Bombay High Court
For Leave To File Appeal vs State Of Maharashtra on 30 January, 2013
Author: A. R. Joshi
Bench: Naresh H. Patil, A. R. Joshi
PPD
1 APLN.1581-12.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1581 OF 2012
[FOR LEAVE TO FILE APPEAL]
IN
CRIMINAL APPEAL NO. OF 2012
Ms. Reshma Ashok Jadhav. ..Applicant.
Versus
1. State of Maharashtra
2. Vikas Bhiva Lokhande. ..Respondents
ig .....
Mr. Vinit Kulkarni, a/w. Atiya Shaikh, Advocate for the
Applicant.
Mr. H.J. Dedhia, APP, for the Respondent - State.
......
CORAM : NARESH H. PATIL, &
A. R. JOSHI, JJ.
DATED : 30TH JANUARY, 2013 P.C. :[PER A.R.JOSHI,J.]
1. Heard rival submissions on this application preferred by the prosecutrix defacto complainant challenging the judgment and order of acquittal of respondent No.2/orig.accused dated 26.9.2012 passed by the Additional Sessions Judge, City Civil and Sessions Court, Borivali Division, Borivali, Mumbai. The impugned judgment and order of acquittal was passed in Sessions Case No.127 of 2011 by which present respondent No.2/sole accused was acquitted of the offence punishable under Section 376 and 1/8 ::: Downloaded on - 09/06/2013 19:36:39 ::: 2 APLN.1581-12.doc also under Section 417 of Indian Penal Code.
2. During the trial before the Sessions Court, six prosecution witnesses were examined. Out of them, only important witness is PW-1 i.e. prosecutrix girl.
3. PW-2 is Dr. Baban Shinde then attached to Nagpada Police Hospital as Medical Officer. He examined the prosecutrix and also respondent No.2/accused. According to his examination, the victim girl was habituated to sexual intercourse and her age was more than 21 years. According to him, respondent No.2/accused was potent. PW-3 is one Adesh Tambe, brother of another girl with whom the marriage of respondent No.2/accused was fixed. However, subsequently the marriage could not be materialized because of the visit of the victim girl and informing regarding love affair between the victim and respondent No.2/accused. PWs- 4, 5 & 6 are the police officers in the matter.
4. Prior to discussing the arguments advanced on behalf of the applicant-victim girl, certain factual position needs to be mentioned in order to ascertain the scope of the present application for leave to appeal.
[i] Firstly, according to the prosecutrix she was knowing the respondent No.2/accused since October, 1999 as that 2/8 ::: Downloaded on - 09/06/2013 19:36:39 ::: 3 APLN.1581-12.doc time they first met each other and thereafter were frequently visiting each others' house and apparently fallen in love with each other.
[ii] Secondly, according to the applicant sometime in June, 2002 at the death anniversary of father of respondent No.2/accused, she had visited the house of respondent No.2 and allegedly respondent No.2 introduced her to his brother that she was his would be wife.
[iii] Thirdly, some time in June 2004, respondent No.2/accused reprimanded the applicant alleging that she had love affair with some other person by name Prabhubhau. Quarrel ensued between them. However, on the same day, respondent No.2/accused took her to his house at Goregaon and had forcible intercourse with her and due to which she sustained bleeding injuries on her private parts and she became unconscious and after she regains consciousness she found that respondent No.2/accused had washed blood and semen etc. from the person of the applicant and made her to wear clothes and sent her to her house.
[iv] Fourthly, since that time till somewhere in October, 2009 intermittently the respondent No.2/accused had sexual intercourse with her on obtaining consent on 3/8 ::: Downloaded on - 09/06/2013 19:36:39 ::: 4 APLN.1581-12.doc assurance that he would marry her.
[v] Fifthly, respondent No.2/accused joined service in railways in Gujarat State somewhere in February, 2008 and assured the applicant that after completion of her graduation he would marry with her as then he had secured job.
[vi] Sixthly, in March, 2011 respondent No.2/accused told the applicant that his marriage is fixed with some other girl residing at Lower Parel.
[vii] Seventhly, the applicant visited the house of said girl and informed her parents regarding love affair between her and respondent No.2/accused. Thereafter in the month of April, 2011, the applicant went to Goregaon police station and lodged a complaint and on that basis offence was registered against respondent No.2/accused for the offence punishable under Section 376 read with Section 417 of IPC.
5. On completion of hearing of the Sessions Case, on 26.9.2012 respondent No.2/accused was acquitted from the said Sessions Case.
6. It is also an admitted position that the birth date disclosed by the applicant is 21 st October, 1985 and as such at the time of alleged first forcible sexual intercourse which 4/8 ::: Downloaded on - 09/06/2013 19:36:39 ::: 5 APLN.1581-12.doc occurred on 15.6.2004, she had already completed 18 years & 7 months. Allegedly, according to the applicant after the first sexual intercourse in the year 2004 there were frequent sexual relations between her and respondent No.2./accused till October, 2009 and every time he used to assure her of marriage and thereafter till lodging of the complaint in April, 2011, apparently there was no such sexual relations, but the complaint for the first time came to be lodged against respondent No.2/accused only on 23.4.2011 and not any time earlier.
7. As per the substantive evidence of PW-4 Dhananjay Kawade, Police Sub-Inspector, on 15.4.2011 respondent No.2/accused filed complaint against the applicant girl regarding demand of Rs.2 lakhs by the applicant from him for releasing her brother from jail. Apparently, in immediate proximity of such complaint preferred by respondent No.2/accused against the applicant, she lodged the complaint on 23.4.2011 alleging rape and cheating. This sequence of events is very significant. So also what is more significant is the different dates since the year 1999, the year 2004, the year 2009 and till the year 2011.
8. It is also more significant to note that all along during the period of alleged forcible sexual intercourse, the applicant girl was above the age of 18 years and obviously 5/8 ::: Downloaded on - 09/06/2013 19:36:39 ::: 6 APLN.1581-12.doc above the age of 16 years which is the age at which free consent given by the girl is acceptable under the law, thus negating the case of forcible sexual intercourse amounting to rape.
9. In the present matter, we have gone through the reasoning given by the Sessions Court and specifically the contents of paragraph Nos.16 & 17 and also the discussion on various authorities appearing in paragraph Nos.19 to 22.
10. We have specifically observed that the evidence of prosecutrix is full of omissions on vital aspects regarding uttering abusive words by respondent No.2/accused and beating her prior to the first incident of rape dated 15.6.2004. There is also omission regarding washing of blood stains and semen stains from the person and clothes of the applicant after said rape. There is also omission on the aspect of the applicant visiting the mother of respondent No.2/accused and disclosing regarding the forcible sexual intercourse by respondent No.2/accused and then giving of abuses by mother of respondent No.2 to her. The omission is also on the aspect as to respondent No.2/accused contacting her on 31.3.2011 and disclosing the date of his marriage with another girl fixed on 15.5.2011. Moreover she had admitted that since the year, 2009 there was no meeting between her and respondent No.2/accused.
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11. In our considered view, the omissions, as mentioned above, and apparent from the substantive evidence of PW-1-applicant are vital to the case of prosecution.
Moreover, the conduct of the applicant is so explicit that she was definitely the consenting party to the alleged sexual intercourse taken place between the applicant and respondent No.2/accused. Moreover, we have also seen the aspect as to whether the consent given by the applicant for having sexual intercourse with respondent No.2/accused was under coercion or duress. It must be mentioned that there was nothing brought on record that since the time of beginning of the sexual relations between the applicant and respondent No.2/accused, there was such assurance given by him to marry her. Otherwise also allegedly according to her there was continued sexual relations between them since 2004 to 2009. The conduct of the applicant-victim in not disclosing the said fact of having continued sexual relations with respondent No.2/accused to the police for lodging complaint or even to her parents, is a circumstance which weighed much with the trial Court in coming to the conclusion that it is not a case of forcible sexual intercourse against the will and wish of the applicant.
12. Needless to mention that apart from the above referred prosecution witnesses, there is nothing brought on 7/8 ::: Downloaded on - 09/06/2013 19:36:39 ::: 8 APLN.1581-12.doc record as to substantive evidence of parents of the applicant or for that matter of any other person to point out that respondent No.2/accused was giving her assurances of getting married and then having sexual intercourse with her and that every time she was consenting under such promise to marry. Considering the scope for interfering with the judgment and order of acquittal, in our considered view there is nothing to re-agitate the said matter and to allow the present application for leave to file appeal.
13. In the result, there is no merit in the application and the same is accordingly dismissed and disposed of as such.
(A. R. JOSHI, J.) ( NARESH H. PATIL,J.)
Deshmane
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