1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. CRI. REVN. APPLN. NO.: 48 OF 2008 Rani D/o Vishnu Kakde Versus State of Maharashtra and others *** Mrs. B. R. Khekale, A.P.P. for the Respondent/ State. Mr. K. F. Shingare, Advocate for Respondent No.2. *** CORAM: K. U. CHANDIWAL, J. DATED: 5th SEPTEMBER, 2009. 1. Counsel for the original complainant/ victim absent. Heard counsel for the accused and perused the record and particularly the judgment dated 23rd November, 2007, acquittal recorded by learned Adhoc Additional Sessions Judge, Aurangabad for an offence under section 376 of IPC. 2. Since it is a revision, the scope of this Court to deal with the evidence has its inbuilt limitations. However, the law on the aspect, which was having paramount role in the matter, should not have been defused by the learned Judge. 3. The victim, a major, at the material time, had love affairs with the accused, already a married person. The accused allegedly promised her to get severance of his relations with his wife and to marry 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. the victim. It was in this scenario the sexual relations developed. The accused, under the promise and ruse, used to call the victim whenever she was coming to the village and had sex in the field. 4. In the situation, due to the relations the victim developed pregnancy and ultimately she delivered a male baby of which D.N.A. analysis was found to be out of the relations between the accused with the victim as the accused was found biologically parent of the child. Thus, it is primarily established that the accused was putative father of the child. The observations of the learned Judge that there was no sex or rape by the accused with the prosecutrix on 5th June, 2005 and 12th June, 2005 and in the next breath the learned Judge observed that as D.N.A. test is in positive, an inference can be drawn that, accused had sexual intercourse with the prosecutrix even prior to 5th June, 2006 and 12th June, 2005 resulting in her developing pregnancy, are contrary to each other. The learned Judge should have not given any weightage to the so called dates of 5th June, 2005 or 12th June, 2005. 5. The theory propounded by the accused was also lost sight by the learned Judge. Section 90 of the Indian Penal Code specifies as under: 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. "90, Consent known to be given under fear or misconception. - A consent is not such a consent as is intended by any section of this Code, if the consent given by a person under fear or injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or" 6. The Honourable Lordships of the Apex Court, in the matter of "Deelip Singh alias Dilip Kumar V/s State of Bihar" reported in 2005 SCC (Cri.) 253 elaborately discussed as to what situation comes into play to amount consent and its implication. 7. The conduct of the accused prima facie appears to deceive the prosecutrix and he has under the guise of promising her to marry, entered into sexual relations with her. The deception and false promise was writ-large since inception for which the accused is naturally accountable. The ignominy, humiliation suffered by victim cannot just be defused by saying she had consented. The observation of the learned Judge in the situation requires interference. However, the matter is remitted to the learned Sessions Judge, Aurangabad for causing fresh analysis of the evidence and to proceed accordingly, as per rules. 8. The accused/ Respondent No.2 be released on 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. his furnishing same P.R.Bond and same surety. The accused to appear before the learned Sessions Judge on 15th October, 2009. Notice to the complainant/ original petitioner to appear before the learned Sessions Judge. [K. U. CHANDIWAL, J.] Dated:05/09/2009. ans/4808