Sudeep Lalit Prasad Upadhyay … vs State Of Maharashtra on 10 October, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.

Criminal Appeal No.20 of 2003

Sudeep Lalit Prasad Upadhyay (Sharma)
Aged about 30 Years,
R/o.- Subhedar Layout, Main Road, Nagpur. …. Appellant.

-Versus-

State of Maharashtra,
through Police Station Officer,
Rana Pratap Nagar, Nagpur. …. Respondent.
————————————————————————————————–
Mr. A.R. Patil, Counsel for appellant.
Mr. S.B. Bissa, Additional Public Prosecutor for respondent/State.
————————————————————————————————–
Coram : Mrs. Swapna Joshi, J.
Date of reserving judgment : 27-09-2017.
Date of pronouncement : 10-10-2017.

J U D G M E N T

This appeal has been directed against the judgment and
order passed by the learned Adhoc Additional Sessions Judge, Nagpur in
Sessions Trial No.301 of 2002 on 07-12-2002, whereby the learned trial
Judge had convicted the accused for the offence punishable under
Section 417 of the Indian Penal Code and sentenced to suffer rigorous
imprisonment for one year and to pay a fine of Rs.5000/-, in default, to
suffer simple imprisonment for three months.

2] I have heard Mr. A.R. Patil, the learned counsel for the
appellant and Mr. S.B. Bissa, the learned Additional Public Prosecutor for
the respondent/State. With their assistance, I have carefully gone through
the record of the prosecution case.

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3] The complainant’s version, as unfolded during the trial, is as
follows :-

Complainant (PW-1) was working in Kasat Motors. accused
Sudeep was working in Reliance Engineering. Both the establishments
were in the same area. The complainant got acquainted with the accused
and their acquaintance ultimately turned in love. Sudeep (accd.)
proposed for marriage to PW-1. He proposed to marry with her in the
temple. Accordingly on 25-10-2001, Sudeep came to the office of PW-1
and proposed to marry with her at Maihar (MP) in the temple of goddess.
Accordingly, on 26-10-2001, PW-1 along with the accused and her friend
Anita (PW-4) proceeded to Maihar. It is the case of the prosecution, that
the accused performed marriage with PW-1 by garlanding each other
by putting vermilion on her forehead. As such, the marriage was
performed between the accused and PW-1. Thereafter, PW-1 along with
accused and her friend Anita stayed in a lodge. At that place, it is
alleged, that the accused committed sexual intercourse with PW-1, by
saying that they are married and they are going to perform Court
marriage, soon after reaching at Nagpur. Thereafter, PW-1 stayed with
the accused in a hostel at Jabalpur. PW-1 contacted her cousin brother
and called him at the said hotel. On his arrival, PW-1 introduced her
cousin brother with the accused and informed him about the
solemnization of their marriage in the temple of goddess at Maihar and
also informed that they are going to perform registered marriage at
Nagpur on 29-11-2001. On the same day, the accused and PW-1
returned to Nagpur. As PW-1 failed to contact the accused, no marriage
was solemnized on 29-11-2001. 2/3 days after the marriage, the accused
met her and told her that the members of his family have not agreed for
the said marriage and they have to reside separately. The accused also
informed her that he is searching a house and on finding a suitable house
they would perform registered marriage. On 16-11-2001, at 7.30 pm, the

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accused came to her office and went to the house of Anita (PW-4).
Thereafter, they went to Khamla. The construction of said flat scheme
was going on. The accused committed sexual intercourse with PW-1
forcibly. The accused continued met with PW-1 up to 30-11-2001.
Thereafter, PW-1 tried to contact the accused. However, he had left the
job, therefore, she could not contact him. PW-1 then lodged complaint
(Exhibit-12) against the accused.

4] The complaint of PW-1 was recorded by the Police. The
statements of the witnesses were also recorded by the Police. After
completion of the investigation, Police submitted the chargesheet in the
Court of learned JMFC Court No.7, Nagpur. The case was committed to
the Court of Sessions. The learned trial Judge framed the charge and on
analysis of the evidence and after hearing both the sides, the learned trial
Judge convicted the accused as aforesaid. Hence, this appeal.
5] At this juncture, it would not be out of place mention that the
learned trial Judge framed the charge under Sections 419 and 376 of IPC.
However, he acquitted the accused under Sections 376 and 419 of IPC
and convicted the accused under Section 417 of IPC.
6] I have heard Mr. A.R. Patil, the learned Counsel for the
appellant and Mr. S.B. Bissa, the learned APP for the State. I have
carefully gone through the record and proceedings of the case.
7] Mr. A.R.Patil, the learned Counsel for the appellant,
vehemently argued that the learned trial Judge has not considered the
testimony of the witnesses in right perspective and has convicted the
accused erroneously under Section 417 of IPC although the said offence
is not made out. It is further contended that the testimony of PW-1 itself
shows that the accused performed marriage with PW-1 and, therefore,
there was no question of remarriage with her. If at all, PW-1 had any
grievance, she ought to have opted the mode of approaching the Family
Court. According to Mr. A.R. Patil, Ld. Counsel, no offence under Section

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417 of IPC has been made out.

8] Mr. S.B. Bissa, the learned APP, contended that the learned
trial Judge has rightly convicted the accused after considering the entire
evidence on record. The accused had promised to marry with PW-1 and
on the pretext of performing Court marriage, he established physical
relationship with her and thereafter he did not keep his promise and in this
manner the accused has cheated PW-1.

9] In order to verify the rival contentions of both the sides, it
would be advantageous to go through the evidence led by the
prosecution. The prosecution heavily relied upon the testimony of (PW-1)
who is the complainant as well as the victim. PW-1 deposed that
accused was working in Reliance Engineering which was adjacent to her
office. They got introduced with each other and then became friends.
Accused proposed to marry with her. Initially PW-1 refused marriage
proposal put forth by the accused with her. However, thereafter, she
consented for the marriage with the accused. The accused told her that
he has fixed the marriage date as 29-11-2001. PW-1 stated that the
accused promised her first to perform the marriage at Maihar and
thereafter they would perform the Court marriage. Accordingly, on
26-10-2001, they decided to go at Maihar. On 26-10-2001, at about 10.00
pm, they both proceeded to Maihar along with Anita (PW-4). On the next
day, at about 4.00 pm, they went to the temple of goddess at Maihar.
They garlanded each other and the accused put the vermilion on the
forehead of PW-1. Thereafter, they came to the lodge. PW-1 deposed
that the accused forced her to have sexual intercourse with him and said
that they have already married and they are going to marry in Court on
29-11-2001. Therefore, again the accused had committed sexual
intercourse with PW-1. On the next day, they stayed at Jabalpur. PW-1
called her brother to the hotel and at that time the accused told that they
are going to perform Court marriage on 29-11-2001 and also told him that

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they have married at Maihar. Thereafter, they returned to Nagpur.
10] PW-1 informed to Anita (PW-4) that the accused had
committed sexual intercourse with her in one flat. On 29-11-2001, there
was a Tulsi Puja in the house of Anita (PW-4). On that day, the accused
refused to perform marriage with PW-1 and told that they will marry in
February 2002 and till that time they will arrange all household articles.
On 30-11-2001, the accused left his service. PW-1 waited for the
accused for few days. Thereafter, she lodged the complaint against the
accused (Exhibit-12).

11] Short question involved in this case is that whether the
accused cheated PW-1 by not marrying with her on 29-11-2001
committed sexual intercourse with her on that pretext.
12] It is the case of PW-1 in her evidence that first she was
introduced with the accused, which turned into love affair and then the
accused proposed to marry her on 29-11-2001. Thereafter, the accused
said that since they are going to have a Court marriage on 29-11-2001,
then prior to that for their satisfaction they would get married in the temple
at Maihar on 26-10-2001. Accordingly, they got married and had physical
relationship in a lodge and then at different places. However, on
29-11-2001, they met in the house of Anita and the accused said that it
was not possible for him to marry on that day and he would marry in
February 2002 and then on 30-11-2001 the accused left his job and went
away.

13] PW-4-Anita deposed that PW-1 used to visit her house
along with accused. On 25-10-2001 the accused informed her that he
would perform marriage with PW-1 at Maihar. Accordingly, on
26-10-2001, PW-1 along with PW-4 and the accused went to the temple
at Maihar. The accused got married with PW-1. They garlanded each
other. The priest recited the necessary hymns and in this manner the
marriage was performed in the temple. Thereafter, they all returned to

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lodge. PW-4 stated that the accused told her that they are going to
perform marriage on 29-11-2001. Thereafter, PW-1 informed to PW-4
that she had physical relations with the accused. PW-4 stated that
thereafter, they all returned to Nagpur. PW-4 categorically stated that on
29-11-2001, Tulsi Puja was arranged in her house. Accused and PW-1
were chatting till midnight. Thereafter, the accused avoided to meet
PW-1. PW-4 stated in the cross examination that she does not remember
whether she had stated before the Police that the accused told her
mother that for his satisfaction he is performing the marriage at Maihar
and thereafter he will perform Court marriage. It appears that PW-4 has
made an improvement in her version in that regard. From the testimony
of PW-4 it can be gathered, that she had attended the marriage between
PW-1 and the accused in the temple at Maihar.

14] So far as the allegation of rape is concerned, the Ld. trial
Judge has acquitted the accused. The Ld. Judge also acquitted the
accused under Section 419 of the IPC. The allegations were that, on
misconception of the fact that he was her husband as they got married in
a temple the accused had sexual intercourse with her. Thus, earlier the
prosecution case proceeded on the footing that the accused
mis-represented PW-1 that he is her legally wedded husband, and then
committed sexual intercourse with her. The Ld. trial Judge has acquitted
the accused from the said allegations. However, convicted him on the
ground that the accused has cheated PW-1 as he had not kept his
promise to perform marriage with her and committed sexual intercourse
with her and has thus cheated her.

15] In this context, it is noticed that admittedly PW-1 was an
educated matured girl having understanding of good and bad things. As
per her testimony, if the accused had promised to marry her on
29-11-2001, since beginning, then in that case there was no question of
performing marriage in a temple at Maihar. PW-1 understood that it was

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not a valid marriage, therefore, they were going to have a Court marriage
on 29-11-2001. If the date was already fixed, there was no question of
having marriage in the temple. Still PW-1 agreed to marry with the
accused in a temple, it appears that PW-1 was consenting party to have
sex with the accused and therefore under the pretext of marriage with
accused in temple, she has consensual sex with the accused.
16] The evidence on record shows that on 29-11-2001 the
accused refused to marry with her, after the Tulsi Puja in the house of
Anita was over and they chit-chatted till late night. It appears that on
29-11-2001, PW-1 was fully aware that accused is not going to marry with
her on that day. In that case it is not clear as to why PW-1 did not insist
the accused for marriage take steps to lodge complaint against the
accused immediately after 29-11-2001. It appears that date 29-11-2001
comes in picture subsequently. Even the complaint (Exhibit-12) which is
a contemporaneous document, does not reveal that the accused declared
the date 29-11-2001 first and then got married with PW-1 in temple. As
per the complaint (Exhibit-12) the accused declared the date 29-11-2001,
after the marriage in temple was performed, at the time of having physical
relationship with PW-1. Thus there appears to be glaring discrepancy in
the version of PW-1 in this regard and she had twisted her case, as the
accused avoided her. It appears that even PW-1 agreed to marry with the
accused in temple, as decided by both of them and had consensual sex
with the accused. It is not the case of PW-1 in her complaint (Exhibit-12)
that the accused first declared the date of marriage as 29-11-2001 and
then under that pretext he had physical relationship with her after creating
a farce of marriage in the temple at Mehar.

17] The PW-1 appears to be a matured lady having full
understanding of a valid marriage, agreed to marry with the accused in
the temple and consented to have physical relationship with him. Similarly,
it is surprising that till 29-11-2011 PW-1 kept mum and did not insist for

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marriage. By that time PW-1 must have understood that the accused is
not going to perform marriage with her on 29-11-2001. Then in that case,
why she had not lodged complaint against the accused immediately. It
appears that the case of PW-1 that the accused had no intention to marry
with her, still he had fixed the date 29-11-2001 and under the pretext of
having physical relationship with her, created a farce of marriage in
temple is an afterthought story and is not convincing at all. Significantly it
was not the case of PW-1, at the time of lodging her complaint even
while the charge was framed against the accused. As per the charge the
accused impersonated to be her husband had influenced her to have
physical contact with him. The accused has been acquitted of the said
charge by the Ld. Judge. Thus the entire prosecution case appears to be
doubtful and the offence of cheating is not made out as such.
18] It would be advantageous to take recourse of the decision
reported in the case of Deepak Gulati v State of Haryana, reported in AIR
2013 SC 2071, wherein the Hon’ble apex Court had held in paragraph (B)
as under :-

“There is a clear distinction between rape and
consensual sex and in a case where there is promise of
marriage, the Court must very carefully examine
whether the accused had actually wanted to marry the
victim, or had mala fide motives, and had made a false
promise to this effect only to satisfy his lust, as the latter
falls with the ambit of cheating or deception. There is a
distinction between the mere breach of a promise, and
not fulfilling a false promise. Thus, the Court must
examine whether there was made, at an early stage a
false promise of marriage by the accused; and whether
the consent involved was given after wholly,
understanding the nature and consequences of sexual
indulgence. There may be a case where the
prosecutrix agrees to have sexual intercourse on
account of her love and passion for the accused, and
not solely on account of mis-representation made to her
by the accused, or where an accused on account of

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circumstances which he could not have foreseen, or
which were beyond his control, was unable to marry
her, despite having every intention to do so. Such
cases must be treated differently. An accused can be
convicted for rape only if the Court reaches a
conclusion that the intention of the accused was mala
fide, and that he had clandestine motives. The “failure
to keep a promise made with respect to a future
uncertain date, due to reasons that are not very clear
from the evidence available, does not always amount
to misconception of fact. In order to come within the
meaning of the term misconception of fact, the fact must
have an immediate relevance.” S. 90, IPC cannot be
called into aid in such a situation, to pardon the act of a
girl in entirety, and fasten criminal liability on the other,
unless the Court is assured of the fact that from the very
beginning, the accused had never really intended to
marry her.”

19] In the instant case consent given by PW-1 was after wholly
understanding the nature and consequences of sexual indulgence. The
glaring discrepancies in the testimony of PW-1 makes the prosecution
case doubtful. The prosecutrix is not found to be reliable and trustworthy
witness. The prosecution has failed to establish that on the pretext of
false promise of marriage, the accused committed sexual intercourse with
her and has thus cheated her.

20] The learned Judge has not considered the case of the
prosecution in right perspective and has convicted the accused
erroneously after acquitting him under Section 376 and 419 of IPC. The
prosecution has miserably failed to bring on record the convincing and
cogent evidence. The learned trial Judge has not considered the said
aspect and illegally passed the order of conviction.
21] In view of above, it is held that the prosecution has failed to
prove its case beyond reasonable doubt. In these circumstances, the
benefit of doubt is to be given to the appellant. The learned trial Court has
not properly evaluated the evidence led by the prosecution. In view

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thereof, the judgment and order passed by the learned trial Judge, needs
to be set aside. Hence, the following order:-

O r d e r

(a) Criminal Appeal No.20 of 2003 is allowed.

(b) The judgment and order dated 07-12-2002 delivered
by the Adhoc Additional Sessions Judge, Nagpur in
Sessions Trial No.301 of 2002 is quashed and set
aside.

(c) The appellant is acquitted of the offence under
Section 417 of I.P.C.

(d) The bail bond furnished by the appellant stands
cancelled.

(e) The fine amount, if any, deposited by the appellant be
refunded to him, if not withdrawn.

(f) Muddemal property be dealt with as directed by Trial
Court after the appeal period is over.

JUDGE
Deshmukh

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