STATE OF J&K Vs. AMRESH KUMAR AND ORS.

JUDGEMENT

(1.) 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.

(2.) Heard rival sides and perused the record.

(3.) 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.