, or
where an accused, on account of circumstances which he
could not have foreseen or which were beyond his control, was
unable to marry her despite having every intention to do. Such
cases must be treated differently. If the complainant had any
mala fide intention and if he had clandestine motives, it is a
clear case of rape. The acknowledged consensual physical
relationship between the parties would not constitute an
offence under Section 376 IPC.‖
24. In Pramod Suryabhan Pawar Vs State of Maharashtra (2019) 9
SCC 608 while dealing with a similar situation, the principles of law
which must govern a situation like the present were enunciated in the
following observations:-
―16. Where the promise to marry is false and the intention of
the maker at the time of making the promise itself was not to
abide by it but to deceive the woman to convince her to engage
in sexual relations, there is a ―misconception of fact‖ that
vitiates the woman's ―consent‖. On the other hand, a breach
of a promise cannot be said to be a false promise. To establish
a false promise, the maker of the promise should have had no
intention of upholding his word at the time of giving it.‖
―18. To summarise the legal position that emerges from the
above cases, the ―consent‖ of a woman with respect to Section
375 must involve an active and reasoned deliberation towards
the proposed act. To establish whether the ―consent‖ was
vitiated by a ―misconception of fact‖ arising out of a promise
to marry, two propositions must be established. The promise of
marriage must have been a false promise, given in bad faith
and with no intention of being adhered to at the time it was
given. The false promise itself must be of immediate relevance,
or bear a direct nexus to the woman's decision to engage in the
sexual act.‖
25. The apex court in Mahesh Damu Khare Vs. State of Maharashtra
and Anr. reported in 2024 LiveLaw (SC) 921 has as under-
22. ........... Thus, in a situation where physical relationship
is maintained for a prolonged period knowingly by the woman,
it cannot be said with certainty that the said physical
relationship was purely because of the alleged promise made
by the appellant to marry her. Thus, unless it can be shown
that the physical relationship was purely because of the
promise of marriage, thereby having a direct nexus with the
physical relationship without being influenced by any other
consideration, it cannot be said that there was vitiation of
consent under misconception of fact.
27. Thus, from the above it appears that it is more of an extra-
marital affair during the aforesaid period without any
insistence by the complainant for getting married to the
appellant. The fact that the complainant continued to have a
physical relationship for a long time without any insistence on
marriage would indicate the unlikelihood of any such promise
made by the appellant for marrying her and it rather indicates
that the relationship was a consensual one.
In our opinion, the longer the duration of the physical
relationship between the partners without protest and
insistence by the female partner for marriage would be
indicative of a consensual relationship rather than a
relationship based on false promise of marriage by the male
partner and thus, based on misconception of fact.
28. Moreover, even if it is assumed that a false promise of
marriage was made to the complainant initially by the
appellant, even though no such cogent evidence has been
brought on record before us to that effect, the fact that the
relationship continued for nine long years, would render the
plea of the complainant that her consent for all these years
was under misconception of fact that the Appellant would
marry her implausible. Consequently, the criminal liability
attached to such false promise would be diluted after such a
long passage of time and in light of the fact that no protest was
registered by the complainant during all those years. Such a
prolonged continuation of physical relationship without
demurral or remonstration by the female partner, in effect
takes out the sting of criminal culpability and neutralises it.
26. In view of the aforesaid observation of the Hon‟ble Supreme
Court, in the present case also it is found that there is no whisper of any
forceful sexual relationship or rape ever committed by the appellant as
evident from the F.I.R. Even from the testimonies of the victim P.W.3 in
the trial it is found that it is a case of consensual sexual relationship
between both of them since last two years and therefore, in this event, it
is well founded that no offence under Section 376 IPC is made out or
substantiated inasmuch as when alleged sexual relationship was
established then promise of marriage was alleged to have been given by
accused, therefore it was not a case of false marriage or under
misconception of fact consent was obtained by appellant.
27. Accordingly, the judgment of conviction dated 13.09.2007 and
order of sentence dated 15.09.2007 passed in S.T. No. 150 of 2005
arising out of Nimdih P.S. Case No. 35 of 2005 corresponding to G.R.
Case No. 486 of 2005 by the Court of learned Additional Sessions Judge,
Fast Track Court-II at Seraikella against the appellant is set aside.
28. The appellant is acquitted from the charge leveled against him.
Since the appellant is on bail, he is discharged from the liability of bail
bond.
29. This Criminal Appeal is allowed.
30. Let the Lower Court Records and the copy of the judgment be
also transmitted to the learned Court below.
(Navneet Kumar, J.)
A.Mohanty
Jharkhand High Court
Dated 19th February 2025
