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Shrikant S/O Sukhdeo Borkar (In … vs The State Of Mah. Thr. P.S.O., P.S. … on 2 February, 2018

1 apeal657of2010

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO. 657 OF 2010

Shrikant s/o. Sukhdeo Borkar,
aged about 28 years, Occ. Driver,
R/o.Kasturba Nagar, Nagpur …APPELLANT

…V E R S U S…

The State of Maharashtra,
through Police Station Officer,
Police Station Jaripatka,
Tahsil District Nagpur …RESPONDENT
——————————————————————————————-
Ms. Ankita Sarkar, counsel (Appointed) for appellant.
Mr. N.H. Joshi, Additional Public Prosecutor for the respondent.
—————————————————————————————–
CORAM: ROHIT B. DEO, J.

DATE OF DECISION: 02.02.2018

ORAL JUDGMENT

Challenge is to the judgment and order dated

30.7.2009 rendered by the 5th Additional Sessions Judge, Nagpur

in Sessions Trial 402 of 2008, by and under which, the appellant –

accused is convicted for the offence punishable under section 376

of the Indian Penal Code (“IPC”) and is sentenced to suffer

rigorous imprisonment for seven years and to payment of fine of

Rs.3,000/- and is further convicted for offence punishable under

section 323 of IPC and is sentenced to undergo rigorous

imprisonment for three months and is also convicted for the

offence punishable under section 342 of the IPC and is sentenced

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to suffer rigorous imprisonment for three months.

2 Heard Smt. Ankita Sarkar, the learned counsel for the

appellant – accused and Shri N.H. Joshi, the learned Additional

Public Prosecutor for the respondent / State.

3 The prosecution case, as is unfolded during the course

of the trial is thus:

The prosecutrix is the sister in law (sister of wife) of the

accused. The prosecutrix was aged 19 years on the day of the

incident. The accused alongwith his wife and children were

residing in the house of his in-laws alongwith his mother in law

and the prosecutrix.

The incident occurred at 3.00 p.m. or thereabout on

1.6.2008. The accused asked the prosecutrix to accompany him to

the bore well to fetch water, the prosecutrix refused to do so. The

accused told the prosecutrix that she would have to stay with the

accused and he would not allow her to marry. The accused drove

out his mother in law and children out of the house, shut the door

from inside, and forced the prosecutrix to lay on the cot. The

prosecutrix protested and was slapped and assaulted with fist

blows on the face. Her salwar kurta and knickers were forcibly

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removed. The accused then undressed and subjected the

prosecutrix to forcible sexual intercourse. The accused then

opened the door, called his mother in law and threatened her not

to disclose the incident to anybody, came out and locked the door

from outside. The wife of the accused Kavita returned home in the

evening to whom the incident was narrated through a open

window. Kavita called one Annutai and after she arrived, the door

was opened. Since the incident affected the health of the mother

of the prosecutrix, the report could not be lodged immediately and

was lodged the next day i.e. on 2.6.2008.

On the basis of the oral report Exh 18 and the printed First

Information Report Exh. 19, Jaripatka Police registered offence

punishable under section 376, 342, 323 and 506 of IPC.

Investigation ensued upon completion of which the charge sheet

was submitted to the Judicial Magistrate First Class – Court 7,

Nagpur who committed the proceedings to the Sessions Court.

The learned Sessions Judge framed charge (Exh. 2) under section

343, 323, 376 of IPC, the accused abjured guilt and claimed to be

tried in accordance with law, the defence is of total denial.

4 The prosecution examined ten witnesses to bring

home the charge namely:

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PW-1 Manisha Toliram Walde
the prosecutrix Exh.17

PW-2 Smt. Anutai Rohit Shende
Witness Exh.22

PW-3 Kavita Shrikant Borkar
The wife of the accused Exh.23

PW-4 Lilabai Toliram Walde
Panch on seizure panchanama Exh.25

PW-5 Dilip Gangaram Kadve
Panch on seizure panchanama Exh.27

PW-6 Avinash Vijay Dharne
Panch on seizure panchanama Exh-30

PW-7 Sangam Manikrao Tayade
Panch on seizure panchanama Exh 36

PW-8 Sewakram Raghoji Kore
Investigation officer Exh 42

PW-9 Dr.Sachin Sukhdeorao Wankhede Exh 46

PW-10 Rahul Libasrao Athwale
Investigation Officer Exh 56

The deposition of the prosecutrix (PW 1) is substantially

consistent with the First Information Report. She has deposed that

at 3.00 p.m. on 1.6.2008, the accused asked her to accompany him

to the bore well, on her refusal, she was beaten by the accused.

The mother of the prosecutrix and the children of the accused

were driven out of the house, the door was locked from inside and

the prosecutrix raped, is the deposition. The accused went out of

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house, asked his mother in law and children to go inside the house

and locked door of the house from outside. It was only when

Kavita (PW 3) returned at 5.00 p.m. that the door was opened.

The incident was immediately disclosed by the prosecutrix to her

sister Kavita in presence of Annutai. PW 1 has also deposed that

the accused used to beat his wife Kavita, mother in law and the

prosecutrix herself and used to threaten them.

In the cross-examination, the statement that the accused

used to beat the prosecutrix and others is brought on record as an

omission. The suggestion that the accused had a quarrel with the

prosecutrix and her mother in law in the evening on the day of the

incident, is denied. The suggestion that due to the quarrel,

Annutai was called and a report lodged, is denied. The suggestion

that the mother in law of the accused was not taken to the

hospital, is denied. The suggestion that on the day of the incident

the accused was not present in the house throughout the day, is

denied.

5 Smt. Annutai Shende, who is a social worker is

examined as PW 2. She has corroborated the version of PW 1 that

she was called by Kavita telephonically and when she arrived at

the house of the in-laws of the accused, the door was bolted from

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outside. She opened the door and found the prosecutrix, her

mother and children of the accused inside. She states that

everybody inside the house was weeping. She states that the

prosecutrix narrated the incident of assault and ravishment by the

accused. PW 2 advised the prosecutrix to lodge report at the

police station. PW 2 however states that she and the prosecutrix

went to the police station on the same day which is inconsistent

with the evidence on record that the report was lodged on the next

day of the incident.

Save and except the statement that the report was lodged

on the day of the incident, the testimony of PW 2 is not shaken in

the cross examination. Indeed, other than giving a few

suggestions to the effect that the incident was not narrated to her,

the core of the testimony has gone unchallenged. The testimony

that she arrived at the spot at the request of the wife of the

accused Kavita, found the door locked from the outside, that she

opened the door and everyone inside was weeping, has gone

unchallenged.

6 The wife of the accused Kavita is examined as PW 3.

She has corroborated the testimony of the prosecutrix on every

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material aspect. She has deposed that the prosecutrix made an

immediate disclosure to her that she was raped by the accused.

In the cross-examination, it is suggested to PW 3 Kavita that

the accused and the prosecutrix were in a relationship, which

suggestion is denied. She has also denied the suggestion that a

false report was lodged as the relationship between the accused

and the prosecutrix was exposed. The trend of the cross

examination, cryptic and ineffective as the cross examination is,

would reveal that the defence suggested consensual sexual

intercourse.

7 The mother in law of the accused Lilabai is examined

as PW 4. She has corroborated the version of the prosecution on

every material aspect.

The suggestion given to PW 4 that the accused was not

present at home on the day of incident, is denied. The

suggestion that on the day of the incident in the evening an

altercation took place between the accused and the PW 4 and

therefore, a false report was lodged on the next day, is denied.

PW 4 has denied the suggestion that the prosecutrix and the

accused were in a relationship.

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8 PW 5 Dilip Kadve the panch to the seizure of the

clothes of the accused and the blood and semen sample did not

support the prosecution.

9 PW 6 Avinash Dharne admitted his signature on Exh.

31, Exh. 32 and Exh 33, but denied that any seizure was effected

in his presence. He was declared hostile and cross examined by

the learned Additional Public Prosecutor. Nothing is elicited in the

cross examination of PW 6, the panch to spot panchanama and

seizure of clothes of the prosecutrix, to assist the prosecution.

10 Sangam Tayade (PW 7) who was examined to prove

the seizure memo as regards the blood samples etc, did not

support the prosecution, was declared hostile and cross examined

by the learned APP, to no result.

11 Sevakaram Kode (PW 8), police inspector sent the

seized articles for chemical analysis and filed the charge sheet.

12 Dr. Sachin Wankhede who examined the prosecutrix

on 2.6.2008, is examined as PW 9, who deposed that sexual

intercourse did take place although the exact time could not be

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ascertained. The prosecutrix is used to sexual intercourse, is the

deposition. PW 9 noticed one small contusion of 1cm x 1 cm

below the left thy. It is brought on record by the accused that the

contusion can be caused by blunt object.

13 Rahul Athawale, the Investigating Officer (PW10) has

proved spot panchanama Exh. 54, seizure memos Exh. 21, Exh.56

and seizure panchanama Exh. 55. The minor omissions, which are

brought on record in the evidence of PW 1 are however not proved

through the evidence of PW 10.

14 In the statement recorded under section 313 of the

Code of Criminal procedure, the accused stated that his mother in

law and sister in law were insisting that the accused and his wife

Kavita leave the house. The accused stated in response to question

18 that the prosecutrix is a girl of “easy virtue”.

The submission of the learned counsel for the accused is

that the defence of false implication is more than probabilized.

The absence of injuries on the private parts of the prosecutrix

would exclude the possibility of rape, is the submission. The 19

year old prosecutrix was habituated to sexual intercourse and

consensual sex is a real possibility, is the submission of the learned

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counsel Ms. Ankita Sarkar.

Per contra, the learned APP would submit that the fact that

prosecutrix was habituated to sexual intercourse would not per se

exclude or rule out forcible sexual intercourse. The assertion of

the accused in response to question 18 in the statement recorded

under section 313 of the Criminal Procedure Code statement is

that the prosecutrix is a girl of “easy virtue”. The learned APP

would submit, that the suggestion and insinuation must be

dismissed with the contempt that it deserves. Even a woman, who

is habituated to sexual intercourse is entitled to protect her dignity

and honour and nobody has a license to defile and pollute her

body, against her will and without her consent, is the submission.

The learned APP would submit that the ocular evidence is

consistent and there is no attempt made by the defence to

challenge the core or substratum of the prosecution version.

15 I am inclined to agree with the submission of the

learned APP that the suggestion and insinuation that the

prosecutrix was a girl of “easy virtue” and inference of consensual

sex must be drawn, merits out right rejection. The evidence of the

prosecutrix, which is more than amply corroborated by PW 2

Annutai, PW 3 Kavita who is the wife of the accused and PW 4

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Lilabai the mother in law of the accused, is implicitly reliable,

creditworthy and confidence inspiring. Even if it is assumed,

arguendo, that the prosecutrix was habituated to sexual

intercourse or that she and the accused were in a relationship,

nobody has the right to violet her body. The suggestion to the

contrary is an insult to womanhood.

16 I have given my anxious consideration to the evidence

on record, the submissions of the learned counsels and reasoning

recorded by the learned Sessions Judge, and having done so, I do

not find any infirmity or error whatsoever in the judgment and

order of conviction.

(i) The appeal is sans substance and is rejected.

(ii) The accused is in custody since he was arrested

pursuant to non-bailable warrant issued by this Court vide

order 11.1.2018. The accused shall continue to be detained

in custody to serve the sentence awarded by the learned

Sessions Judge.

(iii) The accused shall be entitled to set of under section

428 of the Code of Criminal Procedure.

(iv) The appeal is dismissed.

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12 apeal657of2010

(v) Fees of the appointed counsel are quantified at

Rs.5,000/-

JUDGE

05-02-2018 :

The appeal was heard on 29-01-2018. The judgment

was reserved and was to be pronounced on 02-2-2018.

2. Accordingly, the judgment was pronounced in the

open Court on 02-2-2018. The conviction and sentence awarded

by the learned Sessions Judge for the proved offence under

Section 376, Section 323, Section 342 of the Indian Penal Code

was confirmed.

3. However, the learned Counsel for the accused brought

to my notice, after the pronouncement of the judgment, that the

victim Manisha had placed on record an affidavit sworn on

29-1-2018 and filed in the Registry on 30-1-2018, the relevant

portion of which affidavit reads thus:

“1. That, deponent is the original complainant on whose
complaint the Crime No.189/08 came to be registered
against the appellant for offences punishable under Sections
323, 342 and 376 of the Indian Penal Code, which

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ultimately led to the conviction of the appellant for the
offences u/s. 323, 342 and 376 of the Indian Penal Code for
which he is sentenced to suffer RI for 3 months, 3 months
and 7 years respectively.

2. The deponent further submits that she is residing with
the wife and children of the appellant in the same house.
That after the death of mother of deponent, the appellant
and his dependent for her livelihood on the appellant and
his wife. Further the deponent states that she is in a
domestic relationship with the accused/appellant and from
the same, they also have a two and half years son named
Harshu. The deponent is apprehensive that if the appellant
is convicted; there is no one to take care of her and her
minor son.

3. The deponent further states that she had developed
intimacy with the appellant and the incident as alleged was
the outcome of that intimacy. The deponent states that she
was a consenting party. However under the threats and
pressure upon her from her mother, she lodged the
complaint and deposed against the appellant. The deponent
states that she does not have any grievance left against the
appellant. The deponent has no objection if the appeal is
allowed and the appellant is acquitted.”

4. The learned Counsel Ms. Ankita Sarkar, invites my

attention to the fact that this affidavit was inadvertently not

tagged alongwith the record by the Registry. The submission of the

learned Counsel is factually correct. Enquiry reveals that the

affidavit was not tagged alongwith the record and was, therefore,

not considered by me when I pronounced the judgment. The

affidavit, as of fact, is tagged with the record after the

pronouncement of the judgment.

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14 apeal657of2010

5. The learned Counsel Ms. Ankita Sarkar, would

submit, that the statutory scheme of the proviso to Section 376 of

the IPC, as existing before 2013 Amendment, confers a discretion

in the Court to award a sentence less than the minimum for

adequate and special reasons. The fact that the victim and the

accused are residing together, albeit in love-in relationship and

that are blessed with two and half years son named “Harshu”

would constitute an adequate and special reason, is the

submission.

6. The deponent-complainant Ms. Manisha is present in

the Court alongwith the child. I have personally interviewed her

and I am satisfied that the affidavit is genuine and bona fide.

7. The learned Counsel have invited my attention to a

Three Judges’ judgment of the Apex Court in Shimbhu and Anr.

v. State of Haryana reported in AIR 2014 SC 739. The Hon’ble

Apex Court has inter-alia held, that a compromise entered into

between the parties would not be an adequate and special reason

for awarding punishment lesser than the minimum prescribed. It

would be apposite to refer to the following observations of the

Hon’ble Apex Court :

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“22. Further, a compromise entered into between the
parties cannot be construed as a leading factor based
on which lesser punishment can be awarded. Rape is
a non-compoundable offence and it is an offence
against the society and is not a matter to be left for
the parties to compromise and settle. Since the Court
cannot always be assured that the consent given by
the victim in compromising the case is a genuine
consent, there is every chance that she might have
been pressurized by the convicts or the trauma
undergone by her all the years might have compelled
her to opt for a compromise. In fact, accepting this
proposition will put an additional burden on the
victim. The accused may use all his influence to
pressurize her for a compromise. So, in the interest of
justice and to avoid unnecessary pressure/harassment
to the victim, it would not be safe in considering the
compromise arrived at between the parties in rape
cases to be a ground of the Court to exercise the
discretionary power under the proviso to Section
376(2) of IPC.”

8. The factual matrix in the backdrop of which the said

observations were made, must necessarily be looked into.

Ultimately, a judgment cannot be read as a statute. An affidavit

came to be filed before the Hon’ble Apex Court, on the basis of

which the reduction of sentence to the period already undergone

was prayed. The affidavit filed by the prosecutrix before the

Hon’ble Apex Court purported to state that the prosecutrix, who

was then 16 years old, was a consenting party to the sexual

intercourse and that she had entered into a compromise with the

accused since the accused belonged to a neighbouring village and

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also in view of the fact that the prosecutrix is happily married

since January, 1999.

The Hon’ble Apex Court noted after perusing the

affidavit that the affidavit contained two pages and the deponent

had signed in Hindi and that too only on the last page. The

Hon’ble Apex Court took a resume of the judgments holding the

field and then made observations in paragraph-22 which are

reproduced supra.

9. What is discernible from the enunciation of law is,

that the prosecutrix has entered into a compromise and that due

to passage of time or the prosecutrix being a happily married

woman, does not constitute adequate and special reasons within

the meaning of proviso to Section 376(2) of the IPC.

10. The learned Counsel have brought to my notice a Two

Judges’ judgment of the Hon’ble Apex Court in Ravindra vs. State

of Madhya Pradesh reported in AIR 2015 SC 1369 in which the

Hon’ble Apex Court reduced the sentence to the period already

undergone by invoking the proviso to Section 376(2) of IPC. The

Hon’ble Apex Court took into consideration that the incident took

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place 20 years ago and that the victim and the accused have

entered into a compromise.

11. In view of the Larger Bench judgment of the Hon’ble

Apex Court, I am not inclined to hold that compromise in itself

would constitute adequate and special reason for awarding

sentence less than the minimum. However, in the case at hand, the

facts are poignant and rather unusual. The prosecutrix, who is the

younger sister of the wife of the accused and the accused are in

live-in relationship. The prosecutrix is residing with her sister and

the accused. The prosecutrix and the accused are blessed with

two and half year old child. I have interviewed both the

prosecutrix and her sister, who are present in the Court. Both, the

prosecutrix and her sister have informed the Court that there is no

other person to take care of the prosecutrix and her son and the

legally wedded wife of the accused and her children. They would

submit, that if the punishment is not reduced to already

undergone, they would face restitution.

12. In the peculiar facts of the case, I am inclined to hold

that there do exist adequate and special reasons for awarding

sentence less than the minimum. I may reiterate, that the

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compromise between the prosecutrix and the accused or that in

the affidavit the prosecutrix states that the sexual act was

consensual, has not weighed with me in concluding that there

exist adequate and special reason. What as weighed with me is

that the prosecutrix and the accused are in live-in relationship and

are blessed with a two and half year child and the accused is the

only bread earner. The prosecutrix is unemployed. If the accused is

sentenced to 7 years rigorous imprisonment, the prosecutrix and

the child would be virtually on the street.

13. The affidavit which was placed on record was not

brought to my notice due to error on the part of the Registry of

this Court. It is axiomatic, that the mistake of the Registry ought

not to prejudice the accused. In view of the position of the law pre

2013 Amendment, the accused was entitled to point out to this

Court the existence of adequate and special reasons for awarding

sentence less than the minimum. The accused and his Counsel

were deprived of the right to effectively address the Court on said

aspect. In view of the judgment of the Hon’ble Apex Court in

Vishnu Agrawal v. State of U.P. and Anr. reported in AIR 2011

SC 1232, I consider it fit to recall the judgment and order dated

02-2-2018 only to the extent of the sentence imposed.

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14. While maintaining the conviction of the accused for

the offence punishable under Section 376, Section 323 and

Section 342 of the IPC, I alter the sentence awarded under Section

376, Section 323 and Section 342 of the IPC and reduce the same

to already undergone in view of the existence of adequate and

special reasons noted supra.

15. The judgment and order dated 02-02-2018 is recalled

to this limited extent and the sentence for offence punishable

under Section 376, Section 323 and Section 342 of the IPC is

reduced to already undergone.

16. The accused be released from custody unless he is

required in any other case.

JUDGE

RS Belkhede, PA

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