Shri Balu Mahadu Jagdhane vs The State Of Maharashtra on 3 August, 2017

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 106 OF 2002

Shri Balu s/o Mahadu Jagdhane,
Age : 20 years, Occu. Labour,
R/o Satana, Tal. and Dist. APPELLANT
Aurangabad (ORIG. ACCUSED)

VERSUS

The State of Maharashtra
through Police Station, Karmad,
Tal. and Dist. Aurangabad RESPONDENT

—-
Mr. N.S. Choudhari, Advocate for the Appellant
Mr. P.N. Kutti, A.P.P. for the respondent/State
—-

CORAM : SANGITRAO S. PATIL, J.

DATE : 3rd AUGUST, 2017

ORAL JUDGMENT :

Heard the learned counsel for the appellant

and the learned A.P.P.

2. The appellant has challenged his conviction

and sentence for the offence punishable under section

376 of the Indian Penal Code (“IPC”, for short),

recorded on 25th January, 2002 by the learned

Additional Sessions Judge, Aurangabad in Sessions Case

::: Uploaded on – 07/08/2017 08/08/2017 02:40:05 :::
2 criapl106-2002

No. 206 of 2000.

3. It is alleged that since after six months prior

to 20th January, 2000, the appellant committed rape on

the prosecutrix aged about 20 years on the pretext of

performing marriage with her and committed breach of

that promise after she became pregnant from him.

4. The prosecutrix lodged report in Police

Station, Karmad on 20th January, 2000. On the basis of

that report, the Crime No. I-8/2000 came to be

registered against the appellant for the above mentioned

offence. The investigation followed. The statements of

the witnesses were recorded. The medical examination of

the appellant and that of the prosecutrix was conducted

by the Medical Officer. After completion of the

investigation, the appellant came to be prosecuted for

the above mentioned offence.

5. The prosecution examined the prosecutrix and

one Sakharam (PW2), the maternal uncle of the

prosecutrix. The prosecution then examined the

Investigating Officer and closed the evidence.

6. It is the defence of the appellant that he

never promised the prosecutrix of performing marriage

::: Uploaded on – 07/08/2017 08/08/2017 02:40:05 :::
3 criapl106-2002

with her and that she lodged false report against him.

7. The prosecutrix states that she is physically

handicapped as both of her legs have been paralyzed

since her childhood. She started residing at the house

of her maternal uncle i.e. Sakharam (PW2) since before

1½ year prior to the incident in the hutment area of

Satana, Taluka and District Aurangabad. The appellant

was residing in the same area. She was in talking terms

with him. Once, he expressed to have sexual intercourse

with her. She was not ready for that. The appellant

promised that he would marry to her. Therefore, she gave

consent for sexual intercourse. He had sexual

intercourse for about 4 to 5 times. She became pregnant

out of the said intercourse. She disclosed the appellant

about that fact and asked him to marry her, whereon he

refused on the say that he would not marry a disabled

person like her. Then she informed about her physical

relations with the appellant to Sakharam (PW2).

According to her, she had not given consent for sexual

intercourse with the appellant, but he forcibly

subjected her to sexual intercourse every time. She was

carrying of six months from the appellant. Therefore,

she lodged report (Exh-40). She states that she

::: Uploaded on – 07/08/2017 08/08/2017 02:40:05 :::
4 criapl106-2002

delivered a female child which died within a month of

her delivery.

8. It has come in the cross-examination of the

prosecutrix that the appellant belongs to Matang

community, while she is a Boudh. She states that the

appellant was not her relative.

9. The learned counsel for the appellant submits

that the evidence of the prosecutrix is not at all

natural, probable and believable. There are material

omissions in her evidence. The fact that she was not

ready for intercourse with the appellant but she gave

consent because he promised to marry her, was not stated

by her before the police. Moreover, the fact that she

had not given consent for sexual intercourse, but the

appellant exercised force and had sexual intercourse

with her every time, also is not stated by her before

the police. He submits that had the appellant forced

the prosecutrix to have sexual intercourse without her

consent or had obtained her consent on the pretext of

getting married to her, she certainly would have stated

these facts before the police. She has stated these

facts by way of improvements. He then submits that the

prosecutrix was physically handicapped. She was aged

::: Uploaded on – 07/08/2017 08/08/2017 02:40:05 :::
5 criapl106-2002

about 20 years. There was no reason for the appellant to

promise her to perform marriage with her and on the

strength of that promise, to have sexual intercourse

with her. He then submits that the prosecutrix has

admitted that there were houses of other persons and

relatives of Sakharam (PW2) near his house, where the

appellant is alleged to have raped her. The prosecutrix

states that when the appellant forced her to have sexual

intercourse with her, she had raised shouts. He submits

that had the prosecutrix raised shouts, the relatives of

Sakharam (PW2) and other persons residing in the

vicinity certainly would have noticed that fact and

would have come to the rescue of the prosecutrix.

Nobody has been examined to establish that the appellant

had any occasion to visit the house of Sakharam (PW2)

for meeting the prosecutrix at any point of time. Even

Sakharam (PW2) also does not state so. He further

submits that there is no medical evidence to establish

that the appellant had sexual intercourse with the

prosecutrix. The child begotten by the prosecutrix also

was not subjected to DNA test so as to establish its

paternity. He, therefore, submits that the prosecution

has totally failed to establish guilt of the appellant.

::: Uploaded on – 07/08/2017 08/08/2017 02:40:05 :::

6 criapl106-2002

10. On the other hand, the learned A.P.P. submits

that the appellant took undue advantage of the physical

disability of the prosecutrix and committed sexual

intercourse with her on the false pretext of performing

marriage with her. He, therefore, submits that the

Trial Court has rightly convicted the appellant.

11. The learned counsel for the appellant relied on

the judgment in the case of Uday Vs. State of Karnataka

(2003) 4 SCC 46. The facts of that case, as narrated in

paragraph No. 23 of the judgment, are as under:-

“In the instant case, the prosecutrix was a
grown-up girl studying in a college. She was
deeply in love with the appellant. She was,
however, aware of the fact that since they
belonged to different castes, marriage was not
possible. In any event the proposal for their
marriage was bound to be seriously opposed by
their family members. She admits having told
so to the appellant when he proposed to her the
first time. She had sufficient intelligence to
understand the significance and moral quality
of the act she was consenting to. That is why
she kept it a secret as long as she could.
Despite this, she did not resist the overtures
of the appellant, and in fact succumbed to
them. She thus freely exercised a choice
between resistance and assent. She must have

::: Uploaded on – 07/08/2017 08/08/2017 02:40:05 :::
7 criapl106-2002

known the consequences of the act, particularly
when she was conscious of the fact that their
marriage may not take place at all on account
of caste considerations. All these
circumstances lead us to the conclusion that
she freely, voluntarily and consciously
consented to having sexual intercourse with the
appellant, and her consent was not in
consequence of any misconception of fact.”

12. In the same judgment, in paragraph No.21, the

Hon’ble the Apex Court observed as under:-

“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. 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,

::: Uploaded on – 07/08/2017 08/08/2017 02:40:05 :::
8 criapl106-2002

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.”

13. In the present case, the prosecutrix was aged

about 20 years in the year 2000. She was quite

competent to take decision that was in her interest.

Though she was physically handicapped as both of her

legs were paralyzed since her childhood, she was

sufficiently intelligent to understand the consequences

of her acts. The prosecutrix and the appellant were not

belonging to the same community. There was least

possibility of their getting married. Therefore, the

contention of the prosecutrix that she consented to have

sexual intercourse with the appellant since he promised

to perform marriage with her, does not stand to reason.

14. The second version of the prosecutrix that the

appellant forced her to have sexual intercourse with her

::: Uploaded on – 07/08/2017 08/08/2017 02:40:05 :::
9 criapl106-2002

though she raised shouts is not at all natural and

probable. Had the appellant committed sexual intercourse

with her against her wish and resistance and had she

raised shouts, attention of the persons residing in the

vicinity certainly would have been attracted and the

appellant certainly would have been questioned by them

for his misdeeds. Nothing of that sort ever happened.

Even Sakharam (PW2), the maternal uncle of the

prosecutrix, with whom she was residing, does not state

that the prosecutrix made any grievance at any point of

time against the appellant until she lodged report after

becoming pregnant of six months. The overall facts of

the case clearly indicate that the prosecutrix was a

consenting party to the sexual intercourse with the

appellant.

15. The prosecutrix seems to be a willing party to

have sexual intercourse with the appellant. There is no

explanation given by the prosecutrix as to why she did

not lodge report against the appellant or made any

grievance against him for having sexual intercourse with

her until she became pregnant of six months. This delay

in lodging the report itself creates doubt about the

case of the prosecution that the appellant had sexual

::: Uploaded on – 07/08/2017 ::: Downloaded on – 08/08/2017 02:40:05 :::
10 criapl106-2002

intercourse with the prosecutrix against her will.

16. The case of the prosecution that the appellant

committed rape on the prosecutrix on the pretext of

getting married with her is not at all believable.

Except the bare words of the prosecutrix, there is no

either direct or circumstantial evidence to show that

the appellant had sexual intercourse with her on the

false pretext of getting married with her or forced her

to have sexual intercourse with her.

17. The learned Trial Judge did not appreciate the

evidence of the prosecution properly and held the

appellant guilty of the offence mentioned above, merely

on surmises and conjectures. The finding recorded by

the learned Trial Judge holding the appellant guilty of

having committed rape on the prosecutrix is not

sustainable. The prosecution has failed to prove guilt

of the appellant for the above mentioned offence. He is

liable to be acquitted. Hence, I pass the following

order:-

O R D E R

(i) The Criminal Appeal is allowed.

::: Uploaded on – 07/08/2017 08/08/2017 02:40:05 :::

11 criapl106-2002

(ii) The impugned judgment and order, dated 25th

January, 2002 passed by the Additional Sessions Judge,

Aurangabad in Sessions Case No. 206 of 2000, convicting

the appellant for the offence punishable under Section

376 of the Indian Penal Code are quashed and set aside.

(iii) The appellant is acquitted of the offence

punishable under Section 376 of the Indian Penal Code.

(iv) The bail bonds of the appellant are cancelled.

He is set at liberty.

(v) The appeal stands disposed of accordingly.

[SANGITRAO S. PATIL]
JUDGE

npj/criapl106-2002

::: Uploaded on – 07/08/2017 08/08/2017 02:40:05 :::

Leave a Comment

Your email address will not be published. Required fields are marked *