2016 ALL MR (Cri) 3061
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B. R. GAVAI AND V. M. DESHPANDE, JJ.
Deepak Shankarrao Borekar Vs. The State of Maharashtra
Criminal Appeal No.562 of 2014
8th June, 2016
Petitioner Counsel: Mr. ADWAIT MANOHAR
Respondent Counsel: Mr. S.M. UKEY, A.P.P.
Penal Code (1860), Ss.376, 90, 417 - Rape - Consent - Appellant allegedly raped prosecutrix by making false promise to marry her and thereby made her pregnant - No love relations between prosecutrix and appellant - Evidence of prosecutrix that on every occasion she gave consent under misconception of fact that appellant would marry her - If consent is given by prosecutrix under misconception of fact then such consent is vitiated - Right from beginning appellant was aware that he was making false promise and thereafter obtained consent of prosecutrix for fulfilling his sexual lust - Conviction proper. (Paras 9, 10)
V. M. Deshpande, J.:- Being aggrieved by judgment and order of conviction passed by learned Sessions Judge, Wardha in Session Case No.46 of 2010, whereby the appellant was convicted for the offence punishable under Section 376 of the Indian Penal Code and was directed to suffer imprisonment for life and to pay a fine of Rs.1000/- and in default of payment of fine to suffer rigorous imprisonment for two months. The appellant is further held guilty of the offence punishable under Section 506 of the Indian Penal Code and on that count he was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/-, in default to suffer rigorous imprisonment for fifteen days. The learned Sessions Judge also convicted the appellant for the offence punishable under Section 417 of the Indian Penal Code and directed to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/- and in default to suffer rigorous imprisonment for fifteen days, the appellant is before this Court.
PW3 Namdeo Bapuraoji Chaudhari was attached to Deoli Police Station as P.S.I. He was in-charge of the Police Station on 11th of May, 2006. On the said day, prosecutrix (PW 1) came to the Police Station and lodged report against the appellant. Her report was taken by Police Head Constable Arjun. The report was perused by Namdeo Chaudhari (PW 3) and thereafter he directed PHC Arjun to register the offence and accordingly an offence was registered against the appellant vide Crime No.96 of 2006. The investigation of the said crime was taken to himself by Namdeo Chaudhari (PW 3).
3. Exh.40 is the oral report lodged by the prosecutrix against the appellant. Her report discloses that appellant resides in the neighbourhood of the first informant. His father resides at Mouda however he never comes at Andori where the appellant and first informant used to reside. Oral report further proceeds that first informant was on talking term with the appellant since last six months and he used to visit her house.
About six months ago, the first informant had been to a 'Bhajan Programme" and when after returning to her house she was pulled by the appellant near a lane and there he committed forcible sexual intercourse with the first informant. According to the First Information Report, the time of this occurrence was in between 00.00 to 1.00 a.m. That time the appellant extended threat of killing her parents.
The First Information Report further proceeds that after eight days of the incident when her parents were not available in house and when only her blind and deaf grandmother was present and first informant was sleeping on the bed, since she was not keeping good health, the appellant came and on the promise that he will marry with her established sexual relations with her. The said continued for 34 occasions and for every occasion he gave promise of marriage and had fulfilled his sexual lust. Due to the sexual relations the first informant became pregnant. That time said fact was disclosed by first informant to her parents that she is pregnant from the appellant and when this fact was disclosed to the appellant, the appellant flatly refused to marry with the first informant.
4. The Investigating Officer conducted the investigation. After completion of his entire investigation filed a final report in the Court of learned Magistrate. The learned Magistrate found that the offence is exclusively triable by the Court of Sessions and therefore he passed the order of committal. On reaching to the Court of Sessions the case was registered as Sessions Trial No.46 of 2010. The learned Ad hoc Additional Sessions Judge, Wardha on 9th of May, 2011 framed a charge against the appellant. He denied the charges. During the course of trial, the additional charge was also framed by the learned Session Judge to enhance punishment under Section 75 of the Indian Penal Code.
6. We have heard Shri Adwait Manohar, learned counsel who was appointed by the Legal Aid Committee to give legal assistance to the appellant and Shri S.M.Ukey, the learned Additional Public Prosecutor for the State. With their able assistance we have also gone through the notes of evidence.
7. According to the learned counsel for the appellant, this is a clear cut case of consent and the prosecutrix, who was major, is consenting party and therefore the impugned judgment and order of conviction cannot sustain. He also submits that there is a delay in lodging First Information Report. He relies on the Apex Court decision in the case of Baikunth Singh ..vs.. State of Bihar and ors. reported in (2008) 14 SCC 766 to buttress his submission.
8. Per contra, the learned Additional Public Prosecutor would submit that the appellant is guilty of making promise of marriage to the prosecutrix and thereafter he has fulfilled his sexual lust. He submitted that in the present case the ingredients of Section 417 are duly proved by prosecution. He also submits that the appellant is habitual and in fact in another case of rape he is convicted by the court below. He therefore submits that appeal be dismissed.
"90. Consent known to be given under fear or misconception - A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception."
From the evidence of the prosecutrix it is clear that there were no love relations between the prosecutrix and the appellant. She has stoutly denied the suggestion given to her that the first sexual intercourse made with her by the appellant was with her consent.
Her evidence discloses that she allowed the appellant for the sexual relations since on every occasion the appellant has made promise that he will marry with her. Thus, the appellant has represented the prosecutrix that he will marry with her. Right from beginning, the appellant was aware that he is making false assurance that he would marry her and thereafter obtained her consent. Therefore, the submissions of the learned counsel for the appellant, in our view, are devoid of any substance. At this stage it would be useful to refer following paragraphs of the law laid down by the Apex Court in the case of State of Uttar Pradesh ..vs.. Naushad, reported in (2013)16 SCC 651 : [2014 ALL SCR 286].
"17. Section 376 IPC prescribes the punishment for the offence of rape. Section 375 IPC defines the offence of rape, and enumerates six descriptions of the offence. The description "secondly" speaks of rape "without her consent". Thus, sexual intercourse by a man with a woman without her consent will constitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix "against her consent". The prosecutrix in this case has deposed on record that the accused promised marriage with her and had sexual intercourse with her on this pretext and when she got pregnant, his family refused to marry him with her on the ground that she is of "bad character".
18. How is "consent" defined ? Section 90 IPC defines consent known to be given under "fear or misconception" which reads as under :
"90. Consent known to be given under fear or misconception.A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fer or misconception."
19. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 IPC. Thus, the alleged consent said to have been obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her."
10. The re-appreciation of the evidence of the prosecution case in our view clearly speaks that the appellant had obtained the consent of the prosecutrix under a misconception of fact that he would marry her thereby making her pregnant. In that view of the matter, the appellant is guilty of committing offence under Section 375 of the Indian Penal Code punishable under Section 376 of the Indian Penal Code. In paragraph no.23 of the aforesaid report the Hon'ble Apex Court has observed that a woman's body is not a man's plaything and he cannot take advantage of it in order to satisfy his lust and desires by fooling a woman into consenting to sexual intercourse simply because he wants to indulge in it.
12. The fees quantified for rendering legal assistance to the appellant is quantified at Rs.5000/- (Rupees five thousand only). However, Shri A.S.Manohar, the learned counsel, submits that instead of giving the said fees to him, it should be given to the High Court Bar Library.