HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Leave To Appeal v. 1. 2. State Of Rajasthan Through Pp Tulsiram @ Rohit S/o

Judgment

2. State Of Rajasthan Through Pp Tulsiram @ Rohit S/o Shri Prakash Mattu , R/o Near Adarsh Girls College, Trambay Station P.s. Clock Tower, Ajmer ----Respondents For Appellant(s) : Mr. Ashish Saxena For Respondent(s) : Mr. Onkar Singh Rajurohit, PP Mr. Vijay Kumar Jangid

Order

1. Instant Leave to Appeal is preferred by appellant-victim aggrieved from judgment of acquittal dated 01.06.2017 in sessions case No. 28/2015 passed by learned Additional Sessions Judge (Women Atrocities Cases), Ajmer whereby respondent No.2 was acquitted from charge under Sections 376, 420 and 406 IPC.

2. Learned counsel for appellant-victim while placing reliance upon evidence of victim PW-1 submitted that victim and respondent No.2 came in contact with each other when both were working in different organizations. He further submitted that frequent meetings led to development of acquaintance between these two persons and respondent-accused taking advantage of [2025:RJ-JP:22957] (2 of 8) [CRLLA-241/2017] mental and emotional status of appellant-victim has offered to marry victim and started to develop close intimacy. He further submitted that victim was lured by the offer of marriage with futuristic marital proposal, led to development of a trust upon respondent-accused. He further submitted that taking advantage of trust of appellant-victim, the respondent-accused forced her to have physical relation with accused. He also submitted that believing the respondent-accused as bona fide the appellant-victim fell in trap of respondent-accused which resulted into physical relation on multiple occasions which was explained by victim in her deposition before the Trial Court. He further submitted that on false promise to marry, if a consent is given then same is not a valid consent as defined under Section 90 of IPC. He further referred the reasons assigned by the Trial Court while acquitting the respondent-accused has submitted that the trial Court has not taken note of the circumstances under which the consent was given. He also submitted that the Trial Court has not even considered that the accused has not fulfilled he promise to marry rather he used force and committed cruelty with her. He further submitted that such a similar issue was considered by Hon’ble Supreme Court in case of Yedla Srinivasa Rao Vs. State of A.P. 2006 (4) Criminal Court Cases 733 (SC) and it was held that if a consent has been obtained by playing fraud and misrepresentation then it is not a consent under the eye of law. He placed reliance upon judgment in case of Naim Ahamed Vs. State (N.C.T. of Delhi) (2023) 1 SCR 1061 and submitted that a consent given under misconception is no consent under the law and the Trial Court has committed serious error in not considering [2025:RJ-JP:22957] (3 of 8) [CRLLA-241/2017] legal position while interpreting the deposition of victim. At last, he submitted that victim has filed an appeal in pursuant to justice.

3. Aforesaid contentions were opposed by learned counsel for respondent-accused and he submitted that the victim and the accused both were adult and they have developed a friendship, which later resulted into an affair without any commitment. He further submitted that prior to lodging of current report no other grievance whatsoever was raised before any person including police. He also submitted that the facts of the case clearly indicate that the report was registered after a delay of 4 years and during these four years this victim has not raised any alarm. He also submitted that when two adult persons are meeting and spending time with each other it gives an impression that both are willing parties to carry on relationship between them. He also submitted that there is no evidence to suggest that this respondent-accused has ever made any promise to marry victim before and after physical intimacy. He also submitted that to cover-up and to bring a case under exception the victim has invoked the provision of Section 90 of IPC but in the instant case there is no evidence about misconception or misrepresentation. He further submitted that the facts of the case in case of Yedla Srinivasa Rao Vs. State of A.P. (supra) and Naim Ahamed Vs. State (N.C.T. of Delhi) (supra) are different than present case. He also submitted that even the samples were collected by police and sent to FSL for evaluation but there is no report supporting the testimony of victim. He also submitted that even there is no medical to support the allegation of victim. He further submitted that two individuals keeping relation for a long-time clearly reflect that they were in [2025:RJ-JP:22957] (4 of 8) [CRLLA-241/2017] fact consenting parties to carry on relationship. He further submitted that the Trial Court has considered the entire material and legal position while acquitting the respondent-accused, and there is no perversity or illegality in the order passed by the Trial Court.

4. Heard learned counsel for the parties and learned Public Prosecutor. Perused the record. Also considered the judgments as referred hereinabove.

5. On basis of complaint lodged by victim on 26.03.2015 to the Superintendent of Police, Ajmer FIR No. 69/2015 under Sections 376, 420, 406 IPC and Section 66 of IT Act was registered at P.S. Ramganj, Ajmer. After investigation, police has filed a charge- sheet against respondent-accused Tulsiram @ Rohit under Sections 376, 420 and 406 IPC. The Trial Court has framed the charges and afterwards the prosecution has examined 13 witnesses and exhibited 15 documents. The accused was examined under Section 313 Cr.P.C. and exhibited 3 documents. The Trial Court has acquitted the respondent-accused from the charge.

6. In case of Yedla Srinivasa Rao Vs. State of A.P. (supra) Hon’ble Supreme Court has considered Section 90 and 375 of IPC particularly when it was proved that the consent obtained by accused was in fact no consent where the victim was under a misconception of fact that accused intends to marry, and she had submitted herself to sexual intercourse with him. Further, after reference of Section 114-A of Indian Evidence Act, a presumption was raised about absence of consent. [2025:RJ-JP:22957] (5 of 8) [CRLLA-241/2017]

7. In case of Naim Ahamed Vs. State (N.C.T. of Delhi) (supra) while considering Section 90 and 375 of IPC the accused Naim Ahamed was acquitted from the charge. In case of Prashant vs State Of Nct Of Delhi AIR 2013 SC 2753, Hon’ble Supreme Court has considered allegation of almost similar nature and quashed the FIR, charge-sheet and charges framed against the accused. In case of Pramod Suryabhan Pawar vs The State Of Maharashtra (2019) 3 SCC Crimi. 903 Hon’ble Supreme Court has observed that the misconception of fact alleged by complainant is the accused’s promise to marry her, specifically, there is a distinction between a false promise given with understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. The judgment in case of Anurag Soni Vs. The State of Chhattisgarh AIR 2019 SC 1857 and Deepak Gulati Vs. State of Haryana AIR 2013 SC 2071. were referred.

8. In the instant case, first time the grievance was raised on

26.03.2015 though, the victim has met respondent-accused on

02.04.2007 for the first time. The police has not recovered any photograph or video allegedly used to blackmail victim or prosecutrix. The documents exhibited by prosecution also indicate that no such video or photograph was either tendered in evidence by the victim herself or recovered by police. The Trial Court has considered that as per allegation, the financial transactions were of 2009 whereas physical relation for the first time was made in

2011. The facts indicate that victim was in friendship with respondent-accused since 2007 but there is no allegation about any sexual assault between 2007 to 2011. [2025:RJ-JP:22957] (6 of 8) [CRLLA-241/2017]

9. A perusal of cross-examination of victim clearly indicate that initially she remained under misconception of marriage with accused and in 2011 when they entered into physical relation for the first time. The allegation of victim suggests that in 2011 she was forcible raped by respondent-accused but still she kept mum from 2011 to 2015. There is no evidence to prove false promise to marry made by accused and on only said promise victim has given consent for physical relation. The Trial Court has considered provision under Section 90 of IPC and in light of judgment of Hon’ble Supreme Court in case of Dileep Singh Vs. State of Bihar AIR 2005 SC 203 and also in case of Deepak Gulati Vs. State of Haryana Criminal Appeal No. 2322/2010 judgment dated 20.05.2013.

10. A consent under misconception is not a valid consent for the purpose of Section 375 IPC, but herein this case in absence of such connecting evidence it is impossible to draw a conclusion that victim has submitted herself only on promise that accused will marry her. The prosecution has not established that if such promises was not made then victim has not permitted for physical relation in 2011. The Trial Court after considering the evidence has acquitted the respondent-accused, unless and there is any perversity or illegality, leave cannot be granted to convert an order of acquittal to conviction.

11. Hon'ble Supreme Court in the cases of Chandrappa & Ors. v. State of Karnataka : (2007) 4 SCC 415; Nagabhushan v. State of Karnataka : 2021 (5) SCC 222 and Rajesh Prasad V. The State of Bihar & Anr.: (2022) 3 SCC 407, specifically observed that in case of consideration of an appeal from order of [2025:RJ-JP:22957] (7 of 8) [CRLLA-241/2017] acquittal, there is double presumption in favour of accused and these presumptions are - firstly, presumption of innocence under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless proved guilty by a competent court of law. Secondly, the accused having secured an order of acquittal, the presumption of innocence is certainly not weakened, but reinforced, reaffirmed and strengthened by the Trial Court.

12. Hon'ble Supreme Court in cases of Atley v. State Of Uttar Pradesh : AIR 1955 SC 807; Sanwat Singh & Others v. State Of Rajasthan : 1961 AIR SC 715; M. G. Agarwal v. State Of Maharashtra : 1963 AIR SC 200; Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra : (1973) 2 SCC 793; Ramesh Babulal Doshi vs. State of Gujarat : (1996) 9 SCC 225; Ajit Savant Majagvai vs. State of Karnataka : (1997) 7 SCC 110 and Nepal Singh v. State of Haryana : (2009) 12 SCC 351, have considered the role of Appellate Court in considering situation arising out of order of acquittal and settled the proposition that the Appellate Court has full power to review, re- appreciate and re-consider the evidence upon which the order of acquittal is founded, however, Appellate Court is duty bound to keep in mind to that there is double presumption in favour of accused.

13. In view of discussions made hereinabove, no case is made out for interference by this Court by allowing leave to appeal in a case where both the victim and respondent-accused were adult and having a physical relationship from 2011 to 2015. The prosecution has failed to prove that the victim was lured and [2025:RJ-JP:22957] (8 of 8) [CRLLA-241/2017] promised to marry by the respondent-accused, so judgment in case of Yedla Srinivasa Rao Vs. State of A.P. (supra) is not helpful to the appellant-victim, therefore, the leave to appeal is liable to be dismissed.

14. Thus, instant leave to appeal preferred by appellant-accused is hereby dismissed along with pending application(s), if any. MONU /120-S (ASHOK KUMAR JAIN),J