Chitra Vitthalrao Ade vs Ganesh Dinesh Dixit And Another

Court: HIGH COURT OF JUDICATURE AT BOMBAY

Bench: JUSTICE V.M. Deshpande

Chitra Vitthalrao Ade vs Ganesh Dinesh Dixit And Another on 17 February 2018

Law Point: 

JUDGEMENT

1. This is an appeal filed by the complainant challenging judgment and order dated 8.7.2004 passed by the Court of Assistant Sessions Judge, Yavatmal, in Special Case No. 1 of 2004, whereby respondent no.1-accused was acquitted for offences under Sections 376 and 417 of the Indian Penal Code (IPC) read with Section 3(1) (xii) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989.

2. The appellant-complainant approached the Police Station Yavatmal city, claiming that the respondent no.1 had sexual intercourse with her for about 2 years prior to her submitting the oral report of complaint before the Police on 2.8.2003 and that the respondent no.1 had given false promise of marriage to her, as a result of which it was evident that he had committed offences under Sections 376and 417 of the IPC. It was the case of the appellant in her oral report before the Police that the respondent no.1 was residing as a tenant in a house near her residence and that when they came in contact with each other, she fell in love with him and that on the assurance of marriage given by the respondent no.1, there 3 Apeal589-04.odt were sexual relations between them. It was further stated that due to the said sexual relations between them, the appellant became pregnant and on 10.02.2003 she gave birth to a male child. It was stated that since she belonged to the Scheduled Tribe Gond and the respondent no.1 belonged to the Brahmin community, the respondent no.1 had also committed offence under Section 3(1)(xii) of the SC & ST (Prevention of Atrocities) Act, 1989. On the basis of such oral report, the Police registered first information report against the respondent no.1 for offences under Sections 376 and 417 of the IPC and also 3(1)(xii) of the SC & ST (Prevention of Atrocities) Act, 1989. Investigation was conducted and on the basis and the material available on record, charge sheet was submitted against the respondent no.1.

3. On 17.4.2004, the Court framed charge against the respondent no.1 for the above offences. The prosecution produced four witnesses in support of the aforesaid charge that was framed against the respondent no.1. PW1 Chitra was the appellant- prosecutrix herself, PW2 Ashok was the landlord of the respondent no.1 who was declared hostile, PW3 was a person who claimed to know the accused-respondent no.1, but he also turned hostile and PW4 was Ramdas Deshpande Investigating Officer in the present case. It is significant that the mother of the appellant was not examined by the prosecution , although she was a person who could have deposed about the actual nature of relationship between the appellant and respondent no.1.

4. On the basis of the oral and documentary evidence on record, the Court below found that the prosecution had failed to prove its case beyond reasonable doubt. The Court found that there was insufficient material on record to come to a conclusion that there was fraudulent intention on the part of respondent no.1 and that sexual relations were established by him with the appellant by giving false impression or promise of marriage. The Court also found that there was absence of material on record to give a finding that the respondent no.1 belonging to Brahmin community, had dominated the will of the appellant who was from a depressed class in the society and on that basis, it was found that offence under the provisions of SC & ST (Prevention of Atrocities) Act, 1989 was not proved. On this basis, the Court below passed the impugned judgment and order acquitting the respondent no.1 of all the offences.

5. Aggrieved by the said judgment and order, the appellant-complainant filed the present appeal, in which leave was granted on 22.11.2004 and the appeal was admitted.

6. Mrs. J.D. Dharmadhikari, Advocate, was appointed as counsel to appear on behalf of the appellant in this appeal. It was submitted by the learned counsel appearing on behalf of the appellant that the evidence on record did indicate that the respondent no.1 had given false promise of marriage to the appellant and that by doing so, he had lured her into having sexual relations with him. It was submitted that this amounted to an offence under Section 375 of the IPC, which was punishable under Section 376 thereof. It was submitted that the impugned judgment and order deserved to be quashed and set aside and that the respondent no.1 deserved to be convicted and sentenced for the offences for which he was charged.

7. Ms. K.E. Meshram, Advocate holding for Mr. D.M. Kale, Advocate, appeared for respondent no.1 and submitted that the impugned judgment and order was based on proper appreciation of the evidence and material on record and that no interference was called for in this appeal.

8. The question that arises for consideration in this appeal is as to whether there was sufficient evidence and material on record to show that the respondent no.1 had made a false promise or given a false impression to the appellant about marriage and that on such false promise, he had lured her into having sexual relations with him.

9. In order to answer the said question and to analyse whether the impugned judgment and order is correct, it is necessary to refer to the evidence and material on record.

10. In this case, the evidence of the prosecutrix i.e. the appellant herein is most crucial because no other witness of significance has been examined by the prosecution. It is surprising that the mother of the prosecutrix- appellant has not been examined by the prosecution in the present case, although as per the version of the prosecutrix herself, she was a young woman living with her mother, during the period when she had relations with the respondent no.1. A perusal of the evidence of the prosecutrix- appellant (PW1) shows that she has admitted that the respondent no.1 and she herself were in love with each other. It is also admitted that they were having 7 Apeal589-04.odt sexual relations for about 2 years and in the cross-examination it is admitted by her that she did not refuse respondent no.1 from further sexual intercourse in spite of no offer of marriage from him. The entire tenor of the evidence of the prosecutrix- appellant shows that she willingly had sexual relations with the respondent no.1. The evidence of this witness does not show that the respondent no.1, from the very beginning of their interaction, with mala fide intention, gave a false impression or promise of marriage while establishing sexual relations with her. It appears that both of them were in love with each other, resulting the relationship between them for more than 2 years.

11. The evidence of PW2, the landlord of respondent no.1, does not take the case of the prosecution any further because this witness simply states that he knew nothing about the relationship between the appellant and the respondent no.1. In fact, this witness was declared hostile and he was cross-examined by the Prosecutor. Similarly, PW3 who claims to have known the respondent no.1, turned hostile and he was cross-examined by the Prosecutor. PW4 was the investigating officer and his evidence does not specifically bring out facts to demonstrate that the respondent no.1 had given false promise of marriage to the appellant, right from the inception of the 8 Apeal589-04.odt relationship between the appellant and respondent no.1.

12. In order to successfully prove the allegation of rape in such cases where the prosecutrix claims that she had sexual intercourse with the accused under the impression that he was to marry her, it is necessary to bring on record material to show that the accused right from the inception had mala fide intention and that he had made such false promise of marriage from the very beginning, in order to lure the victim to have sexual relations with him. This has been held in various judgments by the Hon’ble Supreme Court including in the case of Dipak Gulati .vs. State of Haryana – (2013) 7 Supreme Court Cases 765. The Hon’ble Supreme Court has held that there is a clear distinction between rape and consensual sex. It is only when the accused lures the victim into having sexual relations on the false promise of marriage and this is done right from the beginning of the relationship, that offence of rape can be said to have been made out in such cases.

13. In this regard, Section 90 of the Indian Penal Code is relevant because it refers to consent given under a misconception of fact and the person doing an act knows or 9 Apeal589-04.odt has a reason to believe that the consent has been given as a consequence of such misconception. Thus, if it is proved that consent has been given by a victim to enter into sexual relations under the impression that the person would be marrying her, such consent would not be a consent in law and it would certainly amount to offence of rape as defined under Section 375 of the IPC. In order to establish that such consent was given under misconception, it would be necessary to bring on record supporting evidence and material on record.

14. In the present case, other than the evidence of the prosecutrix- appellant, there is no evidence to prove the case of the prosecution. An analysis of the evidence of the prosecutrix- appellant (PW1) in the present case, shows that even as per her own admission, both the appellant and the respondent no.1 were in love with each other. They were adults and they had sexual relations with each other for a period of about 2 years. The said witness categorically admits in her evidence in cross-examination that she did not refuse the respondent no.1 from having sexual intercourse with her despite the fact that there was no offer of marriage. This nature of evidence on record shows that it cannot be said that the respondent no.1, right from the inception of relations 10 Apeal589-04.odt between the parties had lured the appellant to have sexual intercourse with him.

15. The Court below is, therefore, justified in holding that the prosecution has failed to prove its case. It is also correctly noted in the impugned judgment and order that it was strange that the mother of the appellant- prosecutrix was not examined by the prosecution, although the appellant was admittedly residing with her mother. The Court below has taken into consideration the entire evidence and material on record and it has taken a view which is based on reasonable appreciation of the material on record. Similarly there is no material to show that the respondent no.1, being a person belonging to a higher strata of society, dominated the will of the appellant- prosecutrix to exploit her sexually. Therefore, the offence under the provisions of SC & ST (Prevention of Atrocities) Act, 1989 was not made out and the Court below correctly concluded in favour of the respondent no.1 in that regard.

16. Therefore, there appears no error in the impugned judgment and order, whereby the respondent no.1 has been acquitted of all the offences for which he was charged. The appeal is dismissed. Since the respondent no.1 was on bail during the pendency of this appeal, his bail bonds stand discharged.

17. Since the learned counsel appearing for the appellant is appointed counsel, the fees payable to her are quantified at Rs.5,000/- (Rs. Five Thousand).

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