Hemantlal S/O. Radhelal Bopche … vs The State Of Maharashtra Thr. … on 12 October, 2017

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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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