Chattisgarh High Court
Shiv Ram @ Golu vs State Of Chhattisgarh on 18 July, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
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2025:CGHC:34111
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment reserved on : 29-04-2025
Judgment delivered on : 18-07-2025
CRA No. 111 of 2009
Shiv Ram @ Golu, S/o Narsingh Dewangan, aged about 22 years, R/o
Bilaigarh, PS-Bilaigarh, Distt. Raipur (CG)
... Appellant
versus
State Of Chhattisgarh Through Police Station-Bilaigarh, Distt. Raipur
(CG)
... Respondent
For Appellant : Mr. A.S. Rajput, Advocate.
For Respondent : Mr. Ajay Pandey, Govt. Advocate.
Hon'ble Smt. Justice Rajani Dubey, J
CAV Judgment
Challenge in this appeal is to the legality and validity of the judgment of conviction and order of sentence dated 4.2.2009 passed by the II Additional Sessions Judge, Balodabazar, Distt. Raipur in ST No.15/2008 whereby the appellant stands convicted under Section 2 376 of IPC and sentenced to undergo RI for 10 years, pay a fine of Rs.2 lacs and in default thereof to suffer additional RI for two years and six months.
02. Case of the prosecution, in brief, is that the accused/appellant had been sexually exploiting the prosecutrix, a girl of 19 years, on the pretext of marriage as a result of which she got three months pregnant. The appellant gave her some pills for abortion but that did not work. When all this came to the knowledge of her parents, they scolded her and a village meeting was convened on 9.2.2008 where the appellant admitted his affair with the prosecutrix and her pregnancy and agreed to marry her. However, in the next meeting on 14.2.2008 the appellant did not turn up and his father refused to keep her in his house. When the appellant did not marry her, she lodged a report on 15.2.2008 at the police station under Section 376 of IPC.
During investigation, marksheet of the prosecutrix and wrapper of the abortion pills were seized. She was got medically examined, statements of the witnesses were recorded and spot map was prepared. After completion of usual investigation, charge sheet under Section 376 of IPC was filed against the appellant followed by framing of charge accordingly by learned trial Court which was abjured by him and he prayed for trial.
03. In order to substantiate its case the prosecution examined 12 witnesses. Statement of the accused was recorded under Section 313 3 of CrPC wherein he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. However, he did not examine any witness in defence.
04. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the appellant as mentioned above. Hence this appeal.
05. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the material available on record. As per statement of the prosecutrix she is a major girl and was having affair with the appellant. As such, she being a consenting party to the act of the appellant, no offence is made out against the appellant. From the evidence of the prosecution witnesses it is clear that the appellant wanted to marry her but they being of same Gotra, his father was not ready for it. There are many contradictions and omissions in the statements of the prosecution witnesses which have been overlooked by learned trial Court. Further, the FIR was lodged with an inordinate delay without any satisfactory explanation. Therefore, in view of the evidence on record, the impugned judgment is not legally sustainable and the appellant deserves to be acquitted of the charge leveled against him.
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Reliance has been placed on the decision of the Hon'ble Supreme Court in the matter of Deepak Gulati Vs. State of Haryana, (2013) 7 SCC 675.
06. On the other hand, learned counsel for the State opposing the contention of the appellant submits that in view of oral and documentary evidence on record, the learned trial Court has rightly convicted and sentenced the appellant by the impugned judgment which calls for no interference by this Court. The present appeal being without any substance is liable to be dismissed.
07. Heard learned counsel for the parties and perused the material available on record.
08. It is clear from the record of learned trial Court that the appellant was charged under Section 376 of IPC and after appreciation of oral and documentary evidence, learned trial Court convicted and sentenced him under this section as mentioned in para 1 of this judgment.
09. PW-8 prosecutrix states that she was in love with the appellant for the last four years and they wanted to marry. The appellant established physical relations with her on the promise of marriage as a result of which she got three months pregnant. She states that her mother was informed about this pregnancy from the appellant by one Jeetram Dewangan. He also informed that the appellant told that if she 5 aborted it, he would give her five thousand rupees. The appellant also conveyed message that he is ready to marry her. She states that a village meeting was convened in this regard where the appellant confessed that he made her pregnant and they are ready for marriage. However, the community members objected to it as they belong to same Gotra and advised them to perform marriage either in court or temple. As some relative of appellant's father had expired, the appellant's father sought 4-5 days' time for performing their marriage but subsequently refused to marry the appellant with her and offered Rs.25,000/- for her abortion. She then made a written report to the police vide Ex.P/3 which bears her signature from A to A part.
In cross-examination she admits that she liked the appellant and she did not disclose her affair with the appellant to her family members. She admits that they are of same Gotra but denies the suggestion that marriage is not performed within same Gotra. She admits that she went to the house of the appellant where she was beaten by the family members of the appellant. In para 15 she admits that the appellant was always ready to marry her.
10. PW-9 and PW-10, who are father and mother of the prosecutrix, state that one Jeetram informed them that the prosecutrix is pregnant from the appellant and carrying pregnancy of four months and that the appellant told that he would give Rs.5000/- if she terminated the pregnancy. They state that a social meeting was convened where the 6 appellant confessed his affair with the prosecutrix and his physical relation with her. PW-9 father of the prosecutrix states that the prosecutrix was 19 years when she got pregnant and she is ninth pass and understands her well being. In para 15 he admits that the appellant and the prosecutrix are of same Gotra, therefore, the community members objected to their marriage as per social customs and advised them to perform marriage either in the court or temple. PW-10 mother of the prosecutrix has also made similar statement.
11. PW-11 Dr. Shirin Dhagambar states that she examined the prosecutrix on 16.2.2008 and found that she was carrying pregnancy of 8-10 weeks. Her medical report is Ex.P/17 wherein she opined that the prosecutrix is habitual to sexual intercourse and advised for consulting a gynecologist. In cross-examination she states that urine test of the prosecutrix was also positive which is Article A.
12. PW-1 and PW-2, sisters of the prosecutrix, supported the statement of the prosecutrix and stated that when the prosecutrix became pregnant, a social meeting was convened where the appellant admitted his relationship with the prosecutrix and his readiness to marry her.
13. Learned trial Court also found that the prosecutrix is aged about 19 years but convicted the appellant under Section 376 of IPC on the ground that he sexually exploited her on the pretext of marriage. 7
14. The Hon'ble Supreme Court in the matter of Deepak Gulati (supra) held in paras 21 & 23 of its judgment 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.
23. This Court, while deciding Pradeep Kumar (2007) 7 SCC 413, placed reliance upon the judgment of the Madras High Court in N. Jaladu, In re ILR (1913) 36 Mad 453, wherein it has 8 been observed: (Pradeep Kumar cases, SCC pp. 418-19, para
11) "11. '26. ..."... We are of opinion that the expression 'under a misconception of fact' is broad enough to include all cases where the consent is obtained by misrepresentation;
the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act Illustration (d) [states] that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact that the second accused intended to get the girl married. ... 'thus ... if the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person'.... Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of Section 90 IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence." (N. Jaladu, In re case, ILR pp. 456-57)' (Deelip Singh case (2005) 1 SCC 88, SCC pp. 101-02, para 26)"
15. In light of the aforesaid decision, if the facts and evidence emerging in the present case are examined, it is clear that the prosecutrix was having love affair with the appellant for the last four years and in para 23 of her deposition she admitted that the house where they would meet is situated in between their houses and nobody resides in that house. The prosecutrix and her parents also admitted 9 the suggestion of the defence that the community members opposed their marriage as they belong to same Gotra and advised them to perform marriage either in court or temple. From the evidence on record coupled with the conduct of the prosecutrix during the incident and subsequent thereto it does not appear that her consent for sexual indulgence was obtained by the appellant under any misrepresentation of fact or through any false promise of marriage or the consent was given under any misconception. The prosecutrix is a 19 years old girl and capable of understanding the consequence of such consent. The evidence do not suggest that the since inception the appellant had no intention whatsoever of keeping his promise to marry the prosecutrix. She also admitted the fact that she is ninth pass and is conscious of the fact that her marriage may not take place with the appellant as they belong to same Gotra and as such, there are certain social impediments. She also stated that the appellant was always ready to marry her. It is thus clear that the prosecutrix was a consenting party to the act of the appellant and she kept her relationship with the appellant secret till her pregnancy was visible. Being so, no offence under Section 376 of IPC can be said to have been made out against the appellant.
16. In the result, the appeal is allowed and the impugned judgment of learned trial Court is hereby set aside. The appellant is acquitted of the charge under Section 376 of IPC. The appellant is reported to be 10 on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023 the appellant is also directed to furnish a personal bond for a sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon'ble Supreme Court.
The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.
Sd/ Digitally signed (Rajani Dubey) MOHD by MOHD AKHTAR KHAN AKHTAR Date:
KHAN 2025.07.21 13:46:11 +0530 Judge Khan