{"id":174050,"date":"2010-06-24T00:00:00","date_gmt":"2010-06-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/police-station-wadgaon-vs-the-state-of-maharashtra-on-24-june-2010"},"modified":"2015-12-04T00:13:55","modified_gmt":"2015-12-03T18:43:55","slug":"police-station-wadgaon-vs-the-state-of-maharashtra-on-24-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/police-station-wadgaon-vs-the-state-of-maharashtra-on-24-june-2010","title":{"rendered":"Police Station Wadgaon vs The State Of Maharashtra on 24 June, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Police Station Wadgaon vs The State Of Maharashtra on 24 June, 2010<\/div>\n
Bench: A. H. Joshi<\/div>\n
                                     1\n\n\n\n\n                                                                          \n                                                  \n            IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                       NAGPUR BENCH : NAGPUR\n                   Criminal Appeal No.108 of 1998\n\n\n\n\n                                                 \n     Sandeep son of Kaniram\n     Rathod,\n     aged 30 years,\n     resident of Barad Tanda\n\n\n\n\n                                \n     [Police Station Wadgaon],\n     in District Yavatmal.                         ....             Appellant.\n                    ig           Versus\n                  \n     The State of Maharashtra,\n     through Police Station\n     Officer, Wadgaon\n     Police Station in\n     Distt. Yavatmal.                              ....            Respondent.\n      \n   \n\n\n\n                                 *****\n\n     Mr. R.P. Joshi, Adv., for the appellant.\n\n\n\n\n\n     Mr.C.N. Adgokar,    Addl.       Public        Prosecutor           for       the\n     respondent.\n                                 *****\n\n\n                                  CORAM       :     A.H. JOSHI, J.\n<\/pre>\n
                                  Date        :      24h     June, 2010.\n\n\n     ORAL JUDGMENT :\n\n\n     1.      The   appellant   was       charged       for      commission          of\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 16:03:31 :::<\/span>\n                                             2<\/span>\n<\/pre>\n
     offence punishable under Section 376 of Indian Penal Code.\n<\/p>\n
     Charge framed against the appellant reads as follows:-\n<\/p>\n
                        That you on and before 23-11-96 at<\/p>\n
              village Kolambi PS Wadgaon committed rape
\n              several times on a girl namely Ku. Renuka d\/o
\n              Namdevrao Chavhan aged about 16 years r\/o
\n              Kolambi  and   thereby  committed   an offence
\n              punishable u\/s 376 of the I.P. Code and within<\/p>\n
              the cognizance of this special court.\n<\/p><\/blockquote>\n
     [Quoted from page no. 12 of the Record and Proceedings of
\n     Sessions Trial No. 27 of 1997].\n<\/p>\n
     2.       The appellant has been convicted and sentenced for<\/p>\n
     said offence. This is an appeal against said conviction and<\/p>\n
     sentence.\n<\/p>\n
     3.       Heard      learned      Adv.       Mr.        R.P.    Joshi      for      the<\/p>\n
     appellant     and   learned      APP       Mr.    C.N.        Adgokar      for     the<\/p>\n
     respondent.\n<\/p>\n
     4.       The gist of submission in support of appeal is<\/p>\n
     that:-\n<\/p>\n
                 [a]     The        First         Information               Report,
\n                         investigation, charge and evidence are
\n                         totally divergent.\n<\/p><\/blockquote>\n
                 [b]     The case begins with the story of rape,
\n                         and   is   developed          as    consented       sexual
\n                         relationship        on       mistaken       belief       for
\n                         promise to marry.\n<\/p><\/blockquote>\n
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\n                                                     3<\/span><\/p>\n
                   [c]       The    plea       of       mistaken          belief       is     not<\/p>\n
                             available to the prosecution.\n<\/p><\/blockquote>\n
                   [d]       A   girl,       who     keeps         sexual      relationship
\n                             with      the     accused            on     the    promise        of
\n                             marriage, which is lateron broken by the
\n                             accused, cannot be said to have agreed<\/p>\n
                             for       the     sexual             relationship           on       a
\n                             mistaken belief.\n<\/p><\/blockquote>\n
                   [e]       Finding recorded by the Sessions Judge
\n                             in Para 49 of his Judgment is contrary
\n                          ig to facts on record and law as laid down
\n                             in case of Uday Vs. State of Karnataka
\n                             [cited supra].\n<\/p><\/blockquote>\n
     5.            Learned       Adv.,        for       the        appellant         has      placed<\/p>\n
     reliance on the reported Judgment of Hon’ble Supreme Court<\/p>\n
     in case of [1] Uday Vs. State of Karnataka [(2003) 4 SCC<\/p>\n
     46],    [2]    unreported         Judgment         of        this    Court      rendered          in<\/p>\n
     Criminal Appeal No. 35 of 2010 [Anwar Khan Iqbal Khan Vs.<\/p>\n
                                                             th
\n     State    of     Mah.];      decided        on      27         April,       2010,       and       [3]<\/p>\n
     Judgment of Jharkhand High Court in case of Sarimoni Mahato<\/p>\n
     Vs. Amulya Mahato & another [2002 Cri.L.J. 3271].\n<\/p>\n
     6.            Learned       APP     Mr.        C.N.          Adgokar      has      vehemently<\/p>\n
     supported impugned judgment.\n<\/p>\n
     7.            The   question            arising         in        this     appeal        is      as<\/p>\n
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\n                                            4<\/span>
\n     follows:-\n<\/p>\n
                 Whether the sexual intercourse by the accused
\n                 with the prosecutrix was without her consent,<\/p>\n
                 or   with   her   consent       which       was    given      under
\n                 misconception, and whether the facts as proved
\n                 do   constitute     offence         under    Section       376     of<\/p>\n
                 Indian Penal Code?\n<\/p><\/blockquote>\n
     8.      This Court has perused the impugned judgment and<\/p>\n
     the record.\n<\/p>\n
     9.      Paragraph
\n                        ig    No.1    of       the     oral     evidence         of      the<\/p>\n
     prosecutrix reads as follows:-\n<\/p>\n
              1.      Since my birth I reside with my father
\n             at Kolambi. Incident took place before 12
\n             months.   Since before incident my father and
\n             the accused were acquainted with each other.\n<\/p><\/blockquote>\n
             Accused was serving in the forest office behind
\n             my house at Kolambi.\n<\/p><\/blockquote>\n
                      Accused   used  to visit    my  house.
\n             Myself, my parents, brother, wife of brother
\n             and a younger sister all were residing jointly.\n<\/p><\/blockquote>\n
                      In the presence of my father and
\n             others accused was visiting my house and after<\/p>\n
             drinking water he was going back.\n<\/p><\/blockquote>\n
                      All other family members used to go to
\n             the field and I was required to stay alone at
\n             the house.\n<\/p><\/blockquote>\n
                      While I was staying alone accused was
\n             visiting my house.\n<\/p><\/blockquote>\n
                      He stated before me that he would
\n             perform marriage with me.      One day in the
\n             afternoon he came.\n<\/p><\/blockquote>\n
                      He asked for water.    When I had gone
\n             to bring water he came behind me.\n<\/p><\/blockquote>\n
                      He pressed my mouth and committed
\n             sexual intercourse with me.    He threatened me
\n             for life in case I disclose the fact to my
\n             parents.\n<\/p><\/blockquote>\n
                      He told me that if you don’t disclose<\/p>\n
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\n                                               5<\/span>
\n                then I would perform marriage with you.\n<\/p><\/blockquote>\n
                         He told me that he is a well placed.\n<\/p><\/blockquote>\n
                         After this incident he used to come to
\n                my house while I was staying alone. He used to
\n                commit sexual intercourse with me.    For about<\/p>\n
                six months he continued as such.\n<\/p><\/blockquote>\n
     [Quoted from page no.17 of the Record and Proceedings of
\n     Sessions Trial No. 27 of 1997. Sub-paragraphng is done for
\n     convenience of reading].<\/p>\n
\n\n\n\n\n                                                       \n     10.        It     is    seen    from    the    statement     of    Investigating\n\n\n\n\n                                           \n     Officer that version of the prosecutrix that                        the      accused\n\n     pressed     her    mouth\n                         ig         and   committed      rape    on     her       was     an\n\n     improvement while in the witness box.                      PW 1        Ku. Renuka\n\n     Chavan     had    not    told     this       information    to     Investigating\n                       \n     Officer.     Version of PW 7             Mohd. Shafi Mohd. Isak Sheikh,\n\n     P.S.I.,     in    Para     9    of     the    Cross-Examination           reads      as\n      \n\n     follows:-\n   \n\n\n\n<\/pre>\n
                 9.      I recorded statement of Renuka.\n<\/p>\n
                         She had not stated in her statement
\n                that accused pressed her mouth and threatened
\n                for her life in case she discloses it to her
\n                parents.\n<\/p>\n
                         She had not stated that Sandip told
\n                her that if she does not disclose the incident
\n                to her parents then only he would marry her.\n<\/p>\n
     [Quoted from page no. 65 of the Record and Proceedings of
\n     Sessions Trial No. 27 of 1997.   Sub-paragraphing is done
\n     for convenience of reading].\n<\/p>\n
     11.        In the background of the aforesaid evidence, it<\/p>\n
     would be useful to see the manner in which the case was<\/p>\n
     seen by the learned Sessions Judge.\n<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 16:03:31 :::<\/span>
\n                                          6<\/span><\/p>\n
     12.        The    learned   Judge   observed   in    para     49     of    her<\/p>\n
     Judgment     that   Section    90   of   Indian     Penal      Code       gets<\/p>\n
     attracted.       The reasons are recorded in this regard in the<\/p>\n
     said Para 49 which is quoted below for ready reference:-\n<\/p>\n
                 49.     In the instant case proposition of law
\n                laid down in the above cited Madras authority
\n                is mutatis-mutandis applicable but facts are
\n                distinguishable. Here accused has come with a
\n                case that he was a married man having a male<\/p>\n
                issue. It is so then promise of marriage given
\n                by him to the prosecutrix was false to his own
\n                knowledge and certainly he had no intention of<\/p>\n
                marrying her.      PW 4 Namdevrao and PW 6
\n                Santaribai parents of the prosecutrix have
\n                stated that after their daughter told them that
\n                accused   is   responsible   for  causing   her<\/p>\n
                pregnancy, PW 4 Namdevrao had gone and brought
\n                the accused to his house. He asked the accused
\n                that he had ravished their daughter and so he
\n                should marry her to which accused refused for
\n                marriage saying that he does not like the<\/p>\n
                prosecutrix.\n<\/p><\/blockquote>\n
                         It has been stated by the prosecutrix<\/p>\n
                in her evidence that accused assured her of
\n                marriage but subsequently refused for the same.\n<\/p><\/blockquote>\n
                         In   view    of   these    facts   and
\n                circumstances here Section 90 of the Indian
\n                Penal Code can be invoked and it has to be held<\/p>\n
                that consent of the prosecutrix was under
\n                misconception of fact and not at her free will.\n<\/p><\/blockquote>\n
                         This being the position, act of the
\n                accused falls under IInd clause of Section 375
\n                which is actionable under section 376 of the
\n                Indian Penal Code.\n<\/p><\/blockquote>\n
     [Quoted from page no. 35 and 36 of the appeal paper-book.
\n     Sub-paragraphng is done for convenience of reading].\n<\/p>\n
     13.        Learned Sessions Judge recorded a finding in para<\/p>\n
     39, as to age of prosecutrix which reads as follows:-\n<\/p>\n
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\n                                     7<\/span><\/p>\n
              39.     In the instant case ossification test
\n             report Ex.67 which shows age of prosecutrix as<\/p>\n
             18 years plus minus one year makes it clear
\n             that at the time of incident prosecutrix was
\n             more than 16 years old. Moreover there can be<\/p>\n
             an error between the periphery of two years on
\n             either side as laid down by the superior courts
\n             from time to time and therefore age of the
\n             prosecutrix in this case at the relevant time
\n             was in between 16 to 20 years.\n<\/p><\/blockquote>\n
                      I am therefore    inclined to believe
\n             that prosecutrix was more than 16 years old as
\n             the benefit of advantage has to go in favour of
\n             the accused.\n<\/p><\/blockquote>\n
     [Quoted from page no. 28 of the appeal paper-book. Sub-
\n     paragraphing  is   done  for  convenience  of   reading.
\n     Underlining is done to highlight important and relevant<\/p>\n
     portion].\n<\/p>\n
     14.     In   regard   to   sexual   acts   of   accused,         learned<\/p>\n
     Sessions Judge has recorded a finding in para 56 of her<\/p>\n
     Judgment as follows:-\n<\/p>\n
              56.      From the evidence of prosecutrix, her<\/p>\n
             report Ex.28 and statement under section 161
\n             Cr. P. Code it clearly emerges that accused
\n             committed sexual intercourse with her under a
\n             false promise of marriage and she consented to
\n             the act under misconception of fact.\n<\/p><\/blockquote>\n
                       In this factual situation the question
\n             of   age     of   the   prosecutrix   would   be
\n             insignificant as prosecutrix was subjected to
\n             sexual intercourse by the accused without her
\n             consent at free will.\n<\/p><\/blockquote>\n
                       From the material on record I have to
\n             come   to   an   unhesitating   conclusion  that<\/p>\n
             prosecutrix was made a victim of lust of the
\n             accused in the manner deposed to by her without
\n             hr consent at free will and as I conclude that
\n             prosecution succeeds in booking the act of the
\n             accused under IInd clause of Section 375
\n             actionable under Section 376 of the Indian
\n             Penal Code. I accordingly answer point No.1 in
\n             the affirmative.\n<\/p><\/blockquote>\n
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\n                                                  8<\/span><\/p>\n
     [Quoted from page nos. 41 and 42 of the appeal paper-book.
\n     Sub-paragraphing is done for convenience of reading.\n<\/p>\n
     Underlining is done to highlight important and relevant
\n     portion].\n<\/p>\n
     15.         It is seen from the analysis of the evidence of PW<\/p>\n
     1     Ku. Renuka Namdev Chavhan that :-\n<\/p>\n
                                rd
\n                 [a]    On 23         November, 1996, seeing that the
\n                        prosecutrix             is    alone    at     house,      accused
\n                        entered           her    house,       asked      for    drinking
\n                        water and expressed desire to marry her.\n<\/p><\/blockquote>\n
                 [b]
\n                        Seeing that the prosecutrix did not give
\n                        any response, he left the house.\n<\/p><\/blockquote>\n
                 [c]    On     the    next       day,    again      he    entered       the
\n                        house        of    the       prosecutrix       when     she     was
\n                        alone        and        committed         forcible         sexual
\n                        intercourse with her and told her not to<\/p>\n
                        disclose it by promising to marry.\n<\/p><\/blockquote>\n
                 [d]    Sexual        relationship            continued         for     six
\n                        months on the assurance of marriage.\n<\/p><\/blockquote>\n
                 [e]    The prosecutrix carried pregnancy of six
\n                        months,           and   when     asked      the     accused       to
\n                        marry, he refused.\n<\/p><\/blockquote>\n
     16.         It is seen that the very foundation of prosecution<\/p>\n
     case   is   of    first    act        of    rape     followed        by    long     sexual<\/p>\n
     relationship based on a promise to marry.\n<\/p>\n
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\n                                              9<\/span><\/p>\n
     17.        Had the case of prosecution stopped at first act<\/p>\n
     of    sexual    assault,      the    case   may    have      had     a   different<\/p>\n
     portray.        It would have been a case of rape which was<\/p>\n
     reported late, i.e., only when the assault had produced<\/p>\n
     pregnancy.\n<\/p>\n
     18.        On the story as is couched by the prosecution,<\/p>\n
     though     first      act     was    forcible,      the      prosecutrix           has<\/p>\n
     permitted sexual access to the accused for long period of<\/p>\n
     six months.\n<\/p>\n
     19.        First act of forcible sexual assault seems to have<\/p>\n
     been     disbelieved,         and    all     sexual       acts      subsequently<\/p>\n
     committed by the accused are accepted by the Court to be<\/p>\n
     under consent of prosecutrix which consent was given due to<\/p>\n
     the mistaken belief that the accused would marry her.\n<\/p>\n
     20.        Moreover, first act being forcible is a serious<\/p>\n
     omission,       which    is    proved      from    the    testimony         of     the<\/p>\n
     Investigating Officer. The prolonged sexual relationship,<\/p>\n
     therefore, creates a strong doubt about first act too being<\/p>\n
     forcible.\n<\/p>\n
     21.        It    is     not    the   case     of    prosecution          that      the<\/p>\n
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\n                                               10<\/span>
\n     prosecutrix     was    made     to      believe      that     they        are    already<\/p>\n
     married   and    on     such       mistaken         belief     of     existence         of<\/p>\n
     matrimonial      ties,        that       a      sexual        relationship              was<\/p>\n
     established.\n<\/p>\n
               According       to        prosecution          story,           the     sexual<\/p>\n
     relationship continued for day-today basis for six months,<\/p>\n
     while accused had continued to promise to marry.\n<\/p>\n
     22.       From    what     is      discussed          herein        before,       it     is<\/p>\n
     evident that:-\n<\/p>\n
               [1]<\/p>\n
                       The      accused            was     charged         for       rape<\/p>\n
                       simpliciter.\n<\/p><\/blockquote>\n
               [2]     Story about forcible rape is narrated in
\n                       evidence,             but     the       prosecutrix             has
\n                       connived         at    said       forcible        act    due     to<\/p>\n
                       promise to marry which had followed the<\/p>\n
                       act of rape.\n<\/p><\/blockquote>\n
               [3]     The    prosecution           has    then     converted          the
\n                       story       of     sexual         relationship          under     a
\n                       mistaken belief              and hence rape.\n<\/p><\/blockquote>\n
               [3]     Learned Sessions Judge fell in the trap
\n                       of     prosecution          by     totally       misdirecting
\n                       the      trial,         which        resulted           into      a
\n                       conviction, ordered without a charge.\n<\/p><\/blockquote>\n
     23.       It is seen that the case of the prosecution as<\/p>\n
     brought   before        the     Court         through        the      evidence          of<\/p>\n
     prosecutrix is based on sexual relationship on a promise to<\/p>\n
     marry which promise is broken by the accused.                               This plea<\/p>\n
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\n                                         11<\/span>
\n     contradicts the plea of mistaken belief.                 Moreover, age of<\/p>\n
     prosecutrix is proved to be around 18 years.\n<\/p>\n
     24.        It is material to see that the charge does not<\/p>\n
     contain any imputation, such as promise to marry and based<\/p>\n
     thereon, sexual relationship.\n<\/p>\n
     25.        It is pertinent to note that any time thereafter<\/p>\n
     charge was not modified or altered.\n<\/p>\n
     26.<\/p>\n
                The learned Sessions Judge was carried away with<\/p>\n
     the evidence that had come, in total distraction from the<\/p>\n
     charge and contradicting and destroying the basic story of<\/p>\n
     the prosecution case.\n<\/p>\n
     27.        In   the   result,    this    Court      is    convinced          that<\/p>\n
     present case is a replica of State of Karnataka Vs. Uday<\/p>\n
     [cited supra], and more or less similar to the unreported<\/p>\n
     judgment   of this    Court     relied   by   the    appellant         and    the<\/p>\n
     story of sexual relationship under a mistaken belief and<\/p>\n
     hence a rape, as developed in the process of trial, does<\/p>\n
     not stand in the eye of law.\n<\/p>\n
     28.        In the result, the conviction and sentence under<\/p>\n
     appeal cannot sustain.\n<\/p>\n
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\n                                      12<\/span><\/p>\n
               Appeal succeeds.    Judgment and order of conviction<\/p>\n
     is set aside.\n<\/p>\n
                                                             JUDGE<\/p>\n
                                  -0-0-0-0-\n<\/p>\n
     |hedau|<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 16:03:32 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Police Station Wadgaon vs The State Of Maharashtra on 24 June, 2010 Bench: A. H. Joshi 1 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-174050","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nPolice Station Wadgaon vs The State Of Maharashtra on 24 June, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/police-station-wadgaon-vs-the-state-of-maharashtra-on-24-june-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Police Station Wadgaon vs The State Of Maharashtra on 24 June, 2010 - 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