Nana Vitthal Mane vs The State Of Maharashtra
2023 Latest Caselaw 1956 Bom

                                               1 of 16              204-apeal-42-20 (Judgment)


                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                                      CRIMINAL APPEAL NO. 42 OF 2020

                     Nana Vithal Mane                                    ..Appellant
                          Versus
                     The State of Maharashtra & Anr.                     ..Respondents

                                                  WITH
                                   INTERIM APPLICATION NO. 1394 OF 2022
                                                    IN
                                      CRIMINAL APPEAL NO. 42 OF 2020
                                                __________

                     Ms. Tripty M. Kapadia (Appointed Advocate) a/w. Chitra Mhaske
                     for Appellant.

                     Mr. S. R. Agarkar, APP for State/Respondent No.1.

                     Mr. Sagar Amrut Rane (Appointed Advocate) for Respondent No.2.
                                              __________

                                             CORAM : SARANG V. KOTWAL, J.

DATE : 28 FEBRUARY 2023

ORAL JUDGMENT:

1. The Appellant has challenged the Judgment and order

dated 08/03/2018, passed by learned Additional Sessions Judge,

Solapur, in Sessions Case No.332 of 2016. The Appellant was

convicted for commission of offence punishable U/s.376 of the

Digitally signed by I.P.C. and was sentenced to suffer R.I. for ten years and to pay a VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date:

2023.03.02 14:41:46 +0530 Gokhale 2 of 16 204-apeal-42-20 (Judgment)

fine of Rs.10000/- and in default of payment of fine to suffer R.I.

for six months. The fine amount was directed to be credited to the

Government. In addition, he was directed to pay Rs.50000/- by

way of compensation to the victim within three months from the

date of the Judgment. He was granted set off U/s.428 of the Cr.p.c.

2. Heard Ms. Tripty Kapadia, learned appointed advocate

for the Appellant, Shri. Agarkar, learned APP for the

State/Respondent No.1 and Shri. Sagar Rane, learned appointed

advocate for the Respondent No.2.

3. The prosecution case is that, the victim used to take her

cattle for grazing in their agricultural field. The appellant was

working as a labourer with one of the villagers. He also used to

take his cattle for grazing. At that time, he committed rape on the

victim on two to three occasions; resultantly, she became pregnant.

Her parents enquired with her, but she did not answer as to how

she became pregnant. She was scolded and beaten by her parents.

She left her house for about four months, but then she was traced.

On enquiries made by her mother, she narrated that the appellant 3 of 16 204-apeal-42-20 (Judgment)

had committed rape on her. The parents approached the police and

the F.I.R. was lodged at Solapur Taluka police station vide

C.R.No.262 of 2016 on 03/07/2016 at about 10.30p.m. The

appellant was arrested on 04/07/2016 and since then he is in

custody. The investigation commenced. The statements of various

witnesses were recorded. Different panchanamas were recorded. A

child was born to the victim on 05/11/2016. The blood samples

for D.N.A. testing in respect of the appellant, the victim and the

child were sent to F.S.L. The D.N.A. report was received

mentioning that the victim and the appellant were the biological

parents of the child. At the conclusion of the investigation, the

charge-sheet was filed. The trial was conducted before learned

Additional Sessions Judge, Solapur.

4. During trial, the prosecution examined eight witnesses

including the victim, her parents, the carrier of samples, the

Medical Officer and the investigating officers. The D.N.A. report

was produced on record at Exhibit 36.

5. The defence of the appellant was of total denial. He had 4 of 16 204-apeal-42-20 (Judgment)

nothing to say about the D.N.A. report. Learned Trial Judge

observed that, though, the victim's father claimed that she was

mentally challenged, he did not find it as the correct fact as the

victim could give rational answers. There was nothing on record to

suggest that she was suffering from any such disadvantage.

Learned Trial Judge took recourse to Section 114-A of the

Evidence Act. He relied on the deposition of the victim herself to

reach a conclusion that there was no consent involved. The D.N.A.

report, according to him, showed that the appellant had

committed this act. Based on this reasoning, he convicted and

sentenced the appellant, as mentioned earlier.

6. The victim is examined as PW-4. She has deposed that,

she knew the appellant. She used to go for grazing the cattle.

While she had gone to her agricultural field for grazing the cattle

in the summer, the appellant had forcible sexual relations with her.

Thereafter, she missed her menstrual cycle. She became pregnant

from him. She gave birth to the child in the Civil Hospital, Solapur.

She could not tell her own date of birth. Her father had lodged the

complaint and the police had recorded her statement.

5 of 16 204-apeal-42-20 (Judgment)

In her cross-examination, she stated that they had 19

to 20 acres of agricultural land. It was a barren land. The other

villagers also used to bring their cattle for grazing in their land.

She had not stated before the villagers that the appellant had

forcible sexual relations with her. She accepted that, she had not

told her parents about her pregnancy and from whom she had got

pregnant. She accepted that, her parents had beaten her and had

abused her. She had left her house for about one and half month

because of the harassment caused by her parents. When she

returned home, the other women from the village enquired with

her about her pregnancy, but she did not tell them the name of the

person who was responsible for her pregnancy. She denied that the

sexual relations were with her consent. She also denied the

suggestion that, she got pregnant out of the consensual sexual

relations.

7. PW-1 was the father of the victim. He was the first

informant. He has deposed that the victim was mentally

challenged to some extent since her birth. They had two cows. The

victim used to go to their agricultural field for grazing cows. She 6 of 16 204-apeal-42-20 (Judgment)

used to go at 10.00a.m. and used to return at 5.00p.m. The

appellant was also grazing the cattle of one Gavali from their

village. He used to take his cattle in PW-1's agricultural field.

PW-1's wife had informed him about the victim's pregnancy. He

had shouted at the victim and, therefore, she had left the house.

He approached the Tanta Mukti President. He advised PW-1 to

approach the Taluka police station. Therefore, he went to Taluka

police station with the victim and lodged the F.I.R. The F.I.R. is

produced on record at Exhibit 12. According to him, the victim's

statement was recorded by the police. He identified the appellant

in the court. His own statement was recorded U/s.164 of the

Cr.p.c. The victim delivered a baby boy after four months from

lodging the F.I.R. He has deposed that the appellant was married

and had two children.

In the cross-examination, he admitted that the victim's

age was between 20 to 23 years. His evidence was recorded on

25/04/2017 and the alleged incident had taken place around

March 2016. Thus, even at the time of the incident i.e. around

March 2016 the victim was about 18 years of age. In any case, it is 7 of 16 204-apeal-42-20 (Judgment)

not the prosecution case that the victim was below 18 years of age

at the time of the incident. He further admitted that, even after the

victim was beaten she did not disclose how she got pregnant. He

volunteered that the victim had told him the reason of her

pregnancy. He deposed that, they had not approached any doctor

for the victim's mental condition.

8. PW-2 was the mother of the victim. After starting

recording her evidence to some extent, learned Trial Judge

observed that, she was unable to give proper and rational answers.

She was unable to understand the questions and, therefore, she

was discharged. Considering this observation, her evidence will

have to be left out of consideration.

9. PW-3 Ashok Chavan was the President of Tanta Mukti

Samiti of the village. He deposed that, two women from the village

informed him that the victim had got pregnant and he should look

into the matter. He denied the suggestion that the victim had got

pregnant because she was raped by the appellant. After this

answer he was declared hostile and was cross-examined by learned 8 of 16 204-apeal-42-20 (Judgment)

APP. But he denied further suggestions. In any case, he did not

know anything about the incident personally. Therefore, his

evidence is not of much importance.

10. PW-5 Anis Shaikh was the carrier who had carried the

samples of the appellant's blood for D.N.A. testing. He had carried

the samples on 08/07/2017 to F.S.L. Pune.

11. PW-6 Dr. Vrushali Bavage had examined the victim on

04/07/2016. The victim's mother had given history of the incident

blaming the appellant. It was also told to PW-6 that the victim was

mentally challenged. On her medical examination, she found that

the victim was 28 weeks pregnant. She collected the necessary

samples for sending to Forensic Department. The victim delivered

a male child on 05/11/2016. After that, the D.N.A. sample of the

baby was sent for analysis. The D.N.A. report was received

subsequently. It is produced on record at Exhibit 36. PW-6 went

through the D.N.A. report. She has deposed that the appellant and

the victim were the biological parents of the victim's baby. The

victim was discharged from the hospital after two months, after 9 of 16 204-apeal-42-20 (Judgment)

the delivery of the child. PW-6 has further deposed that the

victim's family was not ready to keep the baby and had intended to

give it for adoption. But she did not know what happened after

that.

In the cross-examination, she admitted that it was not

mentioned in her certificate that the victim was mentally

challenged. PW-6 volunteered that the psychiatrist's opinion was

obtained from the concerned department and it was mentioned in

the case history. As mentioned earlier, the D.N.A. report is

produced on record at Exhibit 36.

12. PW-7 A.P.I. Babasaheb Koli was the first investigating

officer. After registration of the F.I.R. vide C.R.No.262 of 2016 on

03/07/2016 at Solapur Taluka police station, he had referred the

victim for medical examination to Civil Hospital, Solapur. The

victim's statement was recorded by a woman P.S.I. i.e. PW-8. The

victim was sent for medical treatment to Civil Hospital, Solapur.

The appellant was arrested. The statements of the witnesses were

recorded. The clothes of the appellant were seized. The spot 10 of 16 204-apeal-42-20 (Judgment)

panchanama was conducted. He had asked for D.N.A. kit for

D.N.A. testing. He had obtained the D.N.A. report. He had filed the

charge-sheet against the appellant.

13. PW-8 P.S.I. Amruta Patait had recorded the victim's

statement on 03/07/2016. She denied the suggestion that the

victim told her that the act was committed with her consent.

This, in short, is the evidence led by the prosecution.

14. Learned counsel for the appellant submitted that, the

long silence on the part of the victim indicates that it could be a

case of consent. The victim had not blamed the appellant. She had

not told his name to her parents in spite of their beating; instead,

she had left her house for more than a month. This all indicates

that, it was a case of consent. Without prejudice to this submission,

she further submitted that, it is not conclusively proved that the

appellant has committed this offence and the D.N.A. report is not

free from doubt. She further submitted that, there is no other

corroborative piece of evidence. The evidence of the victim's

parents does not support the prosecution case. The Analyst who 11 of 16 204-apeal-42-20 (Judgment)

had conducted the D.N.A. test was not examined. Finally, she

submitted that, considering the over all circumstances, some

leniency be shown to the appellant by reducing the substantive

sentence, as the appellant is in custody since 04/07/2016.

15. Learned counsel for the respondent No.2 and learned

APP opposed these submissions. They submitted that the victim

has specifically stated that there was no consent and rape was

committed against her wish. The D.N.A. report is the strong

evidence against the appellant. There are indications that the

victim was not mentally alert and, therefore, the appellant had

taken advantage of the situation.

16. I have considered these submissions. As far as the

capacity of the victim to give consent is concerned, no specific

charge was framed U/s.376(2) of the I.P.C. There was nothing to

show that the victim was suffering from any mental disadvantage.

Learned Trial Judge has observed that the victim was capable of

understanding the questions and was able to give clear and

rational answers. He did not find anything even to suggest that she 12 of 16 204-apeal-42-20 (Judgment)

was not able to understand the questions.

17. Learned Trial Judge thereafter relied on the presumption

U/s.114-A of the Evidence Act, which reads thus:

"114-A. Presumption as to absence of consent in certain prosecution for rape. - In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause

(h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent."

However, as can be seen that there was no charge

U/s.376(2) of the I.P.C. and none of the sub clauses of Section

376(2) of the I.P.C. are applicable in this case. Therefore, it is not

necessary to take recourse to Section 114-A of the Evidence Act in

this particular case. Instead, the evidence of the victim will have to

be considered minutely. As reproduced earlier, the victim has

categorically stated that the appellant had established forcible

physical relations with her. She denied the specific suggestion that, 13 of 16 204-apeal-42-20 (Judgment)

it was an act committed with her consent. There is no reason to

disbelieve her deposition in that behalf. There is no other

circumstance brought out on record either through the defence

evidence or through the evidence led by the prosecution to even

suggest that it could be a case of consent. Therefore, it is not

possible to hold that the physical relations were kept with the

consent of the victim. The fact that the physical relations were

established is sufficiently proved through the D.N.A. report. The

victim had became pregnant and had delivered a male child on

05/11/2016. The D.N.A. testing showed that the victim and the

appellant were the biological parents of the child. Therefore, these

basic facts are sufficiently proved by the prosecution beyond

reasonable doubt that physical relation was established by the

appellant with the victim against her wish resulting in her

pregnancy and finally in the birth of a child. It is not the

prosecution case that the victim was below 18 years of age.

Therefore, the charge was framed U/s.376 of the I.P.C. and not

under the Protection of Children from Sexual Offences Act. In this

particular case, there was clear absence of consent and, therefore, 14 of 16 204-apeal-42-20 (Judgment)

all the ingredients of Section 375 of the I.P.C. are fulfilled

attracting sentence U/s.376 of the I.P.C.

18. The next question which would call for consideration is

about the quantum of sentence. When the offence was committed

in the year 2016 the minimum sentence provided U/s.376(1) of

the I.P.C. was for seven years. Learned Trial Judge has recorded

this fact in paragraph 38 of the impugned Judgment and has

observed that, the minimum sentence was for seven years. Having

observed this, he recorded his opinion that, looking at the nature

of the offence, the sentence of 10 years of R.I. was justified. No

fault can be found with this reasoning. However, there are certain

circumstances which I am taking into account. The appellant is

continuously in custody since 04/07/2016. He has two children

and a wife who are dependent on him. The victim had not named

him immediately and for a few months kept avoiding naming him.

Therefore, though, I am inclined to show some leniency,

considering that a child is born in this case, the sentence will be

more than minimum sentence. At the same time, if the

compensation amount is enhanced and is directed to be paid to the 15 of 16 204-apeal-42-20 (Judgment)

victim, then his substantive sentence can be reduced to a certain

extent; so that the victim will also get some compensation which

she can use for the benefit of her child. Considering this

discussion, in my opinion, the appellant can be sentenced to suffer

R.I. for eight years by way of substantive sentence. Though, he is

directed to pay the compensation of Rs.50000/- on failure of such

payment, no 'in default' sentence was awarded; this needs to be

modified and the appellant will have to suffer the 'in default'

sentence. To that extent, the operative part of the impugned

Judgment and order needs modification. With the result, the

following order is passed.

ORDER

i) The Appeal is partly allowed.

ii) The conviction of the Appellant recorded for commission of offence punishable U/s.376 of the I.P.C. is maintained. However, instead of R.I. for 10 years, he is sentenced to suffer R.I. for eight years and to pay a fine of Rs.75000/- and in default of payment of fine he shall undergo further R.I. for one year and six months.

16 of 16 204-apeal-42-20 (Judgment)

iii) If the fine amount is deposited, Rs.65000/- be paid to the victim as compensation U/s.357 of the Cr.p.c. .

iv) The Appellant is granted set off U/s.428 of the Cr.p.c.

v) The other clauses in the operative part of the impugned Judgment and order which are not inconsistent with this operative part, are maintained as they are.

vi) With these observations, the Appeal is disposed of.

vii) With disposal of the Appeal, the Interim Application No.1394 of 2022 is also disposed of.

(SARANG V. KOTWAL, J.)