SSM 1 206.cr.appeal.438.93.J IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 438 OF 1993 Martand Ramchandra Lohkare, ] 28 years, Agriculturist, ] residing at Mapoli, Tal. Ambegaon, ] District – Pune. ] .... Appellant Versus The State of Maharashtra. ] ....Respondent Mr. Uday B. Nighot for the appellant. Mrs. M. M. Deshmukh, APP for the State. CORAM: R. C. CHAVAN, J. DATED : MARCH 9, 2011. ORAL JUDGMENT: This appeal is directed against the appellant's conviction by the learned Additional Sessions Judge, Pune for the offences punishable under Section 376, 451 and Section 506 of the Indian Penal Code, 1908 and sentence to suffer R. I. for 5 years with fine of Rs.500/­, or in default R. I. for 3 months, R.I. for 3 months with fine SSM 2 206.cr.appeal.438.93.J of Rs.100/­, or in default R. I. for 7 days; and R. I. for 6 months with fine of Rs.200/­, in default to suffer R. I. of 15 days, respectively on the three counts. The facts which are material for deciding this Appeal are as under: 2. The appellant is a nephew of one Janabai who is victim's step mother, victim's father having taken the said Janabai in second marriage. Some time in June, 1991 the appellant went to the house of prosecutrix at noon time when she was alone, promised goodies to the prosecutrix; and then committed forcible sexual intercourse with her. He promised to marry her and threatened her that if she discloses what had happened to anyone in her family he will murder her and her family. It is alleged that in the month of June and July, appellant continued to go to the house of the prosecutrix when the prosecutrix was alone in the house and the appellant committed forcible sexual intercourse on 4 to 5 occasions. The prosecutrix SSM 3 206.cr.appeal.438.93.J became pregnant. As she was affected by polio she states that her pregnancy could not be noticed till the last month. When she had some pain in abdomen, her father had taken her to a doctor who found that she was near the completion of term of pregnancy. Since an abortion was not possible, she was sent to a gynaecologist where the prosecutrix delivered a male child by ceasarian section. After delivery she was lodged in a social institution and upon the persuasion of social workers, a report came to be given on 23 th March, 1992, i.e., about 20 days after the child was born. 3. An offence was registered and the investigation commenced. Police drew up panchanama and also got a sketch of spot prepared. They got necessary samples to be taken, arrested the appellant, subjected the prosecutrix and appellant to medical examination, recorded statements of witnessess and on completion of investigation sent chargesheet to the Court of the learned Judicial Magistrate, First Class, Ghodegaon, who committed the case to the SSM 4 206.cr.appeal.438.93.J Court of Sessions at Pune. 4. The learned Additional Sessions Judge, Pune to whom the case was made over charged the appellant of the offences punishable under Section 376, 451 and Section 506 of the Indian Penal Code. Since the appellant pleaded not guilty to the said charge, he was put on trial, at which the prosecution examined 7 witnesses to bring home the guilt of the appellant. After considering the prosecution evidence in the light of the defence of enemity and false implication raised by the appellant, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. Aggrieved thereby, the appellant has preferred this Appeal. 5. I have heard the learned Counsel for the appellant and the learned Additional Public Prosecutor for the State. With the help of the learned Advocates, I have gone through the evidence on record. The learned Counsel for the appellant submitted that the appellant had been falsely implicated because of enemity with the father of the SSM 5 206.cr.appeal.438.93.J prosecutrix. The prosecutrix was examined as P.W.1. She admitted in her cross examination that one Janabai is the maternal aunt of the appellant. It was suggested to the prosecutrix that her father kept the said Janabai as his mistress. She denied the suggestion and stated that there was some sort of marriage between her father and Janabai and that Janabai as well as her natural mother Kamal were happily co­ existing with her father. Janabai also seems to have given birth to a son of the father of the prosecutrix. Her father who was examined as P.W.3 admitted that Janabai was his second wife and that she had given birth to a son. 6. It is not clear as to how and why the appellant should have any enemity with the father of the prosecutrix because of his aunt Janabai chose to stay with the father of the prosecutrix P.W.3­Maruti. Janabai's husband Govind Gohekar could have had some grievance because he was cuckolded. It is not clear as to why he appellant should be fearing such enemity on this ground or on account of such SSM 6 206.cr.appeal.438.93.J enemity, the appellant would be falsely implicated. Curiously, there is a suggestion to P.W.3­Maruti that at Ghodegaon bus stand he threatened the appellant to get married to his daughter, presumably the prosecutrix. In view of this, the defence that the appellant was, falsely, implicated because of any enemity on account of Janabai was rightly repelled by the learned Trial Judge. 7. This takes me to the question as to whether the prosecutrix was subjected to a rape by the appellant. The prosecutrix was examined by the Medical Officer for ascertaining her age and certificate Exhibit­10 shows that the prosecutrix was between 18 and 19 years of age at the relevant time. She was also medically examined for the purpose of finding out whether she had been subjected to a forcible sexual intercourse. This certificate is at Exhibit­11 and it shows that the prosecutrix was habituted to intercourse and appeared to have delivered by ceasarian section prior to the examination on 25 th March, 1992. This corroborates evidence SSM 7 206.cr.appeal.438.93.J of the prosecutrix that she had suffered sexual escapades in June and July, 1991. 8. The learned Counsel for the appellant submitted that in June and July, 1991 in that area of the State, there are no agricultural operations requiring the members of the families to be in the field for cultivation. He pointed out that there are several members in the family of the prosecutrix, most of whom would have been at home during the said period. Therefore, according to him, it would have been impossible for the appellant to commit a rape upon the victim in broad day light without being noticed or caught by other members of the family. As rightly pointed out by the APP, it would be impossible to draw an interference that in entire June and July, 1991 some family members or the other would be at home when, ordinarily, that would be a period when cultivators would be busy in preparing the fields and in sowing operation. Since the prosecutrix is affected by polio and is handicapped as per the medical reports as well as the evidence SSM 8 206.cr.appeal.438.93.J of P.W.4­Dr. Potnis, her being at home alone is not unnatural. Therefore, the possibility of the appellant taking advantage of the loneliness of the prosecutrix, as also remoteness of the chance of her resisting because of affiliation by polio cannot be ruled out. 9. In this context, the evidence of prosecutrix would have to be seen. The learned Additional Public Prosecutor is right in submitting that when the prosecutrix states that she had been subjected to a forcible sexual intercourse without her consent, her word should, ordinarily, be accepted. It is unlikely to happen that the prosecutrix herself took the lead in the matter and invited the appellant. Therefore, the possibility of the first such intercourse having been taken place when the prosecutrix had not consented cannot be ruled out and in view of the presumption as prescribed under Section 114­A of the Evidence Act, it would be reasonable to conclude that the first intercourse of the appellant with the prosecutrix was without her consent. SSM 9 206.cr.appeal.438.93.J 10. The prosecutrix has stated that the appellant came again after 8­10 days and again committed sexual intercourse which has occurred on 2­3 occasions. Though she states in her report at Exhibit­13 that her pregnancy was not noticed till period of 15­20 days before the report was given, she admitted in her cross examination that her mother enquired about her vomiting, possibly about 3 months after pregnancy. She stated that her mother enquired at to how she became pregnant and claimed that she has not stated the name of anyone. She stated that she did not inform her mother and her father about her pregnancy. Thus, it is clear that after three months atleast her mother had come to know that there was pregnancy and yet the police were not approached. 11. In this context, the learned Counsel for the appellant relied on the Judgment of the Tejpal V/s. State of M.P. Reported in (2006) 9 SCC 762 and Ramdas and others V/s. State of Maharashtra reported in (2007) 2 SCC 170 about the delay in lodging the F.I.R. SSM 10 206.cr.appeal.438.93.J and the effect of such delay. The judgments do not lay down any inflexible rule that delay in reporting the rape to the police is always fatal. In every case the effect of such delay would be judged alongwith other evidence on record. Delay in this case has to be read in the context of suggestion made to P.W.3 that P.W.3­ Maruti had threatened the appellant that appellant would have to marry his daughter. It is, thus perfectly, possible that even after coming to know about the pregnancy, the family of the prosecutrix was attempting to have marriage of the prosecutrix settled with appellant (though appellant was already married, possibly given the conduct of her father, the family did not forbid such marriage) and therefore did not immediately rush to the police. P.W.3­Maruti stated that the appellant was called at the clinic of Dr. Potnis after the pregnancy of the prosecutrix was detected, which must have been with a view to admit the paternity of the child and take consequential steps thereafter. Therefore, delay in this case cannot be held to be fatal to SSM 11 206.cr.appeal.438.93.J the case. 12. In view of this, there is absolutely no reason to disbelieve the words of the prosecutrix that first she was subjected to rape by being made to undergo an intercourse to which she has not consented. This is, infact, consistent with a letter marked as Article No. 1 by the learned Trial Judge in the course of evidence of PSI Jadhave and PSI Benke. This is a document which had been collected by PSI Jadhav from the Superintendent of Sasoon Maternity and General Hospital. This is a report by social workers with whom the prosecutrix had a first brush after her delivery. This shows that the incidents of intercourse took place at night. Article­1 shows that after the first intercourse the prosecutrix seems to have been enjoyed the relations kept by her with the appellant and therefore no report was promptly given or no protest was made. 13. Considering this conduct, it would have to be decided whether the punishment imposed by the learned Additional Sessions SSM 12 206.cr.appeal.438.93.J judge is appropriate or not. At the cost of repetition, it has been pointed out that when the prosecutrix stated that she has not consented at the first intercourse in view of provisions of Section 114­A of the Evidence Act, a presumption has to be drawn that the first intercourse was without consent and therefore, offence punishable under Section 376 is held as proved. In the light of the fact that the prosecutrix continued with such relations with the appellant, as also the fact that there was no report made till the prosecutrix delivered a child, and as stated by the learned Counsel for the appellant that the prosecutrix is married and settled in her life, the applicant is also married and settled and the child baby has been given for adoption to some parents in Delhi, the appellant may not be required to revisit the jail for an incident of 20 years old. In view of this, and particularly in the context of the fact of the subsequent conduct of the prosecutrix in keeping relations with the appellant, the sentence imposed by the learned Additional Sessions Judge appears SSM 13 206.cr.appeal.438.93.J harsh. 14. As far as the conviction for offences under Section 451 and Section 506 of the Indian Penal Code is concerned, there would be no question of the appellant being convicted since the appellant is nephew of Janabai­the step mother of the prosecutrix ­ and therefore would have reason to visit the house of the prosecutrix and as far as threats are concerned, the allegations are, extremely, fragile and if one goes by Article­1 report collected by the police officers, there was, infact, no such fear. Therefore, conviction of the appellant for those two offences would have to be set aside. 15. The appellant is shown to have been in custody for his arrest from 24 th February, 1992 to 11 th March, 1992 and after conviction again from 18 th August, 1993 to 6 th September, 1993 that is almost for about 44 days. 16. In view of this all, the Appeal is, partly allowed. The conviction of the appellant for the offcences punishable under Section SSM 14 206.cr.appeal.438.93.J 451 and Section 506 of the Indian Penal Code is set aside and he is acquitted of the said offences. As far as the Section 376 is concerned his conviction is maintained but the sentence is reduced to R.I. for one month and to pay the fine of Rs.10,000/­ or in default, to undergo R.I. for one year. If fine of Rs.10,000/­ is not deposited within a period of four weeks, the learned Sessions Judge shall take steps to recover the same from the appellant by sending the appellant to prison to suffer sentence in default. The time spent by the appellant in custody shall be set off against the substantive sentence. (R. C. CHAVAN, J.)