2010 ALL MR (Cri) 2673
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.H. JOSHI, J.

Sandeep S/O. Kaniram Rathod Vs. State Of Maharashtra

Criminal Appeal No.108 of 1998

24th June, 2010

Petitioner Counsel: Mr. R. P. JOSHI
Respondent Counsel: Mr. C. N. ADGOKAR

Penal Code (1860), S.376 - Rape - Evidence and proof - Prosecution case that accused entered the house of the prosecutrix when she was alone and raped her forcibly followed by long sexual relationship based on a promise to marry - Prolonged sexual relationship, therefore, creates a strong doubt about first act too being forcible - Not the case of prosecution that sexual relationship was established on mistaken belief of existence of matrimonial ties - Conviction of accused under S.376 is illegal and set aside. (Paras 16, 20, 21, 23, 26, 28)

Cases Cited:
Uday Vs. State of Karnataka, 2003 ALL MR (Cri) 975 (S.C.)=(2003)4 SCC 46 [Para 5,27]
Anwar Khan Iqbal Khan Vs. State of Mah., Criminal Appeal No.35/2010 Dt.27-04-2010 [Para 5]
Sarimoni Mahato Vs. Amulya Mahato, 2002 Cri.L.J. 3271 [Para 5]


JUDGMENT

JUDGMENT:- The appellant was charged for commission of 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 ---- aged about 16 years r/o. Kolambi and thereby committed an offence punishable u/s. 376 of the I.P. Code and within the 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.

[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 later on broken by the accused, cannot be said to have agreed for the sexual relationship on a mistaken belief.

[e] Finding recorded by the Sessions Judge in Para 49 of his Judgment is contrary 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] : [2003 ALL MR (Cri) 975 (S.C.)], [2] unreported Judgment of this Court rendered in Criminal Appeal No.35 of 2010 [Anwar Khan Iqbal Khan Vs. State of Mah.]; decided on 27th 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 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 of Indian Penal Code?

8. This Court has perused the impugned judgment and the record.

9. Paragraph 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 after drinking 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 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 about six months he continued as such.

[Quoted from page no.17 of the Record and Proceedings of Sessions Trial No.27 of 1997. Sub-paragraphing 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 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.

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 male issue. 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 of marrying 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 her pregnancy, 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 the prosecutrix.

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 held that 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-paragraphing 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:-

"39. In the instant case ossification test report Ex.67 which shows age of prosecutrix as 18 years plus minus one year makes it clear that at the time of incident prosecutrix was more than 16 years old. Moreover there can be an 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 that prosecutrix was made a victim of lust of the accused in the manner deposed to by her without her 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.

[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 ------ that:-

[a] On 23rd 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 to disclose 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.

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 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 on day-to-day 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 to promise 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.

[4] 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 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, [2003 ALL MR (Cri) 975 (S.C.)] [cited supra] (sic Uday Vs. State of Karnataka), 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.

Appeal succeeds. Judgment and order of conviction is set aside.

Ordered accordingly.