(Judgment) (1) Cri. Appeal No. 0300 of 2017

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.

Criminal Appeal No. 0300 of 2017

District : Aurangabad

Santosh s/o. Raising Chavan,
Age : 31 years,
Occupation : Private service,
R/o. Rani Unchegaon, .. Appellant
Taluka Ghansavangi, (Original
District Jalna, accused
at present in no.01)
Harsul Central Jail,
Aurangabad.

versus

1. The State of Maharashtra,
Through Police Station
Incharge,
Begumpura,
Taluka Dist. Aurangabad.

2. “X”
(Prosecutrix – .. Respondents
Original complainant)

………..

Mr. N.K. Kakade, Advocate, for the appellant.

Mr. S.P. Sonpawale, Additional Public Prosecutor,
for respondent no.01.

………..

CORAM : SMT. VIBHA KANKANWADI, J.

Date of reserving
the judgment : 26th July 2018

Date of pronouncing
the judgment : 06th October 2018
(Judgment) (2) Cri. Appeal No. 0300 of 2017

JUDGMENT :

01. Present appeal has been filed by the original
accused challenging his conviction by Special Judge
(Additional Sessions Judge-7), Aurangabad, in Sessions
Case No. 308 of 2011 on 27-06-2017 for the offence
punishable under Sec. 376 of Indian Penal Code and
Sec. 3 (1) (x) of Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act [For short,
“Atrocities Act”].

02. Prosecution has come with a case that
Prosecutrix was aged 24. She was working as Salesgirl
for a detergent company. She was dealing in Marketing.
She was residing with other salesgirls in Shaktinagar,
behind Hotel Devapriya. She used to go to CIDCO area
in connection with her work. Thereafter she has left
that job. She had gone to CIDCO area in connection
with marketing of products, about a year prior to
05.09.2010. She met a person near CIDCO Bus stand.
That man took her to his house near Harsul Jail
Quarter under the guise of purchasing the products. He
did not purchase anything. However, he demanded sexual
favour to her. She refused but he had sexual
intercourse with her by giving threat to kill, as well
as by giving promise to marry and maintain her.
Thereafter, on many occasions he used to take her to
his Harsul Quarter and used to have forcible sexual
intercourse with her. He used to give promise to marry
(Judgment) (3) Cri. Appeal No. 0300 of 2017

every time and was avoiding on one or the other
pretext. He had exploited her sexually since year
prior to July 2010. Thereafter she became pregnant.
She had told this fact to her mother. Prosecutrix and
her mother went to the house of accused and his father
at Harsul Quarter. She disclosed that she is pregnant
from accused and asked him to marry with her. Accused
told that she is Maang by caste, which is inferior and
he has no intention to marry with her. Accused and his
father had then assaulted by fist blows to prosecutrix
and her mother and abused them in filthy language.
They were threatened not to come again and not to make
any complaint with police. Thereafter Prosecutrix went
to police station Begampura and lodged First
Information Report (FIR) on 05-09-2010. On the basis
of said FIR, crime vide C. R. No. 120 of 2010 came to
be registered and investigation was undertaken.

03. Prosecutrix was sent for medical examination.
Panchanama of the spot was executed. Statements of the
witnesses were recorded. Accused persons came to be
arrested. Medical examination of accused No. 1 was
conducted. Samples were collected. Clothes were
seized. Muddemal articles were sent for chemical
analysis. After collecting certificate of caste and
medical examination, charge-sheet was filed. During
the pendency of the trial, prosecutrix gave birth to a
child. The DNA test has been done after obtaining
samples.

(Judgment) (4) Cri. Appeal No. 0300 of 2017

04. Both the accused remained present before the
Special Judge. Charge came to be framed against them.
They pleaded not guilty. Trial has been conducted.
Prosecution has examined 7 witnesses to support its
story. After considering the evidence on record and
hearing both sides, the learned Trial Judge has held
accused No. 1 guilty of committing offence punishable
under Sec. 376 of Indian Penal Code. He has been
sentenced to suffer rigorous imprisonment for 10 years
and to pay fine of Rs.2,000/- i/d. to suffer simple
imprisonment for one month for the said offence.
Accused No. 1 has been further held guilty of
committing offence punishable under Sec. 3 (1) (x) of
Atrocities Act and has been sentenced to suffer
rigorous imprisonment for six months and to pay fine
of Rs. 1,000/- i/d. to suffer simple imprisonment for
one month. He has also been directed to pay
compensation of Rs.1,00,000/- under Sec. 357 of Code
of Criminal Procedure to the prosecutrix and the male
issue. Hence, this appeal by original accused No. 1.

05. It will not be out of place to mention here
that accused No. 1 is acquitted of the offence
punishable under Sec. 323, 504, 506 r/w. 34 of Indian
Penal Code. Accused No. 2 has been acquitted of the
offence punishable under Sec. 323, 504, 506 r/w. 34 of
Indian Penal Code as well as Sec. 3 (1) (x) of
Atrocities Act. Prosecution has not filed any appeal
(Judgment) (5) Cri. Appeal No. 0300 of 2017

against the said acquittal.

06. Heard learned Advocate Shri. N. K. Kakade for
appellant / accused No. 1 and learned A. P. P. Shri.
S. P. Sonpawale for Prosecution. In spite of efforts,
respondent No. 2 could not be served, as she has left
the address given in the FIR. Perused the record and
proceeding.

07. It has been submitted on behalf of appellant
that the prosecutrix was major and therefore, it can
be presumed that she was knowing the consequences of
her acts. FIR Exhibit 15 shows that she came to know
accused on bus stand and she alleges that she was
taken to Harsul quarter under the pretext of
purchasing products. There is no evidence adduced by
prosecution that prosecutrix was serving with a
company on the day of alleged incident. She further
says that accused did not buy anything, but had sexual
intercourse with her under the pretext of marriage.
FIR gives an impression that accused and prosecutrix
were not knowing each other prior to that day. Under
the said circumstance, whether prosecutrix would have
gone along with accused at a far distance and then
would keep mum for so many days on the alleged promise
to marry? Prosecutrix had lodged a written complaint
earlier on 17-08-2010, which is at Exhibit 16. In that
complaint, she has stated that there was love affair
between her and accused. There is vast difference
(Judgment) (6) Cri. Appeal No. 0300 of 2017

between the contents of Exhibits 15 and 16. This shows
the conduct on the part of informant. Further, it is
to be noted that prosecutrix and her mother had
created a scene in front of house of accused persons.
This fact has been brought on record. This fact shows
that informant has lodged the FIR with ulterior
motive. She had not disclosed caste in FIR. How
accused No. 2 would have come to know about the caste
of prosecutrix? Prosecution has not examined any
person who had seen prosecutrix visiting the house of
accused.

08. It has been further submitted on behalf of
appellant that PW 2, mother of the informant, has
supported prosecution but her testimony on the point
of alleged rape is hearsay. PW 3 Raosaheb Sable is
neither helpful to prosecution nor to the accused. PW
4 Gulabkhan Vajirkhan is the panch in whose presence
clothes of the accused came to seized. PW 5 Shantabai
Navgire and PW 6 Sheshrao Rathod have turned hostile.
PW 7 Sandip Bhajibhakre is the Investigating Officer.
If the prosecution evidence is considered, it emerges
that there was love affair between informant and
accused since 2 years prior to FIR. She had not lodged
any complaint about the acts allegedly done earlier.
FIR came to be lodged only when accused No. 1 had
refused to marry. No doubt, she became pregnant and
delivered a male child. The DNA report says that
accused is the father of the child. However, only on
(Judgment) (7) Cri. Appeal No. 0300 of 2017

the basis of DNA report, accused can not be convicted.
Here in this case, prosecutrix is the consenting
party. It has been further argued that as regards the
accused No. 2 is concerned, the learned Trial Court
had rightly acquitted him. The charge under Atrocities
Act was same as regards accused No. 1 and 2.
Therefore, when accused No. 2 has been acquitted from
those charges; how accused No. 1 could have been
convicted? The learned Trial Court has failed to
consider difference between “Rape and Consensual Sex”.

09. Learned Advocate for appellant has relied on
the decision in Abdul Salam v/s. State of M. P. [2006
CRI. L. J. 4734] (MP HC); wherein facts and
circumstances proved that prosecutrix aged about 18
years was a consenting party to the alleged act of
sexual intercourse by accused. It was held that her
consent was not obtained by putting her in fear of
death or hurt. Further reliance has been placed on the
decision of this Court, bench at Nagpur in Anwar Khan
Iqbal Khan v/s. State of Maharashtra [2010 CRI. L. J.
3597] wherein there were series of sexual acts between
prosecutrix and accused within a span of two years.
Prosecutrix had gone on her own to meet accused at
various places and hotel rooms. If those acts were
forcible, then it would not have gone unnoticed by
persons around. It is not the case of the prosecution
that since beginning promise to marry was a hoax and
was made without intention. Therefore, the version of
(Judgment) (8) Cri. Appeal No. 0300 of 2017

the prosecutrix that at all places the accused had
committed forcible sexual intercourse with her, is not
inspiring confidence. She was a consenting party.
Accused came to be acquitted. Further reliance has
been placed on the decision in Uday v/s. State of
Karnataka [2003 CRI. L. J. 1539] wherein prosecutrix
had stated that she had given consent under
‘misconception of fact’. She had the knowledge that
the caste of the accused is different from her and the
marriage will be opposed. She started cohabiting with
accused and then became pregnant. The consent given by
her can not be said to be given under ‘misconception
of fact’. In Deepal Gulati v/s. State of Haryana [AIR
2013 SC 2071] the difference between rape and
consensual sex has been clarified.

10. Learned Advocate for appellant has submitted
that the prosecutrix in this case was also a
consenting party and therefore, conviction awarded to
the accused / appellant deserves to be set aside.

11. Per contra, learned A. P. P. has submitted
that informant has given all the details as to how she
came in contact with accused and under which
circumstance she was taken to his house in FIR Exhibit

15. She has deposed to that effect and has also stated
that under the pretext of purchasing products from
prosecutrix, accused had taken her to his house. He
had forcible sexual intercourse with her. Accused had
(Judgment) (9) Cri. Appeal No. 0300 of 2017

given promise to marry. Each time the accused had
given her promise and prosecutrix believed in what he
said. Since beginning the accused had no intention to
marry. He exploited the informant sexually and refused
to marry with her. Her ‘consent’ was not voluntary.
She can not be termed as consenting party under the
said facts. She became pregnant and therefore, asked
accused to marry her. She has given birth to a male
child during the pendency of trial. The DNA test was
conducted and the report of the expert would show that
accused is the father and informant is the mother of
the child. The said test report clearly show that
there was sexual intercourse between them. Accused
persons were knowing the caste of the informant and
therefore, it was not mentioned in the FIR. She is
member of Scheduled Caste and therefore, accused No. 1
has been rightly convicted under Atrocities Act also.
A well reasoned order has been passed and therefore,
there is no necessity to interfere with the same.

12. Learned A. P. P. Has relied on the decision
in State of U. P. V/s. Naushad [Criminal Appeal No.
1949 of 2013] decided on 19-11-2013 by Hon’ble Supreme
Court]; wherein it was proved that the consent of the
prosecutrix was obtained under misconception of fact.

13. At the outset, a fact is required to be noted
that age of the prosecutrix was 24 years when she
lodged the FIR. The occurrence of the incident was
(Judgment) (10) Cri. Appeal No. 0300 of 2017

around 1 year prior to FIR. She was staying alone at
Aurangabad and she was serving in marketing department
of a Company at that time. That means she was
independent and it can be presumed that she was having
knowledge as to what she is good or bad to her. In
other words, she had sufficient maturity. PW 1 is the
prosecutrix. She has deposed as per her FIR Exhibit

15. It is to be noted from the contents of the FIR
itself (which has been confirmed in her examination-
in-chief) that she does not claim that she was knowing
accused prior to the day on which she met him on CIDCO
bus stop. She has stated that after she met that man
on bus stop, she went with him at Harsul on the
representation that he will purchase the detergent
powder at his quarter. Surprising fact is that she was
selling detergent door to door. That means she would
not have large quantity with her. She does not claim
that said man gave her impression that he will
purchase detergent in large quantity. She does not
claim that she tried to enquire with him as to how
much quantity he require and why she should go with
him. It is impossible that without any such basic
inquiry, she would have gone with him.

14. PW 1 has further deposed that even after
going to the house of said person, he did not purchase
detergent, but demanded sexual favour to him, which
she refused. Then the said person promised her to
marry and then threatened her. He had then committed
(Judgment) (11) Cri. Appeal No. 0300 of 2017

rape on her. She does not say that she had resisted
him in any manner. What threat was given, where
exactly she was in the house, whether there was
anybody in the house, etc. is not disclosed. She has
not stated that after taking her inside the house, the
said person had latched the door. She is also silent
on what conversation took place between them,
immediately after entering the house. There is no
explanation about why she should allow the person to
close the door of the house, if at all it was closed.
When she would have realized that the person is not in
a mood to purchase detergent, why she had not left the
house? Even after that person had allegedly demanded
sexual favour to her and she had refused it, why she
should remain in the house and why she had not
attempted to come out of the house? According to PW 1,
the said person had promised her to marry first. When
she was not knowing the person including his name, his
background, regarding his family, etc who she would
have believed in his statement? She has not stated as
to what was her reaction after that person promised
her to marry. She has not stated what was the threat
given to her. At the cost of repetition, it can be
seen that she has not given place of alleged rape
inside the house. Her subsequent conduct on that day
is also required to be seen. If everything had taken
place without her consent, then why she did not lodge
complaint on that day itself or within a reasonable
period from that day. No reason has been assigned for
(Judgment) (12) Cri. Appeal No. 0300 of 2017

the same. When so many questions have been left
unanswered, it is hard to believe such prosecutrix on
the point of rape. The FIR Exhibit 15 as well as the
testimony of PW 1 gives an impression that she has not
given true facts or she was hiding certain facts. She
has left missing links. The difference between
consensual sex and rape elaborated in Deepak Gulati’s
case (supra) is definitely required to be considered.
It has been observed that, “Consent may be express or
implied, coerced or misguided, obtained willingly or
through deceit. Consent is an act of reason,
accompanied by deliberation, the mind weighing, as in
a balance, the good and evil on each side. There is a
clear distinction between rape and consensual sex and
in a case like this, the court must very carefully
examine whether the accused had actually wanted to
marry the victim, or had mala fide motives, and had
made a false promise to this effect only to satisfy
his lust, as the latter falls within the ambit of
cheating or deception. There is a distinction between
the mere breach of a promise, and not fulfilling a
false promise. Thus, the court must examine whether
there was made, at an early stage a false promise of
marriage by the accused; and whether the consent
involved was given after wholly, understanding the
nature and consequences of sexual indulgence. There
may be a case where the prosecutrix agrees to have
sexual intercourse on account of her love and passion
for the accused, and not solely on account of mis-

(Judgment) (13) Cri. Appeal No. 0300 of 2017

representation made to her by the accused, or where an
accused on account of circumstances which he could not
have foreseen, or which were beyond his control, was
unable to marry her, despite having every intention to
do so. Such cases must be treated differently. An
accused can be convicted for rape only if the court
reaches a conclusion that the intention of the accused
was mala fide, and that he had clandestine motives”.
Here in this case, prosecutrix does not say that she
believed in the promise to marry given by accused on
that day.

15. She has further deposed that thereafter time
to time, accused was taking her to his quarter under
threats and committing rape on her. First and the
foremost question is that when both of them were
unknown to each other, how accused had established
contact with her on subsequent occasions? She has not
stated that on that day itself accused had taken her
address from her, with her mobile number, etc. If the
said statement of prosecutrix is to be believed then
each time when such act was allegedly done by accused,
she had a right to lodge complaint. She has not
explained as to why she had not lodged it. All the
time she is stated to have not given consent. Then why
she was going with him or responding to the call of
the accused? Which kind of threats were given by
accused has not been again explained. Only vague
statement to that effect is made. At another breath
(Judgment) (14) Cri. Appeal No. 0300 of 2017

she has deposed that accused was promising her to
perform marriage with her. She does not say whether
each time she believed in his so called promises? She
has not stated that since promise to marry was given,
and she believed, though initially she had not
consented, she kept relations with accused. She does
not say that at some point of time she had tried to
gather details about accused and his family and also
told her details. She has not stated that after the
alleged act was done, she wanted to marry accused. If
she had no intention to marry with him, why she was
responding to him? She has stated that accused
committed rape on her till July 2010. According to
her, first act was done in September 2009 (One year
prior to 05-09-2010). That means she allowed the
accused to commit rape on her for a period of 8-9
months. She has not stated that accused used to give
threat each time the act was done that she should not
disclose it to anybody and therefore she kept quiet.
Therefore, when there was no hurdle for her to lodge a
report with Police, she has not approached any
authority. There is no explanation to that effect in
her testimony. Again the impression is created that
she is not telling a true story. It could not have
been a natural conduct of a lady under such
circumstance.

16. PW 1 has deposed that she disclosed all the
facts to her mother only after she became pregnant. PW
(Judgment) (15) Cri. Appeal No. 0300 of 2017

2 is the mother of the prosecutrix. She has also
stated that her daughter had disclosed about rape
after she became pregnant. Therefore, the part of her
testimony prior to her knowledge can not be
considered.

17. There is no dispute about the fact that
prosecutrix is member of Scheduled Caste. However, PW
1 has not stated that she had disclosed her caste to
accused prior to July 2010. Accused should know her
caste before the incident and then only there can be a
case under Atrocities Act. Both the witnesses have
stated about the incident in July 2010 which allegedly
took place in front of quarter of accused No. 2. It is
to be noted that the learned Additional Sessions Judge
has acquitted accused No. 2 from the charges of
Atrocities Act regarding the incident on that day.
Both the witnesses have deposed that both the accused
had uttered the same words and did similar acts. Then
rightly the question is asked by learned Advocate for
appellant that how and under what circumstance accused
No. 1 can be held responsible. Accused No. 1 ought to
have been acquitted under those charges on the ground
of parity. Prosecutrix has not come with a case that
accused No. 1 had knowledge about her caste and
therefore, had decided to ravish her and sexually
exploit her.

18. It appears that what has prompted learned
(Judgment) (16) Cri. Appeal No. 0300 of 2017

Trial Court is the positive report of DNA. No doubt,
the result of DNA showed that the prosecutrix and
accused No. 1 are the biological parents of the child
born to prosecutrix. However, the said report ipso
facto does not presume that prosecutrix would have
been raped. Prosecution should rule out the
possibility of consensual sex in this case.
Prosecutrix has tried to blow hot and cold at the same
time by saying at one hand that she was raped i.e. had
not given consent for sexual intercourse and at
another breath tries to say that her consent was
obtained by giving promise to marry. She is not using
the words ‘false promise to marry’. She has not stated
that her consent was obtained by misconception.
Offence under Sec. 376 of Indian Penal Code can not be
proved when there are these two set of theories.
Therefore, the ratio laid down in State of U. P. V/s.
Naushad (supra) will not come to the help of
prosecution. Whether ‘consent’ is freely given or
obtained by putting a victim in fear will depend on
facts of each case. Here in this case, prosecution has
failed to prove that prosecutrix had not given consent
for the sexual intercourse. There is inordinate
unexplained delay in lodging FIR. It goes to the root
of the matter. Further, even after the alleged
incident in July 2010, when it was clear to
prosecutrix that accused will not perform marriage
with her; why she did not approach Police immediately.
F. I. R. Exhibit 15 has been filed on 05-09-2010.

(Judgment) (17) Cri. Appeal No. 0300 of 2017

Thus, already there was delay in lodging the report
regarding rape, and then further delay has been caused
in respect of Atrocities Act also.

19. There is no necessity to discuss other
evidence on record. An accused can be convicted for
the offence punishable under Section 376 of Indian
Penal Code on the basis of sole testimony of
prosecutrix. However, in this case the evidence of
prosecutrix does not inspire confidence. Ingredients
of the offence under which the learned Trial Court has
convicted the accused No. 1 / present appellant are
not attracted at all. The case has not been proved by
the prosecution beyond reasonable doubt. Learned Trial
Court has not taken into consideration all the above
reasons. Therefore, the conviction deserves to be set
aside by allowing the appeal.

20. Learned Trial Court has granted compensation
of Rs. 1,00,000/- to the prosecutrix and the male
child under Section 357 of Code of Criminal
Procedure. Since the appeal deserves to be allowed,
the order of payment of compensation is also required
to be set aside. Another point as to why this order of
compensation is not sustainable is that, the learned
Trial Judge has not clarified as to whether the said
order is passed under Section 357 (1) of Code of
Criminal Procedure or under Section 357 (3) of Code of
Criminal Procedure. There is difference between these
(Judgment) (18) Cri. Appeal No. 0300 of 2017

two provisions. When compensation is to be awarded
under Section 357 (1) of the Code, then it should be
out of the fine amount only. If the compensation is to
be awarded under Section 357 (3), then the fine should
not be ‘the part of sentence’. Hon’ble Apex Court in
Dilip S. Dahanukar v/s. Kotak Mahindra Co. Ltd. And
Anr., [(2007) 6 SCC 528], has differentiated between
fine and compensation. It has been observed that “the
distinction between Sub-Sections (1) and (3) of
Section 357 is apparent. Sub- section (1) provides for
application of an amount of fine while imposing a
sentence of which fine forms a part; whereas Sub-
Section (3) calls for a situation where a Court
imposes a sentence of which fine does not form a part
of the sentence”. Further it has been observed that,
“We must, however, observe that there exists a
distinction between fine and compensation, although,
in a way it seeks to achieve the same purpose. An
amount of compensation can be directed to be recovered
as a ‘fine’ but the legal fiction raised in relation
to recovery of fine only, it is in that sense `fine’
stands on a higher footing than compensation awarded
by the Court.”

21. Here in this case, while convicting accused
No. 1 under both the sections, the learned Trial Court
has awarded fine of Rs.2,000 and Rs. 1,000/-
respectively. That means the fine was part of the
sentence awarded under those sections. If the
(Judgment) (19) Cri. Appeal No. 0300 of 2017

compensation could have been awarded under Section 357
(1) of the Code, then it ought to have been out of the
said amount of fine. When the compensation has been
awarded to the tune of Rs.1,00,000/- then fine ought
not to have been awarded. On this count also the said
order of payment of compensation is not sustainable.
If there are any rights to the said male child of
accused No. 1, then they can be exercised by any set
of legal mode.

22. For the above-said reasons following order is
passed.

ORDER

1. Appeal is hereby allowed.

2. Conviction awarded to the appellant
Santosh Raysing Chavan in Sessions Case
No. 308 of 2011 on 27-06-2017 by Special
Judge (Additional Sessions Judge-7),
Aurangabad, for the offence punishable
under Section 376 of Indian Penal Code
and Section 3 (1) (x) of the Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act is hereby set aside.

3. Appellant be set at liberty if not
required in any other case.

(Judgment) (20) Cri. Appeal No. 0300 of 2017

4. The order of payment of compensation to
the prosecutrix and her male child is
also hereby set aside.

5. It is clarified that the rest of the
order passed by the learned Trial Court
is hereby maintained.

6. Appellant to execute bond of Rs.15,000/-
with surety of like amount in view of
Section 437A of Code of Criminal
Procedure, before his release. Duration
of his bond would be for six months from
the date of execution.

( Smt. Vibha Kankanwadi )
JUDGE

………..

puranik (#) / resCRIAPEAL300.17

Digitally signed
by Bhagwan
Bhagwan Govindrao
Puranik
Govindrao Date:
Puranik 2018.10.06
10:57:41
+0530