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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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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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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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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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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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