Jayaram Dattatraya Patil vs State Of Maharashtra
2016 Latest Caselaw 1380 Bom

    Mhi                                   1           Appeal-655-96.sxw


                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION




                                                                                   
                              CRIMINAL APPEAL NO. 655 OF 1996




                                                           
          Jayaram Dattatraya Patil                       )
          Age: 26 years, Occ: Service,                   )
          r/o. Village Palsunde, Taluka: Mokhada,        )




                                                          
          Dist. Thane.                                   ).. Appellant
                                                         (Orig. Accused)
                            Vs.
          The State of Maharashtra                       .. Respondent




                                               
          Mr.Kartik Garg i/b.Mr. S.V.Marwadi, Advocate for the appellant.
          Ms. A.A.Mane, APP, for the State.
                                    
                                          CORAM: SMT. SADHANA S.JADHAV, J.

DATE : 11th April, 2016.

ORAL JUDGMENT :

The appellant herein is convicted for the offence punishable

under Sections 376 and 420 of Indian Penal Code and sentenced to suffer

R.I. for seven years and fine of Rs.1,000/- in default, further R.I. for four

year, he is also sentenced R.I. for four years for the offence punishable

under Section 420 of IPC and fine of Rs.1,000/- in default R.I. for one year

by IIIrd Addl. Sessions Judge, Raigad in Sessions Case No.123 of 1995

vide judgment and order dated 30.10.1996.

2. It is the case of the prosecution that the appellant herein was

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pursuing his D.Ed. Course at Village Palsunde, Taluka Mokhed, District

Thane. He was residing as a paying guest in the house of Smt. Pramila

Tukaram Mhatre. He had financial difficulties. Pramila Mhatre had

sympathy for the boy since he hailed from a poor family and therefore he

was given lodging and boarding by Pramila. Mhatre. He was not paying

either for food or for shelter. She demanded the rent as well as the expenses

towards boarding. At that time, he suggested that instead of giving rent, he

would get married to the daughter of Pramila. He had also assured her

that in the eventuality that he gets the job elsewhere, he will continue to

stay with her. He resided as a family member. Her daughter was also

acquainted with him and had cordial relations with him. He had brought

one of his colleagues viz. Shivram Khade to act as a mediator for the

marriage. That Pramila was insisting upon him to get married. However,

he had assured her that after completing a year in service, he would get

married to her daughter. On 15.12.1994, he had approached Pramila along

with his colleague. The marriage was settled. That he had assured Pramila

that he would return along with his parents within 8 - 10 days. On

14.1.1995, the appellant, his parents and relatives had come to her house

and had assured her that he will get married to the daughter of Pramila

before 15th March, 1995. However, after the meeting, his whereabouts were

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not known and he did not return to the house of Pramila. Thereafter, the

son of Pramila Mhatre had searched for the appellant at various places,

including the school where he was teaching. There he was informed that

the whereabouts of the appellant are not known for quite some time. Smt.

Mhatre was therefore constrained to approach the police station and

accordingly she filed a written report with Police Inspector at Uran Police

Station. She had informed the police that by his behaviour the appellant had

exposed the mother and daughter to social obloquy The said application

was registered as Misc. Application No.14 of 1995. However, it appears

that the police had not seriously taken cognizance of the report. They had

pursued the complaint, but to no avail. At last, on 2.4.1995, Ms 'x' daughter

of Smt. Pramila Mhatre lodged a report at the police station alleging therein

that since 1989, the appellant was residing at Village Palsunde as their

paying guest. He was not paying the rent nor the boarding charges. He had

offered to get married to her. Thereafter, one fine day, when the victim was

alone at home, he had forced himself upon her and ravished her. He had

convinced her that since he had offered to get married to her, she shouild

not shy away. He had demanded Rs.10,000/- towards expenses for the

marriage. Her paternal uncle Hasuram had taken money from her mother

and give it to him, but the appellant did not return the said amount and

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neither got married to her. He had ravished her intermittently. She has

further alleged that the appellant had got a job at Vashim. He used to come

to visit her on Saturday and Sunday. He had impressed upon the victim

that they are as good as a married couple. Therefore, she had consented to

have sexual intercourse with him. Her mother and brother had been to his

village. They had contacted his parents and they had reacted by saying that

there is no concern between both the families. According to the victim, the

appellant had induced her to have sexual intercourse with him on the

ground that he was going to get married to her. He did not get married to

her and hence cheated her.

3. On the basis of her report, Crime No.61 of 1995 was

registered against the appellant for the offence punishable under Sections

376 and 420 of IPC. After completion of investigation, charge-sheet was

filed. The case was committed to the Court of Sessions. On 28.6.1996,

charge was framed against the accused for the offences punishable under

Sections 376 and 420 of IPC. The prosecution examined as many as six

witnesses to bring home the guilt of the accused. The case mainly rests

upon the evidence of PW-1. The victim herself is PW-2. The victim has

deposed before the Court in consonance with the first information report

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lodged by her. She has given instances when she was ravished by the

appellant. It appears that the old woman had given shelter to the appellant.

The victim has deposed before the Court, that immediately after the first

incident, she had informed her mother that she has been ravished by the

appellant. However, the mother was assured that the appellant desires to

get married to the victim. She has deposed before the Court that she has

conceived pregnancy. She disclosed about it to the appellant. He had given

her some tablets. The mother of the victim had called for a meeting. In the

said meeting, the accused had agreed for performing marriage on 15th May

and also agreed to settle the date of marriage. That the accused had

demanded Rs.10,000/- for marriage expenses and the mother of the victim

had obliged him. The appellant went to the place of service and did not

return thereafter.

In the cross-examination, it is admitted that the first incident

had taken place in the room of her grand-mother and that her grand-mother

is incapacitated and therefore lives at home. The defence has made

attempts to create a dent in his substantive evidence. However, the defence

has failed. She has agreed that her mother had filed a complaint at Uran

Police Station. It is elicited in the cross-examination that the victim

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belongs to Agri caste, whereas the accused belongs to Mahadev Koli caste.

4. PW-2 Pramila Mhatre is the complainant. She has deposed before

the Court that within 3 - 4 months after graduation he had got a job at

Shenvi. Even when he was serving at Shenvi, he used to visit the house of

PW-2 on every week-end. He would never visit his own village. He had

also informed PW-2 that he needs time to save money and thereafter he

would perform the marriage. He used to reside with PW-2 during the

summer vacation, festival and other holidays. PW-2 has deposed before the

Court that when he had visited her house during Diwali vacation, one day in

the afternoon, she woke up as she heard shouts and soon she went to the

adjoining room and saw her daughter and Jayram in a compromising

position. She had objected such acts. At that juncture, for the first time, the

appellant had told PW-2 that they had indulged into such acts many times

before and that he had agreed to marry. It appears from the evidence that

was the first time in Diwali vacation in 1994 that PW-2 had realized that her

daughter had sexual intercourse with the appellant and, therefore, on

Sankrant day, she had arranged for a meeting and she had called respectable

persons in the house. The parents of Jayram were also present. That in the

said meeting, Jayaram had agreed to get married to the victim on 15 th May.

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According to PW-2, that was the last occasion when he visited the house of

PW-2. She therefore sent her son Mahesh for enquiry at village. After the

said meeting, the accused had allegedly come to the house of PW-2 and had

taken Rs.10,000/- from her for marriage expenses and thereafter he never

returned. Mahesh was informed by the school master that Jayram has left

the job. Mahesh therefore went to the village of Jayaram. His parents had

told Mahesh that they did not know about his whereabouts and therefore,

she had lodged the report which is at Exhibit 13. She has also deposed

before the Court that the accused was referred as son-in-law in her village.

It is elicited in the cross-examination that she was aware about

the sexual relations between her daughter and Jayaram. She has admitted in

the cross-examination that she was assured that in the eventuality the

accused get married to her daughter, her daughter would lead a comfortable

life. She has also admitted that in the year 1991, there was no earning male

member in her family.

5. PW-3 Meghnath Mokashi happens to be the resident of village

Pandive i.e. the village of PW-2. He has deposed before the Court that

upon enquiry made by him, PW-2 had told him that she did not charge for

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lodging and boarding charges from the accused Jayaram since he was

getting married to her daughter. She had told PW-3 not to intervene in her

family affairs. PW-3 had also attended the meeting in the house of PW-2.

6. PW-4 is Damodar Mokashi. He had also attended the meeting

held at the house of PW-2. According to him, since Pramela did not have

a brother, most of the villagers referred her as sister. He was residing as a

neighbour of Pramela. It was upon his advise that she had filed the

complaint to police.

7. PW-5 Hasuram Mhatre happens to be brother-in-law of PW-2.

He had handed over an amount of Rs.10,000/- to Pramila to be given to the

accused for marriage expenses.

8. PW-6 is the Investigating Officer. He has deposed before the

Court that on 17.2.1995, Pramila had filed an application to the police

station. He had not visited the village Pandive to inquire into the matter.

He has deposed before the Court that PW-1 and 2 had never come to the

police station to enquire about the stand taken by the appellant. Pursuant

to the application made by PW-2 on 17.2.1995, PW-6 has proved the

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omissions and contradictions in the statements of the witnesses.

9. The learned counsel for the appellant submits that in the

present case, which cannot be said that the appellant had ravished the

victim against her will. According to him, it was consensual. He has

further submitted that the appellant had bonafide intention to get married to

the victim and, therefore, he had called his parents for the meeting and in

the meeting he had agreed to get married to her. The learned counsel has

further submitted that the appellant has been falsely implicated. It is

submitted that in the statement under Section 313 Cr.P.C., the appellant had

categorically stated that in fact, he had no relation with the victim nor they

had sexual intercourse, but the mother of the victim was insisting upon him

to get married to her daughter. The learned counsel has drawn attention of

this Court to the admission of PW-2 that in the eventuality that the victim

would get married to the appellant, her life would be more comfortable. It

is further stated that PW-2 was insisting upon him to gert married to the

victim and since he refused the proposal, he has been falsely implicated.

The evidence on record would show that the appellant was visiting the

house of PW-2 even after he had got service at Village Shenvi.

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10. The learned counsel for the appellant has placed reliance upon

a Judgment of the Hon'ble Apex Court in the case of Uday vs. State of

Karnataka (2003) 4 SCC 46. The Hon'ble Apex Court, while referring to

the case of Holman v. R has held that "there does not necessarily have to be

complete willingness to constitute consent. A woman's consent to

intercourse may be hesitant, reluctant or grudging, but if she consciously

permits it there is consent." The learned counsel rightly submits that there

is no evidence on record even to remotely indicate that the victim had

refuted the gestures or the advances made by the appellant. The learned

counsel has further drawn attention of this Court to the observations of the

Supreme Court as follows :-

"That consent obtained by fraud is no consent at all is not

true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with

him, he obtains her consent by fraud, but it would be childlish to say that she did not consent."

The Hon'ble Apex Court has observed that "Every consent involves a

submission but the converse does not follow and a mere at of

submission does not involve consent. Consent of the4 girl in order

to relieve an act, of a criminal character, like rape, must be an act of

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reason, accompanied with deliberation, after the mind has weighed

as in a balance, the good and evil on each side, with the existing

capacity and power to withdraw the assent according to one's will or

pleasure."

11. In the case of Deepak Gulati vs. State of Haryana

(2013) 0 SCC 494 has held that there must be adequate evidence to

show that at the relevant time i.e. at initial stage itself, the accused

had no intention whatsoever, of keeping his promise to marry the

victim. The failure to keep a promise made with respect to a future

uncertain date, due to reasons that are not very clear from the

evidence available, does not always amount to misconception of

fact. The Hon'ble Apex Court had placed reliance upon the

Judgment in the case of Uday vs. State of Karnataka (cited supra).

In the present case, it cannot be said that the appellant had no

intention to marry the victim right from the inception.

12. In the case of Deelip Singh @ Dilip Kumar vs. State

of Bihar (2004) SCC 1395, the Hon'ble Apex Court has held that the

promise to marry without anything more will not give rise to

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misconception of fact within the meaning of Section 90, it needs to

be clarified that a representation deliberately made by the accused

with a view to elicit the assent of the victim without having the

intention or inclination to marry her, will vitiate the consent."

13. In the case of Manesh Madhusudan Kotiyam vs. The

State of Maharashtra (Criminal Appeal No.892 of 2012), this

Court had held that it would be justifiable to hold that the consent

was not obtained by intimidation, force meditated imposition,

circumvention surprise or undue influence and therefore, this Court

had acquitted the accused of the charge under Section 376 of IPC,

however had convicted the accused for the offence punishable under

Section 417 of IPC. In the present case also, it cannot be ruled out

that there were such intervening circumstances which must have

forced the appellant to refrain himself from getting married to the

victim.

14. The learned counsel for the appellant submits that since

the victim and the appellant belonging to two different castes, there

is every possibility that in order to oblige his parents and avoid

unwarranted circumstances the appellant in all probability had

refrained from marrying the victim. However, right from the

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inception, he had intention to marry the victim. The charge was

framed against the accused for cheating PW-2 having obtaied

Rs.10,000/- by deceitful means. The charge was against the accused

for the offence punishable under Section 420 or Section 417 of IPC

for having refused to marry the victim or to have not kept up the

promise of marriage. However, the same would not be an

impediment for this Court to hold the accused guilty for the offence

punishable under Section 417 of IPC.

15.

Section 415 of IPC reads as under :-

"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or

intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were

not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

16. Section 417 of IPC reads as under :-

"417. Punishment for cheating.--Whoever cheats shall

be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."

It is not the case of prosecution that the appellant had obtained

consent under a misconception of fact or false representation.

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In fact, he wanted to marry her right from the inception.

Hence, on the set of evidence adduced by the prosecution, this

Court is inclined to acquit the accused of the charge under

Section 376 of IPC. However, the conviction for the offence

punishable under Section 417 of IPC. He is sentenced to the

period already undergone.

                                           ORDER




                                                
          (i)             The appeal is partly allowed.

          (ii)
                                     

The appellant-accused is acquitted of the charge under

Section 376 of Indian Penal Code.

(iii) The appellant-accused is convicted for the offence

punishable under Section 417 of IPC and sentenced to the

period already undergone.

          (iv)    Bail bonds stand cancelled.





                  Appeal stands disposed of.





                                                   (SMT.SADHANA S.JADHAV, J.)