Bombay High Court
Yogendra Digambar Saindane vs The State Of Maharashtra And Anr on 27 February, 2020
Author: M. G. Sewlikar
Bench: T. V. Nalawade, M. G. Sewlikar
This Order is modified/corrected by Speaking to Minutes Order dated 04/03/2020
1 980 APPLN.207.2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
980 CRIMINAL APPLICATION NO.207 OF 2020
YOGENDRA DIGAMBAR SAINDANE
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
...
Advocate for Applicant : Mr. Satish A. Gaikwad.
APP for Respondent/State: Mr. S. G. Sangle.
Advocate for Respondent No.2 : Ms Shital Eknath Waghmare.
...
CORAM : T. V. NALAWADE &
M. G. SEWLIKAR, JJ.
DATE : 27th February, 2020.
O R D E R:(Per T. V. Nalawade, J.) . The proceeding is filed for relief of quashing of FIR No.964 of 2019, registered with Shirdi Police Station, District Ahmednagar, for the offences punishable under Sections 376 and 417 etc. of the Indian Penal Code.
2 Both the sides are heard.
3 The crime is registered on the basis of report given by a lady aged about 28 years. She was married and she had a daughter ::: Uploaded on - 03/03/2020 ::: Downloaded on - 12/06/2020 07:25:22 ::: This Order is modified/corrected by Speaking to Minutes Order dated 04/03/2020 2 980 APPLN.207.2020.odt aged about 2 years at the relevant time. She had some dispute with her husband and so she was living separate from her husband for some time.
4 The present Applicant was known to the aforesaid lady, prosecutrix from prior to her marriage. In the year 2017, the Applicant met the prosecutrix and during talk she informed about the problems she was facing in the matrimonial relationship. According to her, the Applicant gave her mental support and he then made advances towards her by saying that he wanted to marry with her. According to her, due to such desire expressed by the Applicant, she allowed him to see her and on many occasions he visited her place. 5 It is the case of the prosecutrix that on 21 st April, 2018, the Applicant called her to Shirdi by saying that for beginning of new life, new relationship, it was necessary to obtain the blessings of God. According to her, when she reached Shirdi, she was taken to Sai Suraj Palace Hotel by the Applicant and there she and Applicant stayed for two days. It is her contention that during those days, the Applicant established physical relationship with her by giving promise of marriage. According to the prosecutrix, the relationship was continued and she was called to Mumbai on three to four occasions and to Indore on one occasion by the Applicant and there by giving promise of ::: Uploaded on - 03/03/2020 ::: Downloaded on - 12/06/2020 07:25:22 ::: This Order is modified/corrected by Speaking to Minutes Order dated 04/03/2020 3 980 APPLN.207.2020.odt marriage the present Applicant had taken sexual intercourse with her. 6 It is the contention of prosecutrix that as the relationship was for sufficient length of time, she requested to see that there was marriage, but after that the Applicant said that there was no question of marriage and he would not marry with her. The prosecutrix then returned to her husband and as per the advise of the husband, she gave report to police. The report came to be given on 20th October, 2019 to police from Indore and from there the matter was sent to Shirdi and in Shirdi Police Station the crime came to be registered on 27 th October, 2019 for the aforesaid offences.
7 The papers of investigation were made available. In the papers, there is supplementary statement of the prosecutrix, which shows that more particulars of incidents of rape and unnatural offence are given. It is her contention that every time he was giving false promise of marriage, he was giving threats and he was taking sexual intercourse with her. She has contended that even unnatural offence was also committed by him and such kind of statement is given under Section 164 of the Code of Criminal Procedure. The places where such unnatural offence committed are mentioned in the statement given under Section 164 of the Code of Criminal Procedure. ::: Uploaded on - 03/03/2020 ::: Downloaded on - 12/06/2020 07:25:22 :::
This Order is modified/corrected by Speaking to Minutes Order dated 04/03/2020 4 980 APPLN.207.2020.odt 8 The learned counsel for Applicant submitted that if at all there was sexual intercourse, it was consensual sexual intercourse. It was submitted that the prosecutrix was married lady and so there was no question of marrying with her by the present Applicant. It was submitted that it is not possible to infer that the prosecutrix was deceived or force was used against the prosecutrix by the present Applicant.
9 The learned counsel for Applicant placed reliance on some observations made by the Apex Court in the case reported as 2019 ALL MR (Cri.) 3949 (S.C.), (Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr.). In this case, the Apex Court has observed that the "consent" term mentioned in Section 375 of the Indian Penal Code must involve an active and reasoned deliberation towards the proposed act. If the consent is vitiated by misconception of fact arising out of the promise to marry, it needs to be established that the promise of marriage was false or it was given in bad faith and with no intention of being adhered to at the time it was given. Thus, the observations made in this case also are of no help to the present Applicant. Further, there are more serious allegations in the present matter. The prosecutrix belongs to scheduled caste and today itself her caste certificate came to be produced on record. The Applicant does not belong to scheduled caste or scheduled tribe. This circumstance ::: Uploaded on - 03/03/2020 ::: Downloaded on - 12/06/2020 07:25:22 ::: This Order is modified/corrected by Speaking to Minutes Order dated 04/03/2020 5 980 APPLN.207.2020.odt makes the matter more serious as the allegations show that she was sexually exploited by the Applicant, who belongs to higher caste. Due to these circumstances, this Court holds that it is not a fit case to grant relief. In the result, the application stands dismissed.
[ M. G. SEWLIKAR, J. ] [ T. V. NALAWADE, J. ]
ndm
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