Bombay High Court
Geeta D/O Hanumantrao Borkar vs State Ofmah. Thr. Pso Ps Badnera ... on 29 June, 2022
Bench: S.B. Shukre, G. A. Sanap
1 943.Cri.Apeal No.395.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APPA) NO. 752 OF 2021
AND
CRIMINAL APPEAL NO. 395 OF 2022
Geeta D/o Hanumantrao Borkar,
..VS..
The State of Maharashtra & Another
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. H.V. Dhage, Advocate for the Applicant/Appellant.
Mr. M.J. Khan, Additional Public Prosecutor for Respondent No.1.
CORAM : SUNIL B. SHUKRE AND
G.A. SANAP, JJ.
DATED : 29.06.2022
CRIMINAL APPLICATION (APPA) NO. 752/2021
Heard.
2. Leave to file Appeal is granted in view of the law
declared by the Apex Court in the case of Mallikarjun
Kodagali (dead) Represented through Legal
Representatives Vs. State of Karnataka & Others, (2019)
2 SCC 752.
3. Appeal be registered accordingly.
CRIMINAL APPEAL NO. 395 OF 2022
Heard.
2. Mr. Hariom Dhage, learned counsel for the
Appellant, submits that the impugned judgment delivered
by the Extra Joint Additional Sessions Judge, Amravati
on 24.09.2021, thereby acquitting the Respondent No.2
for an offence punishable under Sections 376(2)(n) read
with Section 417 of the Indian Penal Code with which the
Respondent No.2 was charged, is perverse and not
sustainable in law. He further submits that the learned
Additional Sessions Judge has not taken into
consideration the fact that there was no consent in law
on the part of the prosecutrix/appellant and, therefore,
the offences of cheating as well as rape were duly
established and yet the learned Additional Sessions Judge
found the Respondent No.2 to be innocent.
3. Mr. M.J. Khan, learned Additional Public
Prosecutor submits that an appropriate order may be
passed in the matter.
4. It is an admitted fact that the First Information
Report has been lodged by the prosecutrix/appellant on
08.06.2018 and it is also an admitted fact that the first
sexual encounter she had had with Respondent No.2 was
sometime in the year 2015-2017. The allegation is that
the prosecutrix/appellant was induced into having
sexual relations with the Respondent No.2, because the
Respondent No.2 promised to her that he would perform
marriage with her, which promise he did not keep later
on. But, the facts remain that it were the
prosecutrix/appellant who had refused to perform
marriage with Respondent No.2, which fact has clearly
appeared in the evidence of the prosecution. If this
would only show that the entire fault for not enabling the
Respondent No.2 to fulfill his promise lay with the
prosecutrix/appellant and if this is so, the Respondent
No.2 could not have been found, by any stretch of
imagination, as guilty of the offence of rape. This is not a
case of the consent having been given under
misconception of fact rather this is a case wherein
consent has been given fully knowing the consequence of
the conduct of the parties. Thus, neither any perversity
nor any impossibility nor any patent illegality could be
noticed in the impugned judgment and order. The Appeal
deserves to be summarily dismissed and it is dismissed
accordingly.
(G.A. SANAP, J.) (SUNIL B. SHUKRE, J.)
Kirtak
Digitally Signed By:KIRTAK
BHIMRAO JANARDHAN
Signing Date:30.06.2022
16:17
