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Pradeep Sunil Bawane vs The State Of Maharashtra Thr. … on 2 May, 2018

1 jg.apeal.576.17.odt

THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.

CRIMINAL APPEAL NO. 576 OF 2017

Pradeep Sunil Bawane
Age 28 years, Occup. : Labour
R/o Nanda Fata, Ward No. 4,
Tah. Korpana, Dist. Chandrapur. … Appellant

VERSUS

The State of Maharashtra
through its Police Station Officer,
Police Station, Gadchandur,
Tah. Korpana, Dist. Chandrapur. … Respondent
————————————————————————————————-
Shri R. M. Daga, Advocate for the appellant
Ms. T. H. Udeshi, Additional Public Prosecutor for the State/respondent
————————————————————————————————————————

CORAM : R. K. DESHPANDE AND
M. G. GIRATKAR, JJ.

Date : 02/05/2018.

Oral Judgment (Per : M.G. Giratkar, J)

Appellant assailed the judgment in Sessions Case No.

55/2012 delivered by 3rd Additional Sessions Judge, Chandrapur dated

25-10-2017 by which he is convicted for the offences punishable under

Sections 376 and 417 of the Indian Penal Code and sentenced to suffer

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imprisonment for life and to pay a fine of Rs. 50,000/- in default to

undergo rigorous imprisonment of six months for the offence punishable

under Section 376 of the Indian Penal Code. He is also convicted for the

offence punishable under Section 417 of the Indian Penal Code and

sentenced to suffer rigorous imprisonment for one year and to pay a fine

of Rs. 10,000/- in default he shall undergo rigorous imprisonment of

one month.

2. The case of the prosecution against the appellant can be

summarized as under.

(i) Prosecutrix was aged about 16 years at the time of incident. She

was residing with her adoptive parents at Rajiv Gandhi Ward, Warora.

Appellant (hereinafter referred to as ‘accused’) is her nearest relative.

He is son of her maternal uncle. In the month of December, 2010,

accused came to her house at Warora and taken her to his house at

Nanda Fata for doing household work because sisters of accused came to

his house for deliveries. Both the sisters of accused resided at his house

for about 2½ months. After delivery, they went to their matrimonial

homes. During that period, she had close relations with the accused but

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their relations were not to the extent of sexual intercourse. On the day

of incident, her maternal uncle and aunt went out of the house.

Accused was alone in his house along with her. Accused threatened

her, beat her and committed forcible sexual intercourse with her.

Complainant told him that she will disclose to his parents. Accused

threatened her to commit suicide. Therefore, she did not disclose the

said incident to his parents. On the next day again, he wanted to do

sexual intercourse. Complainant told him that if she became pregnant,

then what will happen. Appellant promised to marry with her after

breaking engagement with another girl. He did sexual intercourse with

her. After 2-3 days, her maternal aunt reached her to her parents house

at Warora.

(ii) It is alleged in the report that complainant was pregnant. Her

parents enquired with her but she did not disclose. Thereafter her

parents called accused and his parents at Warora. On 17-11-2011, there

was meeting at the house of Damu Pardhi. Accused and his parents

agreed to perform marriage with her in the temple of Lord Vitthal.

Accused went to the house of Sharad Pardhi. He did not reach to

temple of Lord Vitthal for marriage and went to his village. Thereafter

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she lodged report in Police Station, Warora. Same was transferred

to Police Station, Gadchandur for investigation. API Shri Gedam

investigated the crime and after complete investigation, filed charge-

sheet before the Judicial Magistrate First Class, Rajura, who committed

the same to the Court of Sessions at Chandrapur for trial.

(iii) Charge was framed at Exhibit 15. Same was readover and

explained to the accused. Accused pleaded not guilty and claimed to be

tried. Prosecution has examined 9 witnesses. At the conclusion of the

trial, accused is convicted as stated above.

3. Heard learned counsel Shri R. M. Daga for the accused. He

has pointed out evidence of P.W. 1. Learned counsel has submitted that

P.W. 1/victim was more than 16 years of age at the time of incident. She

was in love with the accused. Sexual intercourse took place with her

consent. Therefore, it is not a rape as defined in Section 375 of the

Indian Penal Code.

4. Learned counsel Shri Daga has submitted that accused

married with cousin sister of the complainant. She was knowing the

engagement of accused with her cousin sister at the time of incident.

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Now, the complainant is residing with the wife of accused as they are

cousin sisters. Accused and his family members agreed to maintain the

child born to the accused and complainant. Learned counsel has

submitted that accused has already undergone sentence for about six

months and that may be taken into consideration while deciding offence

of cheating punishable under Section 417 of the Indian Penal Code.

5. Learned counsel Shri Daga has submitted that prosecution

failed to prove the date of birth of the complainant. Document, Exhibit

32/birth certificate is not proved. It has not come from proper custody.

Complainant herself produced the same during the course of cross-

examination. Exhibit 32 was not collected by the Investigating Officer.

Evidence of complainant, her mother and Medical Officer show that she

was aged about 16 years. There was no any medical examination to

determine her age. Hence, prosecution has failed to prove that she was

below 16 years at the time of incident. Learned counsel has submitted

that trial Court not taken into consideration evidence properly and

wrongly convicted the accused, at last, prayed to allow the appeal.

6. Heard learned Additional Public Prosecutor Ms. T. H.

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Udeshi for the State/respondent. She has strongly supported the

impugned judgment.

7. The case of the prosecution based on the evidence of P.W. 1

/prosecutrix. She has stated in her examination-in-chief that accused

forcibly did sexual intercourse with her. She has stated her age at the

time of lodging the report as 16 years. Her mother P.W. 3 Vimal Pardhi

has stated in her examination-in-chief that at the time of incident, she

was aged about 16 years. Investigating Authority not collected legal and

proper evidence to prove the date of birth of prosecutrix. Only bonafide

certificate was collected. It was proved by P.W. 1 victim herself. Date of

birth mentioned in the bonafide certificate issued by the school

authority, Exhibit 25 is not properly proved. Not even a single person

from the school was examined by the prosecution to prove Exhibit 25.

Prosecutrix herself produced birth certificate, Exhibit 32 issued by

Municipal Council, Bhadrawati. This certificate was not collected by the

prosecution during the investigation, therefore, accused had no any

opportunity to properly cross-examine on this point. Even both the

certificates are taken into consideration, then also prosecutrix was aged

about 16 years at the time of incident. Medical Officer, P.W. 4 Dr. Vijay

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Kalaskar has stated in his evidence that when he examined the

prosecutrix, she was 16 years old. This itself shows that prosecutrix was

aged 16 years. Ossification test was not conducted by the Medical

Officer to prove her age. Prosecution failed to prove beyond reasonable

doubt that she was below 16 years of the age at the time of incident. It

appears from the evidence of P.W. 1, P.W. 3 and P.W. 4 and the report,

Exhibit 23 that prosecutrix was aged 16 years at the time of incident.

Prosecutrix has not stated her date of birth in the report, Exhibit 23.

She has stated her age as 16 years. P.W. 3, her adoptive mother has

stated age of prosecutrix as 16 years. P.W. 4 Medical Officer has stated

that prosecutrix was 16 years old. Therefore it has to be seen whether

she had given consent for the sexual intercourse.

8. Section 375 defines ‘rape’ (before amendment of 2013) as

under :-

375. A man is said to commit “rape” who, except in the case
hereinafter excepted, has sexual intercourse with a woman
under circumstances falling under any of the six following
descriptions :-

First. – Against her will.

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Secondly. – Without her consent.

Thirdly. – With her consent, when her consent has

been obtained by putting her or any person in whom she is
interested in fear of death or of hurt.

Fourthly. – With her consent, when the man knows
that he is not her husband, and that her consent is given because
she believes that he is another man to whom she is or believes
herself to be lawfully married.

Fifthly. – With her consent, when, at the time of
giving such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or through
another of any stupefying or unwholesome substance, she is
unable to understand the nature and consequences of that to
which she gives consent.

Sixthly. – With or without her consent, when she is
under sixteen years of age.

Explanation. – Penetration is sufficient to constitute the
sexual intercourse necessary to the offence of rape.

Exception. – Sexual intercourse by a man with his own
wife, the wife not being under fifteen years of age, is not rape.

9. P.W. 1/prosecutrix has stated in her examination-in-chief

that accused forcibly did sexual intercourse with her. But her evidence

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on this point is not reliable because in her report itself she has stated

that accused is her brother-in-law (Mevhana). She was taken by him to

the house of her maternal uncle. She resided there for about 2½

months. During that period, she had closed relations with the accused.

This itself shows that she had love and affection with the accused.

Portion marked ‘A’ of her report was pointed to her but she denied it.

Exhibit 23 proved by her in her evidence. Therefore, contents can be

read as it is. During her cross-examination, she has admitted that

accused was already engaged with her cousin sister at the time of

incident and she was knowing about the same. Material omissions are

brought on record. She has stated in her cross-examination as under.

14. I told police while recording statement and report that
when I declined to have physical relations accused beaten me
mercilessly ; and in evening accused came and again had physical
relations with me ; and when my paternal aunt woke-up, accused
hid himself under the bed and when I resisted accused hit on my
back with his hand. I also told that I did not say anything, I went
on crying ; and my maternal uncle saw me with accused, but he
did not say anything and went to sleep ; and I had menstruation
for two months, but did not get menstruation in third month and
hence accused gave me cloves to eat. I told police that accused said
it will cause miscarriage ; and I stayed there for 1 ½ month and

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my maternal uncle said that there is marriage in 5 th month and he
will leave me in that month ; and still accused used to visit my
house and used to say that even if I am pregnant, he will marry
me. I told police that as I was pregnant of 7 months, my mother
took me to the Hospital of Chandak ; and in Sonography there was
a fetus, hence my mother started crying ; and accused married my
elder uncle’s daughter in a temple. I told police that when we went
to Nandaphata, there was lock to the house but the mother and
brother of accused were inside the house ; and because of falling
utensils, when we saw from the window we came to know. I told
to police that accused went to Chandrapur for marriage. I cannot
say that why all these things are not recorded in my statement and
report. —

10. Evidence of P.W. 2 and P.W. 3 are not material. There is no

dispute that accused had sexual intercourse with the prosecutrix.

Prosecutrix conceived from the accused. DNA samples were sent to the

Forensic Laboratory at Hyderabad. DNA report is at Exhibit 53. As per

the DNA report, accused Pradeep Sunil Bawane and prosecutrix are

concluded to be biological parents of Gunjan Pradeep Bawane. There is

no dispute that prosecutrix delivered female child Gunjan. Her birth

certificate is also placed on record. The name of father of Gunjan is

shown as accused. From the evidence of prosecutrix, it is clear that she

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was in love with the accused and whatever sexual intercourse took place

was with her consent. She was sixteen years old at the time of incident.

Therefore, as per clause sixthly of Section 375 of the Indian Penal Code,

it is not a rape.

11. Prosecutrix was aged 16 years at the time of incident.

Sexual intercourse took place with her consent. Therefore, in view of

definition of ‘rape’ defined under Section 375 of the Indian Penal Code,

it is not a rape. Learned counsel Shri Daga for the appellant has pointed

out decision in the case of Deelip Singh alias Dilip Kumar Vs. State of

Bihar reported in (2005) 1 SCC 88. In this case, Their Lordships of

Hon’ble Supreme Court have held as under :-

The question is : What is the meaning and content of the
expression “without her consent” in Section 375 secondly, IPC ?
Whether the consent given by a woman believing the man’s
promise to marry her is a consent which excludes the offence of
rape ?

Though will and consent often interlace and an act done
against the will of a person can be said to be an act done without
consent, the Indian Penal Code categorises these two expressions
under separate heads in order to be as comprehensive as possible.
Further, it is not easy to find a dividing line between submission

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and consent except in the situation contemplated by clause fifthly
of Section 375 IPC. Yet, the evidence has to be carefully scanned.
The ultimate conclusion depends on the facts of each case.

Another decision pointed out by learned counsel Shri Daga is in the case

of Kaini Rajan vs. State of Kerala reported in (2013) 9 SCC 113. In

this case, Their Lordships of Hon’ble Supreme Court held as under :-

Section 375 IPC defines the expression “rape”, which
indicates that the first clause operates where the woman is in
possession of her senses, and therefore, capable of consenting but
the act is done against her will. The expression “against her will”
means that the act must have been done in spite of the opposition
of the woman.

“Consent” is stated to be an act of reason coupled with
deliberation. It denotes an active will in the mind of a person to
permit the doing of an act complained of. “Consent”, for the
purpose of Section 375, requires voluntary participation not only
after the exercise of intelligence based on the knowledge of the
significance and moral quality of the act but after having fully
exercised the choice between resistance and assent. Whether there
was consent or not, is to be ascertained only on a careful study of
all relevant circumstances. An inference as to consent can be
drawn if only based on evidence or probabilities of the case.

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12. Evidence of prosecutrix shows that she was in love with the

accused. Whatever sexual intercourses took place was with her consent.

Her report itself shows that she was 16 years at the time of incident.

Evidence of P.W. 4, Medical Officer shows that she was 16 years old.

Therefore, in view of the afore stated decisions of the Apex Court, sexual

intercourse with the consent of prosecutrix does not amount to rape.

Learned trial Court wrongly convicted the accused for the offence

punishable under Section 376 of the Indian Penal Code.

13. In respect of offence punishable under Section 417 of the

Indian Penal Code, prosecutrix has stated in her evidence that when

accused was doing sexual intercourse continuously and when she was

opposing him saying that she would conceive, that time, accused told

her that he would break engagement with her cousin sister and will

perform marriage with her. Evidence of prosecutrix/P.W. 1, P.W. 2 and

P.W. 3 show that meeting was called. In that meeting, accused with his

parents were present. Accused agreed to perform marriage with

prosecutrix but instead of performing marriage, he went to the house of

her uncle and thereafter disappeared. Accused cheated her by not

performing marriage with her. Therefore, he is rightly convicted for the

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offence punishable under Section 417 of the Indian Penal Code.

14. During the course of argument, learned counsel Shri Daga

has submitted that prosecutrix with her newly born child is residing in

the house of accused. Wife of accused is her cousin sister. Accused has

undertaken to maintain the prosecutrix and her child Gunjan. Therefore,

this fact may be taken into consideration while deciding the appeal.

15. We have already come to the conclusion that prosecution

has failed to prove the guilt of accused for the offence punishable under

Section 376 of the Indian Penal Code. We have come to the conclusion

that prosecution has proved that the accused cheated the prosecutrix by

not performing marriage with her. Hence, we are inclined to partly

allow the appeal. In the result, we proceed to pass the following order.

ORDER

(I) Criminal Appeal is partly allowed.

(II) The impugned judgment in respect of the offence

punishable under Section 376 of the Indian Penal Code is hereby

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quashed and set aside. Appellant is acquitted of the offence

punishable under Section 376 of the Indian Penal Code.

Conviction for the offence punishable under Section 417 of the

Indian Penal Code is maintained but sentence is modified as

under.

Appellant/accused is convicted for the offence punishable

under Section 417 of the Indian Penal Code and is sentenced to

suffer rigorous imprisonment for six months and to pay fine of

Rs. 50,000/- (Rupees Fifty Thousand Only). In default of

payment of fine, he shall undergo rigorous imprisonment for two

months. Appellant/accused has already paid amount of fine

before the trial Court. Hence, trial Court is directed to deposit

amount of Rs. 50,000/- in the name of Gunjan Pradeep Bawane

(child of victim and accused) for a period of six years. After

maturity, said amount be paid to the prosecutrix on behalf of

Gunjan (minor child). Fine amount, if more, is paid by the

accused, same be refunded to him.

(III) Accused/appellant is in jail for the period of more than six

months. Hence, he be released forthwith, if not required in any

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other crime or case.

(IV) R P be sent back to the trial Court.”

                 JUDGE                                            JUDGE

wasnik

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