Karnataka High Court
State Of Karnataka vs Rajesh Shetty on 15 October, 2020
Bench: B.Veerappa, K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL APPEAL NO.1030 OF 2014
BETWEEN:
STATE OF KARNATAKA
BY DEPUTY SUPERINTENDENT OF POLICE
UDUPI SUB DIVISION
UDUPI - 576 101
... APPELLANT
(BY SRI:S.RACHAIAH, HCGP)
AND:
RAJESH SHETTY
SON OF KARUNAKARA SHETTY
RESIDING AT KANNURU HOUSE
HALUVALLI VILLAGE
UDUPI TALUK
... RESPONDENT
(BY SMT:SUNITHA H.SINGH, ADV)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C. BY THE STATE PUBLIC
PROSECUTOR PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER DATED 23.06.2014
PASSED BY THE PRINCIPAL SESSIONS/SPECIAL JUDGE,
UDUPI IN SPECIAL CASE NO.18 OF 2011 ACQUITING THE
RESPONDENT-ACCUSED FOR THE OFFENCES PUNISHABLE
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UNDER SECTIONS 341, 376, 417 AND 506 OF IPC AND
SECTION 3(1)(X) AND 3(2)(V) OF SC/ST (POA) ACT, 1989;
SET ASIDE THE JUDGMENT AND ORDER DATED 23.06.2014
PASSED BY THE PRINCIPAL SESSIONS/SPECIAL JUDGE,
UDUPI IN SPECIAL CASE NO.18 OF 2011, ACQUITING THE
RESPONDENT-ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 341, 376, 417 AND 506 OF IPC AND
SECTION 3(1)(X) AND 3(2)(V) OF SC/ST (POA) ACT 1989;
CONVICT AND SENTENCE THE ACCUSED-RESPONDENT FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 341, 376, 417
AND 506 OF IPC AND SECTION 3(1)(X) AND 3(2)(V) OF
SC/ST (POA) ACT, 1989, IN ACCORDANCE WITH LAW.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THROUGH VIDEO CONFERENCE THIS DAY, B.VEERAPPA J,
DELIVERED THE FOLLOWING:
JUDGMENT
The State has filed the present appeal against the judgment and order of acquittal dated 23.06.2014 made in Special Case No.18 of 2011 on the file of Principal Sessions/Special Judge Udupi, acquitting the accused under the provisions of Sections 341, 376, 417 and 506 of Indian Penal Code (for short 'IPC') and under Sections 3(1)(x) and 3(2)(v) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short 'the Act of 1989).
2. It is the case of prosecution that PW.1 -
prosecutrix, the daughter of PW.2 - Gopala Naika, lodged a complaint to Brahmavar Police Station on 08.09.2011 at about 3 4.45 p.m. against the accused alleging that she was residing with her father, aunt and younger brother and she belongs to Scheduled Tribe category (Marati Naika). They were rearing cow in their house and she was taking milk to Kannuru milk dairy everyday. When she was going and coming for dairy, on the way, the accused used to look at her with an ugly sight, but she was going without looking at him. It is further alleged that on 28.05.2011 at about 5.30 p.m. near Haluvalli School, the accused met her while she was returning home from Kannuru dairy and she was sighted by him with loving sight and when she was proceeding ahead, the accused held her hand and taking her near Hadi, had illegal sexual intercourse and gave a threat to her not to disclose the said act to anybody. Next day also, by giving an assurance to marry, induced her and had illegal sexual intercourse with her twice. It is further alleged that when she asked the accused to marry her informing that she is four months pregnant, the accused refused to marry her stating that she hails from lower caste and impossible to marry her as he belongs to Bunts caste and gave threat to her life stating that he will kill her if she informs the said fact to her family members or to the 4 police. Thus, after informing the said act to her family members, she lodged a complaint to Brahmavar police against the accused on 08.09.2011. Accordingly, the jurisdictional police registered a case in Crime No.186 of 2011 against the accused for the offences as stated supra.
3. After completion of investigation, PW.10 - Jayanth V.Shetty, the Deputy Superintendent of Police, Udupi has filed charge sheet against the accused. The learned Sessions Judge/Special Court framed the charges and read over and explained the same to the accused. The accused pleaded not guilty and claimed to be tried.
4. In order to prove the guilt of accused, the prosecution examined PWs.1 to 10 and marked documents Exs.P1 to P16. The accused examined three witnesses as DWs.1 to DW3. After completion of the evidence of prosecution witnesses, the statement of accused was recorded as contemplated under Section 313 of Cr.P.C. The accused has denied all the incriminating evidence adduced by the prosecution against him.
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5. After framing the points for consideration, the learned Sessions Judge recorded a finding that,
(i) the prosecution has failed to prove the guilt of accused beyond reasonable doubt and recorded that on 28.05.2011 at about 5.30 p.m. the accused wrongfully restrained the complainant while she was going ahead with an intention to commit rape, thereby committed an offence punishable under Section 341 of IPC;
(ii) further recorded a finding that the prosecution failed to prove beyond reasonable doubt that on the date of incident, the accused forcibly took the victim to Hadi and had sexual intercourse against her will and induced her by giving false promise to marry, had illegal sexual intercourse in the said place, thereby committed the offence under Section 376 of IPC;
(iii) further recorded a finding that the prosecution failed to prove beyond reasonable doubt that on the next day of incident, the accused again met the victim and gave false promise stating that he would marry her and had sexual intercourse against her will, thereby committed the offence under Section 417 of IPC;
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(iv) further recorded a finding that the prosecution failed to prove beyond reasonable doubt that the accused committed criminal intimidation by threatening PW.1 stating that he would kill her if she disclose the incident to the police or anybody and when she asked to marry her saying that she is four months pregnant, the accused refused to marry and gave life threat to her stating that he would kill her, thereby committed an offence under Section 506 of IPC;
(v) further recorded a finding that the prosecution failed to prove beyond reasonable doubt that the accused with an intention to humiliate PW.1 insulted her by abusing referring to her caste as she belongs to Scheduled Tribe caste when she demanded to marry her, thereby committed an offence punishable under Section 3(1)(x) of the Act 1989; and
(vi) further recorded a finding that the prosecution failed to prove beyond reasonable doubt that the accused committed mischief to PW.1 by giving false promise to marry her with an intention to have sexual intercourse knowing fully well that she belongs to Scheduled Tribe caste, thereby committed an offence under Section 3(2)(v) of the Act 1989. 7
Accordingly, by the impugned judgment and order of acquittal dated 23.06.2014 the learned Sessions Judge/Special Court has acquitted the accused for the offences charged against him. Hence, the present appeal is filed by the State.
6. We have heard the learned counsel for the parties.
7. Sri.S.Rachaiah, learned High Court Government Pleader for the State contended with vehemence that the impugned judgment and order of acquittal passed by the learned Sessions Judge is erroneous and contrary to the material on record and liable to be set aside. He further contended that the learned Sessions Judge ignored the evidence of material witnesses of PW.1, who is the complainant and PW.2, who is the father of complainant who stated on oath that the incident occurred on 28.05.2011 and further the victim delivered a child on 24.01.2012 after 9 months from the date of incident. The learned Judge ignored the evidence of PW.1 - prosecutrix who stated on oath before the Court that the accused caused pregnancy. 8
8. The learned HCGP further contend that the learned Sessions Judge failed to notice that she is unmarried and she has delivered a child before her marriage that itself goes to show that the accused has committed the offence by giving false promise that he would marry her and had illegal sexual intercourse with the victim. The said aspect of the matter has not been considered by the learned Sessions Judge. He would further contend that PW.5, the doctor who examined the victim and issued Ex.P6 report goes to show that she is pregnant. The learned Sessions Judge further recorded a finding that the prosecution has not conducted DNA test of the victim. The admission that the accused refused for DNA examination itself clearly indicates that the accused has committed the offences alleged against him. He would further contend that the act of accused on the victim who belongs to a lower caste is nothing but misusing of the political power in the locality, thereby, destroyed the life of victim. Therefore, the learned Sessions Judge is not justified in acquitting the accused for the offences made out against him in the charge framed. Therefore, he sought to allow the appeal.
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9. Per contra, Smt.Sunitha H.Singh, learned Counsel for the accused sought to justify the impugned judgment and order of acquittal and contended with vehemence that the accused is innocent and unnecessarily the prosecution with due deliberation has implicated the accused and absolutely there is no material against the accused to prove that he had sexual intercourse with PW.1 as alleged. She would further contend that if the alleged incident of sexual intercourse had occurred on 28.05.2011 and the complaint discloses that he had sexual intercourse on the victim on three occasions, what was prevented PW.1 to raise alarm at that time is not forthcoming. The complaint is filed after lapse of four months after due deliberation only to implicate the innocent accused. She would further contend that the accused is residing in Bengaluru and he does work in a catering business and on the date of incident, he was not at all in the village as alleged.
10. The learned counsel further contended that the learned Sessions Judge considering the entire material on record has rightly come to the conclusion that the prosecution has failed to prove the guilt of accused beyond reasonable doubt. Therefore, she submits that the prosecution has not 10 made out any ground to interfere with the impugned judgment and order of acquittal in exercise of appellate power under Section 378 (1) and (3) of Cr.P.C. Accordingly, sought to dismiss the appeal.
11. In view of the rival contentions urged by the learned Counsel for parties, the only point that arise for consideration in the present appeal is:
"Whether the State-prosecution has made out any case to interfere with the impugned judgment and order of acquittal acquitting the accused for the offence punishable under Sections 341, 376, 417 and 506 of IPC and under Sections 3(1)(x) and 3(2)(v) of SC/ST (POA) Act, 1989 in the facts and circumstances of the case?"
12. We have given our anxious consideration to the arguments advanced by the learned Counsel for parties and perused the entire material on record including the original records carefully.
13. The substance of the prosecution case is that, the accused had sexual intercourse on the victim on 28.05.2011 at about 5.30 p.m. near Haluvalli school and subsequently on 11 three occasions. When she disclosed the accused that she is four months pregnant, he refused to marry and thereafter, they went to the police station and lodged a complaint on 08.09.2011. The accused filed defence under Section 233(2) of Cr.P.C. stating that on the date of incident, he was not in the village as alleged and he has never seen the victim with bad intention and he used to work in a catering business in Bengaluru permanently and he used to visit the village only on occasions. Further, on the basis of false complaint filed by the victim with Brahmavar police station, they pressurized to marry the victim and he was detained in the police station on 09.09.2011 and he was produced before the Court on 10.09.2011. He has stated that he is innocent of the allegations made out by the prosecution. He has specifically stated that he is innocent and prosecution can produce the material for the birth of child.
14. In order to re-appreciate the entire oral and documentary evidence, it is relevant to consider the evidence of prosecution witnesses and the material documents relied upon.
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(a) PW.1, the victim has re-iterated the complaint averments made in the complaint and contended that on 28.05.2011, the accused forcibly committed sexual intercourse against her will and again on the next day, by giving false promise that he would marry her, committed the act on three occasions, he had sexual intercourse with her against her will. Subsequently she brought to the notice of the accused that, she is four months pregnant and demanded the accused to marry her. When the accused refused to marry, she informed the same to the family members and lodged a complaint with jurisdictional police on 08.09.2011. Ex.P1 is the complaint and Ex.P2 - spot mahazar. She has supported the prosecution case.
(b) PW.2 - Gopala Naika, is the father of victim. He has re-iterated the complaint averments and supported the case of prosecution.
(c) PW.3 - Sudhakara Naika, is the witness to Ex.P2 - spot mahazar and he has supported the case of prosecution. 13
(d) PW.4 - Pandu Naik, has stated that PW.1 was in the company of accused and supported the case of prosecution.
(e) PW.5 - Dr.Damayanthi who examined the victim and issued Ex.P6 report stating that the victim is pregnant.
(f) PW.6 - Sumathi, is the Headmistress of Government Higher Primary School, Haluvalli, where the victim studied and issued Ex.P7 date of birth and Ex.P8 school register.
(g) PW.7 - M.Ravi Kumar, is the Special Tahsildar, who issued Ex.P9 - caste certificate of victim and conducted spot mahazar as per Ex.P10.
(h) PW.8 - Rakesh, is the police constable who carried FIR as per Ex.P11 to the Court.
(j) PW.9 - Sheena Billava, is the Assistant Sub Inspector of Police, who lodged FIR as per the complaint of PW.1 and sent to the Court through PW.8.
(k) PW.10 - Jayanth V.Shetty, is the Deputy Superintendent of Police, who investigated the case of 14 complaint made by PW.1 and filed a report against the accused and supported the case of prosecution.
15. To dispute the case of prosecution, the defence examined DWs.1 to DW3 as under:
(a) DW.1 - Dr.H.M.Shashikala, is a Gynecologist who made delivery to the victim on 24.01.2012, thereby the victim delivered a male child and according to her evidence, father's name of the child is shown as Rakesh Shetty, the accused.
(b) DW.2 - Manjunatha Mogaveera, is the friend of accused who has stated that on the date of incident, the accused was with him in Bengaluru.
(c) DW.3 - Ramesh Shetty, is the elder brother of accused and he has supported the version of DW.2 that the accused was not in station on the date of incident and he was working in Bengaluru in Catering business.
16. Based on the aforesaid oral and documentary evidence, the learned Sessions Judge proceeded to acquit the accused holding that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. 15
17. In order to re-appreciate the entire material on record, it is relevant to refer to the complaint made as per Ex.P1. By careful reading of the complaint, it clearly depicts that on 28.05.2011 at about 5.30 p.m. when the victim was returning home after supplying milk to Kannuru Milk Dairy, at that time, when she was going near Haluvalli School, the accused was standing there and he held the hand of victim and took her near Hadi and expressed his desire to have sexual intercourse and tried to remove her clothes. In spite of her refusal, he forcibly removed her clothes and had sexual intercourse with her. Thereafter, she started crying and at that time, the accused told not to fear and that he will marry her. It is stated in the complaint that, thereafter, on the next day, again the accused by giving false promise to marry her had forcible sexual intercourse twice and he also threatened her not to disclose the same to her family members or to the police. Thereafter, on three occasions, the accused is said to have had forcible sex with her. When she became pregnant for four months, she informed the same to the accused and demanded to marry her. When the accused refused to marry her, she informed the same to her parents and thereafter, 16 they went to the police station and after intervention of elders, lodged a complaint to the jurisdictional police on 08.09.2011 i.e., after four months from the date of incident.
18. The same are re-iterated by PW.1, the victim and PW.2, the father of victim in their evidence. A careful reading of the averments made in the complaint and the evidence of PW.1 and PW.2 clearly indicates that there was a delay of four months in lodging the complaint. It is not known as to what was prevented the victim, when the accused had sexual intercourse with her for the first time on 28.05.2011 at about 5.30 p.m. to raise alarm and resist the accused or to inform the general public by raising her voice or intimate her parents or to the police is not forthcoming. When the accused had forcible sexual intercourse on the second and third occasion against her will, why she has not objected or resisted the act of accused is also not forthcoming. The material on record clearly depicts that after complaint is lodged with Brahmavar Police Station, the accused was secured by the police. PW.1 has admitted in the cross examination that, the police told that if she files a complaint in the manner which it is filed, her marriage will take place with the accused and so also, the 17 same has been stated by one Rathnakara Shetty. PW.1 has further stated in the cross examination that only with an intention to marry the accused, she filed the complaint.
19. A conjoint reading of the complaint averments and the evidences of PW.1 and PW.2 clearly depicts that there is due deliberation prior to filing of complaint by victim and her parents with the police. Therefore, the delay in filing the complaint is also fatal to the case of prosecution. It is also not in dispute that as per Ex.P7 - certificate of date of birth and Ex.P8 - School register issued by Headmistress and as per the evidences of PW.1 and PW.2, it clearly depicts that the victim is aged about 19 years and in the cross examination she has stated that she has studied upto PUC. The doctor who examined the victim has issued Ex.P16 OPD chit, wherein, the dental age of victim is mentioned as 16 to 18 years. PW.2, the father of victim girl has admitted in his cross examination that his daughter is aged about 19 years. Therefore, as on the date of incident, she has attained majority. She is educated and would have taken care of her life without falling to the fair of mesmerization by the accused, but, unfortunately she has fallen with that and had 18 sexual intercourse with the accused on three occasions without there being any resistance. Therefore, it clearly indicates beyond reasonable doubt that this is an consensual sex between the accused and victim who was major as on the date of incident.
20. Though the material on record disclose that he used to frequently call the victim and victim also used to call the accused, the Investigating Officer has not produced any call details and seized the mobile phones of both the accused and victim. It is also not in dispute that Investigating Officer has not initiated any steps for DNA test to prove the paternity of the accused with the pregnancy of the victim during the course of investigation.
21. In order to prove the wrongful restraint, no material is produced before the Court to prove that the accused in fact wrongfully detained or confined the victim for having sexual intercourse on three occasions. Therefore, the very charge invoked by the prosecution would not arise. It is also not in dispute that the prosecution has not made out a case to prove that the accused had illegal sexual intercourse 19 knowing fully well that she belongs to Scheduled Tribe caste. The record clearly depicts that as stated supra, absolutely, there is no material produced by the prosecution that the accused had forcible sexual intercourse against the will of victim.
22. In order to punish the accused under the provisions of Section 417 IPC and impose punishment thereon, the prosecution has to prove that at the inception, the accused has deceived and induced the victim for the said act as contemplated under Section 415 of IPC, which reads as under:
415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".20
23. A careful reading of the provisions of Section 415 of IPC, makes it clear that the ingredients required to constitute the offence of cheating are as under:
(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
(ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
24. In the present case, it is not the case of prosecution that before sexual act by the accused on 28.05.2011, he induced the victim for sexual intercourse on promise to marry. The material on record clearly depicts that 21 on three occasions, the accused and victim had sexual intercourse without there being any resistance which is a consensual sexual intercourse. Even in the evidences of PW.1 and PW.2 in their cross examination, there is no whisper that there was inducement by the accused at the inception before having sex with the victim for the first time, which clearly depicts the ingredients of Section 415 of IPC are not attracted and therefore, question of conviction of the accused under Section 417 of IPC would not arise. Hence, the learned Sessions Judge has rightly acquitted the accused.
25. In so far as the allegation of provisions of Section 376 of IPC, it is appropriate to refer to Clause-sixthly of Section 375 of IPC, which reads as under:
"375. Rape:- A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
Xxx Xxx Xxx Xxx Xxx 22 Sixthly: With or without her consent, when she is under sixteen years of age. "
26. The material on record clearly depicts that as per school records issued by PW.6 - Headmistress as per Ex.P7 and Ex.P8, that the victim was aged about 19 years as on the date of incident. Thus, on the date of incident, she was not within the age of 16 years and she was aged about 19 years and the provisions of Clause-sixthly of Section 375 of IPC would not be attracted. Therefore, the question of invoking the provisions of Section 376 of IPC would not arise. Once the provision of Section 376 of IPC is proved by the prosecution beyond reasonable doubt, the other provisions invoked by the prosecution under Sections 3(1)(x) and 3(2)(v) of Act of SC/ST (POA) 1989 would not arise.
27. In so far as invoking of the provisions of Section 506 of IPC is concerned, the punishment prescribed for the offence punishable under intimidation is defined under Section 503 IPC, which reads as under:
"503.Criminal intimidation.- Whoever threatens another with any injury to his person, reputation or property, or to the person or 23 reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
"Explanation.- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."
A careful reading of the evidence on record in the light of the aforesaid legal provision under Section 503 IPC depicts the insufficiency of evidence to hold the conviction of the accused for the offence of criminal intimidation punishable under Section 506 of IPC.
28. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Deepak Gulati -vs- State of Haryana reported in AIR 2013 SC 2071, wherein the Hon'ble Supreme Court held at paragraphs 15, 22, 23 and 24 as under:
15. Section 114-A of the Evidence Act, 1872 (hereinafter referred to as "the 1872 Act") provides, that if the prosecutrix deposes that she 24 did not give her consent, then the court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the 1872 Act be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, along with the provisions of Section 90 IPC. Section 90 IPC provides that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape.
22. The instant case is factually very similar to Uday [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775 : AIR 2003 SC 1639] , wherein the following facts were found to exist:
I. The prosecutrix was 19 years of age and had adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to.25
II. She was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor.
III. It was difficult to impute to the accused, knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact, that had arisen from his promise to marry her.
IV. There was no evidence to prove conclusively, that the appellant had never intended to marry the prosecutrix.
23. To conclude, the prosecutrix had left her home voluntarily, of her own free will to get married to the appellant. She was 19 years of age at the relevant time and was, hence, capable of understanding the complications and issues surrounding her marriage to the appellant.
According to the version of events provided by her, the prosecutrix had called the appellant on a number given to her by him, to ask him why he had not met her at the place that had been pre- decided by them. She also waited for him for a long time, and when he finally arrived she went with him to Karna Lake where they indulged in 26 sexual intercourse. She did not raise any objection at this stage and made no complaints to anyone. Thereafter, she also went to Kurukshetra with the appellant, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the appellant. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the appellant at Birla Mandir. Thereafter, she even proceeded with the appellant to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married in the court at Ambala. However, here they were apprehended by the police.
24. If the prosecutrix was in fact going to Ambala to marry the appellant, as stands fully established from the evidence on record, we fail to understand on what basis the allegation of "false promise of marriage" has been raised by the prosecutrix. We also fail to comprehend the circumstances in which a charge of deceit/rape can be levelled against the appellant, in light of the afore-mentioned fact situation.
29. The Hon'ble Supreme Court while considering the provisions of Sections 375, secondly, 376 and 90 of IPC, in the case of Anurag Soni Vs. State of Chhattisgarh 27 reported in (2019) 13 Supreme Court Cases 1, at para 12, held as under:
"12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 IPC and can be convicted for the offence under Section 376 IPC."
30. It is well settled that if it is established and proved beyond reasonable doubt that from the inception, the accused had given promise to the prosecutrix to marry, but did not have any intention to marry and the prosecutrix gave consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 28 IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 IPC and can be convicted for the offence under Section 376 IPC. As already stated above, there is no inception of promise at the time of having sex for the first time. As already stated supra, the provisions of Clause- sixthly of Section 375 of IPC is not proved beyond reasonable doubt by the prosecution. Therefore, the question of invoking the provision of Section 376 of IPC would not arise.
31. For the reasons stated above, the point raised in the present appeal is answered in 'Negative' holding that the prosecution has not made out a case to interfere with the impugned judgment and order of acquittal acquitting the accused for the offence made out in the charge in exercise of appellate power of this court under Section 378(1) and (3) of Cr.P.C.
32. In view of the above, the Criminal appeal filed by the state is dismissed as devoid of merits. 29
33. However, in view of our finding at paragraph-19 that it was consensual sex between the accused and victim and not rape, it is open for the victim to take appropriate steps to prove the paternity of the child in accordance with law.
Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE *bgn/-