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Angad S/O Tikaram Chandane vs The State Of Maharashtra And Anr on 28 February, 2018

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO.160 OF 2017

Angad S/o. Tikaram Chandane,
Age:25 years, Occu.:Agriculture,
R/o. Hiwara (Bk), Taluka -Purna,
Dist. Parbhani
(At Present in Jail) .. Appellant
(Orig. Accused)

Versus

1. The State of Maharashtra
Through Police Station Officer,
Police Station, Purna Taluka-Purna,
Dist. Parbhani.

2. Sangeeta d/o. Narayan Nadre,
Age: 27 years, Occ.:Nil,
R/o. Hiwara (Bk), Tq. Purna,
Dist. Parbhani .. Respondents
—–
Mr.Swapnil S. Rathi, Advocate for Appellant;
Mr.R.B. Bagul, APP for Respondent – State;
Mr.V.P.Narwade, Advocate for Respondent No.2.
—–
CORAM : P.R.BORA, J.

RESERVED ON : 22/12/2017
PRONOUNCED ON : 28/02/2018

JUDGMENT :

1. The appellant has filed the present appeal against the

Judgement and order passed by learned Ad-hoc Additional

Sessions Judge, Parbhani in Sessions Case No.145 of 2012

decided on 06.04.2017.

2. The appellant was prosecuted in the aforesaid

Sessions Case for the offences punishable under Sections 376

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and 417 of Indian Penal Code (hereinafter referred to as the

‘I.P.C.’). The trial Court has convicted the appellant for both the

aforesaid offences and has sentenced him to suffer rigorous

imprisonment for 9 years for the offence punishable under

Section 376 of I.P.C. and to pay fine of Rs.50,000/-, in default to

suffer simple imprisonment for 2 years. The accused has been

sentenced to suffer rigorous imprisonment for 7 months for the

offence punishable under Section 417 of I.P.C. with fine of

Rs.5,000/-, in default to suffer simple imprisonment for 1 ½

months. The appellant is hereinafter referred to as the accused.

3. The accused was on bail during the course of the

trial. After the pronouncement of the Judgment by the Sessions

Court, he was taken in custody on 06.04.2017 and since then, he

is in jail.

4. It is the case of the prosecution that, initially twice

the accused had forcible sexual intercourse with the prosecutrix

without her consent and thereafter thrice with her consent,

which as alleged by the prosecutrix was fraudulently obtained by

the accused by giving her promise of marriage. The sexual

relationship between the prosecutrix and the accused has

resulted in giving birth to male child by the prosecutrix.

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5. Prosecutrix lodged the report against the accused at

Police Station Purna on 24.06.2012, whereupon the investigation

was set in motion.

6. After lodging of the report, the prosecutrix was sent

for medical examination on 25.06.2012, wherein it was noticed

that, she was pregnant and pregnancy was of more than 22

weeks. During the course of investigation, the Investigating

Officer visited the spot of occurrence, which was shown by the

prosecutrix and prepared its panchanama. He also recorded the

statements of the necessary witnesses. The required samples

for chemical analysis were also collected by him. Meanwhile, the

accused was arrested and his medical examination was also got

conducted. After completing the investigation, the charge-sheet

was filed in the J.M.F.C. Court at Purna. Since the offence under

Section 376 of I.P.C. was exclusively triable by the Court of

Sessions, the learned J.M.F.C. committed the case to the court of

Sessions.

7. During pendency of the Sessions Case, the

prosecutrix delivered the male child. After her delivery, the

blood samples of the prosecutrix, the newly born male child and

the accused were forwarded for the DNA test. In the DNA test, it

was revealed that, the accused was the biological father of the

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male child delivered by the prosecutrix.

8. In order to prove the guilt of the accused, eight

witnesses were examined before the Sessions Court. The

accused denied the charges levelled against him that, he had

sexual intercourse with the prosecutrix without her consent or by

cheating her.

9. The learned trial Court, after having assessed the

oral and documentary evidence brought on record before it, held

the accused guilty for the offences punishable under Sections

376 and 417 of I.P.C. and sentenced him to suffer the

punishments as noted herein above. Aggrieved by, the accused

has preferred the present appeal.

10. Shri Rathi, learned Counsel appearing for the accused

assailed the impugned Judgment and order on various grounds.

The learned Counsel submitted that, the prosecution has failed in

bringing on record any cogent and sufficient evidence to prove

that, the accused had sexual intercourse with the prosecutrix

without her consent. The learned Counsel further submitted that,

the prosecution has also failed in bringing on record any

evidence to show that, at any point of time, the accused had

made any promise to the prosecutrix to marry with her and on

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that pretext had sexual intercourse with the prosecutrix as

alleged by her. The learned Counsel further submitted that, the

court below has also erred in not appreciating that, there are

several material inconsistencies in the evidence of the

prosecution witnesses and more particularly the prosecutrix

(PW-2) as well as the mother of the prosecutrix (PW-3).

According to the learned Counsel, the accused could not have

been convicted on the basis of such doubtful evidence. The

learned Counsel submitted that, looking to the observations

made by the learned trial Court in the impugned Judgment, it is

discernible that, the learned Judge was predetermined in holding

the accused guilty for the alleged offences. The learned Counsel,

therefore, prayed for setting aside the impugned Judgment and

order and subsequently acquit the accused for the charges

levelled against him.

11. The learned APP supported the impugned Judgment

and order. The learned APP submitted that, the prosecution has

brought on record ample evidence in order to prove the guilt of

the accused. The learned APP submitted that, the DNA report has

exclusively established that, the accused had physical

relationship with the prosecutrix against her wish. The learned

APP submitted that, through the evidence of the prosecutrix and

her mother, the prosecution has also sufficiently proved that, the

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accused cheated the prosecutrix by giving her promise of

marriage and on that pretext by having sexual intercourse with

her. The learned APP submitted that, court below has passed a

well reasoned judgment. The learned APP, therefore, prayed for

dismissal of the appeal.

12. On perusal of the impugned Judgement, it is

apparently revealed that, the learned trial Judge has fully relied

upon the evidence of the prosecutrix. It is further discernible

that, the DNA report filed on record by the prosecution

evidencing that the accused is the biological father of the male

child begotten by the prosecutrix, has much weighed in the mind

of the learned trial Judge in holding the accused guilty for the

offences punishable under Sections 376 and 417 of I.P.C.

13. Allegation against the accused is two fold. At the

first place it is alleged that the accused twice had forcible sexual

intercourse with the prosecutrix without her consent and then

thrice by fraudulently obtaining the consent of the prosecutrix by

giving her false promise of marriage. The aforesaid acts of the

accused, according to prosecution amount to commission of rape

by him on the prosecutrix and also cheating.

14. There is no dispute that, the prosecutrix was major

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at the relevant time. As such, initial burden was on the

prosecution to prove beyond reasonable doubts that, the accused

had sexual intercourse with the prosecutrix without her consent.

The prosecution was also cast with the burden to prove that, the

accused cheated the prosecutrix by giving her a false promise to

marry with her and thereby induced the prosecutrix to have

sexual intercourse with him, which amounted to commission of

rape by him on the prosecutrix.

15. In view of the fact that, the accused is not disputing

that, he is the biological father of the male child delivered by the

prosecutrix meaning thereby that, he has impliedly accepted that

he had sexual intercourse with prosecutrix, the question which

falls for my consideration is ‘whether present is the case of rape

as alleged by the prosecution or of a consensual sex as pleaded

by the accused? It would also have to be examined ‘whether the

prosecution has succeeded in proving that the accused had

sexual intercourse with the prosecutrix by giving her false

promise of marriage and thereby cheated her.

16. The FIR was lodged by the prosecutrix on

24.06.2012. As per the allegations made in the FIR, since prior

to six months of lodging of the said report, the accused had been

committing sexual intercourse with the prosecutrix. As per the

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averments in the FIR, the accused lastly had intercourse with the

prosecutrix prior to 15 days of lodging the report by the

prosecutrix. It is not in dispute that, the medical examination of

the prosecutrix was held on 26.06.2012 and in the said

examination, it was revealed that, the prosecutrix was pregnant

and the pregnancy was of more than 22 weeks i.e. 5 ½ months.

By the DNA report, it is established that, the accused is

biological father of the male child delivered by the prosecutrix.

It therefore stands established that, sometimes in January -2012

the accused had sexual intercourse with the prosecutrix, which

seems to have resulted in making the prosecutrix pregnant.

17. As has been deposed by the prosecutrix, the accused

had second sexual intercourse with her five days after the first

sexual intercourse. It has also come on record in her evidence

that, her menstruation was stopped after her second time sexual

intercourse with the accused. It can, therefore, be reasonably

inferred that the accused had first and second sexual intercourse

with the prosecutrix probably both in the month of January-2012

and either of them did result in making her pregnant. As

mentioned earlier, as per the version of the prosecutrix herself,

the accused had last sexual intercourse with her prior to 15 days

of lodging the report by her meaning thereby that, accused had

the last sexual intercourse with the prosecutrix sometimes in

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second week of June – 2012, when prosecutrix was in her fifth

month of pregnancy.

18. In the aforesaid background, the prosecution

evidence will have to be examined to find out whether it was

sufficient to prove the charges levelled against the accused.

19. In the sessions trial, though as many as 8 witnesses

were examined, evidence of the prosecutrix (PW-2) and the

mother of the prosecutrix namely Lilabai (PW-3) is only material.

The accused has not raised any serious dispute about the

evidence of PW-1 Dr Sonali Jagad and the evidence of PW-4 to

PW-8, who all are police witnesses. The deeper scrutiny thus

requires of the evidence of only two witnesses i.e. prosecutrix

and her mother.

20. In para 25 of the impugned Judgment, the learned

trial Judge has observed that, the version of the prosecutrix in

her examination-in-chief before the Court supports the case of

the prosecution on material aspects, which she narrated in her

complaint. After having perused the examination in chief of the

prosecutrix in light of the contents of the FIR (Exh.30) lodged by

her, it is difficult to agree with the observations made by the

learned trial Judge as aforesaid.

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21. Further, the evidence of the prosecutrix will have to

be read as a whole and it has to be examined whether the facts

as are stated by the prosecutrix while lodging FIR, the facts as

are stated by her in her examination-in-chief and the facts as

have come on record in her cross examination are consistent

with each other. It has also to be seen whether PW-3 Lilabai has

corroborated the facts as deposed by the prosecutrix.

22. Reading of the FIR and the oral evidence of the

prosecutrix apparently reveals that, the evidence of the

prosecutrix is full of inconsistencies and different versions have

come on record in her examination-in-chief and in her cross-

examination in regard to the very material aspects of the matter.

It is also revealed that there are material inconsistencies in the

facts deposed by the prosecutrix and her mother.

23. In the FIR, it is the contention of the prosecutrix that,

the accused many times had forcible sexual intercourse with her

whenever she was alone at her house, whereas in her

examination-in-chief the prosecutrix has not even whispered

that, the accused at any point of time had forcible sexual

intercourse with her at her house. In her examination-in-chief the

prosecutrix has deposed about initial two instances only, wherein

the accused is alleged to have committed forcible intercourse

with the prosecutrix in the brook.

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24. Contrary to the facts stated as aforesaid, in the cross-

examination, the prosecutrix has stated that, the accused

committed sexual intercourse with her for four to five times. The

prosecutrix has further provided that, the accused two times had

sexual intercourse with her in the brook, once at her house, once

in the field of accused and at fifth time in her field. It is thus

evident that, the facts as are deposed by the prosecutrix in her

examination-in-chief and thereafter in cross-examination do not

corroborate the facts stated by her in the FIR that, accused on

several occasions had forcible sexual intercourse with her

whenever she was alone at her house.

25. Nextly, in the FIR while it is the contention of the

prosecutrix that, the accused lastly had sexual intercourse with

her at about 03:00 a.m. in the midnight at her house; in the

examination-in-chief the prosecutrix has not deposed any such

fact. In her cross-examination the third version has come on

record that, the accused, on fifth time committed sexual

intercourse with her at her field. In this regard fourth version has

also come on record wherein the prosecutrix has answered that

the accused lastly had sexual intercourse with her in his field.

26. In the FIR, while it is the contention of the prosecutrix

that, the accused lastly had sexual intercourse with her prior to

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15 days of lodging of the report by her, in the examination-in-

chief she has not stated any such fact. In the cross-examination

an altogether different fact is stated by the prosecutrix that, the

accused lastly committed sexual intercourse with her prior to five

days of lodging complaint by her.

27. In the FIR, it is narrated by the prosecutrix that, the

accused lastly had sexual intercourse with her prior to 15 days

of lodging the report by her and from the next day thereafter

accused was not seen in the village. In her examination-in-chief

the prosecutrix has not deposed any such fact.

28. In the FIR, while it is the contention of the prosecutrix

that, she disclosed about the alleged incident to her parents after

the accused left village i.e prior to 15 days of her lodging the

report; in her examination-in-chief, it is deposed by the

prosecutrix that, she disclosed to her parents about the alleged

sexual intercourse by the accused after her monthly menstrual

cycle was missed. It has to be stated that, as per the version of

the prosecutrix herself, after the accused had sexual intercourse

with her on two occasions, she stopped menstruating. From the

medical evidence on record, her menstruation was stopped

sometimes in January-2012 itself. Medical evidence on record

shows that, on 26th June, 2012 when her medical examination

was conducted, she was pregnant of 5 ½ months. According to

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the version in the FIR the prosecutrix seems to have informed to

her parents about the alleged sexual intercourse by the accused

with her in the first week of June, 2012. Her version in the

examination-in-chief, however, goes to suggest that, the

aforesaid fact was disclosed by her to her parents sometimes in

January or February – 2012.

29. In the FIR, when it is stated by the prosecutrix that,

initially by giving threats to her and thereafter by giving her

promise of marriage the accused repeatedly had forcible sexual

intercourse with her, in her examination-in-chief the only fact

deposed by her is that, after she disclosed to the accused that,

her menstruation period was missed, the accused gave

assurance to marry with her. The prosecutrix, however, has not

deposed that, on such promise of marriage the accused again

committed sexual intercourse with her.

30. From the contents of the FIR, when it appears to be

the allegation of the prosecutrix that, initially on two occasions

accused had forcible sexual intercourse with her and thereafter

on several occasions by giving her promise of marriage; in her

examination-in-chief, it is the statement of the prosecutrix that,

she lodged complaint as regards incident of two times sexual

intercourse by the accused with her.

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31. In her examination-in-chief while the prosecutrix has

deposed that she disclosed her parents in regard to the forcible

sexual intercourse by the accused with her after she stopped

menstruating; in the cross-examination she has deposed that,

prior to lodging of the complaint she did not give information of

sexual intercourse between her and the accused to any other

person except her mother. Different version has come on record

in the cross-examination to the effect that, she intimated to her

mother about the alleged incident of sexual intercourse by the

accused with her prior to two days of lodging complaint. In the

FIR as well as in her examination-in-chief as noted herein above,

it is the case of the prosecutrix that, she disclosed the alleged

incident to her mother after her menstruation cycle was missed,

which period comes to more than five months prior to lodging of

the complaint.

32. It has come on record in the cross-examination of

the prosecutrix that, after 4 days of the second incident of sexual

intercourse by the accused with her, she gave information about

it to Uttam Nadare and her father. The prosecutrix has also

deposed that, she lodged the complaint on the day, she gave

information to Uttam Nadare and her father. It has to be stated

that, neither in the FIR nor in the examination-in-chief any such

fact was stated by the prosecutrix that, she informed Uttam

Nadare about the sexual intercourse by the accused with her at

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any point of time, nor the complaint was filed after 2 nd incident

as deposed by the prosecutrix. .

33. From the facts elaborately noted down by me herein

above, it is explicitly revealed that, the evidence of the

prosecutrix is full of inconsistencies. It is also noticed that, the

prosecutrix has frequently changed her version in stating facts.

The conduct of the prosecutrix is also revealed to be quite

unnatural. In the circumstances, I am afraid to what extent her

evidence could have been relied upon by the learned trial Court

to base the conviction of the accused.

34. Further, it appears quite improbable, unnatural and

unconscionable that, the prosecutrix in her 5 th month of

pregnancy again consented for sexual intercourse with the

accused since he reiterated his promise of marriage. No woman

in her fifth month of pregnancy would allow the person, who

earlier had virtually committed rape on her and because of

whom, she had remained pregnant, to again have sexual

intercourse with her on promise of marriage, which he has been

making since first month of her pregnancy, but has avoided to

fulfill the same.

35. It is admittedly not the case of the prosecution that

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there was any love affair between the accused and prosecutrix

and during the course of such affair, they succumbed to

temptation of having sexual relationship with each other and it

has resulted in the prosecutrix remaining pregnant. Had it been

so, the story put forth by the prosecutrix, that the accused

promised her to marry and on such promise, she consented for

sexual intercourse with her on the third occasion would have

appeared probable. However, when it is the case of the

prosecutrix that on earlier two occasions, the accused did have

forcible sexual intercourse with her without her consent meaning

thereby that the accused committed rape on her, it appears quite

improbable that the prosecutrix will accord her consent to the

accused to have sexual intercourse with her on the third occasion

simply on a promise that he would marry with her. As noted

above, it appears more improbable and unnatural that, in her 5 th

month of pregnancy the prosecutrix again consented for sexual

intercourse with the accused, as because he reiterated his

promise of marriage. It cannot be accepted that the prosecutrix

could not have understood the fallacy and underlying hostile

interest in the promise allegedly made by the accused to marry

with her. Further, the prosecutrix was fully aware that she

belongs to `Maratha’ community; whereas the accused belongs

to `Dhangar’ community and because of their different castes,

their marriage was not possible and in any event, the proposal

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for their marriage was bound to be seriously opposed by their

family members. In the circumstances, her natural conduct

would be firstly to refrain herself from again having sexual

relationship with the accused and secondly to disclose all such

facts to her parents.

36. Serious doubts are, therefore, raised about the case

put forth by the prosecution that, the accused had sexual

intercourse with the prosecutrix on three more occasions after

she had remained pregnant and lastly had such intercourse prior

to 15 days of the report lodged by the prosecutrix. The very

basic fact is in serious doubts whether really any such promise

as alleged by the prosecutrix was made by the accused that, he

would marry with the prosecutrix. Had it been so the prosecutrix

would have definitely given an ultimatum to the accused that,

either he shall marry with her or else she will lodge the

complaint against him that, he has committed sexual intercourse

with her by fraudulently obtaining her consent by giving her

promise that, he would marry with her.

37. According to the version of the prosecutrix promise of

marriage was given by the accused when she disclosed to him

that, her menstrual cycle is discontinued, in other words that she

has remained pregnant. From the material on record this

happened in January-2012 or in the first week of February-2012.

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In no case it can be accepted that, there would be no moment

from the side of the prosecution for more than five moths to get

the promise of marriage fulfilled by the accused more particularly

in premise of the fact that she had already conceived and there

was no medical termination of pregnancy. Neither the

prosecutrix nor her mother PW-3 Lilabai have deposed any such

fact that, any effort was made from their side either to convince

or compel the accused to marry with the prosecutrix.

38. In her cross-examination, PW-3 Lilabai has stated that

one Uttamrao Nadre, who was the police patil of the village at

the relevant time and who also happens to be in their relation

had been to the house of the accused with a request that, the

accused shall marry with the prosecutrix. However, as further

stated by PW-3 Lilabai, Uttamrao Nadre had been to the house of

accused after lodging of the complaint. There was no propriety

in visiting the house of the accused and to request him to marry

with the prosecutrix after lodging criminal complaint against him.

When it was the case of the prosecution that the accused refused

to marry and thereby cheated the prosecutrix, it was incumbent

for the prosecution to bring on record sufficient evidence to show

as to when the accused refused to marry with the prosecutrix. It

has to be further noted that, PW-3 Lilabai did not provide any

further information as to what happened at the house of the

accused when Uttamrao had been to his house. The contention

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of PW-3 Lilabai that, she was not then remembering as to what

was told by Uttamrao after he returned from the house of

accused is unbelievable. Prosecution, for the reasons best known

to it, has not examined said Uttamrao as its witness.

39. Thus, though it was the case of the prosecution that

as because the accused refused to marry with the prosecutrix,

she was left with no option, but to file report against him in the

police station, prosecution has utterly failed in brining on record

any evidence firstly to prove that any such promise was in fact

given by the accused and secondly if such promise was given,

when the accused refused to fulfill the same. Failure on part of

the prosecution in proving the very cause of action for filing the

complaint has raised serious doubts about the existence of any

such cause of action leading to an inference that, there may not

be any truth in the allegation made against the accused that he

fraudulently obtained the consent of the prosecutrix and had

sexual intercourse with her by giving her false promise of

marriage.

40. The story that after the prosecutrix disclosed to the

accused that she had remained pregnant from him, the accused

gave her promise that he would marry with her and on such

promise again had sexual intercourse with her repeatedly for

next five months thereafter, seems to have been introduced with

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the only object that there shall appear at least some reason for

justifying the delay of the period of about six months, which has

occurred in lodging the report by the prosecutrix against the

accused.

41. After having closely scrutinized the entire evidence

on record, the only fact which seems to have been established

by the prosecution is that, the accused had sexual intercourse

with the prosecutrix some times in the month of January 2012,

may be once or twice, as a result of which, the prosecutrix

remained pregnant and ultimately delivered a male child,

however at that time, there was no promise by the accused to

the prosecutrix that he will marry with her.

42. Certain more circumstances, which have come on

record also indicate the falsity in the case attempted to be made

out by the prosecution that, the accused committed sexual

intercourse with the prosecutrix till prior to 15 days of her

lodging the F.I.R.. The case attempted to be made out by the

prosecution that, the accused had been committing sexual

intercourse with the prosecutrix for the period of about 6 months

and lastly he had sexual intercourse with the prosecutrix prior to

15 days of her lodging the report at police station is falsified by

the crucial admission given by the prosecutrix that, the gap

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between the first and last sexual intercourse which the accused

had with her was not more than 10 to 12 days.

43. As noted herein above, as per the version of the

prosecutrix the accused firstly had forcible sexual intercourse

with her at brook in the evening when she was returning to her

home from her agriculture land. As was further deposed by the

prosecutrix the accused second time had sexual intercourse with

her at the same place after about 5 days of the alleged incident.

It has to be stated that, at one point of time it was stated by the

prosecutrix that, the accused second time had sexual intercourse

with her after 10 days of the first incident, but subsequently the

prosecutrix reasserted that, it was not 10 days, but after 5 days

after the first incident that, the accused second time committed

sexual intercourse with her.

44. According to the testimony of PW-3 Lilabai also, the

accused had sexual intercourse with the prosecutrix only on two

occasions. In the examination-in-chief the prosecutrix also has

deposed about only two such instances of alleged forcible

intercourse by the accused with her and though she has further

deposed that, thereafter the accused promised her to marry with

her, she has not further provided any information or has asserted

that, after making of such promise also, the accused had sexual

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intercourse with her. Similarly the version of the prosecutrix in

her examination-in-chief is also to the effect that, she disclosed

the incident of two times sexual intercourse by the accused with

her and thereafter she, her mother and police patil Uttamrao M.

Nadre went to Purna, Police Station for lodging the report.

Prosecutrix has further specifically deposed that, at Purna police

Station, she lodged the complaint as regards incident of two

times sexual intercourse by the accused with her.

45. The facts as aforesaid demonstrate that, the story

attempted to be made out by the prosecution that, there was a

promise by the accused that, he would marry with the

prosecutrix and further that, on pretext of such promise the

accused again had sexual intercourse with her for next five

months has not been substantiated by the prosecution.

46. I reiterate that, after having closely scrutinized the

entire evidence on record, it is transpired that, the story of the

promise of marriage by the accused is introduced by the

prosecution for the only purpose that, there shall appear some

reason to justify the inordinate delay of about six months, which

had occurred in lodging the report by the prosecutrix against the

accused. However, the prosecution has utterly failed in bringing

on record any cogent and sufficient evidence to prove firstly that,

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any such promise was given by the accused and secondly that,

the accused refused to honour offer the said promise if at all it

was given by him.

47. It is true that, in the rape cases, the delay in filing

the FIR by prosecutrix or by the parents of the prosecutrix, in all

circumstances may not be significant and must not be viewed

with the same sensitiveness as in other cases. However, if no

plausible explanation is offered by the prosecution for delay in

lodging the FIR, then the accused cannot be convicted for the

offence of rape and more so, if the explanation so attempted to

be given is found to be wholly unreliable. In the instant case, it is

noticed that, the testimony of the prosecutrix is highly

unbelievable. As I have elaborately discussed herein above, the

prosecutrix has frequently changed her version and on every

aspect of the matter different facts have been stated by her

during the course of her evidence. No reliance can be placed on

such testimony to base the conviction of the accused. Moreover,

there is no corroboration to the facts stated by the prosecutrix.

Her evidence has even not been corroborated by her mother PW-

3 Lilabai.

48. Further, there cannot be a dispute that, mere delay in

lodging the FIR is not necessarily fatal to the case of the

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24 160.2017Cri.Apeal.doc

prosecution. However, the fact in the present matter that, the

report was lodged belatedly i.e. after the period of about six

months and the justification attempted to be given for

occurrence of the said delay is found unreliable, is a relevant

fact, of which the Court has to take notice and the same has to

be considered in the light of other facts and circumstances of the

case. As has been deposed by the prosecutrix, the first incident

had occurred at 06:30 p.m., when she was returning from her

field and proceeding towards her house, and the second incident

happened after five days on the same spot at 07:30 p.m. It is

also the case of the prosecutrix that, after having committed first

forcible sexual intercourse with her, the accused had threatened

her with her life if she discloses the said incident to anybody. In

the aforesaid background, the conduct of the prosecutrix after

five days to proceed from the same route that too in the late

evening i.e. at 07:30 p.m. and that too alone cannot be just said

to be a co-incidence. On the contrary, it leads to an inference

suggesting the possibility of consent of the prosecutrix.

49. Secondly the allegation made by the prosecutrix that,

the accused despite her strong resistance forcibly committed

sexual intercourse with her and at the second time, the accused

had dragged her for the distance about 40 feet, appear to be

highly unbelievable in view of the fact that, the prosecutrix, in

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25 160.2017Cri.Apeal.doc

any of the alleged two instances did not receive any external

injury not even a scratch on any part of her body. The complete

absence of any injury or scratch on person of the prosecutrix

would suggest that, the alleged intercourse was not forcible.

50. In the above circumstances, though it is established

that, the accused and the prosecutrix had sexual intercourse

may be once or twice which had resulted in incurring pregnancy

by the prosecutrix and the prosecutrix eventually delivered a

male child, since the possibility of the prosecutrix willingly

submitting herself to sexual intercourse with the accused is

difficult to be ruled out, it would be unsafe to maintain order of

conviction passed by the learned trial Court holding the accused

guilty for the offence of rape and cheating.

51. Having carefully scrutinized the evidence on record, I

am not satisfied that the prosecution has proved its case beyond

reasonable doubt. I am left with a strong suspicion that the case

put forth by the prosecution may not be true. In any event the

appellant is entitled to the benefit of doubt. I am therefore

inclined to allow the present appeal.

52. While convicting the accused for the offence

punishable under Section 376 of I.P.C., the trial Court, along with

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26 160.2017Cri.Apeal.doc

the sentence of imprisonment has also imposed the fine of

Rs.50,000/- upon the accused. The fine amount has been

deposited by the father of the accused in this Court.

Subsequently, the father of the accused has willingly at his own

deposited the additional amount of Rs.50,000/- in this Court as a

voluntary compensation for the welfare of the male child born

out of the physical relationship between the accused and the

prosecutrix.

53. In the peculiar facts and circumstances of the

present case, though order of conviction passed by the trial

Court is liable to be set aside, I have decided not to pass the

consequential order, which is ordinarily passed, for refund of the

fine amount deposited by the accused and in stead decided to

pass an order directing the release of the said amount of fine

along with the additional amount of Rs.50,000/- deposited by

the father of the accused as a voluntary compensation, in favour

of the male child born out of the physical relationship of the

accused with the prosecutrix. In the foregoing circumstances and

for the reasons stated above, the following order is passed.

ORDER

i) The order passed by the Ad-hoc Additional Sessions Judge,

Parbhani in S.T. No.145/2012 on 06.04.2017 convicting the

appellant namely Angad s/o Tikaram Chandane for the offences

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27 160.2017Cri.Apeal.doc

punishable under Sections 376 and 417 of I.P.C. is quashed and

set aside.

ii) The appellant namely Angad s/o Tikaram Chandane is

acquitted of the offences charged against him. He be released

forthwith, if not required in any other case or crime.

iii) The amount of fine and voluntary compensation deposited

in this Court amounting to total Rs.1,00,000/- be transmitted to

the Sessions Court at Parbhani and shall be released in favour of

the minor male child by name Shubham born out of the physical

relationship of the accused with the prosecutrix.

iv) The Sessions Court shall ensure expeditious payment of

the aforesaid amount in favour of the said minor child by

following the due procedure therefor.

v) The appellant shall furnish P.R. Bond of Rs.15,000/- with

one surety in the like amount before the Sessions Court in

compliance with the provision envisaged under Section 437A of

the Code of Criminal Procedure.

. Appeal thus stands allowed in the aforesaid terms.

(P.R. Bora, J.)

ggp

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