Chhangu Lal Alias Chhangur vs State of U.P.

Surendra Kumar, J.—Heard Dr. Abida Sayed, learned amicus curiae for the appellant and Sri Daya Shanker Mishra, learned counsel for the first informant and Sri I.P.S. Rajpoot, learned AGA for the State.

This criminal appeal under Section 374(2) Cr.P.C. has emanated against the judgment and order dated 21.11.2006 passed by the Additional Sessions Judge/FTC No.20, Allahabad, in Session Trial No.83 of 2002, State Vs. Chhangu @ Chhangur, relating to Crime No.203 of 2001, Police Station Colonelganj, District Allahabad by which the accusedappellant Chhangu @ Chhangur son of Panna Lal, R/o 343/C/33, Harijan Colony Mumfordganj, Police Station Colonelganj, District Allahabad, has been convicted under Sections 363, 366, 376 I.P.C. and sentenced to undergo five years rigorous imprisonment with fine of Rs.5,000/ under Section 363 I.P.C., in default of payment of fine, three months additional imprisonment, five years rigorous imprisonment with fine of Rs.5,000/ under Section 366 I.P.C., in default of payment of fine, three months additional imprisonment and seven years rigorous imprisonment with fine of Rs.10,000/ under Section 376 I.P.C., in default of payment of fine, six months additional imprisonment. All the sentences have been ordered to run concurrently.

The prosecution has divulged its entire prosecution story through the written report Ext. Ka1 lodged by Smt. Chitra Dwivedi PW1 and through depositions of Smt. Chitra Dwivedi PW1, Prem Narain Dwivedi PW2, Kamna Dwivedi @ Putul victim girl PW3. The facts as emerged from the first information report and evidence of the victim girl PW3 are that the victim girl knew the accusedappellant Chhangu @ Chhangur since childhood because they were neighbours. On 19.6.2001 around 5:00 p.m., the accusedappellant Chhangu @ Chhangur came to the house of the victim girl through the staircase and knocked the door of her flat when she was alone at her flat. Smt. Chitra Dwivedi PW1, mother of the victim girl had already gone to the market and Prem Narain Dwivedi PW2 father of the vcitim girl had gone to his office at the relevant time. The accusedappellant Chhangu @ Chhangur told the victim girl that her mother had met with an accident and was admitted to the hospital then she opened the door of her house and came down through staircase with the accusedappellant Chhangu @ Chhangur after locking her flat. The accusedappellant had taken her in a rickshaw to Nayapurwa and then to Railway Station Allahabad by tempo. Thereafter, the accusedappellant took her to Hanumanganj. When the victim girl asked where they were going, the accusedappellant told that he was taking her to the hospital. The accusedappellant had kept her for one night at Hanumanganj and they stayed in a big family there. She protested against the persons present there about the conduct of the accusedappellant and at Hanumanganj, the accusedappellant had forcibly sexual intercourse with her against her will. From there, he took her to Banaras where they stayed for two to three days and then to Pratapgarh where they stayed for about more than one month and the accusedappellant tried to marry her there. At Pratapganj, the accusedappellant allegedly obtained her signature by threatening to kill her at some blank papers and the accusedappellant married her at the house of the some advocate at Chakia according to the Buddhism religion and the said marriage was solemnized against her consent. According to the victim girl, she did not love the accusedappellant and he sexually intercoursed her against her consent and will by threatening to kill her parents. The accusedappellant after the alleged abduction of the victim girl by deceitful means married with her. After performing marriage, he defrauded and left her company leaving her at the Police Station.

Smt. Chitra Dwivedi PW1, mother of the victim girl got the written report of the incident scribed Ext. Ka1 stating therein that on 19.6.2001 around 5:00 p.m., her daughter Putul @ Km. Kamna Dwivedi was alone at her house, PW1 had already gone to market and her husband had left the home for office. When Smt. Chitra Dwivedi came back to her house, her daughter was not present at the house. Thereafter, she and other family members searched for the girl at the houses of the relatives also but she could not be traced and apprehension was expressed in the first information report that some unknown boy had enticed away her daughter. Thus the first information report of the incident was lodged at the Police Station against unknown person on 20.6.2001 at 8:35 p.m. under Sections 363, 366 I.P.C. Chik FIR Ext. Ka2 was prepared by H.C. Ram Lal Kaithal PW4 who proved Chik FIR Ext. Ka2 and entry thereof in G.D. Ext. Ka3.

The investigation of the case was entrusted to S.I. Babu Ram Kamal PW8. The first information report of this case was lodged in the presence of PW8. He recorded the statements of the witnesses and rushed to the house of the first informant PW1 and interrogated her, her husband as well as son. PW8 also inspected the place of the incident and prepared site plan Ext. Ka8. The Investigating Officer PW8 also recorded statement of other persons and tried to trace out the victim girl.

It was for the first time on 30.7.2001 when Smt. Chitra Dwivedi PW1, mother of the victim girl informed the Investigating Officer PW8 that she had been informed by Nitesh Kumar Mishra that he had seen her daughter Putul @ Km. Kamna Dwivedi going in a rickshaw with the accusedappellant in front of Nayapurwa and rickshaw was going towards Teliarganj on 19.6.2001 about 7:00 p.m. Thereafter, the Investigating Officer PW8 recorded statements of the other persons on 1.8.2001. PW8 was again informed by mother of the victim girl that one Manvendra Mishra, friend of her real brother, Nishat Pandey had seen the victim girl going with the accusedappellant in a rickshaw on 19.6.2001 at 7:00 p.m. The written statement dated 6.8.2001 given by Manvendra Mishra to the Investigating Officer which was collected by the Investigating Officer, is Ext. Ka5 on record. The Investigating Officer PW8 trying to nab the accusedappellant obtained nonbailable warrant for his arrest and also got process under Section 82 Cr.P.C. issued against him by making entry in different Parchas of the case diary.

According to the evidence of the Investigating Officer PW8 and also from Parcha No.14 dated 31.8.2001, the Investigating Officer received the order dated 21.8.2001 passed by a division Bench of this Court in Criminal Misc. Writ Petition No.5291 of 2001 staying arrest of the accusedappellant Chhangu Lal @ Chhangur and the victim girl Kamna Dwivedi which reads as follows:

"Both the petitioners are present in Court today. Petitioner no.2 has stated that she has entered into marriage with petitioner no.1 of her own free will.

Learned State Counsel shall file counter affidavit within six weeks and also issue notice to respondent no.3. List thereafter before the concerned Bench.

Till the next date of listing the arrest of the petitioners in Crime No.203 of 2001, under Sections 363, 366 I.P.C, Police Station Colonelganj, District Allahabad, shall remain stayed and their personal liberty shall not be disturbed in any manner."

It appears from the order of a division Bench of this Court that the accusedappellant and victim girl appeared before this Court on 21.8.2001 when the victim girl Km. Kamna Dwivedi PW3 deposed before this Court that she had married with petitioner no.1 Chhangu Lal @ Chhangur with her consent and free will. A division Bench of this Court while disposing of the aforesaid petition on 31.10.2001 was of the view that since age of the victim girl had been shown less than 18 years, therefore, offence under Sections 363, 366 I.P.C. appeared to have been prima facie made out. The accusedpetitioner was directed to produce the victim girl before the Investigating Officers within ten days at the police station and move his bail application by surrendering before the court. The court concerned was directed to dispose of the bail application of the accusedpetitioner as expeditiously as possible. The Investigating Officer was given option to get the statement of the victim girl recorded under Section 164 Cr.P.C. Accordingly the aforesaid petition was disposed of.

In compliance of the order dated 31.10.2001 passed by a division Bench of this Court, the accusedappellant produced the victim girl before the Investigating Officer on 6.11.2001 and entry to this effect was made in the general diary. Both of them were interrogated by the Investigating Officer. The victim girl was sent for medical examination and her statement was got recorded on 12.11.2001 before the Additional Chief Judicial Magistrate, Court No.2, Allahabad, wherein she narrated the story of commission of rape. Thereafter, offence under Sections 376, 506 I.P.C. was added vide G.D. entry Ext. Ka12. The Investigating Officer moved an application Paper No.20B/6 Ext. Ka9 in the court and thereafter, the victim girl was given in the custody of her mother vide memo of Supurdaginama dated 13.11.2001 Ext. Ka10. The Investigating Officer PW8 after completing investigation filed charge sheet Ext. Ka11 against the accusedappellant under Sections 363, 366, 376, 506 I.P.C. All these facts were proved at trial by the Investigating Officer in his evidence.

It appears from cross examination of the Investigating Officer PW8 that he moved an application before the Special Chief Judicial Magistrate, Allahabad regarding this occurrence on 12.11.2001 with the prayer that the point regarding the custody of the victim girl be decided. At that time also, the victim girl told the court that she had been brought from Mahila Thana, Allahabad where she was lodged and she wanted herself to be sent back to Mahila Thana Allahabad. After going through relevant papers including her High School Mark Sheet of the year 2000 in which her date of birth was mentioned as 2.10.1983 and her radiological report and other materials, learned Special Chief Judicial Magistrate held her to be adult on the date of the occurrence finding her to be above 18 years of age and directed that since the victim girl was adult, she be taken as per her wishes and she was given liberty to go with her mother as per her desire vide order dated 13.10.2001. Thus the victim girl was given to her mother''s custody vide Ext. Ka10.

It appears from cross examination of the Investigating Officer PW8 that when the victim girl was interrogated regarding the incident on 6.11.2001, she did not say that the accusedappellant told her that her mother had met with an accident. This fact was improved by her in subsequent interrogatory statement, which was recorded on 12.11.2001. In her first interrogatory statement recorded on 6.11.2001, she did not tell about the fact that she was raped by showing Tamancha by the accusedappellant. According to the evidence of PW8, Smt. Chitra Dwivedi PW1 reached the police station on 30.7.2001 when she had come to know that her daughter had been enticed away by the accusedappellant. The Investigating Officer in his evidence at trial clearly admitted that during investigation, he had knowledge from medical report of the victim girl that she was pregnant at that time.

The victim girl was medically examined by Dr. Manjula Srivastava on 6.11.2001 at 7:00 p.m. at Women Hospital Allahabad and her medical examination report Ext. Ka6 was prepared. No mark of injury on her person was found, breasts were well developed, axillary hair present. No mark of injury on her private part was found. No bleeding from vagina was found. Hymen was old torn. Healed tags were present. Vagina admitted two fingers easily. The victim girl was pregnant with eight weeks. On the basis of the xray report, vaginal smear report, supplementary report Ext. Ka7 was prepared by Dr. Manjula Srivastava.

Dr. D. Dwivedi PW5 proved xray report in his evidence Ext. Ka4 and stated that during ultrasound, live foetus of 8 m.m. with duration of 7 weeks and one day was found.

Since Dr. Manjula Srivastava died, medical examination report Ext. Ka6 and Ext. Ka7 were proved by Awadhesh Kumar Shukla, Chief Pharmacist PW7 identifying her writing and signature and tallying with hospital record. Supplementary report of the victim girl depicts no spermatozoa. Single gestation sac seen implanted in body of the uterus. The age of the victim girl was found above 19 years and the victim girl was found pregnant with 78 weeks. No definite opinion about commission of rape could be given. According to the evidence of Awadhesh Kumar Shukla Chief Pharmacist PW7, age of the victim girl above 19 years was mentioned in the said report and the same age was recorded in the Hospital record.

The accusedappellant was charged under Sections 363, 366, 376 I.PC. on 23.5.2003 by the Court of Session to which he pleaded not guilty and claimed to be tried on the said charges.

In order to prove charges levelled against the accusedappellant, the prosecution examined Smt. Chitra Dwivedi mother of the victim girl first informant as PW1, Prem Narain Dwivedi father of the victim girl as well as scribe of the first information report PW2, Kamna Dwivedi the victim girl PW3, Manvendra Pratap Mishra, fact witness PW6. In the formal evidence, the prosecution examined H.C. Ram Lal Kaithal PW4 who proved Chik FIR Ext. Ka2, G.D. entry thereof Ext. Ka3, Dr. D. Dwivedi, Radiologist to prove xray report PW5, Awadhesh Kumar Shukla Chief Pharmacist PW7 to prvoe medical examination report of the victim girl Ext. Ka6 and Ext. Ka7. The prosecution also examined S.I. Babu Ram Kamal PW8 who proved evidence collected during investigation and also proved filing of the charge sheet.

The accusedappellant in his statement under Section 313 Cr.P.C. denying the prosecution story pleaded his false implication and stated that the date of birth of the victim girl as 2.10.1983 has been wrongly given. The accusedappellant also stated that the victim girl Km. Kamna @ Putul was adult on the date of the occurrence. The victim girl had some quarrel with her mother who expelled her out from the house on the date of the occurrence around 12:00 noon. The victim girl came to him requesting to marry her otherwise threatened to end her life then the accusedappellant took her to Kydganj at the house of his Mausa, he married her according to Buddhism religion and she stayed with him as wife and he had not done any act forcibly. Since the accusedappellant belonged to scheduled caste, therefore, he has been falsely implicated in this case.

Nathu Ram Baudh DW1 proved marriage of the victim girl with the accusedappellant according to the Buddhism religion. Krishna Prakash DW2 proved the certificate showing the date of birth of the victim girl as 20.10.1978 which was got recorded in Nagar Nigam record on 25.9.1981. This certificate Ext. Kha7 showing registration of the birth of the victim girl has been proved.

The love letters admittedly written by the victim girl to the accusedappellant are Exts. Kha1 to Ext. Kha6. As many as ten photographs have been filed in defence evidence. Many of the photographs show different ceremony between the accusedappellants and the victim girl indicating their affinity, affection and garlanding etc.

Now a look at the eyewitnesses account is imperative before analyzing and scrutinizing the evidence of the fact witnesses namely PW1, PW2, PW3 and PW6.

It emerges from testimonies of Smt. Chitra Dwivedi PW1 and her husband Prem Narain Dwivedi PW2 that they are mother and father of the victim Kamna Dwivedi @ Putul. On the date of the incident i.e. 19.6.2001, PW2 was away at work and came back to his house in the night and PW1 had also gone to the market and was not present at her house when the victim girl was alone at the house in the evening around 5:00 p.m. 6:00 p.m. on 19.6.2001. When PW1 came back in the evening to her house, her daughter was not present at the house and she informed about the same to her husband PW2 who made joint search for their missing daughter. They searched for their daughter for two days on 19.6.2001 and 20.6.2001 and ultimately PW1 got the first information report of the incident written by her husband PW2 and gave it to the Police Station on 20.6.2001 at 8:35 p.m. against some unknown person expressing apprehension in the report that some had enticed away their daughter. The written report Ext. Ka1 has been proved by PW1.

It further emerges from testimonies of Smt. Chitra Dwivedi PW1 and her husband Prem Narain Dwivedi PW2 that the accusedappellant was immediate neighbour. She passed high school examination from Merry Vana Maker School, Allahabad where she was admitted in Class 8th. PW1 stated that she was married to PW2 in the year 1980 and her daughter was born on 2.10.1983. PW1 passed her M.A. in 1980. At the age of 16 years, she was married to PW2. Though PW1 was post graduate, she got the written report of the incident scribed by her husband PW2 showing lack of spectacles that she could not write the report. PW1, mother of the victim girl stated that she after the occurrence met with her daughter for the first time at the Police Station Colonelganj but she could not recollect the date and after recording statement of the victim girl, the victim girl was given in her Supurdagi from Mahila Thana then she nominated the accusedappellant in this case.

According to evidence of Smt. Chitra Dwivedi PW1 at page no.5 of the deposition at trial, she had information and knowledge subsequently that her daughter had married to the accusedappellant. PW1 is Brahim by caste and the accusedappellant is Zamadar. PW1 denied that her daughter had love affairs with the accusedappellant and her daughter had eloped withe the accusedappellant on her own volition.

Prem Narain Dwivedi PW2 who is father of the victim girl came back to his house on 20.6.2001 around 3:00 a.m. when he was informed about the incident by his wife PW1. PW2 proved the report Ext. Ka1 having been written by him at the dictation of his wife. PW2 claimed to have told the Investigating Officer the date of birth of his daughter victim girl as 2.10.1983 but the same did not find place in his interrogatory statement under Section 161 Cr.P.C. According to his evidence, House No.28A, Beli Road, Allahabad was house of the father of the wife of PW2 where his fatherinlaw and his wife lived on rent and in the year 1978, the wife of PW2 lived at the same house at Beli Road, Allahabad where PW1 and PW2 resided together since their marriage in the year 1980. PW2 denied the date of birth of his daughter victim girl as 20.10.1978 and denied his marriage in the year 1976. PW2 clearly admitted in cross examination at page nos.2 and 3 that just after birth of the children in his family, he gave information to Nagar Mahapalika regarding said birth. At the time of birth of his children, elder son Prashant and the victim girl Kamna Dwivedi @ Putul, PW2 was residing with his wife PW1 at the same House No.28A, Beli Road, Allahabad. PW2 denied existence of the document Ext. Kha7 deposing that he did not inform about birth of female child to his wife at Nagar Mahapalika, Allahabad regarding which registration was made in the record of Nagar Mahapalika on 25.9.1981 and date of birth of female child born to PW1 from PW2 was mentioned as 20.10.1978. This document Ext. Kha7 indicates the birth of female child on 20.10.1978 at the same residence at Beli Road showing daughter of Prem Narain Dwivedi and Smt. Chitra Dwivedi and registration of birth of the female child was made in the said document on 25.9.1981 which was proved by DW2 as Ext. Kha7. Thus evidence of PW2 has been rebutted by documentary evidence Ext. Kha5 regarding date of birth of female child born to his wife on 20.10.1978.

The testimony of the victim girl PW3 is of utmost importance and quite helpful to the Court to arrive at proper and correct conclusion. It emerges from testimony of PW3 that the accusedappellant Zamadar by caste was her neighbour who knocked door of her house when she was alone on the date of the occurrence on 19.6.2001 around 6:00 p.m. saying that her mother had met with an accident and asked her to accompany him to the hospital. Thus the accusedappellant succeeded in taking her away in some rickshaw to Nayapurwa, Allahabad, then by tempo to Railway Station Allahabad. The accusedappellant took her to different places threatening to kill her. He took her to Hanumanganj by train where he had forcible sexual intercourse with her at Hamumanganj. Both of them resided for 1520 days then the accusedappellant took her to Baranas and kept her for about ten days and he had intercourse with her showing pistol. The accusedappellant brought her back to Hamunganj and again kept her for 67 days where he also had intercourse with her. Thereafter, the accusedappellant took her to Pratapgarh at the house of his Mausi where she was kept for about one month where he was also alleged to have intercourse against her will. According to her evidence, whenever the accusedappellant permitted her to go out, he warned her not to protest or complain to anyone. Thereafter, the accusedappellant took her at the house of his Mausi at Allahabad and kept her for 1015 days at Allahabad where he also had sexual intercourse with her forcibly. According to her evidence, the accusedappellant asked her to depose in the High Court and due to his fear when her statement was recorded in the High Court on 21.8.2001 she did not give correct statement due to compulsion and fear.

According to testimony of the victim girl PW3, giving threats to her, photographs were taken and he asked that they should marry as the police was to arrest his family members. Ameliorating her statement and taking somersault in her evidence at trial, she deposed that the accusedappellant compelled her to write love letters to him by threatening her and she put her signatures on the love letters under compulsion and she did not know contents of the love letters. She was produced by the accusedappellant in the Magisterial court in compliance of the order of the High Court. After hearing news of accident of her month, she became nervous and she could not inform her maternal grand father (Nana). Her father was an employee in Nagar Nigar and there was telephone connection in the house of her Nana even then she did not inform him about the alleged accident of her mother. According to her evidence, when the accusedappellant came to her house on 19.6.2001 at 6:00 p.m., he did not have any Tamancha etc. She left her father''s house in the clothes and ornaments which she was wearing. She candidly admitted that she stayed with the accusedappellant since the date of the occurrence i.e. 19.6.2001 till her appearance in the High Court.

The interrogatory statement of the victim girl PW3 was recorded by the Investigating Officer for the first time on 6.11.2001 and then on 12.11.2001. In her first statement, she did not tell the Investigating Officer about commission of rape by the accusedappellant at pistol point. Reason for not mentioning the commission of rape at pistol point by the accusedappellant, was told by her that due to fear of the accusedappellant, she could not tell. She developed the story of rape at pistol point by the accusedappellant in her subsequent statement recorded on 12.11.2001. She admitted that her statement was recorded before a division Bench of the High Court and when her statement was recorded, the accusedappellant was sent out of the court room by a division Bench of the High Court. Before recording her statement, division Bench asked her whether she was giving statement voluntarily without fear and pressure, then she stated that she was giving statement voluntarily and freely. At page 8 of her evidence at trial, she deposed that she clearly stated before the High Court that she had married the accused voluntarily and freely without any compulsion.

The important facts are missing from her statement recorded by the Investigating Officer under Section 161 Cr.P.C. Regarding important omissions in her statement under Section 164 Cr.P.C. recorded by the learned Magistrate, she deposed that she did not tell about sexual intercourse by the accusedappellant as she was not asked and she told the story of her rape by the accusedappellant. Regarding her photographs, showing her affinity and love with the accused, Ext. Kha1 to Ext. Kha6, she stated that these photographs, were taken by the accusedappellant by terrorizing her. She admitted her signatures on the love letters written by her to the accusedappellant which have been proved as Ext. Kha1 to Ext. Kha6.

Thus testimony of victim girl PW3 clearly depicts that she admitted her court marriage with the accusedappellant before the High Court without any compulsion or pressure or fear. She allowed her photographs to be taken along with the accusedappellant and she wrote several love letters to the accusedappellant which were admitted by her during her evidence at trial. According to her evidence, due to fear and pressure of the accusedappellant, she admitted her court marriage with the accusedappellant before a division Bench of the High Court and she wrote love letters etc. and allowed herself to be photographed under fear of the accusedappellant.

A close and careful scrutiny of evidence of the victim girl PW3 and also noncomplaining or nonmaking of noise or clamour by her during her journey or stay with the accusedappellant at several places for a long time is indicative of the facts that the victim girl was a consenting party to the whole episode. She had affection, affinity, love affairs with the accusedappellant. Hence their joint photographs were taken.

The evidence of Manvendra Pratap Mishra, PW6 is that of last seen. He saw the victim girl going with the accusedappellant in rickshaw. The testimony of PW6 also depicts that the victim girl was voluntarily going with the accusedappellant in the rickshaw without raising any cries or protest.

Sri D.S. Mishra, learned counsel for the first informant has emphatically submitted that a division Bench of this Court vide order dated 31.10.2001 in the aforesaid petition mentioned that age of the victim had been shown less than 18 years at the time offence and division Bench found evidence sufficient prima facie to make out a case under Sections 363, 366 I.P.C. There was no occasion for the Special Chief Judicial Magistrate, Allahabad to reconsider the age of the victim girl. It is true that the order dated 13.11.2001 passed by the Special Chief Judicial Magistrate holding the victim girl above 18 years of age and setting her free as per her wishes has not been challenged in any higher forum.

Sri D.S. Mishra, learned counsel for the first informant vehemently argued that the order dated 31.10.2001 passed by a division Bench of this Court finding prima facie evidence against the accusedappellant assuming the victim girl to be 18 years of age, should be treated to be binding. This contention is not legally acceptable. The division Bench of this Court was requested to stay the arrest of the accusedappellant and the victim girl. The division Bench while disposing of the aforesaid writ petition vide order dated 31.10.2001 directed the accusedappellant to produce the victim girl and seek his bail.

Next submission of the learned counsel for the first informant is that since the accusedappellant after serving out sentence and depositing the fine imposed upon him, has been released on bail and the appeal on his behalf has become infructuous, therefore, the decision of the appeal on merits is not desirable. This contention of the learned counsel for the informant is not acceptable because every convict has a right to challenge his conviction and sentence even after his release subsequent to serving out complete sentence or substantial part thereof and payment of fine, in his pending appeal.

Now coming to the point of age of the victim girl, it is worth mentioning that the date of birth of the victim girl is 2.10.1983 according to the High School Certificates, thus the age of the victim girl comes to 17 years 8 months and 17 days on the date of the occurrence. Thus the victim girl was on the verge of attaining 18 years of age.

As discussed above, Krishna Prakash DW2 producing record of Nagar Maha Palika Allahabad, proved the birth registration certificate of the victim girl as Ext. Kha7, in which date of birth of the victim girl was recorded as 20.10.1978 indicating that the victim girl was about 23 years of age. Her radiological age and the age determined by ossification test is about 19 years. All these factors go to show that the victim girl was certainly above 18 years of age on the date of the occurrence and she was adult and had already attained age of discretion or consent. The victim girl, according to the evidence of DW1, had performed marriage with the accusedappellant on 22.6.2001 as per Buddhism religion and the marriage was solemnized in the presence of Nathu Ram Baudh DW1 where photographs of boy and girl were taken and mother of the girl was also present.

Hon''ble Supreme Court in the case of Uday Vs. State of Karnataka (2003) 4 SCC 46, in paragraph nos. 21, 22 and 23 thereof observed as follows:

"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 strait jacket 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.

The approach to the subject of consent as indicated by the Punjab High Court in Rao Harnarain Singh and by the Kerala High Court in Vijayan Pillai has found approval by this Court in State of H.P. vs. Mango Ram (2000) 7 SCC 224. Balakrishnan, J. speaking for the Court observed : (SCC pp. 23031 para 13)

The evidence as a whole indicates that there was resistance by the prosecutrix and there was no voluntary participation by her for the sexual act. Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.

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 it. 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."

It is established and proved beyond any shadow of doubt that the victim girl was adult before the date of the occurrence and she married with the accusedappellant according to her own free will and consent without any kind of compulsion, threat or fear. The evidence of PW1, PW2 and the victim girl PW3 are uncrediworty, unreliable and unacceptable in the facts and circumstances of the case. Their evidences are full of contradictions, are quite improbable and they suffer from infirmity. There is no cogent reason to rely on such kind of evidences. The love letters, admitted by the victim girl to have been written to the accusedappellant show that she had love affairs with him and wrote love letters to him without any fear or compulsion. Photographs on record also indicate the same. From the evidence on record, charges under Sections 363, 366, 376 I.P.C. levelled against the accusedappellant are not proved beyond any shadow of reasonable doubt. The prosecution has miserably failed to prove the said charges against him. The findings recorded by the learned trial Judge, to the contrary are perverse and based on incorrect, improper appreciation of evidence. The view adopted by the learned trial court is not in conformity with the evidence on record and is against the established canons of criminal jurisprudence. The said findings are liable to be set aside as they suffer from perversity and arbitrariness.

Due to lack of any other evidence, it is quite unsafe to uphold the conviction of the accusedappellant. Therefore, the view taken by the trial Judge in convicting the accusedappellant Chhangu Lal @ Chhangur for the offences punishable under Sections 363, 366 and 376 I.P.C. cannot be sustained. Consequently, I set aside the judgment and order dated 21.11.2006 passed by the Additional Sessions Judge, FTC No.20, Allahabad, in Session Trial No.83 of 2002 and quash the conviction and sentence of the accusedappellant under Sections 363, 366 and 376 I.P.C. The accusedappellant Chhangu Lal @ Chhangur is hereby acquitted of the offences punishable under Sections 363, 366 and 376 I.P.C. Bail bonds and sureties of the accusedappellant are discharged.

The instant criminal appeal succeeds and is, accordingly, allowed.

Let a copy of this judgment be communicated to the court concerned for ensuring strict compliance.