JUDGMENT Hon'ble Sudhansu Dhulia, J. (Oral) This is an appeal against acquittal filed by the victim under proviso to Section 372 of CrPC, challenging the judgment and order dated 13.01.2014 passed by the Additional Sessions Judge, 1st Dehradun, in Session Trial No. 96 of 2013, whereby the accused/respondent no. 2 has been acquitted of the charges under Sections 323, 504, 506, 376 and 417 IPC. 2. Leave granted. 3. The victim/appellant before this Court lodged a first information report on 15.12.2012 at 03:30 P.M. at P.S. Kotwali City, Dehradun alleging rape at the hands of the accused who is opposite party no. 2 before this court. In the FIR, it was stated that the applicant is a widow having a 11 year old boy child, and she is presently engaged in the share market business. Through social media she came in touch with the accused, who at the relevant time was residing in Dubai. In May, 2011, the accused came from Dubai to Dehradun and then the two met on more than one occasion. The accused expressed his desire to work in the share market business, as he was doing the same work in Dubai. For this, however, he sought the help of the victim, who was doing the same work in Dehradun. In December, 2011, the accused finally came to India to settle down in Dehradun, and opened an account in the office of the victim/appellant, and the two started working together. Since they were working together, they came close to each other and the accused very soon thereafter proposed marriage, which was accepted by her. Then the accused took her to “Tapkeshwar" [Shiv Temple at Dehradun] temple, where he applied “Sindoor" [Vermilion] on her forehead, apparently showing his commitment for the marriage. He then disclosed that as his parents are conservative in their outlook and it will take some time to bring them on the same page, but assured the prosecutrix that he would do that very soon. The accused also disclosed that he was earlier married but soon. The accused also disclosed that he was earlier married but the marriage is now dissolved, through a divorce decree by the court. He explained that just like his earlier marriage which too was an inter-caste marriage, his parents had agreed, he sees no reason why they will not agree again. The accused also disclosed that he was earlier married but the marriage is now dissolved, through a divorce decree by the court. He explained that just like his earlier marriage which too was an inter-caste marriage, his parents had agreed, he sees no reason why they will not agree again. The accused further said that they will stay together at “Mohit Vihar, Dehradun" after marriage. The two then stayed in a hotel near “Tapkeshwar" temple", where they had physical relations for the first time. Thereafter they went to several other places together where they stayed just as husband and wife. For all practical purposes, the accused treated her as his wife and they continued to have physical relationship on these occasions. The victim further states in the FIR that during this period, all the travelling and hotel expenses were borne by her and by this time she had spent more than Rupees Two Lakhs on the accused. After a few days, when she confronted the accused as to why he is not marrying her, she was reassured by him that it will happen sooner than she thinks and she need not worry on this account. He reminded her that now her son too calls him “Papa". Later the accused stayed in her house just like her “husband", for several days. After a few days, when she again reminded him of marriage, the accused became angry and said that what he did at “Tapkeshwar" temple was a “drama", done with the intention of having a physical relationship with her. When she threatened to take a police action against him, the accused warned her that he wields great influence and knows police officials, and in case she goes to the police and lodges an FIR against him, nothing would happen. In fact to the contrary, the accused lodged a false complaint to the Senior Superintendent of Police, Dehradun against her, of which she had knowledge only on 01.09.2012. 4. After institution of the FIR, the police started its investigation and ultimately filed its chargesheet against the accused/respondent no. 2 under Sections 323, 504, 506, 376 and 420 IPC. 5. The matter was committed to sessions and the case was transferred to 1st Additional Sessions Judge, Dehradun, which was registered as Session Trial No. 96 of 2013, State vs. Ajeet Hatwal. 2 under Sections 323, 504, 506, 376 and 420 IPC. 5. The matter was committed to sessions and the case was transferred to 1st Additional Sessions Judge, Dehradun, which was registered as Session Trial No. 96 of 2013, State vs. Ajeet Hatwal. Subsequently, charges were framed against the accused on 15.07.2013 under Sections 376, 323, 504, 506 and 417 IPC. 6. In order to prove its case, the prosecution examined as many as 10 witnesses. Apart from giving statement under Section 313 CrPC, the accused got himself examined as DW 1. Additionally, three other defence witnesses were also produced. In all four defence witnesses were examined. 7. The main witness in this case is definitely prosecutrix herself, who was examined as PW 6 on 18.08.2013. She narrates the fact earlier stated by her in the FIR, and then says that on 02.12.2011 the accused returned to India in order to finally settle down in Dehradun. They were working together in a company which was dealing in share business. One day the accused took her to a resort and suggested that they should spend a night together in that resort, to which she objected as they were not married as yet. He then took her to “Tapkeshwar" temple" and applied “Sindoor" on her head and said that from today they are husband and wife. Then he said that it will take some time to convince his parents for this marriage, as they are very conservative. Meanwhile for all practical purposes they started living as husband and wife, along with her 11 year old child. They travelled together, at times in company of her 11 year old child. This witness then states that “after the marriage" [The reference is the application of vermilion on her forehead] the accused took her to several resorts where the two had physical relations. She admits that this was with her consent, but this consent was given because the accused had promised marriage, and she believed him. She also admits that they stayed on more than one occasion in GMVN [Garhwal Mandal Vikas Nigam] Guest House at Mussoorie. She repeats that the consent for sexual intercourse was only given by her on the belief that the accused is going to marry her. She also admits that they stayed on more than one occasion in GMVN [Garhwal Mandal Vikas Nigam] Guest House at Mussoorie. She repeats that the consent for sexual intercourse was only given by her on the belief that the accused is going to marry her. Later when she insisted on a formal marriage, the accused backed out and said that application of sindoor at “Tapkeshwar" was a subterfuge, he had adopted only to gain sexual favours from her. He never had any intentions of marrying her. She admits that both of them at some stage also reported the matter to the police. The matter even went to Women Helpline, but nothing came out of it and finally a first information report was lodged by her on 15.12.2012. 8. In her cross-examination, the victim/PW 6 admits that her first marriage was solemnized in the year 1988. Her first husband was Mr. Sumit Saxena. She also admits that her husband had committed suicide in the year 2003. Since 2008, she is working in share market and the first contact she had with the accused was through a website called “shadi.com", which was in the year 2009 or 2010. At that time she was looking for a suitable man and that is how she came in contact with the accused. She then admits that in June-July, 2011 i.e. much before the “ceremony" performed by the accused at “Tapkeshwar" temple, the accused had taken her to Mussoorie. She, however, denies going with the accused to Royal-Inn Hotel, Rajpur, Dehradun on 05.10.2011, as was suggested. 9. On being cross-examined as to the exact date of the ceremony at “Tapkeshwar" temple, she says that probably it was 15.01.2012. She says that the police had wrongly recorded her statement that the ceremony was performed in December, 2011 at “Tapkeshwar Temple". In all her cross-examination, she admits to the sexual relationship between the two, which continued over a period of almost one year, but then reminds the defence counsel that the consent for sex was only on an assurance, that the accused would marry her. 10. The remaining witnesses who deposed before the court are as follows:- 11. PW1 is Constable Sanjay Kumar who was posted at P.S. Kotwali Dehradun and who is the person who had scribed the first information report at the Kotwali. He is merely a formal witness. 12. 10. The remaining witnesses who deposed before the court are as follows:- 11. PW1 is Constable Sanjay Kumar who was posted at P.S. Kotwali Dehradun and who is the person who had scribed the first information report at the Kotwali. He is merely a formal witness. 12. PW2 Gurpreet Singh Saini and PW3 Soniya Saini are cousins of the prosecutrix. They both are witness to the fact that the prosecutirx and the accused had close relationship and as per their information which was given to them by none else but the prosecutrix, the accused was committed to marry the prosecutrix, but backed out in the end. 13. PW4 Rachit Garg is a colleague of the prosecutrix who was working in the same company as the prosecutrix. He has also admitted that there was a relationship between the accused and the prosecutrix. 14. PW5 Buddhiram Joshi is the Manager of a hotel called “Reo Resort Hotel", Gucchupani, Dehradun who has admitted that on 21.01.2012 and on 17.03.2012 the prosecutrix along with the accused had stayed in their hotel. On 21.1.2012 they had stayed along with the child. 15. PW7 Pradeep Singh Negi is again the Manager of a hotel run by Garhwal Mandal Vikas Nigam. He admits entries that on 08.04.2012 the accused had checked into his hotel along with a family but since he was not present in the hotel, he could not recognise either the prosecurix or the accused. 16. PW8 is one Mr. Ashwani Kumar who is the tenant of the prosecutrix and is the neighbour. He says that since January, 2012 the accused was staying with the accused. They both were staying together as husband and wife. In July, 2012 he could sense that there were some differences between the two and they often fought with each other. 17. PW9 S.I. P.D. Bhatt and PW10 S.S.I. Bachan Singh Rana are the investigating officers in this case. They are formal witnesses. 18. As stated above, the accused examined himself as DW1 and three other defence witnesses such as Rakesh Tiwari as DW2, Smt. Krishna Sah as DW3 and Praveen Kumar Dhyani as DW4. 19. In his examination-in-chief the accused states that he was working in Dubai and had contact with the prosecutrix on a website called “Shadi.com", same as was stated by the prosecutrix. Then he admits that he had decided to finally settle down in Dehradun. 19. In his examination-in-chief the accused states that he was working in Dubai and had contact with the prosecutrix on a website called “Shadi.com", same as was stated by the prosecutrix. Then he admits that he had decided to finally settle down in Dehradun. There was a mutual understanding between the two that they must first know each other well and if they were compatible, it may just result in their marriage. He admits staying with the prosecutrix at various places where they had a consensual sexual relation. Then in July, 2012, he states that, when he went to the house of the prosecutrix she was working on a laptop and while she became busy in kitchen he could see that she was looking for a mate in the website called “Shadi.com" and “Jeevansathi.com" and she had also sent invitations to other men. He also saw in the laptop different photographs of the prosecutrix, some of which looked objectionable to him. After that he confronted her and they also had a fight on that issue. This witness then says that the prosecutrix thereafter started blackmailing him and she even asked Praveen Kumar Dhyani (younger brother of his brother-in-law and DW4), to ask the accused to give Rs. 1.5 crore for the settlement. Both in his statement under Section 313 CrPC and in his statement as a defence witness he denies having made a false promise to the prosecutrix or even taking her to “Tapkeshwar" temple, or applying vermilion on the forehead. He also denies even having used violence on the prosecutrix. 20. DW4 Praveen Kumar Dhyani stated that she had asked him to ask the accused to give her Rs. 1.5 crore for settlement. The exact message reads as under: “and ur familiy is so good thanx but 4 all ab aap ke nahi sunti mae ajeet ke matters me. Only he an help me 4 1.5 crore ke liya baiya voko bolo phone on rakhe." 21. It is a case of allegation and counter allegation, trust and its alleged betrayal. The evidence, however, of making a demand of Rs. 1.5 crore has not been properly established in terms of Section 65-A or Section 65-B of the Evidence Act. In fact the Trial Court has not at all dealt with this aspect as it ought to have under the law. 22. The evidence, however, of making a demand of Rs. 1.5 crore has not been properly established in terms of Section 65-A or Section 65-B of the Evidence Act. In fact the Trial Court has not at all dealt with this aspect as it ought to have under the law. 22. In the end, the trial court has come to the conclusion that alleged offence cannot be constituted as “rape" as the prosecution has not been able to prove beyond a reasonable doubt that the consent of the prosecutrix was obtained by fraud. The accused was therefore given a benefit of doubt. The trial court has acquitted the accused of all the charges levelled against him, against which this appeal has been filed by the victim/prosecutrix. 23. First and foremost, what we have before us is an appeal against acquittal. The Court has to be extremely careful in upsetting an order of acquittal. One of the established principles in a case of appeal against acquittal, is that even on the basis of appreciation of evidence if two views are possible, the view which has already been taken by the trial court should not be disturbed. 24. The entire case of the appellant/prosecutrix is that though she had consented to sex, on more than one occasion, it is still “rape" as her consent was based on “a misconception of fact", which was that the accused is going to marry her. This according to the prosecutrix constitutes “rape", when Sections 375/376 are read with Section 90 of IPC. 25. According to the learned counsel for the appellant Sri Shashank Upadhyaya, the consent given by the appellant is no consent and it is an act of rape. Learned counsel for the appellant relies upon a decision of Hon'ble Apex Court in the case of Anurag Soni vs. The State of Chhattisgarh, reported in AIR 2019 SC 1857 . 26. Learned counsel for the appellant would submit that the facts of the present case are absolutely similar to the one on which the Hon'ble Apex Court has given the aforesaid judgment, where it has been held that in such circumstances the consent of a woman will not be a consent in terms of Section 90 of IPC and since there is no consent, the act would be construed to be a rape and therefore the accused was liable to be punished for rape. 27. 27. Let us examine the facts of the case which is being relied upon by the learned counsel for the appellant. The facts of the case in Anurag Soni vs. the State of Chhattisgarh reported in AIR 2019 SC 1857 , are that the prosecutrix was a resident of Bilaspur, Chhattisgarh and was familiar with the accused since 2009 and there was a love affair between the two. The accused had even proposed and promised marriage and this fact was within the knowledge of the two families. At the relevant time of the incident, the accused was posted as a Junior Doctor in a Government Hospital and the prosecutrix was undergoing her studies of Pharmacy. On 29.04.2013 at 07:25 a.m., the two i.e. the accused and the prosecutrix met and together they boarded a train to reach “Sakti" railway station from where the accused took the prosecutrix on a motorcycle to his house at “Maalkharoda" and there they stayed from 2 p.m. of 29.04.2013 to 3 p.m. of 30.04.2013 and during this period despite refusal of the prosecutrix the accused established physical relation with her on pretext of marrying her. Thereafter whenever the prosecutrix asked the accused about marriage, she received no reassuring answer and later on 06.05.2013 she informed her family members about the incident including the sexual encounter with the accused. Both the families met and tried to sort out the matter. Thereafter the girl's parents realized that the girl was actually kept in dark and the accused has married another girl, then FIR was lodged against the accused under Section 376 IPC. The police filed its chargesheet under Section 376 IPC and the matter was committed to Sessions in which in a trial the accused was convicted of a crime under Section 376 IPC. His appeal against conviction was also dismissed by the High Court, as was his appeal before the Hon'ble Apex Court in the aforesaid judgment. 28. First and foremost, what was there before the Hon'ble Apex Court was a decision of the High Court which had upheld the order of conviction of the trial court. This is unlike the present case where what is under challenge before this Court is the acquittal of the accused. 28. First and foremost, what was there before the Hon'ble Apex Court was a decision of the High Court which had upheld the order of conviction of the trial court. This is unlike the present case where what is under challenge before this Court is the acquittal of the accused. Although the powers of the Court are the same in dealing with an appeal against acquittal, as they are while dealing with an appeal against conviction, but the Courts are normally more circumspect and cautious in upsetting a finding in a case against acquittal, where the view taken by the trial court is one of the possible views. 29. Secondly, the facts of the case (before the Hon'ble Apex) are entirely different, to the one which is before us. In the case before the Hon'ble Apex Court, the fact was that the victim was a young girl who was pursuing her studies in Pharmacy in Bhilai. In the present case, on the other hand, the prosecutrix before this Court in her late thirties, who was married earlier and was at the relevant time bringing up a child of 11 year of age. 30. It is true that the decision of the Hon'ble Apex Court has further been relied upon by the Tripura High Court in another judgment cited by the learned counsel for the appellant i.e. Sri Marendra Debbarma vs. the State of Tripura (Criminal Appeal (Jail) No. 64/2016. However, again the facts of the case before the Tripura High Court were different. What was there before the Tripura High Court was also an appeal against conviction by the accused, and not an appeal against acquittal, as is there before this Court. The facts of the case again are quite different. The prosecutrix in the case before the Tripura High Court was again a girl who submitted to sexual intercourse with the accused on a promise of marriage made by the accused. The prosecutrix had also became pregnant thereafter and the Court was hence of the opinion that the consent given by the prosecutrix was on a promise of marriage which the victim believed to be true right from the beginning though the accused never had any intention of marrying her. 31. The prosecutrix had also became pregnant thereafter and the Court was hence of the opinion that the consent given by the prosecutrix was on a promise of marriage which the victim believed to be true right from the beginning though the accused never had any intention of marrying her. 31. At this juncture, we must state that the relevant provision of Section 375 of IPC, which defines “Rape", would be what was there under the un-amended IPC, as the incident pre-dates Criminal Law (Amendment) Act No. 13 of 2013. Under the old provision, the definition of “rape" as given under Section 375 of IPC was as under: “375. Rape.—A man is said to commit “rape" who, except in the case hereinafter excepted has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.—Against her will. Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any person 13 in whom she is interested, in fear of death or of hurt. Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.—With or without her consent, when she is under eighteen years of age. Explanation. – Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception. – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." 32. Will and consent have an important bearing in a case of rape. Inter alia, sexual intercourse with a woman, without her consent or against her will is rape. 33. Consent has also to be seen in context of Section 90 of IPC, which reads as under:- “90. Consent known to be given under fear or misconception. Will and consent have an important bearing in a case of rape. Inter alia, sexual intercourse with a woman, without her consent or against her will is rape. 33. Consent has also to be seen in context of Section 90 of IPC, which reads as under:- “90. Consent known to be given under fear or misconception. – A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or [Consent of insane person] if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or [Consent of a child] unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age." 34. Section 90 IPC does not define consent but states what cannot be construed as a consent. For our purposes, a consent is not a consent if it is given “under misconception of fact". This is precisely the case of the prosecutrix. 35. Learned counsel for the respondent/defendant has relied upon a decision of the Hon'ble Apex Court which is Uday v. State of Karnataka, 2003 SCC (Crl) 775. The facts of this case were that the prosecutrix was 19 years of age and the accused was 20-21 years of age. The findings of the trial court which were upheld by the appellate court (High Court), were that the prosecutrix had consented to have sexual intercourse with the appellant as the consent was obtained by fraud and deception, inasmuch as the appellant induced her to consent on the promise that he will marry her. It was under this conception that the prosecutrix who also claimed to be deeply in love with the accused continues to have sexual intercourse with him till it was discovered that she was pregnant. When the appellant refused to perform marriage, the complainant lodged a report before the police pursuant to which investigation was taken up and the appellant had to face trial, in which he was convicted, and this conviction was upheld by the High Court. When the appellant refused to perform marriage, the complainant lodged a report before the police pursuant to which investigation was taken up and the appellant had to face trial, in which he was convicted, and this conviction was upheld by the High Court. 36. The Hon'ble Apex Court reversed the findings of the Trial Court and the Appellate Court on ground that there was a valid consent of the prosecutrix for sexual intercourse. This was held for the reason that the prosecutrix was sufficiently intelligent to understand the 15 it cannot be said that it was done due to any significance and the moral quality of the act she has consented to. For this reason, she kept it a secret as long as she could. She exercised a choice between resistance and assent. She knew very well the consequences of the act, particularly when she was conscious of the fact that there were difficulties in their marriage. Therefore her decision was taken to be a free, voluntary and conscious decision, which was consent for a sexual intercourse, and “misconception of fact". 37. Another reason why the Hon'ble Apex Court reversed the finding was that the conclusion of the Trial Court as well as the Appellate Court that the appellant never intended to marry her in the first place is not based on any evidence. Perhaps he did want to marry her but could not gather enough courage to disclose to his family members. Therefore this presumption against the appellant itself was held to be wrong. 38. Finally the Hon'ble Apex Court held that for application of Section 90 of IPC, two conditions must be fulfilled. These two conditions have not been fulfilled, and the words of the Hon'ble Apex Court it was for the following reasons:- “Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 O'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary the circumstances of the case several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his 17 promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent." 39. Let us now come to the facts of the present case. By all accounts the prosecutrix is a mature and intelligent working mother, bringing up a child of 11 year of age by her work in the share market business. She knows very well that by merely applying vermilion on the forehead of a woman a marriage is not performed amongst Hindus. She cannot also be so naïve as to get into an intimate physical relationship with a man merely because he has applied vermilion on her forehead. 40. Even presuming that it was so, there is nothing to show that the accused was not having a bona fide intention of marrying the prosecutrix. May be he had but changed his mind later. The accused was examined as a defence witness where he said he had all intentions of marrying the prosecutrix but changed his mind when he saw the prosecutrix looking for eligible bachelors elsewhere. 41. When we appreciate the facts and circumstances of the case and the evidence before this Court, it is very difficult to form an opinion other than the one formed by the Trial Court which is that it cannot be said that the sexual relationship between the accused and the prosecutrix was “under a misconception of fact". To the contrary the evidence suggests that the relationship was based on consent. It is not a case of rape. 42. After hearing both the parties and having appreciated the evidence of the prosecution as well as of the defence, we are of the considered view that there is no occasion for disturbing the finding of the trial court. The criminal appeal has no merit and the same is hereby dismissed. 43. It is not a case of rape. 42. After hearing both the parties and having appreciated the evidence of the prosecution as well as of the defence, we are of the considered view that there is no occasion for disturbing the finding of the trial court. The criminal appeal has no merit and the same is hereby dismissed. 43. Let a copy of this judgment along with lower court record be sent to the concerned Trial Court for onward compliance.