Vaishali Arun More vs Rushikant Jaywantrao Shinde And ...
2017 Latest Caselaw 78 Bom

                                                                           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.










                                                            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

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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

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

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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

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

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

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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

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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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. ]