Sunil Vishnu Salve And Anr. vs State Of Maharashtra
2005 Latest Caselaw 1361 Bom

JUDGMENT

A.S. Bagga, J.

1. Both these criminal appeals are directed against the judgment and order dated 31/10/1994, passed by learned Additional Session Judge, Aurangabad in Session Case No. 14/1994, whereby the appellants (original accused Nos. 1 and 2) have been convicted for the offence punishable under Section 376 of the India Penal Code and Section 376 read with Section 109 of the India Penal Code respectively. Each of the accused has been sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 500/-, in default to suffer further rigorous imprisonment for six months for the offence punishable under Section 376 and for the offence punishable under Section 376 read with Section 109 of the India Penal Code respectively.

2. Prosecutrix, aged about 20 years, namely Vandana resided with her parents at Milindnagar, Aurangabad. Accused also a young boy of about 23 years, resided in the neighbourhood while accused No. 2, a married woman, resided in rented premises in front of the house of prosecutrix Vandana. It is stated that during the absence of the parents of Vandana, she was called by the original accused No. 2 in her house where the accused No. 1 was present. Accused No. 1 had sexual intercourse with Vandana in the house of accused No. 2 Vandana came home after the sexual intercourse, changed her clothes and went to watch a cinema with accused No. 1. Thereafter, the accused No. 1 and Vandana had regular physical contacts. The first incident took place in the month of January, 1992. The physical relationship and the sexual intercourse between the two continued until the girl Vandana conceived. She was admitted in the hospital and she delivered a female child in the month of September, 1992. It is stated that earlier when her parents came to know about the conception, she had told her parents that the accused No. 1 was ready to marry with her. The accused No. l was approached with a proposal to marry Vandana and it is the case of the prosecution that the accused No. 1 refused to marry her. It was in such circumstances that a report about the incident came to be lodged by the complainant in the Police Station. On the basis of this report, offence punishable under Section 376 of the India Penal Code came to be registered against the original accused No. 1 as also against original accused No. 2. The spot panchanarna was recorded and the spot panchanama of the house of the accused of the accused No. 2 where the first sexual intercourse had taken place in January 1992 was recorded and after completion of investigation, charge-sheet came to be filed against both the accused. The original accused No. 1 was charge-sheeted for having rape upon the prosecutrix Vandana and original accused No. 2 came to be charge-sheeted for having abetted the commission of rape by accused No. 1 on the prosecutrix Vandana.

3. Before learned trial Judge, the prosecutrix Vandana came to be examined as P.W.I. Her father was also examined as P.W.2. Two medical officers came to be examined, one medical officer deposed about certain injuries on the person of the father of the prosecutrix and the other medical officer deposed about the delivery of child by Vandana in Ghati Hospital.

4. Learned trial Judge accepted the evidence of the complainant Vandana, who had stated that she had been ravished by accused No. 1 in the house of accused No. 2. Learned trial Judge, though recorded finding that the girl Vandana was major and that there was consent for the intercourse, proceeded to hold the accused guilty in the light of the provision contained in Section 375 (Fourthly) of the India Penal Code. Learned Judge observed that the girl consented for sexual intercourse because she believed that the accused will marry her and hence the act of the accused No. l amounted to rape and since this was done with be connivance and aid by the accused No. 2, the accused No. 2 came to be convicted for the offence of rape read with Section 109 of the India Penal Code.

5. Aggrieved by his judgment and order of conviction, the original accused persons have preferred the Criminal Appeal No. 383 of 1994. The State has felt that the sentences awarded to the accused persons is, inadequate and, therefore, has filed Criminal Appeal No. 125 of 1995 for enhancement of the sentence.

6. I have heard Mrs. M.S. Shrivastava, learned Counsel holding for Shri S.R. Ghanekar, learned Counsel for the appellants/original accused and Shri C.K. Shinde, learned, learned A.P.P. for the State. I have gone through the impugned judgment. The evidence of the prosecutrix as also the complaint filed by her is perused. The documents proved and exhibited have been gone through.

7. Right from day one, the case of the complainant had been that she had consented to the sexual intercourse with original accused No. 1 for the first time in January, 1992 when she was called by accused No. 2 in her house and it is subsequently till she conceived and delivered a child in September, 1992 it is stated by her in the complaint as also in her oral evidence that she did not resist to the sexual intercourse., After the sexual intercourse in January, 1992 in the house of accused No. 2, she came to her house, changed the sari and accompanied the accused No. ] for a film show. Again she has stated in the complaint as well as in her oral evidence that she had sexual intercourse with the accused No. l repeatedly on many occasions until she conceived, Admittedly she delivered the child in the month of September, 1992 and the complaint came to be filed by her in the month of October, 1992 where the same story has been narrated.

8. Learned trial Judge has recorded finding that the complainant girl Vandana was major. She was of 18 years or more at the time of the incident. The conviction has been recorded by learned trial Judge for the reason that the complainant believed that the accused No. l would marry her since such promise had been given by accused No. 1. Since the consent for sexual intercourse was given by Vandana on the assumption that the accused No. 1 would fulfill his promise, learned trial Judge held that this amounted to offence in view of the provisions contained in clause Fourthly of Section 375 of the India Penal Code.

9. On perusal of the provision contained in clause Fourthly of Section 375 of the India Penal Code, it would be seen that the provisions do not apply in the present situation. Clause Fourthly of Section 375 of the Indian Penal Code applies when a man induces a married woman to have sexual intercourse with him by impersonating her husband. When consent by a woman to a man under misconception of fact that he was her husband, it amounts to rape by a person to whom the woman believes to be her husband. In the present case, Vandana and accused No. 1 were residing in the neighbourhood. Prosecutrix Vandana was major and there was consent to the sexual intercourse by her. It is the case of the prosecutrix that she consented to sexual intercourse believing that the accused would marry her. Under such circumstances, the act of sexual intercourse in January 1992 and repeated sexual intercourse between the two subsequently cannot be said to be illegal, The Sexual intercourse which is not illegal would not become illegal by refusal by accused No. 1 to marry. It would be at the most breach of promise. But the act of sexual intercourse with consent of a major girl cannot be termed as rape as a consequence of breach of promise even if it is assumed that there was breach of promise. Learned trial Judge, in the judgment of this Court, committed serous error in law in holding the accused No. 1 guilty of rape. The provisions of clause Fourthly of Section 375 of the India Penal Gode do not at all apply to his case. The conviction recorded by learned trail Judge, therefore, deserves to be set aside. Since there is no rape by accused No. 1, there is no question of abetment of the offence by accused No. 2. The Criminal Appeal No. 383 of 1994 is, therefore, allowed. Conviction of the appellants for the offences punishable under Section 376 and Section 376 read with Section 109 of the Indian Penal Code and the sentences awarded to them are hereby set aside. Fine amounts, if paid by the appellants (original accused) be refunded to them. Their bail bonds are cancelled. The Criminal Appeal No. 123 of 1995 filed by the State for enhancement of sentence is dismissed.