1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 177/2009 Sandeep s/o Vitthal Mandhare, Age : 24 years, Occu. Agril. R/o Hanumantgaon, Tq. Rahata, Dist. Ahmednagar. Applicant. Versus 1 The State of Maharashtra, through A.P.P. of Bombay High Court, Bench at Aurangabad. 2 Jaya Vikas Mehere, Age : 23 years, Occu. Labaour, R/o Loni, Tq. Rahata, District Ahmednagar. ..Respondents Mrs. Sadhana S. Jadhav, Advocate for appellants. Shri T.S. Lodhe, A.P.P. for respondent No.1/State. CORAM : A.V. NIRGUDE, J Date : 28th September, 2010. ORAL JUDGMENT:- 1. This Criminal revision Application is filed against concurrent finding of Courts below that the applicant had committed offences punishable under Section 376 and 506(II) of Indian Penal Code. He is directed to suffer rigorous imprisonment of seven years and to pay a fine of Rs.5,000/- with a default clause for the offence punishable under Section 376 of Indian Penal code. He is sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- with default clause for the offence punishable under Section 506 (II) of the Indian Penal Code. The Courts below directed that out of the fine amount deposited in the Court, amount of Rs.4,000/- should be paid to the complainant victim as compensation under Section 357 2 of the Code of Criminal Procedure. 2 The case of the prosecution against the applicant is as under. The complainant Jaya aged 21 years is a widow having two kids. She was residing with her mother. She was working in a restaurant owned by the applicant. She was engaged for cleaning utensils and making chapattis. On 11/05/2003 at about 8.30 a. m. Jaya lodged a oral report to the Police Station, Loni that during the previous night at about 11.00 p.m. when she finished her work at the restaurant and when she was about to leave for her house, the applicant offered her lift on his mother cycle up to her house but instead of taking her to her house, he took her in a secluded place and then raped her. She said, after committing rape, the applicant threatened her that he would murder her if she would discuss the incident to anyone. Due to the threat, she did not disclose incident to anyone but on the next day, at about 8.00 a. m., she went to a hospital by name Pravara Medical Trust hospital, Loni and disclosed the incident to a Medical Officer there who sent her to Police Station. But before she was sent to there two medical officers at the hospital, examined her clinically and found certain injuries on her person. They prepared a medical certificate on their examination. This case was believed by the courts below. 3 The learned advocate appearing for the applicant submitted that the entire narration of the incident is suspicious and unworthy of reliance. In order to appreciate this submission, one must give details of the deposition of the applicant. The applicant in her deposition, stated that after she finished her work at about 11.00 pm., the applicant offered her to escort her to her house on his motor cycle. She said, she accepted this offer. She said, instead of stopping the 3 motor cycle near her house, the applicant proceeded further and took her away from village Loni. When she asked as to where he was taking her, he told that he wanted to talk to her. She said, the applicant then stopped motor cycle in dark place and took her towards right side of the road away from the road, where he made her to fall down and when she resisted his sexual advances, he threatened her of her life. She said, thereafter the applicant removed the clothes below waist and had sexual intercourse with her against her will without her consent. She said, it was 11.30 p.m.. She said further that thereafter, the applicant took her back to her house on his motor cycle and threatened that in the event she disclosed about the incident to anyone, she would be killed. The learned advocate appearing for the applicant questioned as to how a person single handedly would be able to over-power a woman in such encounter. He also asked as to why the complainant agreed to go with the applicant off the road in the interiors at the secluded place when it was already dark. She could have flatly refused to go with him and avoided further incident. He also argued that the complainant would have certainly realized the intention of the applicant when he stopped the vehicle at a secluded place and asked her to accompany him in a secluded place. He thereby suggested that this was a consensual act of sex and the complainant is taking advantage of the same to allege a rape. The Courts below rejected this defence and I am also inclined to reject it mainly because the applicant never suggested this defence when the complainant was cross examined. Assuming that cross examination on this line was not warranted for making submissions on this line, still what happened subsequent to the incident would lend support to the case of the complainant. 4 Let us assume the complainant consented for this act and had 4 gone back to her house. Admittedly she did not disclose this incident to her mother. She spent the night quietly and in the morning she did not go to Police Station but to a hospital that too a private hospital. She narrated the incident to the Casualty Medical Officer. She revealed it all. She had no reason to reveal this embarrassing incident to a total stranger. She needed medical attention but for getting it it was indeed not necessary to disclose the incident to the doctor. He jotted down this history on the case paper and narrated the same when he was called as witness in the Court. He then noticed injuries on her back. Though he did not notice any injury to her genitals, a person who is accustomed to sexual intercourse, may not sustain any injury even if she is raped. It seems when she regained confidence, she could gather courage to narrate the incident to the Medical Officer. This act on her part is in consonance with her innocence. In view of this, the complainant’s story is believable and the finding recorded by the Courts below convicting the applicant can not be disturbed. 5 The learned advocate appearing for the applicant then brought to my notice that the applicant has made peace with the complainant. She is party to this proceedings. She has appeared through an independent advocate and has filed an affidavit. In this affidavit she stated she has compromised with the applicant. I personally verified as to whether she has given this affidavit with free will. When I had occasion to talk to her I found that she settled this dispute amicably and that she has requested the Court to reduce the substantive sentence of the applicant. Other mitigating circumstances as under. 6 The applicant is now in jail. He has already undergone seventeen months imprisonment. The applicant is the only person in his family who earned livelihood for them. In view of this, I am inclined to reduce the substantive sentence of the applicant to the period he 5 has already undergone in custody. ORDER The revision application is partly allowed. The judgment of conviction under Section 376 and 506 (II) of Indian Penal Code is confirmed. However, the substantive sentence of rigorous imprisonment of 7 years is reduced to the period the applicant has undergone in custody for the offence punishable under Section 376 of Indian Penal Code. Rest of the impugned judgment and order are left undisturbed. [A.V. NIRGUDE, J.] ts k/ok