Deepak Shankarrao Borekar (In ... vs The State Of Maharashtra, Thr., ...
2016 Latest Caselaw 2637 Bom

        apeal562.14                           1




                                                                               
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                       
                           NAGPUR BENCH, NAGPUR

                           CRIMINAL APPEAL NO.562 OF 2014.




                                                      
       APPELLANT:           Deepak Shankarrao Borekar,
                              aged about 25 years, resident of 
                              Andori, Tq.Deoli, Distt.Wardha.




                                          
        
                                        : VERSUS :
                             
       RESPONDENT:       The State of Maharashtra,
                                       through Police Station Officer,
                            
                                       Police Station Deoli.
       -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
       Mr.Adwait Manohar, Advocate for the appellant.
       Mr.S.M.Ukey, Additional Public Prosecutor for the respondent.
      


       =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                      CORAM:      B.R.GAVAI AND 
   



                                                             V.M.DESHPANDE, JJ.

DATE: 8th JUNE, 2016.

ORAL JUDGMENT (Per V.M.Deshpande, J.)

1. Being aggrieved by judgment and order of conviction

passed by learned Sessions Judge, Wardha in Session Case No.46

of 2010, whereby the appellant was convicted for the offence

punishable under Section 376 of the Indian Penal Code and was

directed to suffer imprisonment for life and to pay a fine of

Rs.1000/- and in default of payment of fine to suffer rigorous

imprisonment for two months. The appellant is further held guilty

of the offence punishable under Section 506 of the Indian Penal

Code and on that count he was sentenced to suffer rigorous

imprisonment for one year and to pay a fine of Rs.500/-, in default

to suffer rigorous imprisonment for fifteen days. The learned

Sessions Judge also convicted the appellant for the offence

punishable under Section 417 of the Indian Penal Code and

directed to suffer rigorous imprisonment for one year and to pay a

fine of Rs.500/- and in default to suffer rigorous imprisonment for

fifteen days, the appellant is before this Court.

2. The facts giving rise to the present appeal, in short, are

as under -

PW 3 Namdeo Bapuraoji Chaudhari was attached to

Deoli Police Station as P.S.I. He was in-charge of the Police

Station on 11th of May, 2006. On the said day, prosecutrix (PW 1)

came to the Police Station and lodged report against the appellant.

Her report was taken by Police Head Constable Arjun. The report

was perused by Namdeo Chaudhari (PW 3) and thereafter he

directed PHC Arjun to register the offence and accordingly an

offence was registered against the appellant vide Crime No.96 of

2006. The investigation of the said crime was taken to himself by

Namdeo Chaudhari (PW 3).

3. Exh.40 is the oral report lodged by the prosecutrix

against the appellant. Her report discloses that appellant resides

in the neighbourhood of the first informant. His father resides at

Mouda however he never comes at Andori where the appellant

and first informant used to reside. Oral report further proceeds

that first informant was on talking term with the appellant since

last six months and he used to visit her house.

About six months ago, the first informant had been to a

'Bhajan Programme" and when after returning to her house she

was pulled by the appellant near a lane and there he committed

forcible sexual intercourse with the first informant. According to

the First Information Report, the time of this occurrence was in

between 00.00 to 1.00 a.m. That time the appellant extended

threat of killing her parents.

The First Information Report further proceeds that after

eight days of the incident when her parents were not available in

house and when only her blind and deaf grand-mother was

present and first informant was sleeping on the bed, since she was

not keeping good health, the appellant came and on the promise

that he will marry with her established sexual relations with her.

The said continued for 3-4 occasions and for every occasion he

gave promise of marriage and had fulfilled his sexual lust. Due

to the sexual relations the first informant became pregnant. That

time said fact was disclosed by first informant to her parents that

she is pregnant from the appellant and when this fact was

disclosed to the appellant, the appellant flatly refused to marry

with the first informant.

4. The Investigating Officer conducted the investigation.

After completion of his entire investigation filed a final report in

the Court of learned Magistrate. The learned Magistrate found

that the offence is exclusively triable by the Court of Sessions and

therefore he passed the order of committal. On reaching to the

Court of Sessions the case was registered as Sessions Trial No.46

of 2010. The learned Ad hoc Additional Sessions Judge, Wardha

on 9th of May, 2011 framed a charge against the appellant. He

denied the charges. During the course of trial, the additional

charge was also framed by the learned Session Judge to enhance

punishment under Section 75 of the Indian Penal Code.

5. Three witnesses were examined by the prosecution.

They are PW 1, prosecutrix, PW 2 Latabai, mother of the

prosecutrix and PW 3 Namdeo Chaudhari, the Investigating

Officer.

6. We have heard Shri Adwait Manohar, learned counsel

who was appointed by the Legal Aid Committee to give legal

assistance to the appellant and Shri S.M.Ukey, the learned

Additional Public Prosecutor for the State. With their able

assistance we have also gone through the notes of evidence.

7. According to the learned counsel for the appellant, this

is a clear cut case of consent and the prosecutrix, who was major,

is consenting party and therefore the impugned judgment and

order of conviction cannot sustain. He also submits that there is a

delay in lodging First Information Report. He relies on the Apex

Court decision in the case of Baikunth Singh ..vs.. State of Bihar

and ors. reported in (2008) 14 SCC 766 to buttress his

submission.

8. Per contra, the learned Additional Public Prosecutor

would submit that the appellant is guilty of making promise of

marriage to the prosecutrix and thereafter he has fulfilled his

sexual lust. He submitted that in the present case the ingredients

of Section 417 are duly proved by prosecution. He also submits

that the appellant is habitual and in fact in another case of rape he

is convicted by the court below. He therefore submits that appeal

be dismissed.

9. Section 90 of the Indian Penal Code reads as under :-

"90.Consent known to be given under fear or

misconception - A consent is not such a consent as is intended by any section of this Code, if the

consent is given by a person under fear of injury, or under a misconception of fact, and if the

person doing the act knows, or has reason to believe, that the consent was given in

consequence of such fear or misconception."

From the aforesaid, it is crystal clear that if consent is given by the

prosecutrix under a misconception of fact then such consent is

vitiated.

From the evidence of the prosecutrix it is clear that there

were no love relations between the prosecutrix and the appellant.

She has stoutly denied the suggestion given to her that the first

sexual intercourse made with her by the appellant was with her

consent.

Her evidence discloses that she allowed the appellant for

the sexual relations since on every occasion the appellant has

made promise that he will marry with her. Thus, the appellant

has represented the prosecutrix that he will marry with her. Right

from beginning, the appellant was aware that he is making false

assurance that he would marry her and thereafter obtained her

consent. Therefore, the submissions of the learned counsel for the

appellant, in our view, are devoid of any substance. At this stage it

would be useful to refer following paragraphs of the law laid down

by the Apex Court in the case of State of Uttar Pradesh ..vs..

Naushad, reported in (2013)16 SCC 651.

"17. Section 376 IPC prescribes the punishment for the offence of rape. Section 375 IPC defines the offence of rape, and enumerates six descriptions of the offence. The description "secondly" speaks of rape "without her consent". Thus, sexual intercourse by a man with a

woman without her consent will constitute the offence of

rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix "against her consent". The

prosecutrix in this case has deposed on record that the accused promised marriage with her and had sexual

intercourse with her on this pretext and when she got

pregnant, his family refused to marry him with her on the ground that she is of "bad character".

18. How is "consent" defined ? Section 90 IPC defines

consent known to be given under "fear or misconception"

which reads as under :

"90. Consent known to be given under fear or misconception.- A consent is not such a consent as is intended by any section

of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to

believe, that the consent was given in consequence of such fer or misconception."

Thus, if consent is given by the prosecutrix under a misconception of fact, it is vitiated.

19. In the present case, the accused had sexual

intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this,

it is evident that he never intended to marry her and procured her consent only for the reason of having

sexual relations with her, which act of the accused falls

squarely under the definition of rape as he had sexual intercourse with her consent which was consent

obtained under a misconception of fact as defined under Section 90 IPC. Thus, the alleged consent said to have been obtained by the accused was not

voluntary consent and this Court is of the view that

the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only

wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he

never aimed to marry her."

10. The re-appreciation of the evidence of the prosecution

case in our view clearly speaks that the appellant had obtained the

consent of the prosecutrix under a misconception of fact that he

would marry her thereby making her pregnant. In that view of the

matter, the appellant is guilty of committing offence under Section

375 of the Indian Penal Code punishable under Section 376 of the

Indian Penal Code. In paragraph no.23 of the aforesaid report the

Hon'ble Apex Court has observed that a woman's body is not a

man's plaything and he cannot take advantage of it in order to

satisfy his lust and desires by fooling a woman into consenting to

sexual intercourse simply because he wants to indulge in it.

In the present case, as a matter of fact, the appellant was

convicted in Special Case No.7 of 2012 for committing the similar

offence.

11. The learned Judge of the Court below has correctly

appreciated the entire evidence and has given, in our view, the

appropriate punishment to the appellant. Hence, the appeal stands

dismissed.

12. The fees quantified for rendering legal assistance to the

appellant is quantified at Rs.5000/- (Rupees five thousand only).

However, Shri A.S.Manohar, the learned counsel, submits that

instead of giving the said fees to him, it should be given to the

High Court Bar Library.

                      JUDGE                                        JUDGE
      


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