APPEAL-787-2016-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.787 OF 2016
JHOHANS VIUWINGHIFERI KENIGAY )…APPELLANT
V/s.
THE STATE OF MAHARASHTRA )…RESPONDENT
Mr.Ganesh Bhujbal, Appointed Advocate for the Appellant.
Mr.S.V.Gavand, APP for the Respondent – State.
CORAM : A. M. BADAR, J.
DATE : 30th JULY 2018
JUDGMENT :
1 The appellant/accused is directed to be released on
bail by this court vide order dated 21st December 2016 passed by
this court in Criminal Application No.1541 of 2016 (Coram :
Revati Mohite Dere, J.) by directing him to execute P.R.Bond of
Rs.15,000/-with one or two sureties in like amount. The
applicant/appellant/accused then preferred an application
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through jail which is registered as Criminal Application No.661 of
2018 and by this communication through jail, he has requested
this court to relax the condition of furnishing sureties or to accept
his appeal. That is how, the appeal is taken up for final hearing at
the request of the parties. The appellant/accused is convicted of
the offence punishable under Section 376 of the Indian Penal
Code and is sentenced to suffer rigorous imprisonment for 7 years
apart from direction to pay fine of Rs.10,000/- and in default, to
undergo further rigorous imprisonment for 6 months, by the
learned Additional Sessions Judge, City Civil and Sessions Court,
Greater Mumbai, in Sessions Case No.218 of 2013.
2 Facts leading to the prosecution of the appellant/
accused projected from the police report are thus :
(a) The PW1/First Informant/prosecutrix is a lady aged about
21 years. She used to work in the Gents Spa as a Therapist.
She became acquainted with the appellant/accused through
social networking site and became his facebook friend.
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Initially, the PW1/First Informant/prosecutrix was working
as a Therapist in the Spa at Bangalore, and thereafter she
came to Mumbai and started working at the Sneep Saloon
Spa.
(b) The appellant/accused came to meet the PW1/First
Informant/prosecutrix at Mumbai in June 2011. They met
at Abdul Wahab Chawl where the PW1/First Informant/
prosecutrix used to reside. According to the prosecution
case, the appellant/accused used to tell the PW1/First
Informant/prosecutrix that he wants to marry her. During
his stay with the PW1/First Informant/prosecutrix, the
appellant/accused had indulged in sexual intercourse with
her. Similarly, he had also indulged in unnatural sex with
the PW1/First Informant/prosecutrix. During his stay at
Mumbai, the appellant/accused met the PW1/First
Informant/prosecutrix on two or three occasions and had
sexual relations with her.
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(c) According to the prosecution case, the PW1/First
Informant/prosecutrix then got a job at Bangalore and on
the way to Bangalore, she visited house of the appellant/
accused at Goa and stayed with him. At that place also, the
couple indulged in sexual relations. Then, the PW1/First
Informant/prosecutrix started working at Zen Spa at
Bangalore. The appellant/accused met her at Bangalore on
two occasions. He had sexual intercourse with the PW1/
First Informant/prosecutrix at that place also.
(d) Thereafter, the PW1/First Informant/prosecutrix along with
her aunt stayed at Mumbai. On 3rd March 2012, the
appellant/accused came to meet the PW1/First Informant/
prosecutrix to celebrate her birthday. The couple indulged
in sexual relations and then the appellant/accused left on
the next day.
(e) At the instance of the appellant/accused, the PW1/First
Informant/prosecutrix along with her aunt went to meet the
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appellant/accused at Bangalore. They stayed with the
appellant/accused at Bangalore. Thereafter, the PW1/First
Informant/prosecutrix along with her aunt returned to
Mumbai. Then, aunt of the PW1/First Informant/
prosecutrix informed her that the appellant/accused during
their stay at Bangalore, took her to the house of his friend
and committed rape on her. The aunt of the PW1/First
Informant/prosecutrix then was required to undergo three
major surgeries. This has prompted the PW1/First
Informant/prosecutrix to lodge report with Vakola Police
Station on 14th June 2012. That is how, Crime No.248 of
2012 for offences punishable under Sections 376 and 377 of
the Indian Penal Code came to be registered against the
appellant/accused.
(f) During the course of investigation, the PW1/First
Informant/prosecutrix was sent for medical examination.
The spot of the incident was inspected. Statement of
witnesses came to be recorded and on completion of routine
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investigation, the appellant/accused came to be charge-
sheeted.
(g) The learned Additional Sessions Judge, City Civil and
Sessions Court, Greater Mumbai, framed Charge for offences
punishable under Sections 376 and 377 of the Indian Penal
Code against the appellant/accused, for having committed
rape on the PW1/First Informant/prosecutrix as well as for
committing carnal intercourse with her against the order of
nature. The appellant/accused pleaded not guilty and
claimed trial.
(h) In support of the Charge, the prosecution has examined in
all six witnesses. The First Informant/victim of the subject
crime came to be examined as PW1. The report lodged by
her on 14th June 2012 is at Exhibit 33. Panch witness, who
happens to be landlord of the PW1/First Informant/
prosecutrix at Mumbai, namely Venkatesh Gujety, is
examined as PW2. He did not support the prosecution.
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Exhibit 53 is the Spot Panchnama. Sindhiya Gujety, who
happens to be wife of PW2 Venkatesh Gujety, is examined as
PW3. Medical Officer Dr.Sachin Phad of Nagpada Police
Hospital is examined as PW4. Exhibit 44 is the Medico
Legal Certificate of medical examination of the PW1/First
Informant/prosecutrix. Assistant Police Inspector Pallavi
Kulkarni who recorded the First Information Report of the
PW1/First Informant/prosecutrix is examined as PW5.
Police Inspector Uttam Pachpute, who inspected the crime
and filed the charge-sheet is examined as PW6. The defence
of the appellant/accused is that of total denial. However, he
did not enter into defence.
(i) After hearing the parties, the learned trial court came to the
conclusion that sexual intercourse between the
appellant/accused and the PW1/First Informant/prosecutrix
was a result of misconception of fact as the appellant/
accused had promised to marry her, and therefore, the same
amounts to rape, as the consent given by the PW1/First
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Informant/prosecutrix was suffering from misconception of
fact. The learned trial court, however, did not find the
appellant/accused guilty of the offence punishable under
Section 377 of the Indian Penal Code. Resultantly, the
appellant/accused came to be convicted of the offence
punishable under Section 376 of the Indian Penal Code and
is sentenced as indicated in the opening paragraph of this
judgment.
3 Shri Bhujbal, the learned advocate appointed to
represent the appellant/accused, vehemently argued that the
learned trial court erred in holding that the consent of the PW1/
prosecutrix is suffering from misconception of fact. He argued
that the PW1/prosecutrix, at the relevant time, was fully grown up
adult lady, working in Gents Spa as a Therapist and was knowing
what was good and what was bad for her. She had consensual
sex with the appellant/accused, and therefore, the appellant/
accused could not have been convicted for the offence punishable
under Section 376 of the Indian Penal Code. Per contra, Shri
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S.V.Gavand, the learned APP, supported the impugned judgment
and order and argued that the appellant/accused promised to
marry the PW1/prosecutrix and that is how, he established
relations with her. This act is certainly without consent of the
PW1/prosecutrix, and therefore, the appeal deserves to be
dismissed.
4 I have considered the rival submissions and also
perused the record and proceedings including the oral as well as
documentary evidence.
5 In the case in hand, the FIR filed by the PW1/
prosecutrix at Exhibit 33 itself goes to show that her age was 22
years, at the time of lodging the FIR. It is, thus, seen that the
PW1/prosecutrix was a fully grown up adult lady working in
Gents Spa as a Therapist, at the relevant time. Her evidence is to
the effect that she became facebook friend of the appellant/
accused in April 2011. The appellant/accused introduced himself
as serving in a Courier Company. At that time, it appears that, the
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PW1/prosecutrix was serving in a Spa at Bangalore and then she
joined Sneep Saloon Spa at Bandra. The PW1/prosecutrix in one
line has stated that the appellant/accused used to tell her that he
wanted to marry her. There is nothing in evidence of the PW1/
prosecutrix to infer that the appellant/ accused was pestering her
and alluring her by promise to marry her.
6 On this backdrop, it is in evidence of the PW1/
prosecutrix that at Mumbai, she was residing at Abdul Wahab
Chawl and in June 2011, the appellant/accused came to meet her
and he stayed at her house for some days. They had sexual
relations, so also they had indulged in unnatural sex. The PW1/
prosecutrix then added that thereafter also, the appellant/accused
met her on 2/3 occasions at Mumbai, when they indulged in
sexual relations. Then, as per version of the PW1/prosecutrix, she
got a job at Bangalore and on the way to Bangalore, she visited
the house of the appellant/accused at Goa. At that time also, the
couple had sexual relations. The PW1/prosecutrix further deposed
that the appellant/accused visited her place at Bangalore twice
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and had sexual relations with her. It is seen from the evidence of
PW1/prosecutrix that, then, because of transfer of her Company to
Udaipur, she left the job and came back to Mumbai, and started
staying with her aunt. The PW1/prosecutrix deposed that her
birthday was on 3rd March 2012 and the appellant/accused came
to Mumbai to celebrate her birthday. They had sexual relations,
and then, on the next day, the appellant/accused left. The PW1/
prosecutrix further stated that, at that time, the appellant/accused
was residing at Bangalore and at his instance, she along with her
aunt, visited Bangalore and stayed at the house of the appellant/
accused. After returning to Mumbai, as per version of the
PW1/prosecutrix, her aunt disclosed to her that the appellant/
accused, during their stay at Bangalore, had taken her to the
house of his friend and committed rape on her. It is worthwhile to
note here that there is no Charge of commission of rape by the
appellant/accused on the aunt of the PW1/prosecutrix. The PW1
/prosecutrix further deposed that, thereafter her aunt was
admitted to D.Y.Patil Hospital, where she underwent three major
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surgeries because of commission of rape by the appellant/accused.
Then, on 14th June 2012, she lodged report against the appellant/
accused.
7 PW3 Sindhiya Gujety is wife of the landlord of the
PW1/prosecutrix. This witness has deposed that on occasion of
the birthday of the PW1/prosecutrix, the appellant/accused came
and stayed with her. She deposed that after few days, aunt of the
PW1/prosecutrix told her that the appellant/accused had
committed rape on her. This evidence is not relevant for the
purpose of the instant case, as there is no Charge against the
appellant/accused for having committed rape on the aunt of the
PW1/prosecutrix.
8 Immediately after lodging the FIR, the PW1/
prosecutrix was sent to the Police Hospital at Nagpada by PW5
Pallavi Kulkarni, Assistant Police Inspector of Vakola Police
Station. There, PW4 Dr.Sachin Phad, had medically examined
the PW1/prosecutrix and issued Medico Legal Certificate at
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Exhibit 44. The PW1/prosecutrix was also subjected to
Ossification Test at that time. Evidence of PW4 Dr.Sachin Phad
shows that bony age of the PW1/prosecutrix was found to be 20
to 21 years, at that time. Evidence of PW4 Dr.Sachin Phad shows
that upon medical examination of the PW1/prosecutrix, he found
her labia majora and labia minora normal. Hymen of the
PW1/prosecutrix was found to be torn and tears were old healed
tears.
9 This is the material evidence, so far as the Charge for
offences punishable under Sections 376 and 377 of the Indian
Penal Code, leveled against the appellant/accused. The position
which emerges on record from this evidence adduced by the
prosecution is to the effect that the PW1/prosecutrix was an adult
lady, at the relevant time. The appellant/accused used to stay at
her house and the couple used to indulge in sexual relations. The
PW1/prosecutrix had visited the house of the appellant/accused at
Goa, and there also, the couple had sexual relations. There is no
evidence to infer that the appellant/accused was pestering the
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PW1/prosecutrix and alluring her by promising to marry, so as to
induce her to submit her chastity to him. Sexual intercourse by a
man with a woman without her consent amounts to rape. Section
90 of the Indian Penal Code provides that a consent is not such a
consent, as is intended by any Section of this Code, if the consent
is given by a person under a misconception of fact, and if the
person doing the act knows, or has reason to believe that the
consent has been given under misconception of the fact. The
alleged offence of commission of rape as well as unnatural sex
with the PW1/prosecutrix took place prior to 14 th June 2012. At
that time, age of consent was 16 years. The PW1/prosecutrix had
attained consenting age, and as such, was capable enough to
understand what is good and what is bad for her. Being in
employment of Gents Spa as a Therapist, she was certainly
knowing advantages and disadvantages of certain matters. At
the relevant time, she had certainly developed reasonable
mental capacity to know consequences of her actions. Still, she
indulged in sexual relations with the appellant/accused, and
therefore, in the factual background of the instant case, it cannot
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be said that consent of the PW1/prosecutrix for the sexual act is a
consent induced by misconception of fact. Section 90 of the
Indian Penal Code cannot be called in aid, in such a situation, to
impose the criminal liability on the appellant/accused. It appears
that because being acquainted with the appellant/accused through
social networking site, the PW1/prosecutrix fell in love with the
appellant/accused, and accordingly, she allowed him to have
sexual intercourse with her. The appellant/accused, even as held
by the learned trial court, had sexual intercourse with the PW1/
prosecutrix with her consent, which, she being above the age of
16 years, was competent to give. The case sought to be made out
is that the PW1/prosecutrix agreed for such sexual intercourse
because the appellant/accused promised to marry her. However,
on this ground, the appellant/accused cannot be held guilty of
rape and the case of the prosecution is not falling in any of the
circumstances enumerated in Section 375 of the Indian Penal
Code. Consent of the PW1/prosecutrix seems to be an act of
reason accompanied with deliberation. Thus, the learned trial
court totally erred in holding that the consent given by the
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PW1/prosecutrix to sexual acts of the appellant/accused, was
under misconception of fact.
10 In the result, the appeal deserves to be allowed, and as
such, the order :
ORDER
i) The Appeal is allowed.
ii) The impugned judgment and order dated 8 th November
2016 passed by the learned Additional Sessions Judge, City
Civil and Sessions Court, Greater Mumbai, in Sessions Case
No.218 of 2013 for the offence punishable under Section
376 of the Indian Penal Code, is quashed and set aside.
iii) The appellant/accused is acquitted of the offence punishable
under Section 376 of the Indian Penal Code. He be released
from prison, if not required in any other case.
iv) Fine, if any paid by him, be refunded to him.
v) In view of disposal of the appeal, pending Criminal
Application No.661 of 2018 stands disposed of.
Digitally signed
Arti by Arti Vilas
Khatate
Vilas Date:
2018.07.31 (A. M. BADAR, J.)
Khatate 17:14:46 +0530
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