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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL (APEAL) NO. 382 OF 2016
Hemantlal s/o Radhelal Bopche,
aged about 28 years, Occupation
Cultivation, R/o Nanhava, Tahsil
Salekasa, District Gondia.
(In Nagpur Jail) … APPELLANT
VERSUS
1. The State of Maharashtra,
through Police Station Officer,
Police Station, Salekasa,
District Gondia.
2. Pustakala d/o Barku Patle,
aged about 25 years, Occupation
Labour, R/o Nanava, Tahsil
Salekasa, District Gondia. … RESPONDENTS
….
Shri R.M. Daga, Advocate for the appellant.
Shri K.R. Luley, Additional Public Prosecutor for respondent No.1.
Shri A.A. Pannase, Advocate for respondent No.2.
….
CORAM : PRASANNA B. VARALE AND
ARUN D. UPADHYE, JJ.
DATED : 12TH OCTOBER, 2017.
ORAL JUDGMENT : (Per Prasanna B. Varale, J.)
This appeal is filed by the appellant who was accused facing
private Criminal Complaint Case No. 125 of 2003.
2. Shri Daga, the learned Counsel appearing on behalf of the
appellant, by inviting our attention to certain factual aspects, submits that
the complaint was lodged by raising the grievance that the complainant was
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working with the accused for the period of nearly ten years as a maid servant
and some time in the month of January, 2003, the accused, on the pretext of
marriage, sexually exploited the complainant. It is stated in the complaint
that time and again, on assurances of marriage, the complainant was
subjected to such sexual exploitation resulting in pregnancy of the
complainant. It is further stated in the complaint that though an attempt
was made to settle the matter through panchas of the village and some
elderly persons, the attempt was failed and though the complainant
approached Police Station authorities, the Police Station authorities paid no
heed and the complainant left with no choice but to approach the learned
Magistrate. Shri Daga, the learned Counsel for the appellant invites our
attention to the order passed by the learned Magistrate, which is placed on
record at page 12 of the paper book. The learned Magistrate called for the
report by order dated 22.07.2003. Shri Daga further submits that the report
was clearly negating the offence under Section 376 of the Indian Penal Code.
Accordingly, the learned Magistrate passed the order dated 10.06.2005, which
reads as, “perused report under Section 156 (3) of Cr.P.C. There is prima
facie case and material. The complainant has made out case. Hence issue
process for the offence punishable under Section 417 of the IPC and issue
summons to accused.”
3. Shri Daga, the learned Counsel for the appellant submits that
subsequently the learned Magistrate committed the case to the Court of
Session and from 09.02.2012 the case was pending before the learned
Sessions Judge. The learned Counsel then invites our attention to the report
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submitted by police station authorities to the learned Magistrate placed on
record as Exh.35. It is stated in the report that the complainant in her oral
statement submitted that there was a love relationship between the
complainant and accused and the physical intimacy was by consent of the
complainant. As such, no case was attracting the provisions of Section 376
of the Indian Penal Code and the matter was only attracting the provisions of
Section 417 of the Indian Penal Code. Shri Daga then invites our attention to
the testimony of the prosecutrix/complainant and submits that in the
testimony it is specifically stated that the sexual intercourse was with consent
and it is also stated in the police statement that the accused did sexual
intercourse with her consent and not by force. The learned Counsel then
submits that in the testimony, the revelation of initiation of civil proceedings
at the instance of complainant is also referred to and she has stated that RCS
No. 30 of 2006 was filed by her against the accused for declaration and
permanent injunction and the declaration was sought for in respect of
marriage.
4. Shri Daga, the learned Counsel for the appellant submits that the
learned Sessions Judge failed to consider all these aspects and only on
assumption that the consent was under pressure, recorded the conviction of
the appellant under Section 376 of the Indian Penal Code. It is the
submission of Shri Daga that in view of the admission in the testimony even
the offences under Section 417 of the Indian Penal Code could not have been
attracted. Thus the learned Counsel for the appellant submits that the order
of conviction is clearly unsustainable. The learned Counsel further invites
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our attention to the reply filed on behalf of respondent No.2.
5. As it was the case of private complaint, respondent No.2 was
made party to the appeal and notice was also issued. Perusal of the reply
filed by respondent No.2 reads as, “during the pendency of the appeal, the
relations between respondent No.2 and family members of appellant
became cordial.” It is further stated in the reply that, “the family members of
the appellant consented to keep respondent No.2 as their family member in
the house and decided to transfer part of agricultural land situated at Mouza
Nanvha, P.H.No.11, Gat No.212 admeasuring 0.40 HR out of total land
admeasuring 2.02 HR and also on room in the house in the name of
respondent No.2 for her better future and future of daughter of respondent
No.2 and appellant.” The consent letter/affidavit reiterating this transfer is
also placed on record along with the reply. Then it is stated that in view of
these subsequent developments, the respondent No.2 is not willing to
prosecute the appeal and a request is made to pass suitable order for release
of the appellant. The matter was heard yesterday for some time. Learned
Counsel for respondent No.2 submits that he would keep respondent No.2
personally present before this Court so as to ascertain that the reply is filed as
per the will and wish of respondent No.2. The respondent No.2 is
accordingly personally present in the Court and on specific query made to
respondent No.2, she reiterated that the family members of the appellant are
accepting her as a daughter-in-law and also ready to part away the share in
the property i.e. share in the agricultural land and one room in the house.
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6. Shri Daga, the learned Counsel for the appellant is justified in
submitting before this Court that apart from the reply, the material which
was before the Court at the time of trial itself was falling too short against the
applicant for the offence punishable under Sections 376 and 417 of the
Indian Penal Code.
7. Considering all the above referred facts, in our opinion, the
judgment and order passed by the learned Principal District Judge, Gondia
dated 15.09.2016 in Sessions Trial No. 10 of 2012 is unsustainable and the
same is quashed and set aside. In the result, the appeal is allowed. The
appellant is acquitted and is set at liberty.
JUDGE JUDGE
*rrg.
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