Friday 6 September 2013

Series of sexual acts take away and destroy the version of prosecutrix that the 1st incident was by way of rape.

If the first act of rape is seen in isolation, and if it was not followed by recurrence of nine acts, as deposed by her in examination in chief, the first act would have given different factual impression that said first act was rape and only rape, when seen in isolation. The series of sexual acts take away and destroy the version of prosecutrix that the 1st incident was by way of rape.


Bombay High Court
Criminal Appeal No.35 Of 2010 vs Aged About 26 Years on 27 April, 2010
Bench: A. H. Joshi




1. This is an appeal arising out of the order of conviction and sentence rendered in Sessions Trial No.25 of 2007 by the District Judge-4 & Addl. Sessions Judge, Nagpur.
2. The accused was charged for committing rape on the prosecutrix between 13-4-2004 to 5-5-2004, and thereafter, 2
cheating the prosecutrix by fraudulently and dishonestly inducing her by giving her assurance of marriage and obtained her consent for sexual intercourse and thereby committed rape on her between 2004 to 5-10-2006, and also committed offence punishable under Section 3(1)(x)(xi)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) ACT, as he himself does not belong to Scheduled Caste.

3. At the end of trial the accused was convicted for the offence punishable under section 376(1) of the Indian Penal Code. He was sentenced to suffer R. I., for seven years and to pay a fine of Rs.20,000/- and in default to suffer S.I., for three months and under Section 417 I.P.C., he was sentenced to suffer R. I., for one year. He was acquitted for the offence punishable under Section 3(1)(x)(xi)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) ACT.
4. The prosecution has examined in all 13 witnesses. Their classification is as follows :
Panch witnesses:-
(1) PW-1 Tirathlal Hitulal Ahirwar, a panch witness. (2) PW-2 Ravindra Gajanan Balanse, Panch witness. (3) PW-3 Bhaskar Haribhau Wankhede, panch witness. (4) PW-4 Vakildhar Shyamacharan Tiwari, panch witness. (5) PW-8 Ramesh Namdeorao Shinde, panch witness. The witnesses to prove that
accused stayed in a hotel room
where prosecutrix was also with
accused :-
(6) PW-5 Sunil Sadashiv Warade, employee of Hotel Awadh. (7) PW-7 Kishor Marotrao Thakre, employee of KGM Hotel. 3
(8) PW-10 Jaiprakash Gyanchand Wadhani, Hotel owner of Hotel Gyansons, Yavatmal.
The Medical witness:-
(9) P-9 Dr. Kanchan Nitin Kummatkar, Medical Officer. To prove the charge:-
(10) PW-6 is the prosecutrix.
Investigating Officers :-
(11) PW-11 Digambar Wamanrao Bhagat, Investigating Officer.
(12) PW-12 Somsunder Rajabadar Muldiyar, Investigating Officer.
(13) Waman Kachbru Kharat, Investigating Officer.
5. Most of the witnesses, except the prosecutrix who is PW-6 and the Investigating Officers, rest are either formal or hostile and are of no consequence.

6. Since the acts of Rape, cheating, allurement, promise to marry and commission of rape all are committed in isolation, the case rests on the testimony of PW-6. Medical evidence only proves that the prosecutrix was used to sexual intercourse.

7. Heard the learned Advocate Shri R. J. Shinde for the appellant and Smt. Bharti Dangre, Additional Public Prosecutor for the State.

8. The submission of the learned Advocate for the appellant can be summarized as follows : 4
(a) The complainant was crazy and was running after the accused.
(b) It is the case of one sided passion of the prosecutrix towards the appellant.
(c) Accused has not committed acts of cheating, and prays for setting aside the order of conviction and sentence awarded by the learned Sessions Judge. (d) The story couched by the prosecution is un-natural, because the prosecutrix claims that every time accused called her, she arrived at the appointed place, the accused committed rape and then promised to marry and ultimately refused.
(e) Prosecution story leads one to believe that prosecutrix is playing hide and seek.

9. Learned Advocate for the appellant has placed reliance on the following judgments:
(1) 2006 ALL MR (Cri) 722, Abdul Gani S/o Abdul Gaffar Vs. Satate of Maharashtra.
(2) 2003(2) Crimes 501 (SC), Mohalal Vs. State of Rajasthan.
(3) 2006 ALL MR (Cri) 696, State of Maharashtra VS. Maroti Shivaji Sakarage & Ors.
(4) 2006 ALL MR (CRI) 1136, Sunil Vishnu Salve & Anr.State of Maharashtra.
(5) 2008 ALL Mr (Cri) 2514, Sanjay S/o Shriram Joshi VS. State of Maharashtra.
(6) AIR 2003 Supreme Court 1639, Uday Vs. State of Karnataka.

10. These judgments are relied upon to urge the following points:-
(a) Consent given by the prosecutrix on the promise to 5
marry cannot be said to be the consent given under misconception.
(b) Even if promise to marry is broke, it does not convert the physical relation done with free consent, into rape.

11. The prosecution, on the other hand, urges that :- (a) The prosecutrix though adult is a girl grown with the status of destitute as her parents are not alive and she belongs to Scheduled Caste Mahar. (b) The prosecutrix came in contact and became acquainted with the accused due to employment of both of them with same Company, and that the acquaintance was misused by the accused.
(c) First time the accused called her in the Hotel at Nagpur, and committed rape on her and then promised to marry her when she wept and threatened to commit suicide.
(d) In order to avoid further complications, the accused has kept on representing the prosecutrix that he would marry her.
e) The accused has intermittently called the prosecutrix at the Hotel at Amravati, Yavatmal and Nagpur, every time kept her in the allurement of marriage, and sexually exploited the prosecutrix.
(f) These acts of sexual relationship- of the accused with the prosecutrix by giving promise to marry continued till the accused has breached the promise. (g) If the consent given by the prosecutrix on all subsequent instances of her sexual intercourse by the 6
accused is by consent, said consent was not a free consent since it was given on a mistaken belief that the accused would marry her.

12. Learned Additional Public Prosecutor has placed reliance on the following judgments :-
[1] (2003) 4 Supreme Court Cases 46, Uday Vs. State of Karnataka.
[2] (2005)1 Supreme Court Cases 88, Deelip Singh Alias Dilip Kumar Vs. State of Bihar.
[3] 2007 ALL MR (Cri) 2602 (S.C.) Pradeep Kumar @ Pradeep Kumar Verma V. State of Bihar & Anr.
[4] 2009 ALL MR (Cri) 15, Anil @ Bowa S/o Ashanna Nannewar Vs. State of Maharashtra.
[5] 2009 ALL MR (Cri)18 Suresh S/o Chaitya Konkani Vs. State of Maharashtra & Anr.
[6] (2009) 3 Supreme Court Cases 761, Zindar Ali Sheikh V. State of W. B.
[7] 2007(4) MPHT Page 378 Sanjay Kumawat Vs State of M.P. On 3rd October 2007.
[8] 2008 Cri. L. J. 1099, Bipul Medhi & etc. v. State of Assam.

13. Learned Additional Public Prosecutor has relied on these judgments to urge that:-
(a) On facts, the present is a case where the consent of the prosecutrix was not a free consent.
(b) Case of Uday supra does not lay down a strait jacket formula, and each case will have to be judged separately to discover if the consent is given under 7
mistaken belief etc.
(c) A promise to marry and a consent of prosecutrix for sexual relationship due to such a promise which is a hoax and a device of sexual exploitation may not be a free consent and the case will have to be viewed from this angle.
(d) Once prosecutrix denies the consent, in view of Section 114-A of Evidence Act, the burden to prove that sexual relationship was with consent shifts on the accused.

14. Perused the record, and read the precedents cited at bar.

15. It is necessary to analyze the evidence of PW-6 in the light of rival submissions. On discreet perusal of testimony of prosecutrix, it is seen that the prosecutrix has revealed in all 10 instances of sexual relationship and its background.
16. These instances of sexual relationship are extracted from the deposition of the prosecutrix as follows : (1) ............................................... "
On 13-4-2004 the accused had a talk with me on phone in Mehadia & Sons and he called me to hotel Avadh under pretext of that he wanted to have business talk with me. I accordingly reached near Hotel Avadh at 7 p.m. Accused met me there. He told me there that he would give me a service of good remuneration than my present service. I however, said him that we can have discussion outside the hotel. I slapped him...........
(2) On 5-5-2004 accused talked with me on phone in "
Mehadia & Sons and said me to come down to Yavatmal to meet him. I said him that my examinations are going on, so, I am unable to come. On that he said me that I am dying here, "
8
you immediately come down to Yavatmal and you are talking about examinations". He told me that he wanted to hagve a talk with me for marriage. ON the same day I went to Yavatmal. He came to the bus-stand to take me with him. He was staying at Yavatmal in a rented room. He took me to this room. There also he committed forcible sexual intercourse with me".
(3) Then on 19-5-2004 he again called me on phone "
in Mehadia & Sons. He said me that he came to Avadh hotel, I should meet him there. I went to hotel Avadh and met him. I asked him to marry with me. On that day also he committed forcible intercourse with me".
(4) Then on 28/8/2004 again accused called me on "
phone. Then on 28/8/2004 he talked with me on phone and said I should come to Amravati, so that he would introduce me with the members of his family. I accordingly went to Amravati. He came to the bus-stand to take me with him. He instead of taking me to his house, took me to the hotel. There also he committed forcible sexual intercourse with me".
(5) He again had a talk with me on phone on "
10-10-2004. He said me that he was not feeling well, I should go to see him at Yavatmal immediately. I accordingly went to Yavatmal. He came to bus-stand. I found that he was not ailing. He called me there by falsely saying that he was ill. He took me to hotel Gyanson There also he committed forcible intercourse with me".
(6) On 17-11-2004 accused again have a talk with me "
on phone. He again asked me to come to Yavatmal. I said him that I would not come. He said me that, you are always adamant, you do "
come to Yavatmal right now" (Tum Hamesha Jid Kariti Ho Abhi Yavatmal Ajao). I therefore, went to Yavatmal. As usual he came to bus stop to take me with him. He again took me to the hotel Gyanson. He again committed forcible intercourse with me there on that day".
(7) On 19-12-2004, the accused gave me a phone call "
and said me that he is leaving his job of company, so, I should go and see him at
Yavatmal. He said me that he would not meet me for one month. I accordingly went to Yavatmal. He came to bus-stand. He took me to hotel Galaxy. The accused committed intercourse with me in the hotel".
(8) On 8-7-2005 again he had a talk with me on "
phone from Amarvati. He said me that he would not come to Nagpur and so I should go to 9
Amravati. I accordingly went to Amaravati. He came to bus-stand to take me with him. He took me to one lodge. He committed forcible sexual intercourse with me in that lodge".
(9) On 10-8-2005 again accused gave me a phone call "
and said that he had come down from Pune to Amravati, so, I should see him at Amravati. He insisted me to see him at Amaravati on the same day and said that he was going back to Pune in the evening on that day. I went to Amravati. Accused came to the bus-stop. He took me to one lodge and committed forcible intercourse with me".
(10) On 5-10-2005 again accused talked with me on "
phone. He said me that I should go to Amravati and he would take me to his house and meet me with his family members. I went to Amravati. But he instead of taking me to this house took me to a lodge. On that day also he committed forcible sexual intercourse with me".
[Quoted from page nos.48 to 52 of appeal paper book]

17. Learned Advocate for the appellant has brought to the notice of the Court various omissions and contradictions from which he wants to urge that The testimony of prosecutrix is not believable.

18. On perusal of examination-in-chief and the cross examination of the prosecutrix to test the contradictions and omissions, this Court has noted those, and if required those shall be dealt with appropriately.

19. After scrutiny of statements of prosecutrix, made in the examination-in-chief, pertaining to the first act of rape, what is seen is as follows:-
(a) The accused telephoned the prosecutrix on 13-4-2004, and called her at a hotel.
(b) She had willingly gone to the destination and the 10
address told by the accused.
(c) The accused committed intercourse (rape) with her in spite of her resistance.
(d) She does not explain as to what type of resistance such as shouting, physical opposition, if any, was done by her.
(e) She does not say that she was over powered by the accused.
(f) She simply says that the accused removed her salwar, and then his pant/clothes, and committed rape. (g) She does not say that she has resisted or opposed while the accused was removing Salwar, and as to what she was doing till accused was removing her and his cloths.
(h) All that she says is that after the rape, she had wept and then threatened the accused to commit suicide on which he consoled her and prevented her from doing so, by promise to marry later on, by offering ground of his sister's marriage being due. (i) She also claims that bleeding had occurred, but does not bring any evidence to support her version, such as any evidence, if she took any medical treatment.
20. In relation to all subsequent nine acts of rape, what she has deposed in the examination-in-chief, and what is common is as follows:-
(a) The accused called the prosecutrix on phone and called her at a particular place, address and town. (b) The prosecutrix has visited said destinations which, on all occasions were Hotel rooms at Yavatmal and 11
Amravati which are at 160 Kms away need 4 hours or more by Road to travel, and some occasion at Nagpur. (c) On each such occasion also, the accused committed forcible intercourse with her.
(d) Every time after rape, the accused promised her to marry afterwords.
(e) It is not the plea of the prosecutrix that the consent given by the prosecutrix was on account of any threat or coercion.

21. This Court has to see if :- (a) Whether prosecutrix was raped or she had consented? (b) If the prosecutrix had she consented for selxual intercourse, had she given the consent on account of any mistaken belief?
c) If it be a case of mistaken belief, what was said mistaken belief?

22. On every occasion of forcible act of sexual intercourse, she claims that she quarreled, wept etc., and demanded to marry. In relation to the incident dated 19-5-2004, she does disclose the incident to the Hotel Manager, while Hotel Manger had objected her staying in the room and being with the accused as room was booked for single occupancy.
23. It is probable that the prosecutrix was unaware of need of self restraint of chastity, and therefore, she had succumbed to the sexual passion induced due to the promises to marry. In such eventuality as well, she was supposed to know that in absence of actual matrimonial ties what was being done was an 12
impropriety and immorality from the point view of the society. The Prosecutrix is of age of maturity and it cannot be believed she does not to have knowledge of the consequences of sex particularly after one abortion of pregnancy as she claims which had followed first two acts of rape on her, of which accused caused abortion, by himself providing tablets.
24. If the first act of rape is seen in isolation, and if it was not followed by recurrence of nine acts, as deposed by her in examination in chief, the first act would have given different factual impression that said first act was rape and only rape, when seen in isolation. The series of sexual acts take away and destroy the version of prosecutrix that the 1st incident was by way of rape.

25. It is seen and is clear that the consent is not given by the prosecutrix because of criminal force.
26. Though the learned Additional Public Prosecutor has argued that the consent of the prosecutrix will have to be construed to have been given under mistaken belief, bare argument does not suffice.
For a plea of mistaken belief, it is to be presumed that the prosecutrix had consented. It has to be further asserted that the consent was based on mistaken belief.
27. However, in such eventuality, prosecution should have pursued the trial on the basis that it was a case of mistaken belief, and should have been pursued it accordingly. 13
28 The assertion of mistaken belief cannot be pressed and pursued barely in the form of argument. There has to be a charge to that effect. It is not the case of the prosecution and it is apparent from the charge that the prosecution has proceeded on the basis or foundation that due to mistaken belief of the prosecutrix she had consented for sexual inter course.
29. It is not the case of the prosecution that from the very beginning promise to marry was a hoax and was made without intention to perform from the very inspection.
30. The argument of prosecution is that due to promise by accused to marry, the prosecutrix had consented. Else it is not necessary to distinguish the case of Uddhav (supra). Even if any such argument is now advanced at this stage, it denies to the accused an opportunity to defend the charge. No such charge was at all framed.

31. In the background of these successive meetings and sexual relations, the prosecution and the prosecutrix want that Court should believe that she had no craving for what was due during every meeting and was repeatedly happening. Prosecutrix feels that she was unwilling for sexual relations which unwillingness she construes and interprets to be resistance" on "
her part. This physical desire with inner unwillingness seems to be her psychological resistance i.e. from within than physical resistance.
What emerges from appreciation of evidence and its analysis is that the prosecutrix must be under compulsion from within for what her mind and body wanted, and she has succumbed 14
to the passion, and to this her second thought resists.
32. Had it been that prosecutrix had no desire to have company of the accused or keep sexual relations with him, may be in spite of promise to marry, she would not have repeatedly visited the hotel rooms with the accused, apparently with close doors. Had those been forcible acts those would never have gone unnoticed by even those around and would not have gone unchecked.

33. It is a mystery which has not been solved by the prosecutrix as to why her version about the sexual relations on 13-4-2004 of the accused, removing her Salwar and committing intercourse could not be treated to be a voluntary act on the part of the prosecutrix.

34. Considering the flow of statement of prosecutrix as regards her version about rape on every date of visit or/occasion after 5-5-2004, it becomes very difficult to believe that the incident dated 13-4-2004 as well was a sheer act of rape on her by the accused.

35. Had the incident which had occurred on 13-4-2004 been an act of rape which also resulted in injury and bleeding from her private part, she would not have, within a span of 20 days on 15-5-2004,and offered herself for further meeting and suffered another rape, and re-submitted for the same episode.
36. In the given situation, it is hard amongst hardest cases to believe that version of the prosecutrix that even the 15
first act of sex between her and the accused was a forcible act. If the version of the prosecutrix as stands in the examination in chief is accepted on the face of record, nothing except unqualified and un-conditional the consent for sexual intercourse on every occasion would emerge.

37. The version of the prosecutrix that on all occasions commencing from 5-5-2004, all are the acts at forcible sexual intercourse, does not inspire confidence. In the result, this Court concurs with the submissions advanced in support of the appeal and disagrees with the prosecution case. The appreciation and construction of evidence of the prosecutrix seen from any angle fails in satisfaction of the story couched by prosecutlrix that it is a case of rape being the acts without consent or with consent on mistaken belief of facts.

38. Present case is more or less replica of this Court's Judgment in case of Anil @ Bowa S/o Ashanna Nannewar 2009 ALL MR (Cri.) Page 15, cited by learned APP, as well as the case of Uddhav supra, and caveats recorded in all other citations do not help the prosecution in distinguishing present case on facts
39. All that reveals from the version of the prosecutrix if said version turns out to be believable a little, is that it is due to the promise to marry which the prosecutrix subsequently believed, she did not object the sexual access by the accused which now she calls as forcible intercourse.
40. As is noted by this Court, it is extremely difficult 16
to believe that the prosecutrix roamed around the accused for three years and claimed every sexual relationship as rape, on what is proved, had it been a charge of promise being an hoax even then it would have been hard to believe such story.
41. The case at hand also does not attract Section 114-A of the Evidence Act, on the background of admitted age of the accused. The present one is the case under Section 376-A and Section 114-A of the Evidence Act has no application.
42. It is not a case where the prosecutrix believed that the accused and she were husband and wife. It is a clear case where she says that every she was promised to marry which was atlast broken by the accused. Seen from any angle, present is not a case of mistaken blief being the cause of giving consent for sexual intercourse recurrently and for over a duration of 2 years.

43. The test of the consent of prosecutrix being given under mistaken belief and also the sexual act do not by the accused on the prosecutrix being an act of force are not met by the prosecution. If the version of the prosecutrix about sexual act is true, it has to be construed that it was with her consent. It is thus, clear that the prosecutrix had willingly consented for whatever had happened.

44. Even if the version of the prosecutrix that she had consented to the sexual relationships because of promises to marry is accepted, even then the case at had one which is squarely governed by the ratio as laid down in the judgment in 17
the case of Udhav Vs. State of Karnataka and Sunil Salve 3511 supra, even considering with vigil the caveat as is emerging from the cases of Pradeepkumar and Deelipsingh. As suggested in the case of Udhav, Deelip Singh, and Pradipkumar's case as well in Sanjay Kumar's case, every case could be seen differently.

45. In the light of vivid facts, it is not necessary to threadbare discuss precedents cited at bar, as well the omissions and contradictions relied upon by learned Advocate for the appellant.

46. In the result, appeal succeeds. The appellant - accused is acquitted of charge offence under Section 376(1) as well under Section 417 of the Indian Penal Code. He be set at liberty forthwith unless required in any other case.
JUDGE
| MULEY |
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