Riya Lalwani vs State of M.P.

Feeling aggrieved by the judgment dated 27th October, 2009 passed by the Sessions Judge, Gwalior in Sessions Trial No. 203/2009, by which the learned Sessions Judge has acquitted the accused/non-petitioner No. 2 u/s 376(1) of IPC, the prosecutrix/appellant has filed this revision u/s 397 read with Section 401 of Cr. P.C. requesting to set-aside the impugned judgment and to order re-trial.

The prosecution story before the learned Trial Court in brief is that, accused Tarun called the prosecutrix on her mobile on 28.05.2008 and informed her that he was calling to some one else but has wrongly connected to her number. Subsequently, the accused continuously called the prosecutrix from time to time. On 18.06.2008, he asked the prosecutrix to attend the marriage of his friend named Amit Khatvani in Gwalior. The prosecutrix after attending the marriage wanted to return back to her house but the accused took her to a flat of his friend at Akashwani Campus, City Centre, Gwalior. The accused consumed liquor and offered cold drink to the prosecutrix. She consumed the cold drink. The cold drink contained some intoxicant. She lost her consciousness. The accused committed sexual intercourse with her. When she regained her consciousness, she came to know about the sexual intercourse. She complained to the accused about the commission of intercourse without her consent, in the garb of friendship. The accused assured to marry her. On the basis of this assurance, the prosecutrix went to Bhopal alongwith accused on 10.08.2008. They stayed at C-Sector, Insdrapuri, B.H.E.L., Bhopal. There also the accused committed sexual intercourse with her several times. On 28.01.2009, again the accused committed sexual intercourse with the prosecutrix and refused to marry her. Some conciliation proceedings were taken up between them by the police. The accused again refused to marry her. The prosecutrix therefore lodged F.I.R. with Mahila Police Station Gwalior narrating the entire story. During the investigation, the prosecutrix was medically examined by Dr. Reeta. No injury was found on her person or private part. Her hymen was found ruptured. The medical officer advised to confirm the pregnancy, which after tests were negatived. After due investigation, charge sheet was filed.

After committal of the case, the Sessions Court framed charges u/s 376(1) of IPC. Accused abjured the guilt and pleaded innocence. The learned Sessions Judge by the impugned judgment acquitted the non-petitioner No. 2 with the finding that the prosecutrix was more than 25 years of age at the time of incident. She went with the accused in the night to attend the marriage and spent the whole night with the accused and had sexual intercourse with him, without any resistance. This activity of sexual intercourse went on for several months. Therefore, her conduct clearly shows that she was a consenting party. Hence, the accused cannot be held guilty for committing forcible sexual intercourse with her.

The prosecutrix aggrieved with this judgment and acquittal of the charges has filed this revision against the non-petitioner No. 2.

We have given our considered thought to the submissions made in the revision and perused the record.

In the present case, "consent" given by the prosecutrix cannot be termed as consent given under fear or misconception. The prosecutrix was above 25 years of age at the time of incident and consented for sexual intercourse with the accused on the promise that the accused would marry her.

The prosecutrix could have declined to go to attend the marriage of friend of the accused. The prosecutrix also accompanied him to Bhopal and remained with the accused for 3-4 days. During this period also she voluntarily submitted herself to the accused. In January, 2009 again the prosecutrix went to Bhopal with the accused in connection with searching a job. In January, 2009 the accused declined to marry with the prosecutrix. Therefore, written complaint was filed on 11.02.2009 with Mahila Police Station, Padav, Gwalior. All these indicate that from 18.06.2008 till 11.02.2009 the prosecutrix had been in intimate relation with the accused.

In Uday Vs. State of Karnataka, the Apex Court has held that it has been held that the accused expressed love and affection and promised to marry prosecutrix in order to get her consent for cohabitation. The victim was grown up and knew that their marriage was not feasible as they belonged to different castes but she started cohabiting with accused and became pregnant. Setting aside the conviction order of High Court, it was held that accused was entitled to acquittal as consent of prosecutrix was not given under misconception of fact.

The prosecutrix did not report about the sexual assault to any witness on 18.06.2008. On the contrary, she went to Bhopal on 10.08.2008 and lived with the accused for 3-4 days. She offered no resistance. She voluntarily participated in and exercised her intelligence and knowledge and after having freely exercised the choice between resistance and assent. That being so, the learned Trial Court has not erred in passing the impugned judgment of acquittal.

We therefore, considering the facts and circumstances of the case, decline to interfere with the impugned judgment passed by the learned Trial Court.

This revision therefore fails, and is dismissed.