Bombay High Court

Sudeep Lalit Prasad Upadhyay ... vs State Of Maharashtra on 10 October, 2017

Bench: Swapna Joshi

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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                                       NAGPUR BENCH : NAGPUR.

                                             Criminal Appeal No.20 of 2003

                Sudeep Lalit Prasad Upadhyay (Sharma)
                Aged about 30 Years,
                R/o.- Subhedar Layout, Main Road, Nagpur.                   ....  Appellant.

                                                             -Versus-

                State of Maharashtra,
                 through Police Station Officer, 
                Rana Pratap Nagar, Nagpur.                                             ....  Respondent.
                 --------------------------------------------------------------------------------------------------
                 Mr. A.R. Patil, Counsel  for appellant.
                 Mr. S.B. Bissa, Additional Public Prosecutor for respondent/State.
                 --------------------------------------------------------------------------------------------------
                                                                   Coram : Mrs. Swapna Joshi, J.
                                                           Date of reserving judgment    : 27-09-2017.
                                                           Date of pronouncement            : 10-10-2017.

              J U D G M E N T

This appeal has been directed against the judgment and order passed by the learned Adhoc Additional Sessions Judge, Nagpur in Sessions Trial No.301 of 2002 on 07-12-2002, whereby the learned trial Judge had convicted the accused for the offence punishable under Section 417 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.5000/-, in default, to suffer simple imprisonment for three months.

2] I have heard Mr. A.R. Patil, the learned counsel for the appellant and Mr. S.B. Bissa, the learned Additional Public Prosecutor for the respondent/State. With their assistance, I have carefully gone through the record of the prosecution case.

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             3]                The complainant's version, as unfolded during the trial, is as
             follows :-

Complainant (PW-1) was working in Kasat Motors. accused Sudeep was working in Reliance Engineering. Both the establishments were in the same area. The complainant got acquainted with the accused and their acquaintance ultimately turned in love. Sudeep (accd.) proposed for marriage to PW-1. He proposed to marry with her in the temple. Accordingly on 25-10-2001, Sudeep came to the office of PW-1 and proposed to marry with her at Maihar (MP) in the temple of goddess. Accordingly, on 26-10-2001, PW-1 along with the accused and her friend Anita (PW-4) proceeded to Maihar. It is the case of the prosecution, that the accused performed marriage with PW-1 by garlanding each other & by putting vermilion on her forehead. As such, the marriage was performed between the accused and PW-1. Thereafter, PW-1 along with accused and her friend Anita stayed in a lodge. At that place, it is alleged, that the accused committed sexual intercourse with PW-1, by saying that they are married and they are going to perform Court marriage, soon after reaching at Nagpur. Thereafter, PW-1 stayed with the accused in a hostel at Jabalpur. PW-1 contacted her cousin brother and called him at the said hotel. On his arrival, PW-1 introduced her cousin brother with the accused and informed him about the solemnization of their marriage in the temple of goddess at Maihar and also informed that they are going to perform registered marriage at Nagpur on 29-11-2001. On the same day, the accused and PW-1 returned to Nagpur. As PW-1 failed to contact the accused, no marriage was solemnized on 29-11-2001. 2/3 days after the marriage, the accused met her and told her that the members of his family have not agreed for the said marriage and they have to reside separately. The accused also informed her that he is searching a house and on finding a suitable house they would perform registered marriage. On 16-11-2001, at 7.30 pm, the

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accused came to her office and went to the house of Anita (PW-4). Thereafter, they went to Khamla. The construction of said flat scheme was going on. The accused committed sexual intercourse with PW-1 forcibly. The accused continued met with PW-1 up to 30-11-2001. Thereafter, PW-1 tried to contact the accused. However, he had left the job, therefore, she could not contact him. PW-1 then lodged complaint (Exhibit-12) against the accused.

4] The complaint of PW-1 was recorded by the Police. The statements of the witnesses were also recorded by the Police. After completion of the investigation, Police submitted the chargesheet in the Court of learned JMFC Court No.7, Nagpur. The case was committed to the Court of Sessions. The learned trial Judge framed the charge and on analysis of the evidence and after hearing both the sides, the learned trial Judge convicted the accused as aforesaid. Hence, this appeal. 5] At this juncture, it would not be out of place mention that the learned trial Judge framed the charge under Sections 419 and 376 of IPC. However, he acquitted the accused under Sections 376 and 419 of IPC and convicted the accused under Section 417 of IPC. 6] I have heard Mr. A.R. Patil, the learned Counsel for the appellant and Mr. S.B. Bissa, the learned APP for the State. I have carefully gone through the record and proceedings of the case. 7] Mr. A.R.Patil, the learned Counsel for the appellant, vehemently argued that the learned trial Judge has not considered the testimony of the witnesses in right perspective and has convicted the accused erroneously under Section 417 of IPC although the said offence is not made out. It is further contended that the testimony of PW-1 itself shows that the accused performed marriage with PW-1 and, therefore, there was no question of remarriage with her. If at all, PW-1 had any grievance, she ought to have opted the mode of approaching the Family Court. According to Mr. A.R. Patil, Ld. Counsel, no offence under Section

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417 of IPC has been made out.

8] Mr. S.B. Bissa, the learned APP, contended that the learned trial Judge has rightly convicted the accused after considering the entire evidence on record. The accused had promised to marry with PW-1 and on the pretext of performing Court marriage, he established physical relationship with her and thereafter he did not keep his promise and in this manner the accused has cheated PW-1.

9] In order to verify the rival contentions of both the sides, it would be advantageous to go through the evidence led by the prosecution. The prosecution heavily relied upon the testimony of (PW-1) who is the complainant as well as the victim. PW-1 deposed that accused was working in Reliance Engineering which was adjacent to her office. They got introduced with each other and then became friends. Accused proposed to marry with her. Initially PW-1 refused marriage proposal put forth by the accused with her. However, thereafter, she consented for the marriage with the accused. The accused told her that he has fixed the marriage date as 29-11-2001. PW-1 stated that the accused promised her first to perform the marriage at Maihar and thereafter they would perform the Court marriage. Accordingly, on 26-10-2001, they decided to go at Maihar. On 26-10-2001, at about 10.00 pm, they both proceeded to Maihar along with Anita (PW-4). On the next day, at about 4.00 pm, they went to the temple of goddess at Maihar. They garlanded each other and the accused put the vermilion on the forehead of PW-1. Thereafter, they came to the lodge. PW-1 deposed that the accused forced her to have sexual intercourse with him and said that they have already married and they are going to marry in Court on 29-11-2001. Therefore, again the accused had committed sexual intercourse with PW-1. On the next day, they stayed at Jabalpur. PW-1 called her brother to the hotel and at that time the accused told that they are going to perform Court marriage on 29-11-2001 and also told him that

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they have married at Maihar. Thereafter, they returned to Nagpur. 10] PW-1 informed to Anita (PW-4) that the accused had committed sexual intercourse with her in one flat. On 29-11-2001, there was a Tulsi Puja in the house of Anita (PW-4). On that day, the accused refused to perform marriage with PW-1 and told that they will marry in February 2002 and till that time they will arrange all household articles. On 30-11-2001, the accused left his service. PW-1 waited for the accused for few days. Thereafter, she lodged the complaint against the accused (Exhibit-12).

11] Short question involved in this case is that whether the accused cheated PW-1 by not marrying with her on 29-11-2001 & committed sexual intercourse with her on that pretext. 12] It is the case of PW-1 in her evidence that first she was introduced with the accused, which turned into love affair and then the accused proposed to marry her on 29-11-2001. Thereafter, the accused said that since they are going to have a Court marriage on 29-11-2001, then prior to that for their satisfaction they would get married in the temple at Maihar on 26-10-2001. Accordingly, they got married and had physical relationship in a lodge and then at different places. However, on 29-11-2001, they met in the house of Anita and the accused said that it was not possible for him to marry on that day and he would marry in February 2002 and then on 30-11-2001 the accused left his job and went away.

13] PW-4-Anita deposed that PW-1 used to visit her house along with accused. On 25-10-2001 the accused informed her that he would perform marriage with PW-1 at Maihar. Accordingly, on 26-10-2001, PW-1 along with PW-4 and the accused went to the temple at Maihar. The accused got married with PW-1. They garlanded each other. The priest recited the necessary hymns and in this manner the marriage was performed in the temple. Thereafter, they all returned to

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lodge. PW-4 stated that the accused told her that they are going to perform marriage on 29-11-2001. Thereafter, PW-1 informed to PW-4 that she had physical relations with the accused. PW-4 stated that thereafter, they all returned to Nagpur. PW-4 categorically stated that on 29-11-2001, Tulsi Puja was arranged in her house. Accused and PW-1 were chatting till midnight. Thereafter, the accused avoided to meet PW-1. PW-4 stated in the cross examination that she does not remember whether she had stated before the Police that the accused told her mother that for his satisfaction he is performing the marriage at Maihar and thereafter he will perform Court marriage. It appears that PW-4 has made an improvement in her version in that regard. From the testimony of PW-4 it can be gathered, that she had attended the marriage between PW-1 and the accused in the temple at Maihar.

14] So far as the allegation of rape is concerned, the Ld. trial Judge has acquitted the accused. The Ld. Judge also acquitted the accused under Section 419 of the IPC. The allegations were that, on misconception of the fact that he was her husband as they got married in a temple the accused had sexual intercourse with her. Thus, earlier the prosecution case proceeded on the footing that the accused mis-represented PW-1 that he is her legally wedded husband, and then committed sexual intercourse with her. The Ld. trial Judge has acquitted the accused from the said allegations. However, convicted him on the ground that the accused has cheated PW-1 as he had not kept his promise to perform marriage with her and committed sexual intercourse with her and has thus cheated her.

15] In this context, it is noticed that admittedly PW-1 was an educated matured girl having understanding of good and bad things. As per her testimony, if the accused had promised to marry her on 29-11-2001, since beginning, then in that case there was no question of performing marriage in a temple at Maihar. PW-1 understood that it was

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not a valid marriage, therefore, they were going to have a Court marriage on 29-11-2001. If the date was already fixed, there was no question of having marriage in the temple. Still PW-1 agreed to marry with the accused in a temple, it appears that PW-1 was consenting party to have sex with the accused and therefore under the pretext of marriage with accused in temple, she has consensual sex with the accused. 16] The evidence on record shows that on 29-11-2001 the accused refused to marry with her, after the Tulsi Puja in the house of Anita was over and they chit-chatted till late night. It appears that on 29-11-2001, PW-1 was fully aware that accused is not going to marry with her on that day. In that case it is not clear as to why PW-1 did not insist the accused for marriage & take steps to lodge complaint against the accused immediately after 29-11-2001. It appears that date 29-11-2001 comes in picture subsequently. Even the complaint (Exhibit-12) which is a contemporaneous document, does not reveal that the accused declared the date 29-11-2001 first and then got married with PW-1 in temple. As per the complaint (Exhibit-12) the accused declared the date 29-11-2001, after the marriage in temple was performed, at the time of having physical relationship with PW-1. Thus there appears to be glaring discrepancy in the version of PW-1 in this regard and she had twisted her case, as the accused avoided her. It appears that even PW-1 agreed to marry with the accused in temple, as decided by both of them and had consensual sex with the accused. It is not the case of PW-1 in her complaint (Exhibit-12) that the accused first declared the date of marriage as 29-11-2001 and then under that pretext he had physical relationship with her after creating a farce of marriage in the temple at Mehar.

17] The PW-1 appears to be a matured lady having full understanding of a valid marriage, agreed to marry with the accused in the temple and consented to have physical relationship with him. Similarly, it is surprising that till 29-11-2011 PW-1 kept mum and did not insist for

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marriage. By that time PW-1 must have understood that the accused is not going to perform marriage with her on 29-11-2001. Then in that case, why she had not lodged complaint against the accused immediately. It appears that the case of PW-1 that the accused had no intention to marry with her, still he had fixed the date 29-11-2001 and under the pretext of having physical relationship with her, created a farce of marriage in temple is an afterthought story and is not convincing at all. Significantly it was not the case of PW-1, at the time of lodging her complaint & even while the charge was framed against the accused. As per the charge the accused impersonated to be her husband & had influenced her to have physical contact with him. The accused has been acquitted of the said charge by the Ld. Judge. Thus the entire prosecution case appears to be doubtful and the offence of cheating is not made out as such. 18] It would be advantageous to take recourse of the decision reported in the case of Deepak Gulati v State of Haryana, reported in AIR 2013 SC 2071, wherein the Hon'ble apex Court had held in paragraph (B) as under :-

"There is a clear distinction between rape and consensual sex and in a case where there is promise of marriage, the Court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls with the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the Court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation made to her by the accused, or where an accused on account of

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circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the Court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives. 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. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance." S. 90, IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the Court is assured of the fact that from the very beginning, the accused had never really intended to marry her."

19] In the instant case consent given by PW-1 was after wholly understanding the nature and consequences of sexual indulgence. The glaring discrepancies in the testimony of PW-1 makes the prosecution case doubtful. The prosecutrix is not found to be reliable and trustworthy witness. The prosecution has failed to establish that on the pretext of false promise of marriage, the accused committed sexual intercourse with her and has thus cheated her.

20] The learned Judge has not considered the case of the prosecution in right perspective and has convicted the accused erroneously after acquitting him under Section 376 and 419 of IPC. The prosecution has miserably failed to bring on record the convincing and cogent evidence. The learned trial Judge has not considered the said aspect and illegally passed the order of conviction. 21] In view of above, it is held that the prosecution has failed to prove its case beyond reasonable doubt. In these circumstances, the benefit of doubt is to be given to the appellant. The learned trial Court has not properly evaluated the evidence led by the prosecution. In view

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thereof, the judgment and order passed by the learned trial Judge, needs to be set aside. Hence, the following order:-

O r d e r

(a) Criminal Appeal No.20 of 2003 is allowed.

(b) The judgment and order dated 07-12-2002 delivered by the Adhoc Additional Sessions Judge, Nagpur in Sessions Trial No.301 of 2002 is quashed and set aside.