appln3153-10 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3153 OF 2010 The State of Maharashtra .. Applicant Vs Sanjay Bhimsen Padolkar and Ors .. Respondents Mr. V.B. Konde-Deshmukh, APP CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ. DATE : 15th JULY, 2010 ORAL ORDER [PER SMT. V.K. TAHILRAMANI, J]: 1. The applicant - State of Maharashtra has preferred this application for leave to file appeal against the judgment and order dated 30.03.2009 passed by the learned Additional Sessions Judge, Solapur in Sessions Case No. 85 of 2007. By the said judgment and order, the respondents i.e original accused nos. 1 to 4 came to be acquitted of the offences under section 376 of I.P.C. and Sections 366, 313, 323, 506 r/w 34 of the I.P.C. 2. The prosecution case briefly stated is as under: The prosecutrix PW5 Sunita is the daughter of PW6 Vatsala and PW7 Madhukar. Madhukar was residing at village 1 appln3153-10 Tillyal, Solapur along with his wife, two daughters including the prosecutrix and two sons including PW8 Sarjerao and Pradip. Accused no. 1 Sanjay is the son of the sister-in-law of Gunabai who is the maternal aunt of the prosecutrix. Accused No. 2 Bhimsen is the father of accused no. 1, accused no. 3 Sachin is the brother of accused no. 1 and accused no. 4 Ram is the husband of Gunabai who is the maternal aunt of the prosecutrix. According to the prosecutrix, she took her primary education at Aherwadi in Konapure Prashala. In the year 1999, she was studying in 10th standard. Accused no. 1 Sanjay used to go to her school frequently and he expressed his love for her. He used to say that he wanted to marry her. A love affair developed between the two. They used to meet each other regularly and used to send letters to each other. In the year 1999, some days after 'Veli Amavashya', accused no. 1 Sanjay told the prosecutrix Sunita that there was no one in his house and told her to come to his house. The prosecutrix then went to the house of accused no. 1 where according to the prosecutrix, accused No. 1 Sanjay had sexual intercourse with her against her will. He told her that he wanted to marry her, hence, she should not afraid him. Later on, accused no. 1 used to call her frequently at his house 2 appln3153-10 and used to have forcible sexual intercourse with her. Because of the association, she conceived. Accused No. 1 brought tablets meant for abortion and gave to the prosecutrix. These tablets resulted in abortion at the house of the prosecutrix. After completing 10th standard, the prosecutrix went to Achlet Tal. Umergaon to the house of her uncle Chandrakant for further education. Accused no. 1 used to go there and used to have sexual intercourse with her. The prosecutrix again conceived. Accused No. 1 again gave her tablets to cause abortion. The pregnancy came to be aborted. After passing 12th standard, the prosecutrix took admission in Sangmeshwar college at Solapur. The accused no. 1 used to go to the college frequently. He called the prosecutrix in the month of June 2003 to his house. At that time, there was no one in the house. Again, accused no.1 committed rape on her. Again, she conceived. Accused No. 1 again gave her tablets to cause abortion and the pregnancy was aborted. Though, the pregnancy of the prosecutrix was aborted thrice by the tablets given by accused no. 1, yet she had not disclose the behavior of accused no. 1 to any one and kept it a secret, till during the third abortion she fell ill and had severe pain. The mother of the prosecutrix asked her about her health condition. The prosecutrix then disclosed 3 appln3153-10 the facts to her mother. Family members of the prosecutrix forced her not to keep any relations with accused no. 1. Her family members, therefore, took a decision that her marriage should be performed with someone else and accordingly, it was fixed with Bajrang Salgar on 06.07.2003. Invitation card (Exh 36) were printed. Rituals before the marriage were completed, however, just one day before the marriage, the prosecutrix left her house without informing to her parents and went with the accused. 3. It is the case of the prosecutrix that though accused no.1 had promised to marry her, no marriage took place, hence sometime in the month May 2004 or thereafter, she approached police with her complaint and ultimately on 10.06.2004, her FIR (Exh 74) came to be lodged and investigation commenced. 4. We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Sessions Judge. We have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 4 appln3153-10 5. The relation between the parties is not in dispute. The case of the prosecution is that the date of birth of the prosecutrix is 08.06.1983, however, in support thereof, no birth certificate is placed on record. The evidence of both the parents of the prosecutrix is silent on the point of her age. To show the date of birth of the prosecutrix is 08.06.1983, her school leaving certificate [Exh 33] was relied upon. The said leaving certificate was issued by Konapure Prashala on 28.02.2000. The said certificate shows date of admission 22.07.1997 and date of leaving certificate is 31.05.1999. The school leaving certificate has been issued by the headmaster of the school but the prosecution has not examined the headmaster of the said school nor any school register has been produced before the court. In such case, the learned Sessions Judge has rightly observed that this certificate cannot be safely relied upon. 6. Medical evidence on the point of age of the prosecutrix is also not forthcoming. No reliable medical evidence has been produced by the prosecution in support of the contention that the prosecutrix was below 16 years of age at the time of incident. According to the prosecutrix herself, in the year 1999, she was 16 to 17 years of age. The prosecutrix has admitted that her love affair started with the accused since her school days and for the first time in the year 1999, she 5 appln3153-10 had chit chatted with accused no. 1 at his house and some days thereafter, after 'Veli Amavashya', she had sex with the accused for the first time. Thus, from the evidence of the prosecutrix, it is clear that when sexual intercourse took place for the first time, the prosecutrix was well over 16 years of age. If this is so, then it means that she was competent to give her consent for sexual intercourse as per provisions of section 376 of I.P.C. The case of the prosecutrix is that accused no. 1 had sexual intercourse with her forcibly against her will, therefore, in view of the age of the prosecutrix, the only aspect which remains for consideration is whether the sexual intercourse with the prosecutrix took place against her wish. 7. According to the prosecutrix, in the year 1999, accused no.1 used to come to her school to meet her frequently. He used to call her from the class and used to tell her that he loves her and wants to marry her. He used to call her through the peon of the school. He used to send letters to her. The prosecutrix has stated that she also gave positive signal to accused no. 1 and she used to reply to the letters sent by him. This shows that the prosecutrix was receptive to accused Sanjay and reciprocated his feelings in equal manner. There is no question of Sanjay forcing his feelings on her at least till this juncture. 6 appln3153-10 8. According to the prosecutrix, in the year 1999, some days after 'Veli Amavashya', accused Sanjay told her that there was no one in the house and called her to his house. The prosecutrix then went to the house of accused no. 1. There accused No. 1 Sanjay had sexual intercourse with her which according to the prosecutrix was against her will. The accused stated that he wanted to marry her, hence, she should not be afraid of him. Later on, accused no. 1 used to call her frequently at his house and used to have sexual intercourse with her. According to the prosecutrix the sexual intercourse was forcible in nature. As far as the first instance of sexual intercourse is concerned, it is seen that the accused had clearly informed the prosecutrix that there was no one at his house and he asked the prosecutrix to come to his house. Despite knowing the fact that there was no one in the house and knowing about the feelings which the accused had towards her, yet the prosecutrix took the risk of going to his house when there was no one in the house. A young woman who has been told by the person who loves her that there is no one in the house and she should come to his house, has an idea of the subsequent events which may take place. The fact that the prosecutrix willingly went to the house of accused knowing fully well that there was no one at home does indicate that the subsequent events which took place were not against her wishes. 7 appln3153-10 9. Due to the association of the prosecutrix with the accused Sanjay while she was residing at Tillyal, the prosecutrix conceived. Accused No. 1 gave tablets to her to cause abortion. The prosecutrix consumed those tablets resulting in abortion. It is noticed that according to the prosecutrix, the first instance of sexual intercourse which was against her wish took place in the year 1999. She did not disclose this incident to her parents. She continued to go to the house of accused even thereafter. After she became pregnant for the first time, she did not inform her mother or consult any elderly person or doctor before taking any steps to abort the foetus. Even after the abortion, she continued to meet the accused and have sexual intercourse with him. The incident of sexual intercourse have taken place at the house of the accused. It is not the case of the prosecutrix that any of these acts of sexual intercourse took place while she was residing at Tillyal in her own house or that the accused Sanjay suddenly pounced on her in some field or lonely place and raped her. From the evidence, it is clear that all the acts took place in the house of the accused or where the accused called her and she went to meet him. If at all, these acts were against her wishes, whenever the accused called her to meet him, she would not have gone to his house when there was no one at home. The very fact that she continued meeting accused Sanjay shows that sexual 8 appln3153-10 intercourse was not against her wishes. 10. It is further case of the prosecution that the prosecutrix had gone to Achlet Tal. Umergaon for further education at the house of her uncle Chandrakant. Accused no. 1 used to go there and used to have sexual intercourse with her. The prosecutrix again conceived. Accused No. 1 again gave her tablets to cause abortion. The pregnancy came to be aborted. Though these acts occurred in the house of her uncle Chandrakant, she did not disclose anything to her uncle or any other relative or make any attempt to seek help. This does indicate that she was not averse to the event which took place. 11. After passing 12th standard, the prosecutrix took admission in Sangmeshwar college at Solapur. The accused no. 1 used to go to the college frequently. He called the prosecutrix in the month of June 2003 to his house. At that time, there was no one in the house. Again, accused no.1 committed rape on her. Again, she conceived. Accused No. 1 again gave her tablets to cause abortion and the pregnancy was aborted. It is pertinent to note that though the prosecutrix conceived thrice and was in contact with accused no.1 since 1999 till June 2003, during which time, according to her, she was subjected to forcible sexual intercourse, it 9 appln3153-10 is apparent that she had sexual intercourse with accused no. 1 during this period without putting up any real resistance. Her pregnancy was aborted thrice by tablets given by accused no. 1, yet she had not disclose the behavior of accused no. 1 to any one and kept it a secret, till at the time of her third abortion, she fell ill and her mother questioned her regarding her health. Even after repeated incidents of rape, conceiving and thereafter abortion, the prosecutrix did not disclose any facts to anyone including her mother. 12. At the time of third abortion, when the prosecutrix became ill and had severe pains and when her mother questioned her regarding her health, it is only then that the prosecutrix disclosed the facts to her mother. On hearing the facts, the family members of the prosecutrix forced her not to keep any relations with accused no. 1 and they took decision to perform her marriage with someone else. Accordingly, her marriage was fixed with one Bajrang Salgar and it was to take place on 06.07.2003. Invitation cards were printed and distributed and even pre-marriage ceremonies had taken place. However, one day before marriage, the prosecutrix left her house under false pretense and ran away with accused Sanjay to Mumbai. Before running away from the house, the prosecutrix did not even care to inform her parents. She ran away from the house just one day before the 10 appln3153-10 date of her marriage when all the pre-marriage functions had already been completed. As the prosecutrix had run away with accused no. 1, her marriage with Bajrang Salgar came to be cancelled. From the evidence of the prosecutrix, it is clear that her family members were opposed to her relations with accused Sanjay and they forced her not to keep any relations with accused Sanjay and took decision to perform her marriage with someone else. The very fact that the prosecutrix ran away from the house of her parents without informing them shows that she voluntarily left the house of her parents on her own accord and she chose to go with the accused. From this conduct of the prosecutrix, it is clear that earlier events as well as the later events were not against the wishes of the prosecutrix. 13. The case of the prosecutrix is that though she was subjected to rape, she remained silent only because accused no. 1 had given assurance to perform marriage with her and thereafter, the marriage did not take place. The evidence on record shows that in fact accused Sanjay had every intention of marrying her. The evidence of the prosecutrix shows that after she ran away from her house to Mumbai, accused no.1 purchased clothes and Mangalsutra for her. Accused Sanjay told her that they would get married on the next day. They also took one room on rental basis at 11 appln3153-10 Nalasopara. However, next morning, accused nos. 2, 3 and 4 came to their room at Nalasopara and told them that their marriage would be performed in presence of public in the village, hence, they returned to Solapur. On reaching Solapur, the relatives of accused no. 1 consisting of four uncles and their sons were waiting at the S.T. Stand Solapur. They all started abusing the prosecutrix. Bhimsen, father of accused no. 1 started beating the prosecutrix and abusing her as to why she wanted to marry accused no. 1. Respondent NO. 2 - Bhimsen - father of the accused also asked accused no.1 Sanjay, whether he wanted to marry the prosecutrix whereupon Sanjay stated that he wanted to marry the prosecutrix and would go along with her to her house. The other accused then brought the prosecutrix and accused no. 1 to Akkalkot naka in rickshaw and thereafter, brought her to the field of accused at Kadganchiwadi in trax. They took her to their field at Kadganchiwadi and asked her to get down from the trax alone. Accused no. 1 was kept in the trax. Then all accused gave fists and kicks blows and threats to her. Thereafter, accused no. 1 was dropped at Kadganchiwadi and the prosecutrix was dropped at the house of her father. From the piece of evidence, it is clear that all along accused Sanjay wanted to marry the prosecutrix. At no point of time did he break the promise but in fact he took steps towards getting married to the prosecutrix, which can be seen 12 appln3153-10 from the fact that he purchased clothes, Mangalsutra etc. 14. Another aspect of vital importance in the present case is that there is inordinate delay in lodging FIR. The first incident took place in the year 1999 and the FIR is lodged in June 2004. Even after the prosecutrix was brought by other accused from Mumbai to Solapur and beaten up and left at her house, no attempt was made by her or her family members to lodge FIR. The prosecutrix has stated that she was injured due to beating and she remained in the house for 15 days on account of injuries. According to her, she was bedridden during that period. Thereafter, she went to the Police. There is no medical evidence on record to show that the prosecutrix was really injured or bedridden. In such case, it is difficult to hold that she received injuries and that the injuries were such that she could not lodge F.I.R. at that time. In such case, We find that no plausible explanation has been furnished for the inordinate delay in lodging FIR. 15. As far as medical evidence is concerned, the prosecutrix was referred to the hospital for medical examination. At that time, she was menstruating, hence, she was asked to come after three days. There is no material to show that thereafter, any medical examination took place. 13 appln3153-10 Thus, there is no medical evidence on record. 16. Not only the evidence of the prosecutrix shows that all events took place with her consent but the evidence of PW6 Vatsala i.e mother of the prosecutrix shows that she was aware about the pregnancy of her daughter. Despite the fact that she was aware of pregnancy of her daughter, she did not take any action against accused no. 1 nor did she lodge any report at the Police Station. Both the mother PW6 and daughter i.e the prosecutrix remained silent. Inspite of three abortions, the marriage of the victim was settled with Bajrang and one day before the marriage date, the prosecutrix ran away from her house with accused no. 1 without informing her parents. No missing complaint was lodged by her parents. This shows that her parents knew that she had voluntarily of her own accord run away with accused no. 1. The behavior of the prosecutrix does not seem to be like a normal girl. Her conduct is not such as to inspire confidence. Her version creates suspicion. It does not lend credence to the evidence of the prosecutrix that she was subjected to sexual intercourse against her will even in respect of the first incident of rape. 17. As far as the case of the prosecutrix that accused no. 1 did not marry her and he had sexual intercourse with her by giving false promise is concerned, there is no evidence 14 appln3153-10 brought on record that accused no.1 did not have any intention to marry her. In fact, the evidence on record shows that after marriage of the prosecutrix was fixed, accused no.1 had called the prosecutrix and they went to Mumbai. There accused no.1 purchased clothes and Mangalsutra for the marriage. In fact, the prosecutrix has also no grievance against accused no. 1 that he was not ready to marry her. Her grievance is that the relatives of accused no. 1 did not allow the marriage to take place. The prosecutrix has also categorically stated that when they came back to the ST stand at Solapur, the other accused were expressing their objections to the marriage, however, accused no. 1 stated that he wanted to marry the prosecutrix. 18. On close scrutiny of the evidence, specially that of the prosecutrix, it shows that whatever events took place, they were with the consent of the prosecutrix and it was not a case of the forcible sexual intercourse. Her total silence for a period of four years despite three pregnancies and abortions clearly shows that the prosecutrix was a consenting party to the act and voluntarily participated in the act. The fact that though her marriage was fixed with another person, one day prior to marriage, she ran away with the accused Sanjay to Mumbai without informing her parents shows that she of her own accord abandoned the house of her parents 15 appln3153-10 and choose freely and voluntarily to go away with the accused. The learned Sessions Judge has considered all these aspects and thereafter acquitted the accused persons. 19. Looking to the evidence on record, we are of the opinion that the view taken by the learned Sessions Judge is a reasonable and plausible view, hence, we are not inclined to interfere in the judgment and order of acquittal. In view of the above, leave to file appeal, is refused. Application is rejected. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] 16 appln3153-10 17