Pankaj Ambadas Devtale vs State Of Maharashtra, Thr. Pso Ps ...
2021 Latest Caselaw 2037 Bom

                                          1                                cr apeal 22.2021.odt


                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               NAGPUR BENCH, NAGPUR

                             CRIMINAL APPEAL NO.22 OF 2021
     Pankaj Ambadas Devtale,
     Detained in Central Prison, Amravati
     C.5452, Aged about 30 years,
     Occu Labour, R/o Mubarakpur,
     Tq. Babulgaon,
     District Yavatmal.                                    . . . APPELLANT

        VERSUS
     State of Maharashtra,
     Through Police Station Officer,
     Police Station, Ralegaon,
     Taluka Warud and Distt. Yavatmal.                     . . . RESPONDENT
 Shri R.M. Daruwala, Advocate (appointed) for Appellant.
 Shri T.A.Mirza, APP for Respondent/State.

                                        CORAM : Z.A. HAQ & AMIT B. BORKAR, JJ.

DATED : 01/02/2021.

ORAL JUDGMENT : (PER AMIT B. BORKAR, J.)

1. The appellant has filed this appeal being aggrieved by the

judgment and order dated 4 th January 2019 passed by the Additional

Sessions Judge, Yavatmal, in Sessions Trial No.58 of 2014, whereby the

appellant has been convicted and sentenced in the manner stated as under:

(i) Under Section 365 of the Indian Penal Code, to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/-, in default to undergo further rigorous imprisonment for three months;

(ii) Under Section 366 of the Indian Penal Code, to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/-, in default to undergo further rigorous imprisonment for three months.

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(iii) Under Section 376 (2) (n) of the Indian Penal Code, to undergo imprisonment for life and to pay a fine of Rs.2,000/-, in default to undergo further rigorous imprisonment for six months; and

(iv) Under Section 344 of the Indian Penal Code, to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default to undergo further rigorous imprisonment for two months.

2. Shortly stated the prosecution case runs as under:

On 14th July 2012, the Victim came to Ralegaon for repairing

her mobile. While she was standing at Auto-point near the bus-stand at

2.00 p.m., the accused came there and threatened her by showing knife,

abducted her to Mubarakpur on his motorcycle. The accused confined her in

his house and against her will performed marriage with her. Thereafter

during the period of about one year, the accused used to harass and beat

her.

3. On 18th August 2013, the accused rescued herself and came

to Yavatmal by auto. While leaving Mubarakpur, the Victim told her mother

that she will be going to Yavatmal Police Station. The Victim on 19 th August

2013 lodged report with the Police station, Ralegaon against the accused.

On the basis of the said report of the Victim, Crime came to be registered

vide Crime No.65 of 2013, under Sections 365 and 366 of the Indian Penal

Code against the accused. During investigation, the Investigating Officer

recorded statements of the witnesses, sent Victim to the hospital for medical

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examination. The Investigating Officer sent seized articles for Chemical

Analysis. During the course of investigation, the Investigating Officer added

Sections 370 (2), 376 and 344 of the Indian Penal Code. After completion of

the investigation, the Investigating Officer submitted final report against the

accused in the Court of the Judicial Magistrate First Class, Ralegaon, for

offences punishable under Sections 365, 366, 376 (2) (n) and 344 of the

Indian Penal Code.

4. The charges were framed against the accused, which were

explained to him in vernacular for which, he pleaded not guilty. The defence

of the accused was that the Victim was loving him and she forcefully came to

his house and resided with him for two and half years and without informing

the accused, the Victim left the house of the accused.

5. The learned Trial Judge believed the evidence adduced by

the prosecution and convicted the accused, in the manner as stated in

paragraph no.1 above. Hence, this appeal.

6. We have heard learned Advocate appearing for the appellant

and learned Additional Public Prosecutor for the respondent - State and

perused the entire material on record. In our view, this appeal deserves to

be allowed.

7. It is not in dispute that age of the Victim - girl was above 18

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years when the alleged incidents of sexual intercourse with the accused took

place. It is also not in dispute that the accused had performed marriage

with the Victim.

In the the above backdrop, the question is whether the

appellant had sexual intercourse with the Victim - girl against her will. The

expression "against the will" seems to connote that the offending act was

done, despite resistance and opposition of a woman. In this context, the

deposition of the Victim ( PW 1) assumes importance. Victim (PW 1) stated

that on 14th July 2012, the accused forcefully took her to the village

Mubarakpur on his motor-cycle. The accused performed marriage with the

Victim and thereafter committed repeated sexual intercourse with the Victim

against her will. She stated that on 18th August 2013, she ran away from the

house of the accused at Mubarakpur and directly went to the Police Station,

Yavatmal and lodged First Information Report.

8. It is well settled law that when the accused is charged with

committing rape of a woman, it is for the prosecution to prove that sexual

intercourse was against the will of the woman. The Victim herself has stated

that the accused performed marriage with her as per "Bouddha custom"

against her will. The deposition by the Victim shows that the Victim was

residing alongwith the accused in his house for a period of more than one

year.

The fact stated above, such as taking the Victim on the

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motorcycle of the accused to Mubarakpur, performing marriage as per

"Bouddha custom" indicate that there was consent of the Victim to reside

with the accused. It is not possible to believe that the Victim had repeatedly

committed sexual intercourse with the accused against her will for a period

of more than one year.

9. The mother of the Victim - Pushpa (PW 2) stated that on the

day of incident, the Victim had gone to Ralegaon for repairing her mobile,

but she did not return at home and hence, she made inquiry about her. The

mother of the Victim- Pushpa (PW 2) could not find the Victim and,

therefore, she lodged report with the Police Station, Ralegaon on the next

day. After 2-3 days, she received a phone-call and got to know that the

accused had kidnapped her daughter from Ralegaon to Mubarakpur. Pushpa

(PW 2) also got to know that the accused and the Victim performed

marriage and they were residing together and, therefore, she did not go to

the accused to fetch her daughter. After about one year, the Victim made

phone-call to Pushpa (PW 2). On inquiry with the Victim, it was disclosed

that the accused had harassed, ill-treated and beaten the Victim. The

testimony of mother of the Victim - Pushpa (PW 2) shows that she was also

aware about the marriage performed by the accused with the Victim. Pushpa

(PW 2) did not state that the Victim performed marriage with the accused

against the will of the Victim. The testimony of Pushpa (PW 2) shows that

the accused and the Victim were residing at the house of the accused as

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husband and wife for a period of more than one year. There is absolutely no

evidence on record to prove that the marriage between the accused and the

Victim was solemnized against the will of the Victim and, therefore, the Trial

Court was not justified in recording the finding that the marriage between

the accused and the Victim was not legal marriage and hence, the Victim is

not legally wedded wife of the accused. In our considered view, the fact of

going on the motorcycle of the accused to his house at Mubarakpur, not

complaining to any person for the period of more than one year about forced

marriage or sexual intercourse against will of the Victim, in the facts of this

case, entitles the accused to benefit of doubt. We are, therefore of the

considered view that the accused is not guilty of offence punishable under

Section 376 (2)(n) of the Indian Penal Code.

10. As stated earlier, the facts that the Victim was taken to

Mubarakpur on his motorcycle and they resided as husband and wife for the

period of more than one year are sufficient to disprove the charge of

wrongful confinement of the Victim for more than 10 days and of kidnapping

the victim with intent to secretly confine her for the purpose of compelling

her to marry. We are, therefore of the considered view that it is not possible

to believe that the accused compelled the Victim to sit on his motorcycle,

took her to his village and confined her in his house for more than one year.

On the basis of the evidence on record, the prosecution has miserably failed

to prove that the marriage or the intercourse had taken place without the

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consent of the Victim. We, therefore, hold that the findings recorded by the

Trial Court holding the accused guilty of offences punishable under Sections

365, 366, 376 (2)(n) and 344 of the Indian Penal Code are unsustainable.

11. In the result, the conviction and sentence imposed by the

impugned judgment deserve to be set aside. We, therefore, pass the

following order :

ORDER

(i) The judgment and order dated 04.01.2019 passed by the Additional Sessions Judge, Yavatmal in Session Trial No.58 of 2014 convicting the accused for the offences punishable under Sections 365, 366, 376 (2) (n) and 344 of the Indian Penal Code is set aside.

(ii) The accused is acquitted of the charge of commission of offences punishable under Sections 365, 366, 376(2) (n) and 344 of the Indian Penal Code.

(iii) The accused who is in jail shall be released forthwith, if not required in any other offence.

(iv) The muddemal property be disposed as per the order of Additional Sessions Judge, Yavatmal after the period of appeal.

The Criminal Appeal is allowed in the above terms.

Fees of Shri R.M. Daruwala, Advocate appointed to represent the

appellant be paid as per the Rules.

                      JUDGE                              JUDGE



Ambulkar