Jagdish Prasad Gupta JUDGMENT
Jagdish Prasad Gupta, J.
1. The appellant has preferred this appeal against the judgment dated 08/01/2016 passed by the IIIrd Additional Sessions Judge, Burhanpur in S.T. No. 45/2015 whereby the appellant has been convicted for the offence under Section 376(2)(n) of the IPC and sentenced to undergo RI for 10 years with fine of Rs. 2,500/-, in case of default further undergo 3 months R.I.
2. In brief the facts of the prosecution case are that the applicant and prosecutrix (PW-3) were studying in B.I.M.S. College and fall in love and in January, 2014 the applicant committed sexual intercourse with the prosecutrix on getting her consent on promise to marry with her and thereafter again in March, 2015 he committed sexual intercourse and when the prosecutrix asked him to marry her, he refused to marry her stating that his family members are not agreeing to marry with the prosecutrix. Then the prosecutrix disclosed the aforesaid fact to her parents and brother and lodged FIR Ex. P-3 on 20/06/2015 in the police station Nimbola District Burhanpur and police registered Crime No. 156/2015 under section 376(2)(n) of IPC against the applicant. After completion of the formalities of investigation, charge sheet was filed before the JMFC, Burhanpur and after taking cognizance the JMFC committed the case to the Session Court, Burhanpur where the IIIrd Additional Session Judge tried the case.
3. During trial, the trial Court framed charge under Section 376(2)(n) of IPC against the applicant, who abjured his guilt and claimed to be tried. His defence was that he has been falsely implicated.
4. Learned trial court after considering the evidence adduced by the parties and on the basis of the material available on record convicted and sentenced the applicant as mentioned earlier.
5. The finding of the learned trial Court has been assailed by the applicant on the ground that the evidence produced by the prosecution establish that the applicant committed sexual intercourse with the prosecutrix with her will and consent and they were major at the time of the incident, hence no offence is made out but the learned trial Court has wrongly appreciated the evidence and arrived at the conclusion that consent was given by the prosecutrix under the misrepresentation of promise of marriage, hence it can't be considered legal consent. The aforesaid approach is against the law as the Hon'ble Apex Court in the case of Deepak Gulati Vs. State of Haryana reported in MANU/SC/0546/2013 : (2013) 7 SCC 675 has held that the prosecution has to prove the fact that the accused acted with mala fide intention of seducing prosecutrix by making false promise of marriage and not keeping his promise. But mere breach of promise without mala fide intention cannot amount to deception. In the present case, the prosecutrix (PW-3) being a major and educated girl having understanding the impact of his consent and conduct, it can't be said that she submitted herself on account of promise of marriage and there is no iota or material to suggest the fact that the applicant initially made false promise. It is a case of breach of promise without mala fide intention. Further submitted that later on the prosecutrix and applicant have solemnized marriage and having a child with their wedlock. This circumstance also shows that the promise of marriage was not false. Hence, the appeal be allowed and the appellant/accused be acquitted of the aforesaid offence.
6. Learned GA has argued in support of the aforesaid judgment of the trial court stating that the prosecutrix did not give consent but submitted........