1 apeal377.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.377 OF 2016
Kanwar s/o Budharam Sonare,
Aged about 28 years,
Occupation – Fishing,
R/o Amgaon, Tahsil – Amgaon,
District Gondia. …. APPELLANT
VERSUS
State of Maharashtra,
through Police Station Officer,
Police Station Amgaon, Tahsil-
Amgaon, District – Gondia. …. RESPONDENT
__
Shri A.M. Gedam, Advocate for the appellant,
Shri N.B. Jawade, Addl.P.P. for the respondent.
__
CORAM : ROHIT B. DEO, J.
DATED : 28
SEPTEMBER, 2017
th
ORAL JUDGMENT :
The challenge is to the judgment and order dated
03-8-2016 in Sessions Trial 16/2013, delivered by the learned Sessions
Judge, Gondia, by and under which the appellant (hereinafter referred
to as the “accused”) is convicted of offence punishable under Section
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417 of the Indian Penal Code and is sentenced to suffer rigorous
imprisonment for one year and to pay fine of Rs.50,000/- and is
further convicted for offence punishable under Section 3(1)(xii) of the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (hereinafter referred to as the “Act”) and is sentenced to
suffer rigorous imprisonment for five years and to payment of fine of
Rs.20,000/-.
2. The accused is, however, acquitted of offence punishable
under Section 376 of the Indian Penal Code.
3. Heard Shri A.M. Gedam, learned Advocate for the accused
and Shri N.B. Jawade, learned Additional Public Prosecutor for the
respondent.
4. Shri A.M. Gedam, learned Advocate for the accused
submits that the judgment impugned is manifestly erroneous. The
learned Sessions Judge committed a grave error in recording a finding
that the prosecution has established the ingredients of offence
punishable under under Section 417 of the Indian Penal Code and
Section 3(1)(xii) of the Act, is the submission. Per contra, Shri N.B.
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3 apeal377.16
Jawade, learned Additional Public Prosecutor submits that the
judgment impugned is in consonance with the weight of material on
record. He would support the judgment impugned.
5. The case of the prosecution is that the accused and the
complainant are neighbourers. Concededly they fell in love in the year
2008. The accused and the complainant engaged in consensual sexual
relationship. The complainant conceived, the pregnancy was noticed
by the mother of the complainant who took the complainant to the
house of the accused. The accused refused to marry the complainant,
a meeting was called in which the accused refused to marry the
complainant on the premise that she belonged to schedule caste. The
complainant and her mother went to the Police Station, Amgaon and
lodged the report on 12-9-2012.
6. On the basis of the report dated 12-9-2012, offence
punishable under Sections 376, 417 of the Indian Penal Code and
Section 3(1)(xii) of the Act was registered. Additional S.P. Shri Gunjal
investigated the crime, the complainant was medically examined and
the pregnancy confirmed. The completion of investigation culminated
in submission of the charge-sheet before the learned Judicial
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Magistrate First Class, Amgaon who committed the case to the Sessions
Court. During the pendency of the pre-committal proceedings, the
complainant delivered a female child, blood sample of the
complainant, the child and the accused were taken and sent for the
D.N.A. test. The D.N.A. report Exhibit 49 opines that the complainant
and the accused are the biological parents of the child. The learned
Sessions Judge framed charge at Exhibit 20, the accused pleaded not
guilty and claimed to be tried. The defence of the accused, as is
discernible from the cross-examination and the statement recorded
under Section 313 of the Criminal Procedure Code, is of total denial.
However, the trend of the cross-examination would suggest that the
defence is of consensual sexual relationship.
7. P.W.1 Hansraj is examined to prove the spot panchanma
Exhibit 23, seizure panchanamas Exhibit 26 and Exhibit 27. In the
context of the factual position which is either admitted or is
irrefutable, the evidence of P.W.1 is not relevant. The complainant
Namrata is examined as P.W.2. She has deposed that she and the
accused were in love. P.W.2 and the accused used to visit a nearby hill
and have sexual intercourse. P.W.2 has deposed that the sexual
relationship continued from 2008 to 2012. She conceived in 2012,
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disclosed the pregnancy to the accused, the accused told her not to
disclose the pregnancy to her parents and further said that he will
marry the complainant. P.W.2 has deposed that in the seventh month
of pregnancy she disclosed to her parents, a meeting was called, in the
meeting the accused refused to marry P.W.2 on the ground that she
belongs to scheduled caste (Mahar). P.W.2 has deposed that
thereafter she lodged the report Exhibit 33. Her child born from the
sexual relationship with the accused is three years old, is the
deposition. In the cross-examination, P.W.2 states that she is happily
married to a person belonging to the scheduled caste and that she did
not have any grievance against the accused. She, however, denies the
suggestion that the accused did not promise to marry her.
8. P.W.3 Jaisheelabai is the mother of the complainant. She
has deposed that the accused refused to marry her daughter since she
belonged to scheduled caste. She has deposed that according to her
daughter, the accused promised to marry her. The evidence, to the
extent, the reference is to what Jaisheelabai was told by the
complainant, is hearsay and must be kept out of consideration. Dr.
Khushal Ghodeswar is examined as P.W.4. Dalit Nagwanshi who is the
cousin of the complainant is examined as P.W.5. He has deposed that
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since the complainant belonged to scheduled caste, the accused and his
parents refused the marriage proposal. Dr. Trupti Katre is P.W.6. She
has proved the medical examination report of the complainant. S.P.
Shri Gunjal P.W.7 is the investigating officer.
9. I have given my anxious consideration to the evidence on
record and having done so, I am impelled to agree with the learned
Advocate for the accused that the judgment impugned is manifestly
erroneous.
10. The learned Sessions Judge has held that offence under
Section 417 of the Indian Penal Code is proved. Section 417 of the
Indian Penal Code reads thus :
“417. Punishment for cheating – Whoever cheats shall be
punished with imprisonment of either description for a term
which may extent to one year, or with fine, or with both.”
Section 415 of the Indian Penal Code defines cheating and reads thus :
“415. Cheating – Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so deceived to
deliver any property to any person, or to contest 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
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7 apeal377.16to 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.”
11. It is axiomatic that the essential ingredients which the
prosecution was required to establish are that the accused deceived the
complainant and induced her to do or omit to do anything which she
would not do or omit if she were not so deceived. The prosecution was
required to establish that the accused deceived the complainant and
induced or lured her into a sexual relationship.
12. Concededly, it is not even the case of the prosecution that
the accused induced the complainant to have sexual relationship
promising marriage. The complainant has not claimed that she was
induced or lured or persuaded to have a sexual relationship on a false
representation that the accused will marry her. The refusal to marry is
only after the complainant conceived and refusal is on the ground that
the complainant belongs to the schedule caste. Even if the evidence of
the complainant is accepted in entirety, all that the complainant states
is that she disclosed the pregnancy to the accused, the accused told her
that he would marry her and that the pregnancy should not be
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disclosed to her parents. Concededly, even if it is accepted that the
accused did tell the complainant that he would marry her, there is
nothing on record to suggest that after such an assurance, the
prosecutrix was persuaded or induced to do or omit to do anything
which she would not do or omit if she were not so deceived.
13. The finding recorded by the learned Sessions Judge that
the offence under Section 417 of the Indian Penal Code is made out,
militates against the plain language of Section 415 of the Indian Penal
Code which defines of cheating and the evidence on record. The said
finding and the conviction under Section 417 of the Indian Penal Code
cannot stand judicial scrutiny even for a moment and must be set
aside.
14. The accused is further convicted for offence punishable
under Section 3(1)(xii) of the Act. Section 3(i)(xii) of the Act reads
thus :
“3. Punishments for offences of atrocities – (1) Whoever,
not being a member of a Scheduled Caste or a Scheduled
Tribe –
(i) to (xi) ———————————————————
(xii) being in a position to dominate the will of a
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9 apeal377.16and uses that position to exploit her sexually to which she
would not have otherwise agreed.”
The necessary ingredients which are required to be
established by the prosecution to bring home charge under Section
3(1)(xii) of the Act are (1) the accused must not be a member of
scheduled caste or a scheduled tribe, (2) The victim must be a member
of the scheduled tribe or scheduled caste, (3) the accused must be in a
position to dominate the will of a woman belonging to a scheduled
caste or a scheduled tribe, (4) it must be proved that the accused has
used the dominant position to exploit the woman sexually to which she
would not have otherwise agreed.
15. The conviction, with deepest respect to the learned
Sessions Judge is, is inexplicable.
16. Concededly, the accused and the complainant were in
love. When the cupid used to come calling, they used to visit the
nearby hill and have sexual relationship. Such consensual sexual
relationship between two adults who are admittedly in love cannot by
any stretch be a sexual exploitation within the meaning of Section 3(1)
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(xii) of the Act. The other necessary ingredient is that the accused must
be in a position to dominate the will belonging to a scheduled caste or
a scheduled tribe. It is not possible to agree with the reasoning of the
learned Sessions Judge that the accused was in a position to dominate
the will of the complainant. This is not even the version of the
complainant or of any other witness. There is not even an iota of
evidence on record to suggest that the accused was in a position to
dominate the will of the complainant. The fact that the accused and
the complainant were in love would not necessarily suggest that one of
them was in a position to dominate the will of the other.
17. The learned Counsel for the accused Shri A.M. Gedam has
invited my attention to a judgment of the Orissa High Court in the case
of Panibhusan Behera and Others vs. State of Orissa reported in
1995 Cri.L.J. 1561, authored by Justice A. Pasayat (as His Lordship
was then) and in particular to the following observations therein.
“18. Coming to the sustainability of conviction for the
offence under Section 3(1)(xii) of the Atrocities Act, a
reference to the said provision is necessary. The same so far
as relevant reads as follows :
“3. Punishment for offences of atrocities. –
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(1) Whoever, not being a member of a Scheduled Caste or a
Scheduled Tribe,-
(i) to (xi) xxx xxx xxx
(xii) be in a position to dominate the will of a woman
belonging to a Scheduled Caste or a Scheduled Tribe and
uses that position to exploit her sexually to which she would
not have otherwise agreed.”
The ingredients of the offence are that (i) the offender must
be a person who is not a member of Scheduled Caste or
Scheduled Tribe, (ii) he be in a position to dominate the will
of a woman belonging to a Scheduled Caste or a Scheduled
Tribe; (iii) the said position was used to exploit the woman
sexually to which she would not have otherwise agreed. In
the present case, the offenders are not shown to have
dominated the will of the victim girl. In order to attract
application of the provision sexual exploitation must have
taken place because of the offenders’ position of dominance.
The word ‘otherwise’ is significant, and clearly points out
that the exploitation was with agreement of the helpless
woman which she would not have agreed but for the
offenders’ position of dominance. It is significant to note that
the expressions used in Section 3(1)(xii) of the Atrocities Act
are “agreed” and “exploit sexually” and not “consent” and
“rape”. “Consent” and “agreement” are not conceptually and
etymologically different, Use of the expression “would not
have otherwise agreed” is intended to convey that the
agreement would not have been there, but for the position of
dominance. It is not a free and voluntary consent. “Exploit”
means to make an illegitimate use of, to utilise for one’s
ends, treat selfishly as more workable material (person etc.),
to make capital out of. To have carnal knowledge of a
woman by use of position of dominance, is sexual
exploitation if the victim would not have agreed to the act,
but for the position.
In pursuance of the International convention and
mandate of the Constitution of India, Parliament in 1956::: Uploaded on – 28/09/2017 30/09/2017 01:46:55 :::
12 apeal377.16enacted “Suppression of Immoral Traffic in Women and Girls
Act”. This Act has been twice amended in years 1976 and
1986. The amending Act of 1986 has changed the title of the
Act from “Suppression” to “Prevention”. In this, the old
definition of prostitution, vide Section 2(f) which meant “the
act of a female offering her body for promiscuous sexual
intercourse for hire” has now been changed to carry the
meaning of “sexual exploitation or abuse of persons for
commercial purposes”. Promiscuous sexual intercourse, the
important ingredient of prostitution stands replaced by the
twin requirement of the exploitation of abuse of the person
and secondly the abuse of exploitation should be for
commercial purposes. The expression “sexual exploitation”
would include sexual intercourse without consent which
forms basis for conviction for rape.
I respectfully concur with the enunciation of law in the
said judgment.
18. I have absolutely no hesitation in recording a finding that
the offence under Section 3(1)(xii) of the Act is not proved muchless
proved beyond reasonable doubt. The accused was not in a position to
dominate the will of the complainant and indeed this is not even
alleged by the complainant. That apart, there is not even an iota of
evidence to suggest that the complainant was exploited sexually to
which she would have otherwise agreed.
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19. The judgment and order dated 03-8-2016 in Sessions Trial
16/2013 delivered by the learned Sessions Judge, Gondia is set aside.
The accused is acquitted of offences punishable under Section 415 of
the Indian Penal Code and 3(1)(xii) of the Act. The bail bond of the
accused shall stand discharged. Fine paid by the accused, if any, be
refunded to him.
JUDGE
adgokar
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