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Jhohans Viuwinghiferi Kenigay vs The State Of Maharashtra on 30 July, 2018

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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