IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 106 OF 2002
Shri Balu s/o Mahadu Jagdhane,
Age : 20 years, Occu. Labour,
R/o Satana, Tal. and Dist. APPELLANT
Aurangabad (ORIG. ACCUSED)
VERSUS
The State of Maharashtra
through Police Station, Karmad,
Tal. and Dist. Aurangabad RESPONDENT
—-
Mr. N.S. Choudhari, Advocate for the Appellant
Mr. P.N. Kutti, A.P.P. for the respondent/State
—-
CORAM : SANGITRAO S. PATIL, J.
DATE : 3rd AUGUST, 2017
ORAL JUDGMENT :
Heard the learned counsel for the appellant
and the learned A.P.P.
2. The appellant has challenged his conviction
and sentence for the offence punishable under section
376 of the Indian Penal Code (“IPC”, for short),
recorded on 25th January, 2002 by the learned
Additional Sessions Judge, Aurangabad in Sessions Case
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No. 206 of 2000.
3. It is alleged that since after six months prior
to 20th January, 2000, the appellant committed rape on
the prosecutrix aged about 20 years on the pretext of
performing marriage with her and committed breach of
that promise after she became pregnant from him.
4. The prosecutrix lodged report in Police
Station, Karmad on 20th January, 2000. On the basis of
that report, the Crime No. I-8/2000 came to be
registered against the appellant for the above mentioned
offence. The investigation followed. The statements of
the witnesses were recorded. The medical examination of
the appellant and that of the prosecutrix was conducted
by the Medical Officer. After completion of the
investigation, the appellant came to be prosecuted for
the above mentioned offence.
5. The prosecution examined the prosecutrix and
one Sakharam (PW2), the maternal uncle of the
prosecutrix. The prosecution then examined the
Investigating Officer and closed the evidence.
6. It is the defence of the appellant that he
never promised the prosecutrix of performing marriage
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with her and that she lodged false report against him.
7. The prosecutrix states that she is physically
handicapped as both of her legs have been paralyzed
since her childhood. She started residing at the house
of her maternal uncle i.e. Sakharam (PW2) since before
1½ year prior to the incident in the hutment area of
Satana, Taluka and District Aurangabad. The appellant
was residing in the same area. She was in talking terms
with him. Once, he expressed to have sexual intercourse
with her. She was not ready for that. The appellant
promised that he would marry to her. Therefore, she gave
consent for sexual intercourse. He had sexual
intercourse for about 4 to 5 times. She became pregnant
out of the said intercourse. She disclosed the appellant
about that fact and asked him to marry her, whereon he
refused on the say that he would not marry a disabled
person like her. Then she informed about her physical
relations with the appellant to Sakharam (PW2).
According to her, she had not given consent for sexual
intercourse with the appellant, but he forcibly
subjected her to sexual intercourse every time. She was
carrying of six months from the appellant. Therefore,
she lodged report (Exh-40). She states that she
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delivered a female child which died within a month of
her delivery.
8. It has come in the cross-examination of the
prosecutrix that the appellant belongs to Matang
community, while she is a Boudh. She states that the
appellant was not her relative.
9. The learned counsel for the appellant submits
that the evidence of the prosecutrix is not at all
natural, probable and believable. There are material
omissions in her evidence. The fact that she was not
ready for intercourse with the appellant but she gave
consent because he promised to marry her, was not stated
by her before the police. Moreover, the fact that she
had not given consent for sexual intercourse, but the
appellant exercised force and had sexual intercourse
with her every time, also is not stated by her before
the police. He submits that had the appellant forced
the prosecutrix to have sexual intercourse without her
consent or had obtained her consent on the pretext of
getting married to her, she certainly would have stated
these facts before the police. She has stated these
facts by way of improvements. He then submits that the
prosecutrix was physically handicapped. She was aged
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about 20 years. There was no reason for the appellant to
promise her to perform marriage with her and on the
strength of that promise, to have sexual intercourse
with her. He then submits that the prosecutrix has
admitted that there were houses of other persons and
relatives of Sakharam (PW2) near his house, where the
appellant is alleged to have raped her. The prosecutrix
states that when the appellant forced her to have sexual
intercourse with her, she had raised shouts. He submits
that had the prosecutrix raised shouts, the relatives of
Sakharam (PW2) and other persons residing in the
vicinity certainly would have noticed that fact and
would have come to the rescue of the prosecutrix.
Nobody has been examined to establish that the appellant
had any occasion to visit the house of Sakharam (PW2)
for meeting the prosecutrix at any point of time. Even
Sakharam (PW2) also does not state so. He further
submits that there is no medical evidence to establish
that the appellant had sexual intercourse with the
prosecutrix. The child begotten by the prosecutrix also
was not subjected to DNA test so as to establish its
paternity. He, therefore, submits that the prosecution
has totally failed to establish guilt of the appellant.
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10. On the other hand, the learned A.P.P. submits
that the appellant took undue advantage of the physical
disability of the prosecutrix and committed sexual
intercourse with her on the false pretext of performing
marriage with her. He, therefore, submits that the
Trial Court has rightly convicted the appellant.
11. The learned counsel for the appellant relied on
the judgment in the case of Uday Vs. State of Karnataka
(2003) 4 SCC 46. The facts of that case, as narrated in
paragraph No. 23 of the judgment, are as under:-
“In the instant case, the prosecutrix was a
grown-up girl studying in a college. She was
deeply in love with the appellant. She was,
however, aware of the fact that since they
belonged to different castes, marriage was not
possible. In any event the proposal for their
marriage was bound to be seriously opposed by
their family members. She admits having told
so to the appellant when he proposed to her the
first time. She had sufficient intelligence to
understand the significance and moral quality
of the act she was consenting to. That is why
she kept it a secret as long as she could.
Despite this, she did not resist the overtures
of the appellant, and in fact succumbed to
them. She thus freely exercised a choice
between resistance and assent. She must have::: Uploaded on – 07/08/2017 08/08/2017 02:40:05 :::
7 criapl106-2002known the consequences of the act, particularly
when she was conscious of the fact that their
marriage may not take place at all on account
of caste considerations. All these
circumstances lead us to the conclusion that
she freely, voluntarily and consciously
consented to having sexual intercourse with the
appellant, and her consent was not in
consequence of any misconception of fact.”
12. In the same judgment, in paragraph No.21, the
Hon’ble the Apex Court observed as under:-
“It therefore appears that the consensus of
judicial opinion is in favour of the view that
the consent given by the prosecutrix to sexual
intercourse with a person with whom she is
deeply in love on a promise that he would
marry her on a later date, cannot be said to
be given under a misconception of fact. A
false promise is not a fact within the meaning
of the Code. We are inclined to agree with
this view, but we must add that there is no
straitjacket formula for determining whether
consent given by the prosecutrix to sexual
intercourse is voluntary, or whether it is
given under a misconception of fact. In the
ultimate analysis, the tests laid down by the
courts provide at best guidance to the
judicial mind while considering a question of
consent, but the court must, in each case,::: Uploaded on – 07/08/2017 08/08/2017 02:40:05 :::
8 criapl106-2002consider the evidence before it and the
surrounding circumstances, before reaching a
conclusion, because each case has its own
peculiar facts which may have a bearing on the
question whether the consent was voluntary, or
was given under a misconception of fact. It
must also weigh the evidence keeping in view
the fact that the burden is on the prosecution
to prove each and every ingredient of the
offence, absence of consent being one of
them.”
13. In the present case, the prosecutrix was aged
about 20 years in the year 2000. She was quite
competent to take decision that was in her interest.
Though she was physically handicapped as both of her
legs were paralyzed since her childhood, she was
sufficiently intelligent to understand the consequences
of her acts. The prosecutrix and the appellant were not
belonging to the same community. There was least
possibility of their getting married. Therefore, the
contention of the prosecutrix that she consented to have
sexual intercourse with the appellant since he promised
to perform marriage with her, does not stand to reason.
14. The second version of the prosecutrix that the
appellant forced her to have sexual intercourse with her
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though she raised shouts is not at all natural and
probable. Had the appellant committed sexual intercourse
with her against her wish and resistance and had she
raised shouts, attention of the persons residing in the
vicinity certainly would have been attracted and the
appellant certainly would have been questioned by them
for his misdeeds. Nothing of that sort ever happened.
Even Sakharam (PW2), the maternal uncle of the
prosecutrix, with whom she was residing, does not state
that the prosecutrix made any grievance at any point of
time against the appellant until she lodged report after
becoming pregnant of six months. The overall facts of
the case clearly indicate that the prosecutrix was a
consenting party to the sexual intercourse with the
appellant.
15. The prosecutrix seems to be a willing party to
have sexual intercourse with the appellant. There is no
explanation given by the prosecutrix as to why she did
not lodge report against the appellant or made any
grievance against him for having sexual intercourse with
her until she became pregnant of six months. This delay
in lodging the report itself creates doubt about the
case of the prosecution that the appellant had sexual
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intercourse with the prosecutrix against her will.
16. The case of the prosecution that the appellant
committed rape on the prosecutrix on the pretext of
getting married with her is not at all believable.
Except the bare words of the prosecutrix, there is no
either direct or circumstantial evidence to show that
the appellant had sexual intercourse with her on the
false pretext of getting married with her or forced her
to have sexual intercourse with her.
17. The learned Trial Judge did not appreciate the
evidence of the prosecution properly and held the
appellant guilty of the offence mentioned above, merely
on surmises and conjectures. The finding recorded by
the learned Trial Judge holding the appellant guilty of
having committed rape on the prosecutrix is not
sustainable. The prosecution has failed to prove guilt
of the appellant for the above mentioned offence. He is
liable to be acquitted. Hence, I pass the following
order:-
O R D E R
(i) The Criminal Appeal is allowed.
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(ii) The impugned judgment and order, dated 25th
January, 2002 passed by the Additional Sessions Judge,
Aurangabad in Sessions Case No. 206 of 2000, convicting
the appellant for the offence punishable under Section
376 of the Indian Penal Code are quashed and set aside.
(iii) The appellant is acquitted of the offence
punishable under Section 376 of the Indian Penal Code.
(iv) The bail bonds of the appellant are cancelled.
He is set at liberty.
(v) The appeal stands disposed of accordingly.
[SANGITRAO S. PATIL]
JUDGE
npj/criapl106-2002
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