[- 1 -] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.620 OF 1991 Ganesh Gangaram Gawade ] Age 22 years, r/o Nhaveli, ] Taluka Chandgad, Dist.Kolhapur ]..Appellant Vs. 1. The State of Maharashtra ] 2. Kamal Dhondiba Pednekar ] r/o Nhaveli, Tal.Chandgad ] Dist.Kolhapur ]..Respondents .... Mr.B.R.Patil Advocate for the Appellant Mr.P.A.Pol, A.P.P. for the State. .... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JANUARY 06, 2009 DATE : JANUARY 06, 2009 DATE : JANUARY 06, 2009 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The appellant-orignial accused no.1 has challenged the judgment and order dated 19.10.1991 passed by the learned 4th Additional Sessions Judge, Kolhapur in Sessions Case No.35 of 1991. By the said judgment and order, the appellant has been convicted for the offence under Section 376 and 315 r.w. 34 of IPC. Though on both counts the appellant was sentenced to RI for three years and pay fine of Rs.500/ i/d RI for three months, the [- 2 -] learned Sessions Judge directed that both the substantive sentences of imprisonment shall run concurrently. 2. Prosecution case briefly stated is as under: . The appellant and PW 1 Kamal i.e. prosecutrix were known to each other prior to the incident. They belong to the same village. Sometime prior to filing of the FIR, when the prosecutrix was in the field, the appellant had sexual intercourse with the prosecutrix. It is her case that the said intercourse was without her consent. The appellant started to have frequent sexual intercourse with the appellant. Sometime thereafter, the prosecutrix became pregnant. It is the case of the prosecutrix that the appellant took her to original accused no.2. Original accused no.2 gave her two injections and thereafter, abortion took place. It is the case of the prosecutrix that said abortion was performed without her consent. Thereafter the prosecutrix came back to her village. However, the appellant did not marry her as promised by him, hence, FIR [- 3 -] came to be lodged by her. 3. The charge came to be framed against the appellant and original accused no.2 Anjana under Section 315 r.w. 34 of IPC. In addition thereto, charge came to be framed against the appellant under Section 376 of IPC. Both the accused pleaded not guilty and claimed to be tried. The defence of the accused is that of total denial. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above, hence, this appeal. 4. I have heard the learned advocate for the appellant-original accused and the learned APP for the Respondent No.1. None appears for Respondent no.2. I have perused the impugned judgment and order. I have also perused the evidence as well as record and after anxiously considering the matter, I am of the opinion that the appellant deserves to be acquitted. [- 4 -] 5. The prosecution case is mainly founded on the evidence of the prosecutrix PW 1 Kamal. The prosecutrix has stated that six months prior to the filing of complaint, she and accused used to meet each other. Sometime prior to the filing of complaint, she had gone to her field. At that time, the accused had sexual intercourse with her. Thereafter, at regular intervals, the appellant started having sexual intercourse with her. Due to sexual intercourse she conceived. According to the prosecutrix, she did not give her consent to the sexual intercourse. However, this fact that prosecutrix had not consented for sexual intercourse, is not stated by the prosecutrix in the FIR. Thus, it is seen that the fact that sexual intercourse took place without her consent, is clearly an improvement on the part of the prosecutrix as in the FIR, there is no mention of this fact. 6. The evidence on record also points out to the fact that the sexual intercourse was by consent. The prosecutrix has admitted that for the first time [- 5 -] when the accused had sexual intercourse with her, she did not make any hue and cry. Moreover, it is seen that though the field belonged to the prosecutrix, it was cultivated by her cousin Daji Pednekar who had, at that time, cultivated Paddy and Nachani crops in the field. The field is surrounded by other fields belonging to other people and agriculturists were coming to their lands for work. If at all the sexual intercourse was against the consent of the prosecutrix, she would have raised hue and cry and she would have put up resistance and shouted for help as there were people nearby. There is no mention on the part of the prosecutrix that at any time, she put up any resistance when the accused had sexual intercourse with her. On the contrary, she has categorically admitted that she did not raise hue and cry when the sexual intercourse took place for the first time. All these facts show that the prosecutrix had consented to sexual intercourse and the said intercourse was not against her will or without her consent. 7. It has come in the evidence of prosecutrix that [- 6 -] her house is surrounded by houses of various other persons. The field where the incident took place is also surrounded by various fields wherein the agriculturists used to work. Though, according to the prosecutrix, this incident took place against her will and without her consent, yet she has not informed anyone including her family members about the incident till after the abortion took place. For the first time, she informed the family members and others about the incident much after the abortion when the accused did not marry her. All these facts clearly show that this is a clear case of consent and thereafter as the accused did not marry the prosecutrix, she chose to file FIR against him so as to pressurise him. 8. At the time of filing of FIR, the prosecutrix was over 16 years of age. The incident took place few months prior to lodging of FIR. According to the prosecution, the date of birth of the prosecutrix is 9.7.1974. However, her medical report shows that the age of the prosecutrix was between 16 to 18 years. As far as date of birth of [- 7 -] the prosecutrix is concerned, reliance was placed by the prosecution on the evidence of PW 4 Sarambale who is a teacher in the School where the prosecutrix had studied in the first and second standard. This witness had no personal knowledge about the date of birth of the prosecutrix nor was he the person who made the entries in the relevant register. Entries were made by some other person in the School Register. It is pertinent to note that PW 4 Sarambale has admitted that at the time of taking admission, certificate from the Gram Panchayat was not filed showing the age of the birth of the prosecutrix, so also, there is no record to show that as to who had informed birth date of the prosecutrix. Thus, it is seen that date of birth which has been entered in the School Register, has not been entered on the basis of any document. It is well known that at the village level, the dates of birth are given approximately. Even if the given date of birth is taken into consideration, the prosecutrix was over 16 years of age. Looking to the evidence on record, it appears that at the time when the sexual intercourse took place, the [- 8 -] prosecutrix was 16 years of age. 9. The learned APP thereafter submitted that consent was given by the prosecutrix under the misconception that the accused would marry her. From the evidence on record, it is seen that prosecutrix had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. She did not resist the overtures of the appellant, and in fact succumbed to it. She thus, freely exercised a choice between resistance and assent. She must have known the consequences of the act. All these circumstances lead to the conclusion that she freely, voluntarily, and consciously consented to having sexual intercourse with the appellant and her consent was not in consequence of any misconception of fact. Further there is no evidence to prove conclusively that the appellant never intended to marry her. There is hardly any evidence to prove the fact that the prosecutrix had consented to having sexual intercourse with him only as a [- 9 -] consequence of her belief, based on his promise, that they will get married in due course. Similar facts arose in the case of Uday Vs. State of Uday Vs. State of Uday Vs. State of Karnataka Karnataka Karnataka reported in AIR 2003 S.C. 1639. AIR 2003 S.C. 1639. AIR 2003 S.C. 1639. In the said case, it was observed that the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances, it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In the present case also, it appears that the prosecutrix had sexual intercourse not under any misconception of fact arising from the promise but because she also desired it. 10. There is another difficulty in the way of the prosecution. There is no evidence to prove conclusively that the appellant never intended to marry her. Perhaps he wanted to, but was not able to gather enough courage to disclose his intention to his family members for fear of strong opposition [- 10 -] from them. The decision in the case of Uday (supra) will be clearly applicable to the facts of the present case as far as act of rape is concerned. I have already observed earlier that sexual intercourse had taken place on account of consent, hence, as far as conviction under Section 376 of IPC is concerned, the same would have to be set aside. 11. As far as the conviction of the appellant under Section 315 of IPC is concerned, it is the case of the prosecutrix that the abortion was performed against her will. She has stated in her evidence that she declined to have an abortion. However, this fact has not been stated by her in the FIR. Thus, the fact that she declined to have an abortion, is clearly an improvement on the part of the prosecutrix and it cannot be taken into consideration. 12. As far as Section 315 of IPC is concerned, the defence of the accused is that no abortion was performed but the prosecutrix fell down from a tempo, due to which, bleeding occurred and there was [- 11 -] abortion. The father of the prosecutrix has stated that Chairman PW 2 Pandurang brought his daughter Kamal to his house. The Chairman informed him that his daughter Kamal fell while boarding the tempo. It is seen that abortion took place around that period. In view of the evidence of father of prosecutrix and PW 2, defence taken by the accused that the abortion took place on account of fall from tempo appears plausible. It may also be stated that the medical evidence does not support that the prosecutrix had conceived and thereafter had an abortion. In this view of the matter, the conviction of the appellant under Section 315 of IPC also deserves to be set aside. 13. In the result, the conviction and sentence of the appellant under Sections 376 and 315 of IPC imposed by the learned 4th Additional Sessions Judge, Kolhapur in Sessions Case No.35 of 1991 vide judgment and order dated 19.10.1991 is set aside. The appellant is acquitted thereunder. His bail bonds shall stand cancelled. [- 12 -] 14. Appeal is allowed. [SMT. V.K.TAHILRAMANI.J]