1 cria142-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO.142 OF 2011 Panchaphula d/o Abaji Salve age 40 years, Occ-Household, R/o Bandarwada, Tq. Pathari, Dist.Parbhani. ... APPELLANT Vs 1] The State of Maharashtra Through Police Station Pathri Tq. Pathri, Dist.Parbhani. [Copy to be served on P.P. High Court of Bombay, Bench at Aurangabad] 2] Mahadeo s/o Sahebrao Salve Age 25 years, Occ-Agril Bandarwada, Tq. Pathri Dist.Parbhani. .. RESPONDENTS ... Shri M.P.Tripathi,Adv. for appellant. Shri D.V.Tele,APP for Respondent-State. ... CORAM : NARESH H. PATIL & T.V.NALAWADE,JJ. DATE : 05/05/2011 ORAL JUDGMENT [PER T.V.NALAWADE,J.] : 1] This appeal is filed against the judgment and order of Sessions Trial No.83/10 which was pending in the Court Assistant Sessions 2 cria142-11 Judge, Parbani. By the decision dated 15/10/10, the trail Court has acquitted the respondent Mahadeo Salve of the offences punishable under Sections 376. 323, 506 [II] of I.P.C. Original complainant has filed an appeal. Record of the case was called and both the sides are heard. 2] It is the case of the original complainant that she had married with one Vishwanath 17 years prior to the date of complaint but after 2 years of the marriage, her husband died and since then, she was living alone in a separate room and she was working as Anganwadi Assistant. She has contended that respondent Mahadeo started coming to her house about 2 years prior to the date of complaint and by giving promise of marriage, he started having sexual intercourse with her. She has contended that initially she resisted but respondent Mahadeo had given threats of life and defamation and so, she allowed respondent to visit her house and to have relations with her. In the complaint dated 16/2/2010, she contended that respondent has now refused to marry her and in one incident, he had assaulted her. She contended that till 6/2/2010, respondent had kept relations with her. On the basis of this report Crime No.27/10 was registered in Pathri police station against respondent. Complainant was referred for medical examination and after completion of the investigation, charge sheet came to be filed. The Judicial Magistrate, First Class committed the case to the Court of Sessions and the charge was framed for 3 cria142-11 offence against respondent. 3] In the trial Court, prosecution has examined 3 witnesses. The accused has taken defence of total denial in the statement recorded under Section 313 of Cr.P.C. He has contended that only to extract money from him, false case is filed against him. The trial Court has acquitted the respondent by observing that the complainant cannot be believed and if at all there was such relationship, there was consent of the complainant. 4] The evidence of complainant [P.W.1] shows that she was living like independent lady in house at Bandarwada, Tahsil Pathri and she was earning for her livelihood. She has deposed that accused- respondent used to visit her house to see television programms and that is how, she became acquainted with the accused. She has deposed that the accused then promised her to marry. She deposed that initially, she refused to marry. Then she kept physical relationship with the accused against her will and such relationship was continued for about 2 years uninterrupted. She has deposed that then accused got married with another girl. She has deposed that even after marriage, the accused had intercourse with her on 16/1/2010 and on that occasion, he gave threat of life to her. Complaint came to be filed on 16/2/2010. 4 cria142-11 5] The evidence in cross examination of complainant shows that on the date of deposition i.e. on 11/10/10, her son was aged about 19 years. She has admitted that in the year 2002, she gave birth to another son and this son was born out of illicit relations with a primary teacher. She has admitted that the accused is younger than her by atleast 10 years. She has admitted that 4 days prior to the alleged date of incident of assault, the accused got married with other girl and prior to that, she had contacted the parents of the accused for settling her marriage with the accused. She has admitted that she had done such attempt about 1 year prior to the date of incident of assault but the parents of the accused had refused this proposal. She has deposed that she did not disclose about this development to her parents. She has avoided to answer the questions which were put with regard to the financial condition of the accused. 6] There is no need to discuss the evidence of investigating officer [P.W.2] Shri Tak, as only one witness like prosecutrix is examined by prosecution and there are aforesaid circumstances. The clothes of the prosecutrix had been taken for C.A. but no blood or semen was detected on the clothes. There is record of medical examination of the prosecutrix which is not disputed and in view of the aforesaid circumstances, there is no need to discus this record also. 7] The aforesaid circumstances even if accepted as they are, are 5 cria142-11 not sufficient to infer that there was some force from the accused for such relationship. Only because the prosecutrix is now saying that there was no consent, it is difficult in the aforesaid circumstances to believe that there was no such consent. For the complainant, one case reported in 2005 Cri.L.J. 331 [S.C.] in the case of Damodar V/s State of U.P. was cited. In this case, the Apex Court has observed that only because there is a possibility that the prosecutrix was not having good character, her version cannot be disbelieved. The Apex Court has observed that the evidence needs to be appreciated and on that basis, an inference needs to be drawn. There cannot be any dispute about this proposition. One more case reported in AIR 2007 S.C. 3059 in the case of Pradeep Kumar Verma V/s State of Bihar and another was cited. In this case, the Apex Court has discussed the Provisions of Section 375 and 90 of I.P.C. and it is observed that if there is a representation deliberately made by accused to elicit assent of victim without having intention or inclination to marry her, such circumstance would vitiate the consent. There cannot be any dispute about this proposition also. 8] The aforesaid evidence of the prosecutrix shows that she is a married woman. She kept relationship with another man after the death of her husband and she has one son from that man. There is age difference of more than 10 years between the prosecutrix and the accused. According to her, she kept relationship with the accused for 6 cria142-11 more than 2 years and she continued to keep the relationship with the accused for about 1 year even when the parents of the accused refused to perform the marriage of the accused with her. She gave report only after performance of the marriage of the accused with another girl. All these circumstances are sufficient to create a doubt about the version given by the complainant. On the basis of such evidence, a person like accused cannot be convicted for serious offence like the present one. The trial Court has discussed the aforesaid circumstances. Though character of the prosecutrix is not relevant in such a case, from the evidence, it can be ascertained as to whether the prosecutrix is a trustworthy witness . The trial Court has come to the conclusion that she is not a trustworthy witness and in view of the discussion made above, there is no possibility of interfering in the decision of the trial Court. So the Appeal stands dismissed. [T.V.NALAWADE,J.] [NARESH H.PATIL,J.] umg/cria142-11