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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.108 of 1998
Sandeep son of Kaniram
Rathod,
aged 30 years,
resident of Barad Tanda
[Police Station Wadgaon],
in District Yavatmal. .... Appellant.
ig Versus
The State of Maharashtra,
through Police Station
Officer, Wadgaon
Police Station in
Distt. Yavatmal. .... Respondent.
*****
Mr. R.P. Joshi, Adv., for the appellant.
Mr.C.N. Adgokar, Addl. Public Prosecutor for the
respondent.
*****
CORAM : A.H. JOSHI, J.
Date : 24h June, 2010.
ORAL JUDGMENT :
1. The appellant was charged for commission of
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offence punishable under Section 376 of Indian Penal Code.
Charge framed against the appellant reads as follows:-
That you on and before 23-11-96 at
village Kolambi PS Wadgaon committed rape
several times on a girl namely Ku. Renuka d/o
Namdevrao Chavhan aged about 16 years r/o
Kolambi and thereby committed an offence
punishable u/s 376 of the I.P. Code and withinthe cognizance of this special court.
[Quoted from page no. 12 of the Record and Proceedings of
Sessions Trial No. 27 of 1997].
2. The appellant has been convicted and sentenced for
said offence. This is an appeal against said conviction and
sentence.
3. Heard learned Adv. Mr. R.P. Joshi for the
appellant and learned APP Mr. C.N. Adgokar for the
respondent.
4. The gist of submission in support of appeal is
that:-
[a] The First Information Report,
investigation, charge and evidence are
totally divergent.
[b] The case begins with the story of rape,
and is developed as consented sexual
relationship on mistaken belief for
promise to marry.
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[c] The plea of mistaken belief is not
available to the prosecution.
[d] A girl, who keeps sexual relationship
with the accused on the promise of
marriage, which is lateron broken by the
accused, cannot be said to have agreedfor the sexual relationship on a
mistaken belief.
[e] Finding recorded by the Sessions Judge
in Para 49 of his Judgment is contrary
ig to facts on record and law as laid down
in case of Uday Vs. State of Karnataka
[cited supra].
5. Learned Adv., for the appellant has placed
reliance on the reported Judgment of Hon’ble Supreme Court
in case of [1] Uday Vs. State of Karnataka [(2003) 4 SCC
46], [2] unreported Judgment of this Court rendered in
Criminal Appeal No. 35 of 2010 [Anwar Khan Iqbal Khan Vs.
th
State of Mah.]; decided on 27 April, 2010, and [3]
Judgment of Jharkhand High Court in case of Sarimoni Mahato
Vs. Amulya Mahato & another [2002 Cri.L.J. 3271].
6. Learned APP Mr. C.N. Adgokar has vehemently
supported impugned judgment.
7. The question arising in this appeal is as
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follows:-
Whether the sexual intercourse by the accused
with the prosecutrix was without her consent,or with her consent which was given under
misconception, and whether the facts as proved
do constitute offence under Section 376 ofIndian Penal Code?
8. This Court has perused the impugned judgment and
the record.
9. Paragraph
ig No.1 of the oral evidence of the
prosecutrix reads as follows:-
1. Since my birth I reside with my father
at Kolambi. Incident took place before 12
months. Since before incident my father and
the accused were acquainted with each other.
Accused was serving in the forest office behind
my house at Kolambi.
Accused used to visit my house.
Myself, my parents, brother, wife of brother
and a younger sister all were residing jointly.
In the presence of my father and
others accused was visiting my house and afterdrinking water he was going back.
All other family members used to go to
the field and I was required to stay alone at
the house.
While I was staying alone accused was
visiting my house.
He stated before me that he would
perform marriage with me. One day in the
afternoon he came.
He asked for water. When I had gone
to bring water he came behind me.
He pressed my mouth and committed
sexual intercourse with me. He threatened me
for life in case I disclose the fact to my
parents.
He told me that if you don’t disclose
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then I would perform marriage with you.
He told me that he is a well placed.
After this incident he used to come to
my house while I was staying alone. He used to
commit sexual intercourse with me. For aboutsix months he continued as such.
[Quoted from page no.17 of the Record and Proceedings of
Sessions Trial No. 27 of 1997. Sub-paragraphng is done for
convenience of reading].
10. It is seen from the statement of Investigating
Officer that version of the prosecutrix that the accused
pressed her mouth
ig and committed rape on her was an
improvement while in the witness box. PW 1 Ku. Renuka
Chavan had not told this information to Investigating
Officer. Version of PW 7 Mohd. Shafi Mohd. Isak Sheikh,
P.S.I., in Para 9 of the Cross-Examination reads as
follows:-
9. I recorded statement of Renuka.
She had not stated in her statement
that accused pressed her mouth and threatened
for her life in case she discloses it to her
parents.
She had not stated that Sandip told
her that if she does not disclose the incident
to her parents then only he would marry her.
[Quoted from page no. 65 of the Record and Proceedings of
Sessions Trial No. 27 of 1997. Sub-paragraphing is done
for convenience of reading].
11. In the background of the aforesaid evidence, it
would be useful to see the manner in which the case was
seen by the learned Sessions Judge.
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12. The learned Judge observed in para 49 of her
Judgment that Section 90 of Indian Penal Code gets
attracted. The reasons are recorded in this regard in the
said Para 49 which is quoted below for ready reference:-
49. In the instant case proposition of law
laid down in the above cited Madras authority
is mutatis-mutandis applicable but facts are
distinguishable. Here accused has come with a
case that he was a married man having a maleissue. It is so then promise of marriage given
by him to the prosecutrix was false to his own
knowledge and certainly he had no intention ofmarrying her. PW 4 Namdevrao and PW 6
Santaribai parents of the prosecutrix have
stated that after their daughter told them that
accused is responsible for causing herpregnancy, PW 4 Namdevrao had gone and brought
the accused to his house. He asked the accused
that he had ravished their daughter and so he
should marry her to which accused refused for
marriage saying that he does not like theprosecutrix.
It has been stated by the prosecutrix
in her evidence that accused assured her of
marriage but subsequently refused for the same.
In view of these facts and
circumstances here Section 90 of the Indian
Penal Code can be invoked and it has to be heldthat consent of the prosecutrix was under
misconception of fact and not at her free will.
This being the position, act of the
accused falls under IInd clause of Section 375
which is actionable under section 376 of the
Indian Penal Code.
[Quoted from page no. 35 and 36 of the appeal paper-book.
Sub-paragraphng is done for convenience of reading].
13. Learned Sessions Judge recorded a finding in para
39, as to age of prosecutrix which reads as follows:-
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39. In the instant case ossification test
report Ex.67 which shows age of prosecutrix as18 years plus minus one year makes it clear
that at the time of incident prosecutrix was
more than 16 years old. Moreover there can bean error between the periphery of two years on
either side as laid down by the superior courts
from time to time and therefore age of the
prosecutrix in this case at the relevant time
was in between 16 to 20 years.
I am therefore inclined to believe
that prosecutrix was more than 16 years old as
the benefit of advantage has to go in favour of
the accused.
[Quoted from page no. 28 of the appeal paper-book. Sub-
paragraphing is done for convenience of reading.
Underlining is done to highlight important and relevant
portion].
14. In regard to sexual acts of accused, learned
Sessions Judge has recorded a finding in para 56 of her
Judgment as follows:-
56. From the evidence of prosecutrix, her
report Ex.28 and statement under section 161
Cr. P. Code it clearly emerges that accused
committed sexual intercourse with her under a
false promise of marriage and she consented to
the act under misconception of fact.
In this factual situation the question
of age of the prosecutrix would be
insignificant as prosecutrix was subjected to
sexual intercourse by the accused without her
consent at free will.
From the material on record I have to
come to an unhesitating conclusion thatprosecutrix was made a victim of lust of the
accused in the manner deposed to by her without
hr consent at free will and as I conclude that
prosecution succeeds in booking the act of the
accused under IInd clause of Section 375
actionable under Section 376 of the Indian
Penal Code. I accordingly answer point No.1 in
the affirmative.
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[Quoted from page nos. 41 and 42 of the appeal paper-book.
Sub-paragraphing is done for convenience of reading.
Underlining is done to highlight important and relevant
portion].
15. It is seen from the analysis of the evidence of PW
1 Ku. Renuka Namdev Chavhan that :-
rd
[a] On 23 November, 1996, seeing that the
prosecutrix is alone at house, accused
entered her house, asked for drinking
water and expressed desire to marry her.
[b]
Seeing that the prosecutrix did not give
any response, he left the house.
[c] On the next day, again he entered the
house of the prosecutrix when she was
alone and committed forcible sexual
intercourse with her and told her not todisclose it by promising to marry.
[d] Sexual relationship continued for six
months on the assurance of marriage.
[e] The prosecutrix carried pregnancy of six
months, and when asked the accused to
marry, he refused.
16. It is seen that the very foundation of prosecution
case is of first act of rape followed by long sexual
relationship based on a promise to marry.
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17. Had the case of prosecution stopped at first act
of sexual assault, the case may have had a different
portray. It would have been a case of rape which was
reported late, i.e., only when the assault had produced
pregnancy.
18. On the story as is couched by the prosecution,
though first act was forcible, the prosecutrix has
permitted sexual access to the accused for long period of
six months.
19. First act of forcible sexual assault seems to have
been disbelieved, and all sexual acts subsequently
committed by the accused are accepted by the Court to be
under consent of prosecutrix which consent was given due to
the mistaken belief that the accused would marry her.
20. Moreover, first act being forcible is a serious
omission, which is proved from the testimony of the
Investigating Officer. The prolonged sexual relationship,
therefore, creates a strong doubt about first act too being
forcible.
21. It is not the case of prosecution that the
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prosecutrix was made to believe that they are already
married and on such mistaken belief of existence of
matrimonial ties, that a sexual relationship was
established.
According to prosecution story, the sexual
relationship continued for day-today basis for six months,
while accused had continued to promise to marry.
22. From what is discussed herein before, it is
evident that:-
[1]
The accused was charged for rape
simpliciter.
[2] Story about forcible rape is narrated in
evidence, but the prosecutrix has
connived at said forcible act due topromise to marry which had followed the
act of rape.
[3] The prosecution has then converted the
story of sexual relationship under a
mistaken belief and hence rape.
[3] Learned Sessions Judge fell in the trap
of prosecution by totally misdirecting
the trial, which resulted into a
conviction, ordered without a charge.
23. It is seen that the case of the prosecution as
brought before the Court through the evidence of
prosecutrix is based on sexual relationship on a promise to
marry which promise is broken by the accused. This plea
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contradicts the plea of mistaken belief. Moreover, age of
prosecutrix is proved to be around 18 years.
24. It is material to see that the charge does not
contain any imputation, such as promise to marry and based
thereon, sexual relationship.
25. It is pertinent to note that any time thereafter
charge was not modified or altered.
26.
The learned Sessions Judge was carried away with
the evidence that had come, in total distraction from the
charge and contradicting and destroying the basic story of
the prosecution case.
27. In the result, this Court is convinced that
present case is a replica of State of Karnataka Vs. Uday
[cited supra], and more or less similar to the unreported
judgment of this Court relied by the appellant and the
story of sexual relationship under a mistaken belief and
hence a rape, as developed in the process of trial, does
not stand in the eye of law.
28. In the result, the conviction and sentence under
appeal cannot sustain.
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Appeal succeeds. Judgment and order of conviction
is set aside.
JUDGE
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