Bombay High Court

Kanwar S/O Budharam Sonare (In ... vs State Of Maharashtra, Thr. P.S.O. ... on 28 September, 2017

Bench: R. B. Deo

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.377 OF 2016


 Kanwar s/o Budharam Sonare, 
 Aged about 28 years, 
 Occupation - Fishing, 
 R/o Amgaon, Tahsil - Amgaon,
 District Gondia.                                              ....       APPELLANT


                     VERSUS


 State of Maharashtra, 
 through Police Station Officer, 
 Police Station Amgaon, Tahsil-
 Amgaon, District - Gondia.                                    ....       RESPONDENT


 ______________________________________________________________

             Shri A.M. Gedam, Advocate for the appellant, 
            Shri N.B. Jawade, Addl.P.P. for the respondent.
  ______________________________________________________________

                              CORAM :  ROHIT B. DEO, J.

                            DATED    :    28
                                                SEPTEMBER, 2017
                                             th



 ORAL JUDGMENT :

The challenge is to the judgment and order dated

03-8-2016 in Sessions Trial 16/2013, delivered by the learned Sessions

Judge, Gondia, by and under which the appellant (hereinafter referred

to as the "accused") is convicted of offence punishable under Section

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417 of the Indian Penal Code and is sentenced to suffer rigorous

imprisonment for one year and to pay fine of Rs.50,000/- and is

further convicted for offence punishable under Section 3(1)(xii) of the

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)

Act, 1989 (hereinafter referred to as the "Act") and is sentenced to

suffer rigorous imprisonment for five years and to payment of fine of

Rs.20,000/-.

2. The accused is, however, acquitted of offence punishable

under Section 376 of the Indian Penal Code.

3. Heard Shri A.M. Gedam, learned Advocate for the accused

and Shri N.B. Jawade, learned Additional Public Prosecutor for the

respondent.

4. Shri A.M. Gedam, learned Advocate for the accused

submits that the judgment impugned is manifestly erroneous. The

learned Sessions Judge committed a grave error in recording a finding

that the prosecution has established the ingredients of offence

punishable under under Section 417 of the Indian Penal Code and

Section 3(1)(xii) of the Act, is the submission. Per contra, Shri N.B.

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Jawade, learned Additional Public Prosecutor submits that the

judgment impugned is in consonance with the weight of material on

record. He would support the judgment impugned.

5. The case of the prosecution is that the accused and the

complainant are neighbourers. Concededly they fell in love in the year

2008. The accused and the complainant engaged in consensual sexual

relationship. The complainant conceived, the pregnancy was noticed

by the mother of the complainant who took the complainant to the

house of the accused. The accused refused to marry the complainant,

a meeting was called in which the accused refused to marry the

complainant on the premise that she belonged to schedule caste. The

complainant and her mother went to the Police Station, Amgaon and

lodged the report on 12-9-2012.

6. On the basis of the report dated 12-9-2012, offence

punishable under Sections 376, 417 of the Indian Penal Code and

Section 3(1)(xii) of the Act was registered. Additional S.P. Shri Gunjal

investigated the crime, the complainant was medically examined and

the pregnancy confirmed. The completion of investigation culminated

in submission of the charge-sheet before the learned Judicial

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Magistrate First Class, Amgaon who committed the case to the Sessions

Court. During the pendency of the pre-committal proceedings, the

complainant delivered a female child, blood sample of the

complainant, the child and the accused were taken and sent for the

D.N.A. test. The D.N.A. report Exhibit 49 opines that the complainant

and the accused are the biological parents of the child. The learned

Sessions Judge framed charge at Exhibit 20, the accused pleaded not

guilty and claimed to be tried. The defence of the accused, as is

discernible from the cross-examination and the statement recorded

under Section 313 of the Criminal Procedure Code, is of total denial.

However, the trend of the cross-examination would suggest that the

defence is of consensual sexual relationship.

7. P.W.1 Hansraj is examined to prove the spot panchanma

Exhibit 23, seizure panchanamas Exhibit 26 and Exhibit 27. In the

context of the factual position which is either admitted or is

irrefutable, the evidence of P.W.1 is not relevant. The complainant

Namrata is examined as P.W.2. She has deposed that she and the

accused were in love. P.W.2 and the accused used to visit a nearby hill

and have sexual intercourse. P.W.2 has deposed that the sexual

relationship continued from 2008 to 2012. She conceived in 2012,

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disclosed the pregnancy to the accused, the accused told her not to

disclose the pregnancy to her parents and further said that he will

marry the complainant. P.W.2 has deposed that in the seventh month

of pregnancy she disclosed to her parents, a meeting was called, in the

meeting the accused refused to marry P.W.2 on the ground that she

belongs to scheduled caste (Mahar). P.W.2 has deposed that

thereafter she lodged the report Exhibit 33. Her child born from the

sexual relationship with the accused is three years old, is the

deposition. In the cross-examination, P.W.2 states that she is happily

married to a person belonging to the scheduled caste and that she did

not have any grievance against the accused. She, however, denies the

suggestion that the accused did not promise to marry her.

8. P.W.3 Jaisheelabai is the mother of the complainant. She

has deposed that the accused refused to marry her daughter since she

belonged to scheduled caste. She has deposed that according to her

daughter, the accused promised to marry her. The evidence, to the

extent, the reference is to what Jaisheelabai was told by the

complainant, is hearsay and must be kept out of consideration. Dr.

Khushal Ghodeswar is examined as P.W.4. Dalit Nagwanshi who is the

cousin of the complainant is examined as P.W.5. He has deposed that

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since the complainant belonged to scheduled caste, the accused and his

parents refused the marriage proposal. Dr. Trupti Katre is P.W.6. She

has proved the medical examination report of the complainant. S.P.

Shri Gunjal P.W.7 is the investigating officer.

9. I have given my anxious consideration to the evidence on

record and having done so, I am impelled to agree with the learned

Advocate for the accused that the judgment impugned is manifestly

erroneous.

10. The learned Sessions Judge has held that offence under

Section 417 of the Indian Penal Code is proved. Section 417 of the

Indian Penal Code reads thus :

"417. Punishment for cheating - Whoever cheats shall be punished with imprisonment of either description for a term which may extent to one year, or with fine, or with both."

Section 415 of the Indian Penal Code defines cheating and reads thus :

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

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to that person in body, mind, reputation or property, is said to "Cheat".

Explanation - A dishonest concealment of facts is a deception within the meaning of this section."

11. It is axiomatic that the essential ingredients which the

prosecution was required to establish are that the accused deceived the

complainant and induced her to do or omit to do anything which she

would not do or omit if she were not so deceived. The prosecution was

required to establish that the accused deceived the complainant and

induced or lured her into a sexual relationship.

12. Concededly, it is not even the case of the prosecution that

the accused induced the complainant to have sexual relationship

promising marriage. The complainant has not claimed that she was

induced or lured or persuaded to have a sexual relationship on a false

representation that the accused will marry her. The refusal to marry is

only after the complainant conceived and refusal is on the ground that

the complainant belongs to the schedule caste. Even if the evidence of

the complainant is accepted in entirety, all that the complainant states

is that she disclosed the pregnancy to the accused, the accused told her

that he would marry her and that the pregnancy should not be

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disclosed to her parents. Concededly, even if it is accepted that the

accused did tell the complainant that he would marry her, there is

nothing on record to suggest that after such an assurance, the

prosecutrix was persuaded or induced to do or omit to do anything

which she would not do or omit if she were not so deceived.

13. The finding recorded by the learned Sessions Judge that

the offence under Section 417 of the Indian Penal Code is made out,

militates against the plain language of Section 415 of the Indian Penal

Code which defines of cheating and the evidence on record. The said

finding and the conviction under Section 417 of the Indian Penal Code

cannot stand judicial scrutiny even for a moment and must be set

aside.

14. The accused is further convicted for offence punishable

under Section 3(1)(xii) of the Act. Section 3(i)(xii) of the Act reads

thus :

"3. Punishments for offences of atrocities - (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe -

(i) to (xi) ---------------------------------------------------------

(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe

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and uses that position to exploit her sexually to which she would not have otherwise agreed."

The necessary ingredients which are required to be

established by the prosecution to bring home charge under Section

3(1)(xii) of the Act are (1) the accused must not be a member of

scheduled caste or a scheduled tribe, (2) The victim must be a member

of the scheduled tribe or scheduled caste, (3) the accused must be in a

position to dominate the will of a woman belonging to a scheduled

caste or a scheduled tribe, (4) it must be proved that the accused has

used the dominant position to exploit the woman sexually to which she

would not have otherwise agreed.

15. The conviction, with deepest respect to the learned

Sessions Judge is, is inexplicable.

16. Concededly, the accused and the complainant were in

love. When the cupid used to come calling, they used to visit the

nearby hill and have sexual relationship. Such consensual sexual

relationship between two adults who are admittedly in love cannot by

any stretch be a sexual exploitation within the meaning of Section 3(1)

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(xii) of the Act. The other necessary ingredient is that the accused must

be in a position to dominate the will belonging to a scheduled caste or

a scheduled tribe. It is not possible to agree with the reasoning of the

learned Sessions Judge that the accused was in a position to dominate

the will of the complainant. This is not even the version of the

complainant or of any other witness. There is not even an iota of

evidence on record to suggest that the accused was in a position to

dominate the will of the complainant. The fact that the accused and

the complainant were in love would not necessarily suggest that one of

them was in a position to dominate the will of the other.

17. The learned Counsel for the accused Shri A.M. Gedam has

invited my attention to a judgment of the Orissa High Court in the case

of Panibhusan Behera and Others vs. State of Orissa reported in

1995 Cri.L.J. 1561, authored by Justice A. Pasayat (as His Lordship

was then) and in particular to the following observations therein.

"18. Coming to the sustainability of conviction for the offence under Section 3(1)(xii) of the Atrocities Act, a reference to the said provision is necessary. The same so far as relevant reads as follows :

"3. Punishment for offences of atrocities. -

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(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-

(i) to (xi) xxx xxx xxx

(xii) be in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed."

The ingredients of the offence are that (i) the offender must be a person who is not a member of Scheduled Caste or Scheduled Tribe, (ii) he be in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe; (iii) the said position was used to exploit the woman sexually to which she would not have otherwise agreed. In the present case, the offenders are not shown to have dominated the will of the victim girl. In order to attract application of the provision sexual exploitation must have taken place because of the offenders' position of dominance. The word 'otherwise' is significant, and clearly points out that the exploitation was with agreement of the helpless woman which she would not have agreed but for the offenders' position of dominance. It is significant to note that the expressions used in Section 3(1)(xii) of the Atrocities Act are "agreed" and "exploit sexually" and not "consent" and "rape". "Consent" and "agreement" are not conceptually and etymologically different, Use of the expression "would not have otherwise agreed" is intended to convey that the agreement would not have been there, but for the position of dominance. It is not a free and voluntary consent. "Exploit" means to make an illegitimate use of, to utilise for one's ends, treat selfishly as more workable material (person etc.), to make capital out of. To have carnal knowledge of a woman by use of position of dominance, is sexual exploitation if the victim would not have agreed to the act, but for the position.

In pursuance of the International convention and mandate of the Constitution of India, Parliament in 1956

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enacted "Suppression of Immoral Traffic in Women and Girls Act". This Act has been twice amended in years 1976 and 1986. The amending Act of 1986 has changed the title of the Act from "Suppression" to "Prevention". In this, the old definition of prostitution, vide Section 2(f) which meant "the act of a female offering her body for promiscuous sexual intercourse for hire" has now been changed to carry the meaning of "sexual exploitation or abuse of persons for commercial purposes". Promiscuous sexual intercourse, the important ingredient of prostitution stands replaced by the twin requirement of the exploitation of abuse of the person and secondly the abuse of exploitation should be for commercial purposes. The expression "sexual exploitation" would include sexual intercourse without consent which forms basis for conviction for rape.

I respectfully concur with the enunciation of law in the

said judgment.

18. I have absolutely no hesitation in recording a finding that

the offence under Section 3(1)(xii) of the Act is not proved muchless

proved beyond reasonable doubt. The accused was not in a position to

dominate the will of the complainant and indeed this is not even

alleged by the complainant. That apart, there is not even an iota of

evidence to suggest that the complainant was exploited sexually to

which she would have otherwise agreed.

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19. The judgment and order dated 03-8-2016 in Sessions Trial

16/2013 delivered by the learned Sessions Judge, Gondia is set aside.