Chandrakant Daulat Lingavale vs State Of Maharashtra
2021 Latest Caselaw 16678 Bom

                      Megha       .                        207_apeal_722_1997.doc

                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION

MEGHA                                   CRIMINAL APPEAL NO.722 OF 1997
S PARAB
Digitally signed by
MEGHA S PARAB
                      Chandrakant Daulat Lingavale                      ...Appellant
Date: 2021.12.04
13:39:15 +0530                        Versus
                      The State of Maharashtra and Ors.               ...Respondents
                                                       ....
                      Ms Yashasvita Apte with Mrs. Swati Khot i/b. Mr. Harshad Bhadbhade for
                      the Appellant.
                      Mr. S.V. Gavand, APP for Respondent-State.


                                                 CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED: 2nd DECEMBER, 2021.

ORAL JUDGMENT:-

1. This appeal under Section 374 of the Code of Criminal

Procedure, 1973, is directed against the judgment and order dated

04/10/1997 passed by the learned Sessions Judge, Ratnagiri in Sessions

Case No.67 of 1996.

2. By the impugned judgment, the learned Judge held the

Appellant guilty of ofences punishable under Sections 376 and 418 of

the IPC and sentenced him to undergo rigorous imprisonment for a

period of three years and to pay fne of Rs.20,000/- i/d. to undergo

further rigorous imprisonment for a period of one year for ofence

Megha . 207_apeal_722_1997.doc

under Section 376 of the IPC and rigorous imprisonment for a period of

one year with fne of Rs.5000/- i/d. to undergo further rigorous

imprisonment for a period of one month for the ofence punishable

under Section 418 of the IPC.

3. The brief facts necessary to decide the appeal are as under:-

The prosecutrix (PW1) lodged the FIR dated 28/05/1996 against the

Appellant (hereinafter referred to as the accused) alleging rape.

Pursuant to the FIR(Exh.13) crime was registered against the accused

for ofences under Sections 376, 341 and 506 of the IPC. PW3- PS-CID

Vilas Laxman Bhosale (Investigating Ofcer) recorded the statement of

PW2-mother of the prosecutrix and referred the prosecutrix for

medical examination and age determination. Upon completion of the

investigation he fled the charge sheet against the accused for ofences

punishable under Sections 376, 418 and 506 (part II) of the IPC.

4. Charge was framed and explained to the accused. He

pleaded not guilty to the charge and claimed to be tried. The

prosecution in support of its case examined three witnesses. The

statement of accused was recorded under Section 313 of the Cr.P.C.

The defence of the accused was that of total denial and false

implication. Upon appreciating and analysing the evidence on record,

Megha . 207_apeal_722_1997.doc

the learned Judge held the accused guilty and sentenced and convicted

him for the ofences as stated above. Being aggrieved by this

conviction and sentence, the accused has fled this appeal.

5. Heard Ms Yashasvita Apte, learned counsel for the

Appellant/accused and Mr. S.V. Gavand, learned APP for Respondent-

State. I have perused the records and considered the submissions

advanced by learned counsel for the respective parties.

6. The core question, which falls for my consideration is

whether the prosecution has established beyond reasonable doubt that

the accused had subjected the prosecutrix to rape. The answer to

which is nothing but in negative for the following reasons:-

7. PW1 is the prosecutrix and PW2 is her mother. They have

not disclosed the age of the prosecutrix. Their evidence does not

indicate that the prosecutrix was below 16 years of age so as to bring

the case within the ambit of sixth clause of Section 375 of the IPC, as it

stood prior to the amendment. The prosecution has not relied upon

the birth certifcate or the school records to prove the age of the

prosecutrix. The only evidence relied upon by the prosecution is in the

form of a medical certifcate at Exhibit-15 wherein the Doctor has

Megha . 207_apeal_722_1997.doc

certifed that as per the radiological fnding, age of the prosecutrix is

more than 17 years but less than 19 years.

8. It is well settled that determination of age on the basis of

ossifcation or radiological test is not a conclusive proof but is only an

estimation of age. In Jay Mala vs. Home Secretary, Govt. of J & K.

1982 (2) SCC 538 the Apex court has held that there are can be two

years margin either way in radiological examination. Hence, even if the

certifcate at Exhibi5-15 is taken at its face value, considering the

possibility of an error of plus or minus two years in the opinion

rendered by the Medical Ofcer, it cannot be concluded with certainty

that on the date of the incident the prosecutrix was below 16 years of

age. Having failed to prove that the prosecutrix was below 16 years of

age, it was incumbent upon the prosecution to prove that the sexual

intercourse was against the will and without the consent of the

prosecutrix.

9. In this regard, the evidence of the prosecutrix indicates that

the accused was known to her and that she was working for him. The

accused had called her to his house in March-1996 and he had sexual

intercourse with her. She further states that the accused had sexual

intercourse with her on 2 to 3 diferent occasions under the promise of

Megha . 207_apeal_722_1997.doc

marriage. This witness does not claim that the accused had sexual

intercourse with her against her wish and without her consent. On the

contrary, she admits that they used to meet each other. The evidence

of the prosecutrix further indicates that she had told the accused that

she loved him, she had visited his house at Dapoli and had sexual

intercourse at Dapoli. The evidence of this witness indicates that she

was pregnant. She had lodged the FIR alleging rape only when accused

refused to marry her. The evidence of PW2, mother of the prosecutrix

also does not in any manner indicate that the accused had sexual

intercourse with PW1 against her wish or without her consent. PW2 has

merely stated that the prosecutrix had missed her menstrual cycle. She

has disclosed to her that the accused had sexual intercourse with her,

under the promise of marriage.

10. The evidence on record thus clearly indicates that the

relationship between the accused and the prosecutrix was consensual.

The prosecutrix lodged the FIR only because the accused refused to

marry her. The prosecutrix was well aware that the accused was

married and could not have married her during subsistence of his

marriage. The prosecutrix did not have sexual intercourse under

misconception of fact. Hence, Section 90 of the IPC cannot be called

into the aid. There is no evidence on record to prove that the accused

Megha . 207_apeal_722_1997.doc

had fraudulently or dishonestly induced the prosecutrix in having

sexual relationship. Sufce it to say that mere refusal to marry does

not constitute an ofence of 'cheating'. Hence, ingredient of ofence

under Section 415 of the IPC are not made out. Under the

circumstances, the prosecution has failed to prove the essential

ingredients of 'rape' and 'cheating'. Consequently, the conviction and

sentence cannot be sustained.

11. Hence, the appeal is allowed. The impugned judgment and

order dated 04/10/1997 passed by the learned Sessions Judge,

Ratnagiri in Sessions Case No.67 of 1996 is quashed and set aside. The

accused is acquitted of ofence punishable under Sections 376 and 418

of the IPC. Bail bonds stand discharged. The Accused shall furnish bond

under Section 437 A of Cr.P.C. before the Sessions Court within a

reasonable time.

(SMT. ANUJA PRABHUDESSAI, J.)