State of JandK vs Amresh Kumar and Others

Bansi Lal Bhat, J.â€"This appeal is directed against the Judgment dated 31.01.2014 delivered by learned Principal Sessions Judge, Bhaderwah in

case titled State v. Amresh Kumar and Ors. by virtue whereof respondents-Amreesh Kumar, Prem Lal and Mst. Prem Dai alias Subhnoo

(hereinafter referred to as 'accused') have been acquitted of charges under Section 376/420/109 RPC. According to prosecution case, accused-

Amresh Kumar was betrothed to prosecutrix and under the pretext of proposed marriage, he had sexual intercourse with prosecutrix on several

occasions resulting in pregnancy. Allegedly, accused subsequently refused to solemnize marriage with the prosecutrix. Case under FIR 105/2006

for offence under Sections 376/420/109/506 RFC was registered at Police Station, Gandoh on the basis of complaint filed by the prosecutrix.

Investigation culminated in filing of charge sheet against the accused who pleaded not guilty and claimed to be tried. Prosecution has examined

witnesses including the prosecutrix at the trial. Accused when asked to explain incriminating circumstances appearing in evidence adduced by

prosecution, pleaded false implication. However, accused did not enter upon their defence. On consideration of evidence brought on record during

the trial learned Sessions Judge arrived at the conclusion that the prosecutrix was a consenting party to the sexual intercourse with accused-

Amresh Kumar and the two had consensual sex. Based on such finding, accused came to be acquitted.

Heard rival sides and perused the record.

It is not disputed that a betrothal had taken place between the prosecutrix and accused - Amresh Kumar with the intention of contracting

marriage inter se the two on a future date. From the deposition of prosecutrix it emerges that the two developed physical relations resulting in

pregnancy. Prosecutrix nowhere alleged that the engagement had taken place deceitfully and she was made to submit to the lust of accused-

Amresh Kumar who deceitfully obtained her consent for physical contact. There is nothing in her deposition to arrive at the conclusion that she had

resisted the overtures of accused-Amresh Kumar for having illicit relations with him or that the accused-Amresh Kumar had deceitfully obtained

her consent. The evidence brought on record by the prosecution does not reveal that the accused-Amresh Kumar had the intention of cheating the

prosecutrix and that he had gone through a fake engagement ceremony only to induce a false notion in the mind of prosecutrix that she was going

to be lawfully married to accused-Amresh Kumar resulting in surrendering her person and submitting to his lust. The evidence led by the

prosecution further reveals that though pregnancy was discovered within a month after engagement ceremony, prosecutrix and her parents did not

lodge a complaint before it was 5th/6th month of pregnancy. In absence of evidence that the engagement was enacted as a false drama to induce

the prosecutrix to give in and submit to the lust of accused-Amresh Kumar though he never intended to marry the prosecutrix and the factum of

engagement of prosecutrix with accused-Amresh Kumar was in itself enough to justify consent of prosecutrix to the acts of pre-marital sex, it is

difficult to hold that the accused-Amresh Kumar had deceitfully obtained consent of prosecutrix for sexual intercourse under the false notion that

the prosecutrix was being lawfully married to accused-Amresh Kumar. Intention to cheat and deceitfully obtaining consent of the woman for pre-

marital sex on false promise of marriage is the chief attribute to attract penal liability for offences alleged against the accused. Apart from this there

is even not an iota of evidence on record to hold that the prosecutrix had objected to, protested, resisted or complained about pre-marital sexual

exploitation at the hands of accused-Amresh Kumar until 5th/6th month of pregnancy. While intention to cheat and obtaining consent by deceitful

means is woefully lacking, consent for pre-marital sex on the part of prosecutrix is not shown to have been vitiated by fraud, cheating or coercion.

Merely because a woman is betrothed to a person would not imply her consent for pre marital sex.

After scanning through the evidence on record, we are satisfied that the evidence brought on record justifies the conclusion that the sexual

intercourse between the prosecutrix and the accused-Amresh Kumar was consensual. Dishonest intention to cheat in order to induce belief in the

mind of prosecutrix regarding solemnizing of marriage is found lacking. The acts of consensual sexual intercourse between the two resulting in

pregnancy of prosecutrix does not satisfy the ingredients of offences under Sections 420 and 376 RPC. There is being no merit in appeal, same is

dismissed.