State Of Maharashtra vs Vishnu Tulshiram Karwate And Ors

Amit B. Borkar, J

This is an appeal under Section 378 (1) of the Code of Criminal Procedure, filed by State of Maharashtra challenging the judgment and order

passed by the Sessions Judge, Akola, dated 16.11.2013 in Sessions Trial No.90/2008, acquitting the accused of charge for the offences punishable

under Sections 376 and 417 read with Section 34 of the Indian Penal Code (IPC).

The prosecution case, in brief, is as follows:-

The prosecutrix was staying alongwith her parents at village Kothali (Bk.). The accused Vishnu and Siddhu are inter-se brothers. Accused -

Tulshiram and Accused - Rukminibai are their parents. They are also staying in village Kothali in the same locality. The prosecutrix was working in

the field of the accused. It is alleged that the incident occurred two years prior to lodging of report. The prosecutrix had gone to the house of the

accused for work. The accused - Vishnu was alone in the house. It is alleged that the accused - Vishnu caught hold of the prosecutrix forcibly and

made her to lie on the floor, removed her clothes and committed rape on her. She tried to raise alarm but, the accused - Vishnu gagged her mouth and

gave her threat of killing and forced her not to tell the incident to anyone. After this incident, the accused - Vishnu subjected her to sexual assault on

several times. Vishnu was promising her that he would marry with her. While the prosecutrix was carrying seventh month, her parents made enquiry

with her about pregnancy. She told that she is pregnant from the accused - Vishnu. Thereafter, her parents went to the house of the accused. The

accused persons promised her that they would perform marriage of Vishnu with the prosecutrix after delivery. The prosecutrix gave birth to a male

child on 01.10.2007. The parents of the prosecutrix gave information of birth of male child to the accused. The accused - Vishnu told them that he will

perform marriage after 11/4 months. On 10.11.2007 at about 9:00 a.m., the prosecutrix alongwith her newly born son went to the house of the

accused, but they did not allow her to enter into their house and also abused her. After two days, the prosecutrix lodged report with the Police Station.

On the basis of the said report, offence bearing Crime No.106/2007 under Sections 376, 417, 504 and 506 read with Section 34 of IPC was registered

against the accused. P.S.I. Tripathi, Investigating Officer carried out the investigation. He recorded statements of the witnesses and also seized blood

samples of the prosecutrix, her son and the accused - Vishnu and sent it to the chemical analysis. During the course of investigation, it was transpired

that the accused - Vishnu committed rape on the prosecutrix by promising her of marriage and the accused persons refused to perform marriage and

thereby cheated the prosecutrix. Charge-sheet came to be filed against them in the Court of Judicial Magistrate First Class, Barshitakli, who

committed the case to the Court of Sessions, in accordance with the provisions of Section 209 of Code of Criminal Procedure.

The learned Sessions Judge framed Charge against the accused for offences punishable under Sections 376, 417 read with Section 34 of the Indian

Penal Code. The charge was read over and explained to the accused in their vernacular to which they pleaded not guilty and claimed to be tried. The

defence of the accused was of total denial and false implication.

The prosecution in support of its case examined six witnesses. The learned Trial Court disbelieved the testimony of the prosecutrix and other

material on the record to prove charges levelled against the accused and acquitted all the accused of all charges. The State has, therefore, filed

present appeal against acquittal.

Addressing arguments on behalf of the State, Shri S. S. Doifode, learned Additional Public Prosecutor for the appellant, submitted that the learned

Trial Judge failed to give due weightage to the testimony of the prosecutrix, who in her deposition unequivocally stated manner in which she was raped

by the accused no.1. The learned Additional Public Prosecutor further submitted that the learned Trial Judge has committed a grave error in

disbelieving the School Leaving Certificate produced by the prosecution. The date of birth of the prosecutrix, as per School Leaving Certificate, is

dated 11.4.1990. It is submitted that as per School Leaving Certificate, the prosecutrix was less than 16 years on the date of commission of offence.

The learned Additional Public Prosecutor submitted that there is no major contradictions or improvements in the testimony of the prosecutrix, which

could discredit her version on the material facts. It is further submitted that the learned Sessions Judge also failed to appreciate that even

uncorroborated testimony of the prosecutrix, by itself, is sufficient to convict the accused persons, so far as offence of rape is concerned.

Ms. Divya Joshi, learned Advocate holding for Shri S. V. Sirpurkar, learned Advocate for the respondent nos.1 to 4, submitted that evidence of the

prosecutrix does not inspire confidence. The case of the prosecution is that it is only after seventh month of pregnancy of the prosecutrix, when her

parents went to accused, the accused persons promised marriage with the accused - Vishnu. It is not the case of the prosecution that first incident of

sexual intercourse as alleged in the First Information Report, was committed on the promise of accused no.1 to marry with the prosecutrix. It shows

that the prosecution story is unreliable. It is submitted that neither the prosecutrix nor her parents have stated that the prosecutrix was below 16 years

of age on the date of commission of offence. Therefore, the learned Trial Judge was justified in acquitting all accused.

We have given our thoughtful consideration to the arguments advanced by Advocates on both sides. We have also gone through the impugned

judgment and other material placed on record.

Section 375 of the Indian Penal Code defines the expression “rapeâ€, which indicates that the first clause operates, where the woman is in

possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent;

the third, fourth and fifth, when there is consent, but, it is not such a consent as excuses the offender, because it is obtained by putting her in fear of

death or of hurt of any person in whom she is interested. The expression “against her will†means that the act must have been done in spite of the

opposition of the woman. An inference as to consent can be drawn only if it is based on evidence or probabilities of the case. “Consent†is also

stated to be an act of reason coupled with deliberation. “Consentâ€, for the purpose of Section 375 of the Indian Penal Code, requires voluntary

participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but, after having fully

exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant

circumstances.

We are, in this case, concerned with the issue as to whether the prosecutrix was below 16 years of age when the incidences alleged in the First

Information Report took place. It is most important to note that the prosecutrix has not stated her age or date of birth. She has nowhere stated that she

was below age of 16 years, when the accused Vishnu allegedly committed sexual intercourse with her. The prosecution has placed on record a School

Leaving Certificate dated 11.04.1990 showing the date of birth of the prosecutrix. But, the prosecution has failed to bring on record the source of

entry of the School Leaving Certificate. The Trial Court has not relied on the School Leaving Certificate, as the prosecutrix herself has not stated her

date of birth and the source of entry of date of birth in the School Leaving Certificate is not mentioned by the prosecution. According to the

prosecutrix, she was subjected to sexual assault somewhere in the month of November 2005. The prosecutrix had given birth to a male child on

01.10.2007. The prosecutrix has stated that she was subjected to sexual intercourse before two years of lodging the report. Therefore, it is difficult to

believe the case of prosecution that on the date of the incident reported in First Information Report, which allegedly occurred two years’ prior to

lodging of the First Information Report, the prosecutrix was below 16 years.

As regards the incident of rape, the prosecutrix stated that prior to two years’ of lodging of the report, she had gone to the house of accused -

Vishnu, who was alone in the house and he forcibly dragged her inside the house and raped her. It is pertinent to note that the reason for delay in

lodging First Information Report was that the accused - Vishnu had warned her not to inform the incident to anybody and, therefore, she had not

informed the incident to anybody including her parents. It is stated by the prosecutrix that Vishnu gave her promise to marry and committed sexual

intercourse with her at his house, time to time. It is only in the seventh month of pregnancy, when her parents inquired with her about pregnancy, she

told her parents that she had conceived from the accused - Vishnu. It is pertinent to note that the prosecutrix, in her evidence, nowhere stated that the

accused promised to marry with her and then subjected her with first incident of sexual intercourse. The prosecutrix stated that she had no grievance

against the accused - Vishnu, if he performs marriage with her.

The material on the record shows that prosecution has failed to prove that prosecutrix was below 16 years of age when the incident of sexual

intercourse occurred. The prosecutrix herself was going to the house of the accused. There is no evidence of promise of marriage at the time of

alleged incident. The prosecutrix neither lodged report to Police Station nor had made any complaint to her parents. It is only when she was in seventh

month of pregnancy, she disclosed her relationship with the accused - Vishnu to her parents. Taking into consideration these circumstances, the

learned Trial Judge has rightly disbelieved the version of the prosecutrix that the accused - Vishnu committed forcible intercourse with her.

The prosecution has also relied upon the circumstantial evidence in the form of DNA report to prove that the biological father of the child born to

the prosecutrix, was the child from the accused - Vishnu. The evidence on record does not indicate that the blood samples of the prosecutrix and her

son were collected by following procedure. The prosecutrix herself has not stated that her blood sample was collected for DNA test. The prosecution

has failed to examine chemical analyst, who conducted DNA test of the prosecutrix and her son. Therefore, only on the basis of the report of

chemical analyst, it cannot be concluded that the accused - Vishnu is biological father of the new born child. It is pertinent to note that the prosecution

had not examined the Medical Officer, who collected blood samples of the prosecutrix and her son. There is no evidence on record about collection of

blood samples of the prosecutrix and her son by Medical Officer. There is no evidence to show that blood samples were packed and sealed by

Medical Officer. Moreover, the report of DNA test does not help the prosecution in view of our findings recorded earlier about failure of the

prosecution to prove that the prosecutrix was below 16 years on the dates of alleged incidents, and about forcible sexual assault.

Taking into consideration the entire material placed on record, we are of the opinion that there is no sufficient evidence on record to connect

accused Vishnu with the commission of offence punishable under Section 376 of the Indian Penal Code.

The second charge levelled against the accused persons is in relation to offence of cheating punishable under Section 417 of the Indian Penal

Code. On reading of the Section, to bring home the guilt, it is necessary that a person must be induced fraudulently or dishonestly to deliver any

property to any person. The prosecutrix has stated in her evidence that prior to two years of lodging of the report, she had gone to the house of

accused for work and accused - Vishnu was alone at home, he forcibly dragged her inside the house and committed forcible sexual intercourse. This

evidence shows that there was no promise of marriage before the alleged act of forcible sexual intercourse. It is well settled that mere breach of

promise cannot give rise to criminal prosecution for cheating unless, fraudulent or dishonest intention is shown right at the beginning of the act

committed. In absence of case of the prosecution that, since beginning accused - Vishnu had dishonest or fraudulent intention not to marry with the

prosecutrix, it would be difficult to connect the accused with the offence of cheating.

The learned Trial Judge has rightly appreciated the material on record produced by the prosecution and has not committed any error by acquitting

all the accused. Even otherwise, it is settled law that the Appellate Court may interfere in an appeal against acquittal when there are substantial and

compelling reasons to do so. Accordingly, we find that no illegality or infirmity in the judgment of Trial Court warranting interference. Therefore,

present appeal is dismissed.