Bombay High Court
Kanwar S/O Budharam Sonare (In Jail) vs State Of Maharashtra, Thr. P.S.O. P.S. ... on 28 September, 2017
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 apeal377.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.377 OF 2016
Kanwar s/o Budharam Sonare,
Aged about 28 years,
Occupation - Fishing,
R/o Amgaon, Tahsil - Amgaon,
District Gondia. .... APPELLANT
VERSUS
State of Maharashtra,
through Police Station Officer,
Police Station Amgaon, Tahsil-
Amgaon, District - Gondia. .... RESPONDENT
______________________________________________________________
Shri A.M. Gedam, Advocate for the appellant,
Shri N.B. Jawade, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 28
SEPTEMBER, 2017
th
ORAL JUDGMENT :
The challenge is to the judgment and order dated 03-8-2016 in Sessions Trial 16/2013, delivered by the learned Sessions Judge, Gondia, by and under which the appellant (hereinafter referred to as the "accused") is convicted of offence punishable under Section ::: Uploaded on - 28/09/2017 ::: Downloaded on - 30/09/2017 01:46:55 ::: 2 apeal377.16 417 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.50,000/- and is further convicted for offence punishable under Section 3(1)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Act") and is sentenced to suffer rigorous imprisonment for five years and to payment of fine of Rs.20,000/-.
2. The accused is, however, acquitted of offence punishable under Section 376 of the Indian Penal Code.
3. Heard Shri A.M. Gedam, learned Advocate for the accused and Shri N.B. Jawade, learned Additional Public Prosecutor for the respondent.
4. Shri A.M. Gedam, learned Advocate for the accused submits that the judgment impugned is manifestly erroneous. The learned Sessions Judge committed a grave error in recording a finding that the prosecution has established the ingredients of offence punishable under under Section 417 of the Indian Penal Code and Section 3(1)(xii) of the Act, is the submission. Per contra, Shri N.B. ::: Uploaded on - 28/09/2017 ::: Downloaded on - 30/09/2017 01:46:55 ::: 3 apeal377.16 Jawade, learned Additional Public Prosecutor submits that the judgment impugned is in consonance with the weight of material on record. He would support the judgment impugned.
5. The case of the prosecution is that the accused and the complainant are neighbourers. Concededly they fell in love in the year 2008. The accused and the complainant engaged in consensual sexual relationship. The complainant conceived, the pregnancy was noticed by the mother of the complainant who took the complainant to the house of the accused. The accused refused to marry the complainant, a meeting was called in which the accused refused to marry the complainant on the premise that she belonged to schedule caste. The complainant and her mother went to the Police Station, Amgaon and lodged the report on 12-9-2012.
6. On the basis of the report dated 12-9-2012, offence punishable under Sections 376, 417 of the Indian Penal Code and Section 3(1)(xii) of the Act was registered. Additional S.P. Shri Gunjal investigated the crime, the complainant was medically examined and the pregnancy confirmed. The completion of investigation culminated in submission of the charge-sheet before the learned Judicial ::: Uploaded on - 28/09/2017 ::: Downloaded on - 30/09/2017 01:46:55 ::: 4 apeal377.16 Magistrate First Class, Amgaon who committed the case to the Sessions Court. During the pendency of the pre-committal proceedings, the complainant delivered a female child, blood sample of the complainant, the child and the accused were taken and sent for the D.N.A. test. The D.N.A. report Exhibit 49 opines that the complainant and the accused are the biological parents of the child. The learned Sessions Judge framed charge at Exhibit 20, the accused pleaded not guilty and claimed to be tried. The defence of the accused, as is discernible from the cross-examination and the statement recorded under Section 313 of the Criminal Procedure Code, is of total denial. However, the trend of the cross-examination would suggest that the defence is of consensual sexual relationship.
7. P.W.1 Hansraj is examined to prove the spot panchanma Exhibit 23, seizure panchanamas Exhibit 26 and Exhibit 27. In the context of the factual position which is either admitted or is irrefutable, the evidence of P.W.1 is not relevant. The complainant Namrata is examined as P.W.2. She has deposed that she and the accused were in love. P.W.2 and the accused used to visit a nearby hill and have sexual intercourse. P.W.2 has deposed that the sexual relationship continued from 2008 to 2012. She conceived in 2012, ::: Uploaded on - 28/09/2017 ::: Downloaded on - 30/09/2017 01:46:55 ::: 5 apeal377.16 disclosed the pregnancy to the accused, the accused told her not to disclose the pregnancy to her parents and further said that he will marry the complainant. P.W.2 has deposed that in the seventh month of pregnancy she disclosed to her parents, a meeting was called, in the meeting the accused refused to marry P.W.2 on the ground that she belongs to scheduled caste (Mahar). P.W.2 has deposed that thereafter she lodged the report Exhibit 33. Her child born from the sexual relationship with the accused is three years old, is the deposition. In the cross-examination, P.W.2 states that she is happily married to a person belonging to the scheduled caste and that she did not have any grievance against the accused. She, however, denies the suggestion that the accused did not promise to marry her.
8. P.W.3 Jaisheelabai is the mother of the complainant. She has deposed that the accused refused to marry her daughter since she belonged to scheduled caste. She has deposed that according to her daughter, the accused promised to marry her. The evidence, to the extent, the reference is to what Jaisheelabai was told by the complainant, is hearsay and must be kept out of consideration. Dr. Khushal Ghodeswar is examined as P.W.4. Dalit Nagwanshi who is the cousin of the complainant is examined as P.W.5. He has deposed that ::: Uploaded on - 28/09/2017 ::: Downloaded on - 30/09/2017 01:46:55 ::: 6 apeal377.16 since the complainant belonged to scheduled caste, the accused and his parents refused the marriage proposal. Dr. Trupti Katre is P.W.6. She has proved the medical examination report of the complainant. S.P. Shri Gunjal P.W.7 is the investigating officer.
9. I have given my anxious consideration to the evidence on record and having done so, I am impelled to agree with the learned Advocate for the accused that the judgment impugned is manifestly erroneous.
10. The learned Sessions Judge has held that offence under Section 417 of the Indian Penal Code is proved. Section 417 of the Indian Penal Code reads thus :
"417. Punishment for cheating - Whoever cheats shall be punished with imprisonment of either description for a term which may extent to one year, or with fine, or with both."
Section 415 of the Indian Penal Code defines cheating and reads thus :
"415. Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to contest that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm ::: Uploaded on - 28/09/2017 ::: Downloaded on - 30/09/2017 01:46:55 ::: 7 apeal377.16 to that person in body, mind, reputation or property, is said to "Cheat".
Explanation - A dishonest concealment of facts is a deception within the meaning of this section."
11. It is axiomatic that the essential ingredients which the prosecution was required to establish are that the accused deceived the complainant and induced her to do or omit to do anything which she would not do or omit if she were not so deceived. The prosecution was required to establish that the accused deceived the complainant and induced or lured her into a sexual relationship.
12. Concededly, it is not even the case of the prosecution that the accused induced the complainant to have sexual relationship promising marriage. The complainant has not claimed that she was induced or lured or persuaded to have a sexual relationship on a false representation that the accused will marry her. The refusal to marry is only after the complainant conceived and refusal is on the ground that the complainant belongs to the schedule caste. Even if the evidence of the complainant is accepted in entirety, all that the complainant states is that she disclosed the pregnancy to the accused, the accused told her that he would marry her and that the pregnancy should not be ::: Uploaded on - 28/09/2017 ::: Downloaded on - 30/09/2017 01:46:55 ::: 8 apeal377.16 disclosed to her parents. Concededly, even if it is accepted that the accused did tell the complainant that he would marry her, there is nothing on record to suggest that after such an assurance, the prosecutrix was persuaded or induced to do or omit to do anything which she would not do or omit if she were not so deceived.
13. The finding recorded by the learned Sessions Judge that the offence under Section 417 of the Indian Penal Code is made out, militates against the plain language of Section 415 of the Indian Penal Code which defines of cheating and the evidence on record. The said finding and the conviction under Section 417 of the Indian Penal Code cannot stand judicial scrutiny even for a moment and must be set aside.
14. The accused is further convicted for offence punishable under Section 3(1)(xii) of the Act. Section 3(i)(xii) of the Act reads thus :
"3. Punishments for offences of atrocities - (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe -
(i) to (xi) ---------------------------------------------------------
(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe ::: Uploaded on - 28/09/2017 ::: Downloaded on - 30/09/2017 01:46:55 ::: 9 apeal377.16 and uses that position to exploit her sexually to which she would not have otherwise agreed."
The necessary ingredients which are required to be established by the prosecution to bring home charge under Section 3(1)(xii) of the Act are (1) the accused must not be a member of scheduled caste or a scheduled tribe, (2) The victim must be a member of the scheduled tribe or scheduled caste, (3) the accused must be in a position to dominate the will of a woman belonging to a scheduled caste or a scheduled tribe, (4) it must be proved that the accused has used the dominant position to exploit the woman sexually to which she would not have otherwise agreed.
15. The conviction, with deepest respect to the learned Sessions Judge is, is inexplicable.
16. Concededly, the accused and the complainant were in love. When the cupid used to come calling, they used to visit the nearby hill and have sexual relationship. Such consensual sexual relationship between two adults who are admittedly in love cannot by any stretch be a sexual exploitation within the meaning of Section 3(1) ::: Uploaded on - 28/09/2017 ::: Downloaded on - 30/09/2017 01:46:55 ::: 10 apeal377.16
(xii) of the Act. The other necessary ingredient is that the accused must be in a position to dominate the will belonging to a scheduled caste or a scheduled tribe. It is not possible to agree with the reasoning of the learned Sessions Judge that the accused was in a position to dominate the will of the complainant. This is not even the version of the complainant or of any other witness. There is not even an iota of evidence on record to suggest that the accused was in a position to dominate the will of the complainant. The fact that the accused and the complainant were in love would not necessarily suggest that one of them was in a position to dominate the will of the other.
17. The learned Counsel for the accused Shri A.M. Gedam has invited my attention to a judgment of the Orissa High Court in the case of Panibhusan Behera and Others vs. State of Orissa reported in 1995 Cri.L.J. 1561, authored by Justice A. Pasayat (as His Lordship was then) and in particular to the following observations therein.
"18. Coming to the sustainability of conviction for the offence under Section 3(1)(xii) of the Atrocities Act, a reference to the said provision is necessary. The same so far as relevant reads as follows :
"3. Punishment for offences of atrocities. -::: Uploaded on - 28/09/2017 ::: Downloaded on - 30/09/2017 01:46:55 :::
11 apeal377.16 (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-
(i) to (xi) xxx xxx xxx
(xii) be in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed."
The ingredients of the offence are that (i) the offender must be a person who is not a member of Scheduled Caste or Scheduled Tribe, (ii) he be in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe; (iii) the said position was used to exploit the woman sexually to which she would not have otherwise agreed. In the present case, the offenders are not shown to have dominated the will of the victim girl. In order to attract application of the provision sexual exploitation must have taken place because of the offenders' position of dominance. The word 'otherwise' is significant, and clearly points out that the exploitation was with agreement of the helpless woman which she would not have agreed but for the offenders' position of dominance. It is significant to note that the expressions used in Section 3(1)(xii) of the Atrocities Act are "agreed" and "exploit sexually" and not "consent" and "rape". "Consent" and "agreement" are not conceptually and etymologically different, Use of the expression "would not have otherwise agreed" is intended to convey that the agreement would not have been there, but for the position of dominance. It is not a free and voluntary consent. "Exploit" means to make an illegitimate use of, to utilise for one's ends, treat selfishly as more workable material (person etc.), to make capital out of. To have carnal knowledge of a woman by use of position of dominance, is sexual exploitation if the victim would not have agreed to the act, but for the position.
In pursuance of the International convention and mandate of the Constitution of India, Parliament in 1956 ::: Uploaded on - 28/09/2017 ::: Downloaded on - 30/09/2017 01:46:55 ::: 12 apeal377.16 enacted "Suppression of Immoral Traffic in Women and Girls Act". This Act has been twice amended in years 1976 and 1986. The amending Act of 1986 has changed the title of the Act from "Suppression" to "Prevention". In this, the old definition of prostitution, vide Section 2(f) which meant "the act of a female offering her body for promiscuous sexual intercourse for hire" has now been changed to carry the meaning of "sexual exploitation or abuse of persons for commercial purposes". Promiscuous sexual intercourse, the important ingredient of prostitution stands replaced by the twin requirement of the exploitation of abuse of the person and secondly the abuse of exploitation should be for commercial purposes. The expression "sexual exploitation"
would include sexual intercourse without consent which forms basis for conviction for rape.
I respectfully concur with the enunciation of law in the said judgment.
18. I have absolutely no hesitation in recording a finding that the offence under Section 3(1)(xii) of the Act is not proved muchless proved beyond reasonable doubt. The accused was not in a position to dominate the will of the complainant and indeed this is not even alleged by the complainant. That apart, there is not even an iota of evidence to suggest that the complainant was exploited sexually to which she would have otherwise agreed.::: Uploaded on - 28/09/2017 ::: Downloaded on - 30/09/2017 01:46:55 :::
13 apeal377.16
19. The judgment and order dated 03-8-2016 in Sessions Trial 16/2013 delivered by the learned Sessions Judge, Gondia is set aside. The accused is acquitted of offences punishable under Section 415 of the Indian Penal Code and 3(1)(xii) of the Act. The bail bond of the accused shall stand discharged. Fine paid by the accused, if any, be refunded to him.
JUDGE adgokar ::: Uploaded on - 28/09/2017 ::: Downloaded on - 30/09/2017 01:46:55 :::