Devanand Gadeval Vs State of Chhattisgarh

1. This criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (henceforth, Cr.P.C.) has been preferred by the appellant/accused challenging the judgment of conviction and order of sentence dated 26^th July, 2022 passed by Upper Sessions Judge (FTC), Janjgir, District Janjgir-Champa in Sessions Trial No. 52/2021 whereby the appellant has been convicted for the offence 376 (2)(n) of the IPC and sentenced him to undergo rigorous imprisonment for 10 years with fine of Rs. 5,000/-, in default of payment of fine, to further undergo R.I. for 100 days.

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2. Case of the prosecution, in brief, is that the victim, who is 25 years old lady, had received a marriage proposal from the accused/appellant, hence, they well acquainted with each other. It is alleged that on 23^rd February, 2021, at about 11 PM, the appellant came to the house of victim and told her that he loved her deeply and on the pretext of marriage, he forcibly raped her by holding her hands and gagging her mouth and when the victim resisted the same, he threatened her stating that if she discloses the incident to anyone, then he will kill her and also said that he will talk to her family members about their marriage, due to which, the victim did not tell her family members about the incident. On 28.02.2021, again accused came to the victim's house and made physical relation with her and when the family members of the victim saw him and beat him, them appellant told them that he loves her deeply and will marry her, and stayed at the victim's house for 15 days and during that period continue made physical relation with her. On 30.4.2021, when the victim and her family went to the house of appellant to talk about the marriage, then the accused said that he would marry the victim only if they made his sister to their daughter-in-law, otherwise not.

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2.1 Thereafter, victim made written report (Ex.P-1) at Police Outpost Naila on 12.05.2021 against the appellant. Based on which, FIR (Ex.P-2) was registered in Zero and thereafter, a numbered FIR was registered at Police Station Janjgir bearing Crime No. 207 of 2021 (Ex.P-7) for the offence punishable under Sections 376 & 506 of the IPC against the appellant. The victim / prosecutrix was medically examined by Dr. Katyayani Singh (PW-8), in which, vide Medical report (Ex.P-8), she found black hair on her labia, majora, stretched labia minora and old tear in the hymen. She prepared two vaginal slides and vaginal swab of the victim/prosecutrix, sealed it and

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handed over to the Constable for chemical examination. According to her, a definite opinion cannot be given about the sexual intercourse. Statement of prosecutrix under Section 164 Cr.P.C. (Ex. P-6) was recorded before the Judicial Magistrat First Class, Champa, District Janjgir-Champa. Statement of the witnesses under Section 161 Cr.P.C. was also recorded. Spot map (Ex.P-4) was prepared by Police whereas Spot map (Ex.P-5) was prepared by Patwari. The appellant was arrested vide Arrest Memo (Ex.P-13). The appellant was also medically examined and the underwear sealed by the doctor during examination was seized vide seizure memo (Ex.P-11). The vaginal slides of the victim (Article 'A') and underwear of the appellant (Article 'B') seized in the case were sent for FSL vide memo (Ex.P-16) from the Superintendent of Police, Janjgir for chemical examination. Vide FSL report (Ex.P-18), it was opined that, seman stains and human sperm were not found in Article 'A' whereas Seman stains and human sperm were found in Article 'B'.

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3. After completion of investigation, charge-sheet under Sections 376 & 506 of the IPC was filed against the appellant before Chief Judicial Magistrate, Janjgir, District Janjgir-Champa, who in turn, committed the case to the Court of Sessions, from where the Upper Sessions Judge (F.T.C.), Janjgir, District Janjgir-Champa received the case on transfer for trial. Learned Fast Track Court framed charge under Section 376 (2)(n) & 506 of the IPC against the appellant, who abjured the guilt and claimed trial.

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4. So as to hold appellant/accused guilty, the prosecution examined as many as 9 witnesses and exhibited 18 documents. Statement of the appellant/accused was recorded under Section 313 of Cr.P.C. in which he denied all the circumstances appearing against him in the prosecution

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evidence, pleaded innocence and false implication. No defence witness has been examined in support of the appellant/accused.

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5. Learned counsel appearing for the appellant /accused would submit that victim is major girl, aged about 25 years at the time of incident and she was working on the post of Home Guard about six years prior to incident, thus, she was well aware about her well beings, despite that, she entered into relation with the appellant/accused, who is also adult person, aged about 28 years. He further submits that earlier she had lodged FIR against one person namely Surendra Singh Thakur for the offence of rape and subsequently she has settled the dispute in that criminal case. He further submits that the victim also indulged in physical relation with other persons namely Ashok Suryavanshi & Yogesh Pradhan and also collected huge money from them under threat to implicate them in case of rape. Instant case also, victim had put proposal before appellant to get settled the dispute after giving Rs.2,50,000/-. He further submits that victim indulged in relation with the appellant and even she also permitted him to reside with her for about 15 days in her house and cohabited with appellant, which shows that it was not on pretext of marriage, rather she herself indulged in such relation with her own free will and consent, therefore, it cannot be given colour of rape, but learned Fast track Court only on the basis of plaint statement of victim, has convicted appellant for the alleged offence, which is perverse and contrary to the evidence available on record. Hence, he prayed that the appeal may be allowed and the appellant/accused may be acquitted of the offence under Section 376 (2)(n) of the IPC by setting aside the impugned judgment passed by Upper Sessions Judge (FTC), Janjgir, District JanjgirChampa.

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6. Per contra, learned counsel for the State/respondent would submit that impugned judgment of conviction and order of sentence convicting and sentencing the accused/appellant as mentioned above, is based on proper appreciation of evidence available on record, which does not call for any interference.

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7. I have heard learned counsel for the parties, considered their rival submissions and went through the record with utmost circumspection.

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8. Victim (PW-1), her mother (PW-4) and father (PW-5) and Shashilata Tande (PW-6) {neibhbour of the victim} are the witnesses of factual aspect of the case. As per deposition of victim (PW-1), there was a talk between family members of victim and appellant for their marriage. On that pretext, on 23.02.2021, appellant/accused came to her house and told her that since they are getting to marry, hence, anything can be happened between them, thereafter, appellant made forceful physical relation with her. Again on, 28.02.2021, appellant came in her house and stayed there for about 15 days and on pretext of marriage, repeatedly made physical relation with her. Subsequently, he refused to marry her. Statement of victim also get support from deposition of her mother (PW-4) and father (PW-5), as also up to some extent from deposition of neighbour of victim namely Shashilata Tande (PW-6), though she is hearsay witness, but she (PW-06) has admitted in paragraph 3 of her cross-examination that victim & appellant were in love relation for about one year.

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9. Victim is young lady, aged about 25 years at the time of incident. She was also working as Homeguard about six years prior to the incident and posted in Police Line, Naina. She has admitted suggestion of learned defence counsel that, no person can do anything by deceiving or tricking her.

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Having considered the aforesaid facts, it is not easy to believe that only on pretext of marriage, victim indulged in physical relation with the appellant.

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10. Victim (PW-1) has admitted in paragraphs 19 & 20 of her crossexamination that earlier she had lodged report against Surendra Singh Thakur for her sexual exploitation on pretext of marriage, to which the case was also registered against him and the victim has also admitted that she had settled the dispute in that case with Surendra Singh. Though, she has denied the suggestion that she has also obtained Rs. 2,50,000/- - Rs.2,50,000/- from Ashok Suryawanshi & Yogesh Pradhan by threatening them to implicate in rape case. Similar suggestion has also been denied by her in respect of appellant in paragraph 22 of her cross-examination. But replying the question in paragraph 22 of her cross-examination, she has admitted that till 30.4.2021, she was hopeful that a settlement would be reached with the appellant/his parents, therefore, she lodged a belated FIR, i.e., 12 days after 30.4.2021.

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11. The victim (PW-1) is major girl, aged about 25 years at the time of incident and she was working on the post of Home Guard about six years prior to incident. She has also admitted in paragraph 8 of her crossexamination that no one can do anything to her by deceiving or cheating her, hence she is fully capable of understanding her own well-being, despite that without getting marry not only she indulged in physical relations with the appellant for about three months, rather she also permitted him to reside in her house for about 15 days. This fact shows that the relationship established between them was not based on any pretext, but it was with free will and consent.

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12. Further, victim has lodged simillar report of heinous crime of rape, as discussed above, in which, she turned hostile, as settlement was arrived between them. Though, only on the basis of such fact, any lady cannot be stigmatized, but circumstances of instant case does not inspire trustworthiness of deposition of victim that on the pretext of marriage, she indulged in physical relation with appellant, rather getting settled in alike similar case also raised doubt to accept trustworthiness of deposition of victim that on the pretext of marriage, she indulged in physical relation with the appellant.

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13. Recently, in the case of Prithivirajan Vs. State, represented by Inspector of Police and Another 1, while considering similar case, their Lordships of the Supreme Court held in paragraphs 6 & 7 as under :-

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“6. This Court has time and again reiterated that only because physical relations were established based on a promise to marry, it will not amount to rape. For the offence of rape to be attracted, the following conditions need to be satisfied : first, the accused promised to marry the prosecutrix solely to secure consent for sexual relations without having any intention of fulfilling said promise from the very beginning; second, that the prosecutrix gave her consent for sexual relations by being directly influenced by such false promise of marriage. [See : Pramod Suryabhan Pawar v. State of Maharashtra (2019) 9 SCC 608; Mahesh Damu Khare v. State of Maharashtra 2024 SCC OnLine SC 3471 ]

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7. The instant case is one of consensual relationship between the appellant and prosecutrix. Even otherwise, it does not appear from the record that the initial promise to marry allegedly made by the appellant was false to begin with. Perusal of FIR itself suggests that the alleged

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1 2025 SCC OnLine SC 696

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promise to marry could not be fulfilled by the appellant due to intervening circumstances. Consequently, the relationship ended because of which the present FIR came to be registered. Under these circumstances, letting the appellant face trial would be nothing short of an abuse of the process of the Court. This cannot be permitted.”

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14. In another recent decision of the Hon’ble Supreme Court in the case of Jothiragawan Vs. State Represented by Inspector of Police and another

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(2025 SCC OnLine SC 628), where, the accused and victim/ prosecutrix were relative, the couple had sexual intercourse thrice. On 17.04.2021, they took a room in a hotel where according to the victim/prosecutrix, there was an ‘abrupt and unexpected’ sexual intercourse, under coercion against her wish. Again on the pretext of discussing marriage, the accused called the victim/prosecutrix and she willingly accompanied him to the very same hotel where they had an intercourse and thus again the victim/ prosecutrix was coerced into a sexual intercourse. After both instances the victim/prosecutrix was mentally upset but this did not prevent her from still again going to the very same hotel at the request of the accused, a third time. Thereafter he refused to solemnize their relationship by a valid marriage. In these circumstances, the Hon’ble Supreme Court held that “the criminal proceedings initiated against the present appellant/accused are nothing but an abuse of process of the court. This is precisely a case where the High Court should have interfered in exercise of its inherent and extraordinary powers under Section 482 of the Cr. P.C. These proceedings cannot go on.”

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15. In the instant case, though victim has stated that appellant repeatedly sexually exploited her on pretext of marriage, but when without getting marry allowing the appellant to reside him in her house by victim show that their

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relation was not only on the pretext of marriage, because if it would have in pretext of marriage and appellant did not perform marriage with victim, then she would have lodged report immediately, but she did not do so, rather she has not stated that what would be the terms of settlement, as has been stated in preceding paragraphs in alike cases, she had already entered into compromise with one person namely Surendra Singh Thakur.

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16. In view of above discussion, it is found that learned Fast Track Court has convicted appellant taking hard line view of plaint statement of victim without due appreciating the same in totality of the fact situation of the case, as is revealed from deposition of victim herself. Therefore, I feel inclined to allow the instant appeal.

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17. In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant under Section 376(2)(n) of the IPC is set aside and he is acquitted of the said charge. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023.

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18 . Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith.

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19 . The Criminal Appeal is allowed.

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AMITKUMARDUBEY Digitally signedby AMITKUMARDUBEYDate:2025.10.3011:19:27+0530

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Sd/- (Naresh Kumar Chandravanshi) Judge

Devanand Gadeval v. State of Chhattisgarh

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Devanand Gadeval v. State of Chhattisgarh

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