JUDGMENT : (Shree Chandrashekhar, J.) : “X” has filed Criminal Appeal (V) No. 7 of 2022 against the judgment of acquittal of Dhalo Mahto @ Vishal Mahto under sections 493 and 376 of the Indian Penal Code. 2. Criminal Appeal (DB) No. 974 of 2023 has been filed by Dhalo Mahto to challenge the judgment of conviction under section 417 of the Indian Penal Code (in short, IPC) passed in S.T. Case No. 5 of 2017. 3. Ramgarh (Mahila) PS Case No. 11 of 2016 was registered on the basis of the written report of “X” given to the officer-in-charge of Ramgarh (Mahila) PS on 14th October 2016. After the investigation, Charge-sheet No. 6 of 2016 was laid in the Court against Dhalo Mahto for committing the offence under sections 417 and 493 IPC. However, the Court of Chief Judicial Magistrate at Ramgarh having found sufficient material available on record took cognizance of the offence under sections 376 and 417 IPC by an order dated 3rd January 2017. In S.T. Case No. 5 of 2017, Dhalo Mahto has faced the trial on the charge framed against him under sections 417, 493 and 376 IPC on 27th February 2018. 4. During the trial the prosecution has produced 9 witnesses in support of the charge framed against the accused and laid in evidence the medical report of “X” vide Exhibit-3. 5. The defence set up by the accused is of false implication due to refusal by the accused to marry “X” and to support this stand the accused has examined DW1 Neeraj Kumar Paswan. 6. The accused has also denied the incriminating materials produced by the prosecution when he was examined in the Court under section 313 of the Code of Criminal Procedure on 4th December 2019. 7. The learned Additional Sessions Judge 1st–cum-Special Judge F.T.C at Ramgarh has held that the prosecution has failed to establish the charge under section 493 IPC inasmuch as there is no evidence to establish that the accused deceitfully induced “X” to have sexual intercourse with him causing her to believe that she is lawfully married to him. 8. The discussions by the trial Judge on this issue are in the following manner: “24. ... 8. The discussions by the trial Judge on this issue are in the following manner: “24. ... There is no dispute that the Dhalo Mahto @ Vishal Mahto was in visiting term to the house of victim girl where the victim was staying and had developed physical relationship with her. There is nothing in the F.I.R. that such physical relationship was not with the consent of the victim who is undisputedly a major girl. There is also no dispute that the victim was not kept under the impression that she was the married wife of the accused Dhalo Mahto @ Vishal Mahto. Rather on plain reading of the F.I.R it appears that only after the accused has turned down the marriage proposal of the victim girl the instant case was instituted. Even if the entire allegations in the complaint are taken as true the Section is not being attracted. What is alleged in the complaint is only a promise to marry in future. The facts cannot at any rate attract Section 493, I.P.C. Evidence of victim that accused on promise to marry had committed sexual intercourse with her. The accused was in love with prosecutrix. It was in the situation that the relation between the two had the developed into a sort of relationship of a future marriage. Hence framing of charge u/s 493 of IPC against accused was not proper in other words no charge U/s 493 of IPC attract in the instant case. Thus, the charge U/s 493 of IPC fail against the accused Dhalo Mahto @ Vishal Mahto.” 9. In the opinion of the trial Judge, the charge under section 376 IPC has also failed because the prosecution could not prove that the accused established sexual relationship with “X” by deceitfully obtaining her consent that is to say on a misconception of fact. 10. In the opinion of the trial Judge, the charge under section 376 IPC has also failed because the prosecution could not prove that the accused established sexual relationship with “X” by deceitfully obtaining her consent that is to say on a misconception of fact. 10. The trial Judge has referred to the judgments in “Uday v. State of Karnataka” (2003) 4 SCC 46 , “Deelip Singh v. State of Bihar” (2005) 1 SCC 88 , “Kaini Rajan v. State of Kerala” (2013) 9 SCC 113 , “Deepak Gulati v. State of Haryana” (2013) 7 SCC 675 , “Yedla Srinivasa Rao v. State of A.P.” (2006) 11 SCC 615 , “Pradeep Kumar v. State of Bihar & Anr.” (2007) 7 SCC 413 , “Tilak Raj v. The State of Himachal Pradesh” (2016) 4 SCC 140 , “Prashant Bharti v. State (NCT of Delhi)” (2013) 9 SCC 293 , “Maheshwar Tigga v. State of Jharkhand” (2020) 10 SCC 108 and judgments of different High Courts to come to a conclusion that “X” who continued in sexual relationship with the accused over a period of 4 years had on her own consented for physical relation with him. 11. As noticed above, Criminal Appeal (V) No. 7 of 2022 which has been filed by “X” challenges the judgment dated 24th January 2022 in S.T. Case No. 5 of 2017 acquitting Dhalo Mahto of the charge under sections 493 and 376 IPC. 12. The provisions of the Code of Criminal Procedure 1973 do not put fetters on the powers of the appellate Court in dealing with a challenge against the judgment of acquittal. The appellate Court and the High Court in exercise of the powers under section 378 of the Code of Criminal Procedure is entitled to reappreciate the evidence and come to a different finding to reverse the judgment of acquittal. However, there are judicially evolved parameters which the High Courts in exercise of the powers under section 378 of the Code of Criminal Procedure are required to keep in mind. However, there are judicially evolved parameters which the High Courts in exercise of the powers under section 378 of the Code of Criminal Procedure are required to keep in mind. In “Sheo Swarup v King Emperor” AIR 1934 PC 227 (2) it has been held that the appellate Court dealing with a challenge to the judgment of acquittal must bear in mind (i) views of the trial Judge as to credibility of the witnesses (ii) right of the accused to the benefit of any doubt and (iii) presumption of innocence in favor of the accused. 13. In the present case, the trial Judge has merely referred to several judgments of the Hon'ble Supreme Court and other High Courts to arrive at a conclusion that the charge under section 376 IPC is not proved. However, in the same breathe the trial Judge has held the accused guilty under section 417 IPC on the ground that the witnesses are natural witnesses and have tendered cogent, reliable, consistent and convincing evidence. The trial Judge has gone one step further to record a finding that nothing substantial could be elicited by defence so as to doubt credit-worthiness of the testimony of the prosecution witnesses and there is no plausible or justifiable reason to disbelieve and discard their testimonies. 14. The trial Judge has held as under: “34. Evaluating the evidence of PWs meticulously it also crystal clear so far the charges u/s 417 of I.P.C are concerned it transpires there is sufficient material from established facts inference could be drawn that accused by false promise made physical relation with the unmarried virgin girl who is the poor handicapped unmarried girl and later on he turned down her proposal of marriage. The accused had fraudulent intends at the beginning when he first time made physical relation with the victim girl at the back side of her house in the year 2014. Having scanned the material on case record, I find that accused involves with guilty mind to do an illegal things. The offence of cheating depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct. The fraudulent or dishonest intention of accused has shown right at the beginning of the offence, that is the time when the offence is said to have been committed by him. The offence of cheating depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct. The fraudulent or dishonest intention of accused has shown right at the beginning of the offence, that is the time when the offence is said to have been committed by him. In my view it is not necessary that the deception should be by express words, it may be by conduct or implied in the nature of the offence itself. 35. The victim handicapped girl had suffered from a bonafide belief that the accused Dhalo Mahto @ Vishal Mahto had promised to marry with her and under the pretense of performing marriage he had intercourse with her. There is difference between consent and submission. Mere act of submission does not involve consent. A false promise on the part of the accused Dhalo Mahto @Vishal Mahto amounts cheating as he has obtained the consent by creating a belief that he will woo his marital knot with the victim girl. If the victim girl consents to have intercourse on a promise of marriage, it fastens criminal liability upon the accused Dhalo Mahto @ Vishal Mahto. The offence comes within the ambit of ingredients of II part of cheating U/S 415 of IPC. 36. In face of notable consistency in the testimonies of the PW1 to PW6 alleging that accused made physical relation with the victim girl on the pretext of marriage, I proceed to examine the “Medical Examination Report” of said girl medical examination has been conducted on 14.10.2016, since it being most vital piece of evidence. The victim has been medically examined by the medial officer Dr. Kanta Tirkey (Medical Officer of the case) examined as PW9 has proved her medical examination report as Exhibit-3 and has given the opinion that:-Vagina admit two finger easily. Hymen torn (old). This also indicate the accused made physical relation with the victim girl. 37. Evaluating the evidence of PWs meticulously have adduced by prosecution, I find that the evidence shows that there is no deviation in the statements of PW1 to PW9 regarding the offence U/S 415 of IPC part II of cheating. Here going by the entire cross-examination of witnesses or statements u/s 313 of accused there is found no rebuttal of this specific point. The evidence of the victim was truthful and was corroborated by medical evidence. Here going by the entire cross-examination of witnesses or statements u/s 313 of accused there is found no rebuttal of this specific point. The evidence of the victim was truthful and was corroborated by medical evidence. The accused Dhalo Mahto @ Vishal Mahto gained intimacy with the victim girl at her home incessantly with the false promise to marry and made physical relation with her. The evidence of the victim and PW1 to PW5 are reliable which inspired the confidence of resoling from the assurance of marriage was a fraudulent act. Since the accused Dhalo Mahto @ Vishal Mahto has been charged to have intercourse on the false pretext of marrying hence the prosecution has established the charge of offence part II of cheating U/S 415 of IPC which punishable U/S 417 of IPC against the accused Dhalo Mahto @ Vishal Mahto. She was given a promise by the accused that he would maintain her throughout her life. The accused Dhalo Mahto @ Vishal Mahto made physical relation with virgin unmarried handicapped girl on false promise of marriage for which he deserves to be awarded exemplary punishment as he has no right to enjoy her person without regard to the question of her dignity, safety, security, liberty and livelihood. 38. In view of the above discussion, appraisal and analysis of the evidence on the record, I do not hesitate to hold that the prosecution has successfully established all the circumstances appearing in the evidence against the accused by clear, cogent and reliable evidence and established that the accused has committed the offence part II of cheating U/S 415 of IPC. 39. The court is of the opinion that basic canon of criminal jurisprudence, in form of presumed innocence of accused persons, does not incorporate every fanciful possibilities rather it is based on logical and rational conclusions striking a balance between chasing chance possibilities as good enough to set the delinquents free and chopping the logic of preponderance of probability to punish the innocents. Therefore, after taking into consideration the submissions as advanced by both the parties and considering the evidence available on record, it is held that prosecution has successfully been able to prove that accused committed offence part II of cheating U/S 415 of IPC. Therefore, after taking into consideration the submissions as advanced by both the parties and considering the evidence available on record, it is held that prosecution has successfully been able to prove that accused committed offence part II of cheating U/S 415 of IPC. In face of obvious, clinching and trustworthy evidences on the record the defence plea of false implication of accused seems hardly acceptable as no material could be brought by defence which may be specific and which can prove or at least create a suspicion that it may be a case of false implication against the accused.” 41. On the basis of the pre-going discussions and the circumstances of the instant case and testing all the evidences for their inherent consistency and intrinsic probability it is conclusively found that, barring some minor discrepancies, the testimonies of the witnesses who are natural witnesses as well as that of the victim supported with clear medical findings, appear to be cogent, reliable, consistent, convincing and trustworthy evidence as nothing substantial could be elicited by defence so as to discard the creditworthiness of his statement nor any plausible and justifiable reason whatsoever is there to disbelieve and discard their testimonies. Thus on very careful examination of all the above referred facts and circumstances particularly the testimony of the victim qua role of the accused. Accordingly, It is being (a) Hence in the above discussed facts and circumstances of the case, the court is of the opinion that the prosecution has miserably been failed to prove the charge U/s 376 and 493 of IPC beyond the shadow of all reasonable doubts. Accordingly accused Dhalo Mahto @ Vishal Mahto is hereby acquitted from the charge levelled against him u/s 376, 493 of I.P.C. (b) However, I find that prosecution/ complainant has able to substantiate and well prove the charge under section 417 of IPC against the accused Dhalo Mahto @Vishal Mahto. In result:- I find and hold accused Dhalo Mahto @ Vishal Mahto GUILTY under section 417 of Indian Penal Code and he is being convicted thereunder accordingly.” 15. In result:- I find and hold accused Dhalo Mahto @ Vishal Mahto GUILTY under section 417 of Indian Penal Code and he is being convicted thereunder accordingly.” 15. In the order on the point of sentence, the trial Judge has further held as under: “Although there is no such evidence available on record regarding previous conviction of the convict but considering the character and nature of offence that convict Dhalo Mahto @ Vishal Mahto gained intimacy with the victim girl at her home incessantly with the false promise to marry and made physical relation with her. Convict by false promise made physical relation with the unmarried virgin girl who is the poor handicapped unmarried girl and later on he turned down her proposal of marriage. The victim handicapped girl had suffered from a bonafide belief that the convict Dhalo Mahto @ Vishal Mahto had promised to marry with her and under the pretense of performing marriage he had intercourse with her and causing mental agony, painful injuries to her. She was given a promise by the convict that he would maintain her throughout her life. The convict Dhalo Mahto @ Vishal Mahto made physical relation with virgin unmarried handicapped girl on false promise of marriage for which he deserves to be awarded exemplary punishment as he has no right to enjoy her person without regard to the question of her dignity, safety, security, liberty and livelihood and therefore convict deserves only substantive and deterrent/severe punishment, will meet ends of justice. The crime committed by the convict is social evil. No chance can taken by society with a man whole anti-social operations or socially abhorrent nature to commit crime of cheating the victim girl and made physical relation with her. If he would not be punished then a wrong message gone in the society, who endanger the moral and morale, the health and wealth of society. Considering all above facts and circumstances of the case, the convict cannot and does not deserve to be dealt with under the Probation of Offender Act, 1958. So, I would not be desirable to grant them the benefit of Section 3 or Section 4 of Probation of Offender Act, 1958. Considering all above facts and circumstances of the case, the convict cannot and does not deserve to be dealt with under the Probation of Offender Act, 1958. So, I would not be desirable to grant them the benefit of Section 3 or Section 4 of Probation of Offender Act, 1958. Having regard to above facts and circumstances, the convict Dhalo Mahto @ Vishal Mahto is being, hereby sentenced to undergo (I) Rigorous imprisonment for a term of 1 year (One year) and fine of Rs.52,000/-(Fifty two thousand) for the offence u/s 417 of Indian Penal Code, 1860. In default the payment of fine he shall suffer further sentence of SI of 3 (Three months).” 16. In our opinion, after having found that the accused cheated the victim girl for sexual favors the trial Judge could not have rendered the judgment holding that the prosecution has failed to prove the charge under section 376 IPC. 17. The offence of cheating has been defined under section 415 IPC which reads as under: 415. Cheating. -Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.” Explanation.-A dishonest Concealment of facts is a deception within the meaning of this section. 18. The essential ingredients for constituting the offence of cheating are (i) deceit and inducement of a person (ii) fraudulently or dishonestly (iii) to deliver any property or (iv) to consent to retain any property or to intentionally induces the person to do or omit to do anything. It further provides that if the act of inducement to do or omit to do anything is such which is likely to cause damage or harm to that person in body, mind, reputation or property the offence of cheating shall be made out. In “Hridaya Ranjan Prasad Verma & Ors. It further provides that if the act of inducement to do or omit to do anything is such which is likely to cause damage or harm to that person in body, mind, reputation or property the offence of cheating shall be made out. In “Hridaya Ranjan Prasad Verma & Ors. v. State of Bihar & Anr.” (2000) 4 SCC 168 , it has been held that to hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. The evidence of “X” in the Court who remained unshaken during the cross-examination is sufficient to hold that the accused made promise of marriage with a fraudulent intention from the very beginning. Moreover, the evidence of “X” regarding commission of rape upon her has remained intact. 19. Mr. G. S. Prasad, the learned counsel for the respondent Dhalo Mahto has submitted that “X” who is a grown up girl and remained in physical relationship for 4 years cannot turn around and say in the Court that on a misconception of fact her consent was obtained by the accused for sexual relationship. 20. Now in the context of the defence plea, the judgment in “Uday” on which the learned counsel for the accused has placed reliance is required to be examined so as to verify criminality in the story of sexual assault upon “X”. 21. In “Uday” the Hon’ble Supreme Court has observed as under: “21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.” 22. On the similar lines is the judgment in “Maheshwar Tigga” wherein the Hon'ble Supreme Court has held as under: “20. We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep-seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love. The observations in this regard in Uday are considered relevant : (SCC p. 58, para 25)” “25. … It usually happens in such cases, when two young persons are madly in love, that they promise to each other 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. 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. 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 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.” 23. On a reading of the facts in the aforesaid judgments, it is quite apparent that there was no charge framed against the accused under section 417 IPC. The judgments in the aforementioned cases have proceeded on a premise that consent of a mature woman who remained in physical relationship with the accused for years was taken on a misconception of fact. Whereas, in the present case, the trial Judge has held that the offence under section 417 IPC is proved which has been affirmed by us. 24. In her evidence in the Court, “X” has stated that Dhalo Mahto on the pretext of marriage had been establishing physical relationship with him. She is a differently-abled girl who was living in a house in the same village. She has stated that at times when she would be alone in her house the accused would visit her, allure her and commit rape upon her. She has further stated that whenever she would insist for marriage the accused would abuse her and sometimes has threatened to kill her. According to “X”, in January 2014 and lastly on 17th September 2016 the accused had established forceful physical relationship with her. She has also made a reference of her medical examination and further stated that Dhalo Mahto had destroyed all evidences. According to “X”, in January 2014 and lastly on 17th September 2016 the accused had established forceful physical relationship with her. She has also made a reference of her medical examination and further stated that Dhalo Mahto had destroyed all evidences. In her cross-examination, “X” has again asserted that Dhalo Mahto had been establishing physical relationship with her on the allurement of marriage. 25. She has also made a reference of her medical examination and further stated that Dhalo Mahto had destroyed all evidences. In her cross-examination, “X” has again asserted that Dhalo Mahto had been establishing physical relationship with her on the allurement of marriage. 25. For a better appreciation of the prosecution case, deposition of “X” is extracted in full, as under: ^^1- ?kVuk o"kZ 2014 ls 2016 rd dh gSA 2- esj xkao dk Hkkxks egrks mQZ fo'kky egrks esjs lkFk pkj ckj 'kknh dk izyksHku nsdj cykRdkj fd;kA eSa tc Hkh mls euk djrh rks eq>s 'kknh dk izyksHku nsrk jgrkA eSa tc ?kj esa vdsyh jgrh Fkh rks ml oDr ?kj vkdj cgykus&Qqlykus yxrk Fkk vkSj 'kknh izyksHku nsdj cykRdkj djrk FkkA esjs ikik dh e`R;q gks pqdh gSA esjh ekWa thfor gSA esjh ekWa esjs lkFk ugha jgrh gS] og nwljs txg jgrh gSA eSa 'kknh ds fy, dgrh rks ges'kk Vky&eVksy djrkA eSa iSj ls fodykax gwWaA eSa tc 'kknh dk ckr dgh rks og eq>s xanh&xanh xkyh fn;k vkSj ekjus dh /kedh Hkh fn;kA ftrus Hkh genksuksa ds lcwr Fks] Hkkxks egrks us mls tyk fn;kA 3- tuojh 2014 ds jkf= 9%30 cts esjs ?kj ds ihNs Hkkxks egrks us eq>s ckjh esa ys x;k vkSj ckr djus ds cgkus eq>s cqyk;k vkSj esjs euk djus ij Hkh Hkkxks egrks us esjk cykRdkj fd;kA 17 flrEcj 2016 esa Hkh vfHk;qDr esjs lkFk cykRdkj fd;kA esjk esfMdy tkWap gqvk FkkA 4- 17 flrEcj 2016 ds ckn Hkh eq>ls 'kknh djus ds fy, dgk Fkk vkSj mlus eq>ls 'kknh ugha fd;kA eSaus le>k fd xyr vkneh gS] rc tkdj eSaus dsl fd;k gSA 5- Fkkuk esa vkosnu esjs HkkbZ eukst egrks us fy[kh Fkh] ftlij lgh ikdj eSaus viuk gLrk{kj cuk;k gSA eukst egrks dh fy[kkoV ,oa viuh gLrk{kj dks igpkurh gwWa] bls izn'kZ&01 vafdr fd;k tkrk gSA 6- vkt U;k;ky; esa vfHk;qDr ढkyks egrks mQZ fo'kky egrks mifLFkr gS] igpkurh gwWaA izfrijh{k.k okLrs vfHk;qDr 7- 17 flrEcj 2016 dh ?kVuk okyh fnu 'kfuokj dk FkkA 8- eSaus eukst egrks }kjk fyf[kr izfrosnu dks iढ+k FkkA 9- ढkyks egrks eq>s 'kknh dk izyksHku nsdj izse djrk FkkA 'kknh dh ckr dks ysdj eSa Hkh ढkyks ls izse fd;k djrh FkhA 10- o"kZ 2014 esa ढkyks egrks esjs lkFk tcjnLrh cykRdkj fd;k FkkA ढkyks egrks ds euk djus ij gh eSaus Fkkuk esa bldh lwpuk ugha nh FkhA 11- o"kZ 2015 esa eSaus fdlh izdkj dh lwpuk Fkkuk esa ugh nh gSA 12- o"kZ 2016 esa eSaus Fkkuk esa vkosnu fn;kA 13- o"kZ 2014 esa esjk ढkyks egrks ds ?kj vkuk&tkuk FkkA ढkyks egrks ds cqykus ij gh eSa muds ?kj tkrh FkhA 14- o"kZ 2014 ls 2016 ds chp ढkyks egrks ds lkFk esjh Qksu vkSj lkFk esa ckrsa gqvk djrh FkhA lk{kh dgrh gS fd 'kknh ds fo"k; esa ckrsa gqvk djrh FkhA nksuksa feydj 'kknh dk Iyku cukrs FksA 15- esjs ?kj ls ढkyks egrks dh nwjh yxHkx iPphl&rhl Msx gksxkA 16- ढkyks egrks us eq>s izse&i= ugha fn;k gSA mlus eq>s fxQ~V ds :I esa lyokj lwV fn;k FkkA eSa dHkh Hkh ढkyks egrks dks dksbZ fxQ~V ugha nh gSA 17- esjs ?kj esa dqy Ng lnL; jgrs gSa] ftuesa eSa Loa;] HkkbZ] HkkHkh] nks Hkrhtk] ekW gSA 18- eSaus vius eksckbZy ls dHkh Hkh ढkyks egrks ds eksckbZy ij ,l0,e0,l0 ugha dh gSA 19- Qksu ls ckrsa fnu vkSj jkr nksuksa esa gqvk djrh FkhA lk{kh dgrh gSa fd tc mls esjs lkFk lEcU/k cukuk jgrk Fkk rc gh oks esjs eksckbZy esa Qksu fd;k djrk FkkA Qksu djus ij eSa mlds pyh tkrh FkhA 20- /kedh ds ckor eSaus dHkh Hkh Fkkuk esa lugk vFkok izkFkfedh ntZ ugha djokbZ gSA 21- vxj vc ढkyks egrks eq>ls 'kknh djuk pkgsxk rks eSa muls 'kknh ugha d:WxhA 22- fnukad 14-10-2016 dks eSa ढkyks egrks ls 'kknh djus ds fy, rS;kj FkhA 23- ढkyks egrks ds ?kj esa yxHkx ckjg lnL; jgrs gSaA 24- eSaus fyf[kr vkosnu esa bl ckr dks fy[kk gS fd eSa ढkyks egrks ds vykok fdlh nwljs ls fookg ugha dj ldrh] ,slk u gksus ij eSa vkRegR;k dj ldrh gwWaA 25- esjh pkj cgu gSA pkjks cgu vius&vius llqjky esa jgrh gSA dsoy cM+k nhnh dk ?kj vDlj vkuk&tkuk gS] ckfd vU; cgu Ng eghuk ,d o"kZ esa vk;k djrh gSA 26- vkosnu esa 17 flrEcj 2016 dh ?kVuk dk ftdz ugha fd;k gSA 27- 17 flrEcj 2016 vkSj 14 vDVwcj 2016 ds chp esjh ढkyks egrks ls ckrphr gqbZ gSA iqu% dgrh gS fd vkeus&lkeus 'kknh ds fo"k; esa ckrs gqbZ FkhA 28- ,slh ckr ugha gS fd esjs lkFk dksbZ cykRdkj tSlh ?kVuk ugha ?kVh gS vkSj eSaus vfHk;qDr dks >wBk dsl esa Qalk fn;k gSA^^ English Translation: “1. The incident took place between the year 2014 to 2016. 2. My co-villager Bhago Mahto @ Vishal Mahto raped me four times on the pretext of marrying me. Whenever I would refuse sexual relation he kept making promise to marry me. Whenever I was alone at home, he used to come and allured me and committed rape on the pretext of marriage. My father is not alive. My mother is alive. She does not live with me. She lives at another place. Whenever I asked him to marry me, he made excuses. I am handicapped with leg. When I would ask him to marry me, he abused and threatened to kill me. Bhago Mahto burnt all the proofs of our relationship. 3. At 9:30 P.M. on January 2014, Bhago Mahto called me on the pretext of conversation and took me to the Bari situated at the backside of my house and committed rape with me even after my refusal. The accused also raped me on 17th September 2016. I was medically examined. 4. Even after 17th September 2016 he promised to marry me but he did not solemnise marriage with me. When I realised that he is a bad person then I lodged this case. 5. My brother Manoj Mahto had written the application at police station. I read and found it correct and put my signature. I identify the handwriting of Manoj Mahto as well as my signature. It is marked as Exhibit-01. 6. Accused Dhalo Mahto @ Vishal Mahto is present in the Court today, I identify him. Cross-examination on behalf of accused 7. The occurrence took place on 17th September 2016 and it was Saturday. 8. I had read the application written by Manoj Mahto. 9. Dhalo Mahto used to love me on pretext of marriage. I also loved Dhalo for our marriage. 10. Dhalo Mahto raped me in the year 2014. On persuasion of Dhalo Mahto, I had not informed the police station. 11. I had not given any type of information to the police station in the year 2015. 12. I submitted application in the police station in the year 2016. 13. I used to visit the house of Dhalo Mahto in the year 2014. I used to visit the house of Dhalo Mahto on his call. 14. I have direct as well as telephonic conversation with Dhalo Mahto from the year 2014 to 2016. 12. I submitted application in the police station in the year 2016. 13. I used to visit the house of Dhalo Mahto in the year 2014. I used to visit the house of Dhalo Mahto on his call. 14. I have direct as well as telephonic conversation with Dhalo Mahto from the year 2014 to 2016. The witness says that conversation was related to marriage. Both of us used to make plan for marriage. 15. The distance of the house of Dhalo Mahto from my house may be 25-30 steps. 16. Dhalo Mahto has not written a love letter to me. He gave me a Salwar-suit as gift. I have never given any gift to him. 17. There are six members in my family including my brother, Bhabhi, two nephews and myself. 18. I have never sent any S.M.S. to Dhalo Mahto from my mobile. 19. I used to talk to him in day as well as in night. The witness says that he used to make a call on my mobile whenever he wanted to establish physical relation with me. On phone call, I used to go to him. 20. I did not lodge any Sanha or FIR regarding threat in the police station. 21. If Dhalo Mahto wants to marry me then I will refuse. 22. I was ready to marry Dhalo Mahto on 14th October 2016. 23. There are about 12 members in the house of Dhalo Mahto. 24. I have written in application that I cannot marry anyone except Dhalo Mahto and if this does not happen I may commit suicide. 25. I have four sisters. They all live in their matrimonial house. My elder sister comes regularly to my house and other sisters used to come at interval of six months or one year. 26. I have not mentioned about the occurrence which took place on 17th September 2016 in my application. 27. I have conversation with Dhalo Mahto between 17th September 2016 and 14th October 2016. Again she says that she had conversation with him regarding the marriage in person. 28. This is not true that no occurrence of rape took place with me and I implicated the accused in a false case.” 26. 27. I have conversation with Dhalo Mahto between 17th September 2016 and 14th October 2016. Again she says that she had conversation with him regarding the marriage in person. 28. This is not true that no occurrence of rape took place with me and I implicated the accused in a false case.” 26. As a general rule, the Court may act on the testimony of a single eyewitness and there is no legal impediment in convicting a person on the basis of sole testimony of an eyewitness. Section 134 of the Evidence Act says that no particular number of witnesses is required in any case for the proof of a fact. The import of section 134 of the Indian Evidence Act is that the Court may act on the testimony of a single witness provided he is wholly reliable. In “Shivaji SahabraoBobade v. State of Maharashtra” (1973) 2 SCC 793 the Hon'ble Supreme Court has observed that: “even if the case against the accused hangs on the evidence of a single eyewitness it may be enough to sustain the conviction given sterling testimony of a competent honest man, although as a rule of prudence Courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affair”. 27. The narration of her story by “X” in the Court oozes truthfulness in her evidence. Her statement in the Court that whenever she declined sex with the accused he would allure her making promise of marriage appears to be a natural conduct that she acceded to his request for physical relationship. The prosecutrix has been supported by (i) PW1 who is sister (ii) PW3 who is brother (iii) PW2 who is the sister-in-law and (iv) PW4 and PW5 who are the co-villagers. These witnesses are not witness to the actual occurrence but they have supported “X” on many vital aspects of the case. From their evidence it is established that the accused is a co-villager and residing at a distance of 150-200 meters from the house of “X” . 28. There is of course a reference by “X” and other witnesses that “X” had a love affair with Dhalo Mahto. “X” has herself admitted in her evidence that she was in love with the accused thinking that he would marry her. 28. There is of course a reference by “X” and other witnesses that “X” had a love affair with Dhalo Mahto. “X” has herself admitted in her evidence that she was in love with the accused thinking that he would marry her. At the same time, this has also come on record that these witnesses were rustic villagers and illiterate. Their understanding of intricacies of law was so low that PW1 has in her evidence stated that love would mean physical relationship. Therefore while examining evidence of an illiterate or rustic villager the same test cannot be applied which is applied while examining the testimony of the urban witness. The defence has tried to demonstrate that in the given family circumstances it was not possible for the accused to call “X” in his house and engage in sexual activity with her. In this endeavor, the defence has elicited from “X” that there are six members in her family and the accused has a 12-member family. However, such statements of “X” do not create any doubt as regards commission of rape by the accused. “X” has stated that she was living alone in her house and her sisters would visit her only occasionally. This is also not the defence stand that the accused who has a large family was living in a small house. Moreover, the evidence of “X” about phone calls, allurement and sex by the accused using force has remained almost unchallenged by the defence. From cross-examination of “X”, we find that the accused has failed to elicit from her any such statement which would cause a serious dent to the prosecution story. 29. The learned counsel for the accused has contended that delay in lodging a complaint with the police would cast a serious doubt on the prosecution story that the accused has obtained consent of “X” on a false promise. 30. The conduct of a witness is examined in the context of facts and circumstances of the case because it is almost impossible and even unrealistic to predict behavioral pattern of a person. 30. The conduct of a witness is examined in the context of facts and circumstances of the case because it is almost impossible and even unrealistic to predict behavioral pattern of a person. In “Rana Pratap v. State of Haryana” (1983) 3 SCC 327 the Hon'ble Supreme Court has observed that there is no set rule of natural reaction and therefore to discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. It is also quite a settled position in law that in similar situations different persons may react differently and merely because conduct of a witness may appear unnatural his testimony cannot be discarded. Therefore what is required to be seen is that whether there is a plausible and acceptable explanation for such unnatural conduct of the witness and if his testimony inspires confidence the Court can act upon his evidence without hesitation. So this is necessary for the defence to establish that conduct of “X” in not lodging a report with the police is such that her testimony must be discarded. 31. The materials laid during the trial of S.T. Case No. 5 of 2017, however, indicate sufficient reasons why for many years “X” did not approach the police for lodging the First Information Report against Dhalo Mahto. From the evidence of PW8 who is the investigating officer, we find that the distance of police station from the place of occurrence was about 15 KM. This also needs to be remembered that “X” has stated in the Court that all the time the accused had been alluring her on the promise of marriage. Now having regard to well-accepted proposition in law that different persons may react differently in a given situation, the conduct of “X” in not lodging an early complaint with the police cannot be the ground to disbelieve her testimony. 32. In a fair trial in which the accused had the benefit of a counsel representing him and the witnesses have been cross-examined at length, the accused has failed to demonstrate through preponderance of probability not even a bit that he was falsely implicated in the case. Whereas, the prosecution has proved that Dhalo Mahto committed offence under sections 417 and 376 IPC. Therefore, Criminal Appeal (DB) No. 974 of 2023 is dismissed. Whereas, the prosecution has proved that Dhalo Mahto committed offence under sections 417 and 376 IPC. Therefore, Criminal Appeal (DB) No. 974 of 2023 is dismissed. The conviction and sentence of Dhalo Mahto under section 417 IPC are affirmed. 33. Criminal Appeal (V) No. 7 of 2022 is allowed and Dhalo Mahto is convicted under section 376 IPC. 34. Having regard to age of the accused and other mitigating circumstances in the case, Dhalo Mahto is convicted and sentenced to RI for 10 years under section 376 IPC. The sentence awarded to him under section 417 IPC shall run concurrently. 35. The bail-bonds furnished by the convict Dhalo Mahto are cancelled and he shall surrender before the Court concerned, which shall prepare a conviction warrant against him. 36. Let a copy of the judgment be transmitted to the Court concerned through 'Fax'. 37. Let the lower Court records be sent to the Court concerned forthwith.