State Of Uttarakhand vs Nikhil Mandal
2023 Latest Caselaw 2204 UK

     IN THE HIGH COURT OF UTTARAKHAND AT
                   NAINITAL
        Leave to Appeal No. 25 of 2020
                    With
       Government Appeal No. 8 of 2020

State of Uttarakhand                              ... Applicant

                            Versus

Nikhil Mandal                               ... Respondents

     Mr. J.S. Virk, Deputy Advocate General, for the
     State/appellant.
     Mr. Deep Prakash Bhatt, Advocate, for the
     respondent.


                         11.8.2023

Hon'ble Manoj Kumar Tiwari, J.

Hon'ble Pankaj Purohit, J.

(Per: Hon'ble Manoj Kumar Tiwari, J.)

By this petition under Section 378(3) of CrPC, State/petitioner is seeking leave to appeal against the judgment/order dated 25.9.2019, passed by Additional Sessions Judge, Khatima, District Udham Singh Nagar, thereby acquitting the respondent from the charges framed against him under Sections 376, 506 IPC.

2. Having heard learned Counsel for the parties and on perusal of the impugned judgment and order, following facts have emerged:

(i) Prosecutrix knew the accused respondent since 2014 and she was aged 24 years at that time.

(ii) Accused respondent was resident of another village.

(iii) Prosecutrix came into contact with the accused respondent and she developed a liking for him and ultimately they fell in love.

(iv) Accused respondent allegedly made false promise to marry the prosecutrix, however, later he disowned his promise and refused to marry her.

(v) Accused respondent used to visit house of prosecutrix since 2014 in the absence of her parents. Prosecutrix had no objection to his visits.

(vi) On 30.12.2014, accused respondent made sexual relationship with the prosecutrix for the first time against her wishes, however, when he promised to marry her, she gave her consent.

(vii) Between 2014 to 2018, accused respondent made sexual relations with the prosecutrix many a times and during this period, accused respondent impregnated the prosecutrix 3-4 times, and every time she underwent abortion.

(viii) During the aforesaid period, prosecutrix used to go outside with accused respondent on jaunt.

(ix) Every sexual relation between the prosecutrix and accused respondent took place in the house of prosecutrix.

(x) Last sexual relation between them took place in March, 2018.

(xi) Prosecutrix concealed her relationship with the accused respondent from her parents, who came to know about it in the later half of 2018.

(xii) Prosecutrix lodged the FIR on 13.10.2018.

(xiii) Accused respondent allegedly threatened to kill her on 24.12.2018.

(xiv) In medical examination, no injury either on the body or on the private parts of prosecutrix was found and no opinion about rape was given.

(xv) In her deposition, prosecutrix stated that if accused respondent marries her, she would not proceed with the case. Her mother also deposed that she wants accused respondent to marry her daughter. Her father also deposed that her daughter loves the accused respondent.

3. In the backdrop of above facts and evidence, the Court below held that since the prosecutrix continued to have sexual relations with the accused respondent for at least four years; became pregnant 3-4 times during this period; every time underwent abortion; concealed all this from her parents, and lodged the report after seven months of last sexual relation, therefore, it cannot be said that the she gave her consent under misconception of fact i.e. on false promise that the accused respondent would marry her. We are inclined to agree with the view taken by the trial court.

4. Prosecutrix was a full grown girl and she was intelligent enough to understand the significance, moral quality and consequences of the act she was consenting to and she admits it in her deposition. That is why she kept it a secret as long as she could. Trial court has discussed the deposition of prosecutrix in great detail. Even if her deposition is taken on its face value, such allegations cannot be construed as rape by the respondent and it cannot be said that consent given by prosecutrix was no consent in the eye of law and the same was obtained under misconception of fact i.e. false promise to marry her. We haven't noticed any evidence that the respondent had given any definite date or any timeline to marry the prosecutrix. The fact must have an immediate relevance so as to come within the meaning of misconception of fact. But here the fact alleged is a promise to marry she does not know when and yet she consciously permitted the respondent to make the sexual relationship and continued to indulge in such activity for at least four years. Thus, we find no infirmity or illegality in the view taken by the trial court.

5. It is settled law that in an appeal against the judgment of acquittal, ordinarily the finding of acquittal should not be upset unless it is found that the same is totally perverse and some important piece of evidence, which might have resulted in the conviction of the accused, has not been

considered by the trial court. In the present case, no such evidence has been pointed out. It is also settled position of law that even if two views are possible, the view taken by the trial court acquitting the accused should be allowed to prevail.

6. In view of the above and for the reasons recorded above, we refuse to grant leave to appeal. Leave petition is dismissed. Government appeal also stands dismissed accordingly.

(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)

Pr