1. CRI APEAL 1051-15.doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1051 OF 2015
Vaishali Arun More
Age - 33 Years, Indian Inhabitant,
R/at: 104, Sinhagad, Adarsh Vishva,
Vade Phatta, Satara. .. Appellant
(Org. Complainant)
Versus
1. Rushikant Jaywantrao Shinde
Age - Adult, Occ. - Business,
R/at - Humgaon, Tal. - Jaoli,
Dist. Satara.
Also having residence at 502, Sai Smruti,
Visten Road, Lokmanya Tilak Nagar,
Dadar (E), Mumbai.
2. The State of Maharashtra .. Respondents
...................
Appearances
Mr. Rajiv Patil Sr. Advocate
i/by Mr. Anil D. Joshi Advocate for the Appellant
Mr. Harshad Bhadbhade Advocate for Respondent No. 1
Mr. H.J. Dedia APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
A.M. BADAR, JJ.
DATE : FEBRUARY 27, 2017. jfoanz vkacsjdj 1 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:49 ::: 1. CRI APEAL 1051-15.doc
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant - original complainant being aggrieved by the judgment and order dated 14.9.2015 passed by the learned 2nd Additional Sessions Judge, Satara in Sessions Case No. 74 of 2014 thereby acquitting respondent No. 1 - original accused for the offence punishable under Section 376 of IPC.
2. The prosecution case briefly stated, is as under:
(a) The prosecutrix is a young lady. She was aged about 33 years at the time of the incident. She is the wife of one Arun More who was resident of Mumbai. The prosecutrix was residing alone at Satara. In the year 2009, she became acquainted with respondent No. 1 who also resided at Mumbai. In the year 2013, she wanted to sell the house of her mother at Mumbai and therefore, she again came in contact with respondent No. 1. During her meetings with respondent No. 1, she had disclosed to him that she was going to reside jfoanz vkacsjdj 2 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:49 :::
1. CRI APEAL 1051-15.doc in Satara for treatment of infertility.
(b) On 16.2.2014 at about 10.00 a.m., respondent No. 1 had phoned the prosecutrix and told her that he wanted to talk about the property deal. The prosecutrix had refused to meet him on the ground that her husband was not at home. Respondent No. 1 continued to call her on phone and insisted to meet but the prosecutrix went on refusing. At about 7.45 p.m., respondent No. 1 came to the house of the prosecutrix. When the prosecutrix started talking about the property, respondent No. 1 told her that they shall talk about it at Mumbai. The prosecutrix offered him tea and when she had gone in the kitchen, respondent No. 1 followed her and took her forcibly to the bed room and committed forcible sexual intercourse with her. At about 8.15 p.m., he ran away. The prosecutrix was in a state of jfoanz vkacsjdj 3 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:49 :::
1. CRI APEAL 1051-15.doc shock for 4 to 5 hours and therefore, she did not take any action. After she regained control of herself, she called for a rickshaw at 12.30 midnight and went to Satara City Police Station and lodged complaint Exh. 31 against respondent No. 1 about respondent No. 1 committing rape on her. Offence was registered at Cr. No. 141/2004 with Satara City Police Station for the offence punishable under Section 376 of IPC. Thereafter, investigation commenced. Respondent was arrested. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions.
3. Charge came to be framed against respondent No. 1- original accused under Section 376 of IPC. Respondent No. 1 pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced in jfoanz vkacsjdj 4 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:49 :::
1. CRI APEAL 1051-15.doc this case, the learned Sessions Judge acquitted respondent No. 1 of the offence charged, hence, this appeal preferred by the appellant - original complainant against acquittal of respondent No. 1.
4. We have heard the Senior Advocate for the appellant, learned counsel for respondent No. 1 and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that there is no merit in the appeal.
5. This is a case of sole incidence of rape alleged to have been committed by respondent No. 1 on the prosecutrix on 16.2.2014 at about 7.30 p.m. in the house of the prosecutrix at Satara. It is a case where we have the sole evidence of the prosecutrix. The prosecutrix though married was jfoanz vkacsjdj 5 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:49 :::
1. CRI APEAL 1051-15.doc residing alone in Flat No. 104, Sinhagad Apartment in Aadarsh Vishwa Gruh Sankul at Satara. Her husband was residing at Mumbai. There is admittedly no witness to the incident. However, considering the nature of the offence, one can hardly expect a witness to the incident. We have the evidence of the prosecutrix only and therefore, the question would be whether the sole evidence of the prosecutrix can be believed or not. It is well settled that the evidence of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix. Keeping in mind the above settled position, we now proceed to deal with the evidence of the prosecutrix.
6. The prosecutrix has stated that she is residing at Satara since 2013. Prior to it from 2009 to 2013, she was residing in Mumbai. She was married to one Sujay Jadhav in the year 2010 but had obtained a divorce from him by mutual consent. She then married one Arun More on jfoanz vkacsjdj 6 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:49 :::
1. CRI APEAL 1051-15.doc 15.7.2013. He resided at Wawandhal, Near Chowk, Taluka Khalapur and used to visit her at Satara on weekends. The prosecutrix has stated that she was residing at Satara as Arun More was taking treatment from Dr. Patil at Satara for infertility. According to the prosecutrix, her married life was a happy one. She has given the details regarding how she came in contact with respondent No. 1 and it can be summed up in a single line that respondent No. 1 was a real estate agent and the prosecutrix wanted to sell some property.
7. The prosecutrix has further stated that on 12.2.2014, respondent No. 1 phoned her and said that he was coming home. The prosecutrix told respondent No. 1 not to come and gave him some excuse. On 16.2.2014 at 10.00 a.m., respondent No. 1 again phoned her and said that he was coming home. The prosecutrix told him that her mother and husband were to come and therefore, he should not visit her house. In spite of that, respondent No. 1 kept saying that he jfoanz vkacsjdj 7 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:49 :::
1. CRI APEAL 1051-15.doc would come. The prosecutrix has further stated that on 16.2.2014 at 7.45 p.m., respondent No. 1 came to her house, hence, she had no alternative but to allow him to enter into the house. The prosecutrix had kept the main door open but respondent No. 1 had insisted to close it and therefore, she had closed it. The prosecutrix had offered tea to respondent No. 1. She attempted to talk to respondent No. 1 but respondent No. 1 told her that they shall talk about it at Mumbai. According to the prosecutrix, she had gone in the kitchen to keep back the cup of tea and while she was returning, respondent No. 1 went inside, caught her and pushed her on the bed and had forcible sexual intercourse with her. According to the prosecutrix, respondent No. 1 had removed her leggings and her nicker prior to the sexual intercourse. Thereafter, respondent No. 1 ran away. The sudden act of respondent No. 1 had put the prosecutrix in a great shock. After about two to three hours, she got back her composure. She then decided to lodge compliant. She tried to contact the police on 100 number but could not jfoanz vkacsjdj 8 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:49 :::
1. CRI APEAL 1051-15.doc contact. She had a bleeding injury on her lip and left leg. She thought she would ask respondent No. 1 why he had done this and tried to contact him but respondent No. 1 did not respond to her calls. After some time, respondent No. 1 had called her back but the prosecutrix did not answer his call. The prosecutrix called him back as she wanted to take him to the police station but respondent No. 1 did not answer her calls. The prosecutrix then went to the police station and lodged complaint.
8. The prosecutrix has further stated that after 27.2.2014, she remembered that respondent No. 1 was carrying a leather pouch with him and she had suspected that he was carrying a revolver. She had told the police to record her supplementary statement to that effect and police had recorded her statement on 3.4.2014.
9. The prosecutrix was cross-examined at length. In her cross-examination, she has admitted that she was working in jfoanz vkacsjdj 9 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:49 :::
1. CRI APEAL 1051-15.doc the police department as a police constable. She then started working in Bharati Axa Life Insurance Company as Agency Manager. She has admitted that in the year 2011, she became acquainted to one Nandu Khanvilkar / Khanolkar who was a free-lancer in H.D.F.C., Life Insurance. She has admitted that she would talk to Nandu Khanvilkar / Khanolkar on phone and personally and his phone number was 9867173756. She was in contact with Nandu Khanvilkar / Khanolkar until 2013. Thereafter, since September 2013, she was in contact with him till the date of her deposition. She has admitted that her husband Arun More's phone number is 956125759 and she and her husband have not spoken to each other on this number during the period August 2013 to February 2014. According to the prosecutrix, she would talk to her husband daily on phone number 9867973756 i.e the number of Nandu Khanvilkar / Khanolkar. She has admitted that during the period August 2013 to February 2014, she has made 800 calls and 200 to 300 SMS on the number of Nandu Khanvilkar / Khanolkar. jfoanz vkacsjdj 10 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:49 :::
1. CRI APEAL 1051-15.doc
10. The prosecutrix was asked whether respondent No. 1 had made 142 calls and 24 SMS to her during the period from August 2013 to February 2014 on which she showed her inability to say anything. She has, however, volunteered and replied that the number could be even more. She has feigned ignorance as to whether 14.2.2014 was a Valentine's Day and she stated that she does not remember whether her SMS on 14.2.2014 to the respondent was 'Happy Valentine's Day, I love you." She has stated that she had not shown the injuries on lips and legs to the medical officer. She does not remember whether there were any semen stains on her clothes or the bed-sheet. She stated that she had not attempted to scratch respondent No. 1 with her nails at the time of the incident. The prosecutrix has then stated that after her marriage, her husband Arun More had changed his attitude towards her and would act as per the directions of his mother and brother. Her mother-in-law was orthodox in nature and she believed that the prosecutrix was possessed by an evil spirit. Her mother-in-law would treat her jfoanz vkacsjdj 11 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:50 :::
1. CRI APEAL 1051-15.doc accordingly and would ask her to bathe even if she visited the washroom. The prosecutrix then stated that her husband and his family members were insisting that she should sell the flat at Satara and give them money. Her brother-in-law is younger to her husband and has no issue. Her husband did not have any issue even from his first marriage. She has admitted that after a passage of time, she became friends with respondent No. 1. They were calling each other and sending SMS. The behaviour of respondent No. 1 was good to her normally. She has admitted that her husband and his family members wanted a child. On 14.2.2014, she had sent a SMS to respondent No. 1 that she would stay with him for several lives.
11. The prosecutrix has further stated that respondent No. 1 had not used condom during the sexual intercourse. Her in-laws wanted an heir to the property by hook or crook and it could even be from her brother-in-law. Since her marriage until 16.2.2011, the prosecutrix had started comparing jfoanz vkacsjdj 12 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:50 :::
1. CRI APEAL 1051-15.doc respondent No. 1 with her husband. She has admitted that in the entire mental condition she was, she had agreed for sexual intercourse with respondent No. 1 on the day of the incident. She had felt that she will talk with respondent No. 1 regarding the property and had made several calls to him. She stated that she had thought that the option of sexual intercourse with respondent No. 1 was the best option to bear a child rather than from her brother-in-law and therefore, she had agreed for sexual intercourse with respondent No. 1. She has further stated that she then thought that if her husband learns about it, her marriage would come to an end and therefore, she filed the complaint.
12. The prosecutrix is an educated lady. She has stated that she had done her B.A., M.B.A. and is pursuing her LL.B. examinations. She is aware that it is an offece to give false evidence on oath. She has admitted that she was given police protection by the Superintendent of Police in this matter. She had personally attended the bail matter and jfoanz vkacsjdj 13 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:50 :::
1. CRI APEAL 1051-15.doc had filed an affidavit that she had a threat from respondent No. 1 and therefore, the bail application of respondent No. 1 was rejected. She has stated that her two statements that the sexual intercourse was against her will and without her consent and that she had consented to the sexual intercourse, are both correct. She has clarified that the consent was in frustration and it was only on the day of the incident and not at any time prior to it.
13. In her cross-examination, the prosecutrix has admitted that as she was ill-treated at the matrimonial house on the count of not having a child and because her in-laws had learnt that the house at Panvel was not in her name, she had consented to the sexual intercourse with respondent No. 1 on the day of the incident.
14. What can be gathered from the entire evidence re- produced above is that the prosecutrix before us is an educated lady who has done her graduation in Arts and jfoanz vkacsjdj 14 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:50 :::
1. CRI APEAL 1051-15.doc obtained M.B.A. Degree and is also pursuing her LL.B. course. She had worked as a Police Constable for some time. She has also worked with the Bharati Axa Life Insurance Company as a Agency Manager. Needless to say that she is not only a well educated lady but also a working woman. Considering her age and the other facts, it can be said that she is a matured woman. What can be gathered from the entire tenor of the oral evidence of the prosecutrix is that she is not a witness who could be believed and trusted. The story put forth by the prosecutrix of rape by respondent No. 1 is improbable and her evidence does not inspire confidence at all. The prosecutrix wants us to believe that she was residing at Satara alone because her husband was taking some fertility treatment at Satara. It cannot be ignored that her husband is residing and serving in a place near Mumbai. In spite of it, he is taking treatment at Satara. That apart though it was the husband who was taking the treatment, he continued to reside in Mumbai and the prosecutrix was alone residing at Satara. This is very difficult to understand and jfoanz vkacsjdj 15 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:50 :::
1. CRI APEAL 1051-15.doc also to digest.
15. Coming directly to the allegation of rape, it does not require any discussion in view of the admission given by the prosecutrix in unequivocal terms that the sexual intercourse was with consent. The prosecutrix has clearly admitted that respondent No. 1 was her friend and on the day of the incident, she had agreed to the sexual intercourse with respondent No. 1 as she wanted a child from respondent No.
1. Thus, if any sexual intercourse had taken place between the prosecutrix and respondent No. 1 on 16.2.2014, it was only with her consent.
16. The medical evidence also does not support the story of forcible sex. No injuries were found on the private parts or any part of the body of the prosecutrix though she wants to contend that she had resisted and bleeding injuries were caused to her. If she had sustained injuries, she would have definitely brought them to the notice of the doctor but not jfoanz vkacsjdj 16 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:50 :::
1. CRI APEAL 1051-15.doc doing so raises further doubt about the veracity of her evidence. Further, the conduct of the prosecutrix repeatedly calling respondent No. 1 and even sending him messages and the contents of the messages to respondent No. 1 create not only strong doubt about her testimony but also shatters her case of rape by respondent No. 1. In view of the admissions given by the prosecutrix and in view of the other circumstances discussed above, it is more than clear that the prosecutrix had indulged in consensual sexual intercourse with respondent No. 1 on the day of the incident. Thus, no case of rape is made out, hence, the learned Sessions Judge rightly acquitted respondent No. 1 of the offence under Section 376 of IPC. The view of acquittal taken by the learned Sessions Judge is not just a reasonable and possible view but looking to the evidence, it is the only view which could have been taken by the learned Judge.
17. In view of the above, the appeal is dismissed. As far as the perjury notice is concerned, the issue will have to be jfoanz vkacsjdj 17 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:50 :::
1. CRI APEAL 1051-15.doc adjudicated before the trial Court. The contentions of the parties in relation thereto are kept open. [ A.M. BADAR, J. ] [ SMT. V.K. TAHILRAMANI, J. ] jfoanz vkacsjdj 18 ::: Uploaded on - 10/03/2017 ::: Downloaded on - 27/08/2017 18:10:50 :::