1 (crim apeal 6 of 2001) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 6 OF 2001 Sunil Janya Dabka ) Aged 18 years ) R/o. Palghar, Jabarpada ) Taluka Vasai, Dist. Thane ) ..Appellant Versus State of Maharashtra ) at the instance of ) Nalasopara Police Station) Nalasopar, Tal. Vasai, ) Dist. Thane ) ..Respondent ----- Mr.Prakash Naik for Appellant Mr.P.S. Hingorani -APP for the State ----- CORAM: V.M. KANADE J. DATED: 21ST SEPTEMBER, 2010 P.C. 1. Heard the learned Counsel for the Appellant and the learned APP for the State. 2. The Appellant is challenging the judgment and order passed by the Additional Sessions Judge, Palghar dated 16.12.2000. By the said judgment and order, the Learned Sessions Judge was pleased to convict the accused for the offences punishable under section 417 2 (crim apeal 6 of 2001) of the Indian Penal Code and sentenced him to undergo R.I. for one year and to pay fine of Rs.500/- and, in default, to suffer further R.I. for two months. The Appellant-accused, however, acquitted for the offences punishable under section 376 of the Indian Penal Code. 3. A complaint was filed by the prosecutrix, in which she alleged that the Appellant had sexually intercourse with her and she had given a consent for the said sexual intercourse since the accused had given a false promise of marrying her. However, after she became pregnant, the accused refused to marry her. 4. The Trial Court, however, held that there was no material on record to show that the act of rape was committed without her consent. The Trial Court has observed that there is no clear cut evidence on record to show that the first act of sexual intercourse was committed by the accused under the false pretext of marriage with prosecutrix. The Trial Court has also observed that for a period of six months she did not inform this fact to anyone. 5. The learned Counsel for the Appellant has invited my attention to the impugned order passed by the Trial Court and also evidence on record. He also invited my 3 (crim apeal 6 of 2001) attention to the judgment of the Apex Court in the case of Uday vs. State of Karnataka [2003 ALL MR (Cri) 975 (S.C.)] and judgment of this Court in the case of Anwar Khan Iqbal Khan vs. State of Maharashtra [2010 ALL MR (Cri) 2124]. It was submitted that the offence under section 417 of IPC was not made out and it was submitted that the Sessions Judge after having held that there was no clear cut evidence to show that the sexual intercourse was committed only after a false promise to marry was given by the accused, the Sessions Court ought to have acquitted the Appellant for the offence punishable under section 417 of the IPC also. 6. On the other hand, the learned APP for the State submitted that the prosecutrix in her evidence has clearly stated that the Appellant had given a false promise to marry her. 7. In my view, there is no material on record except the oral testimony of the prosecutrix that the Appellant had promised to marry her. It has come on record that for a period of six months, the prosecutrix did not mention this fact to anyone though she was pregnant. The prosecutrix was of 20 years of age at the time of the said incident whereas the 4 (crim apeal 6 of 2001) Appellant was 18 years of old. There is no corroboration to the statement of the prosecutrix that the Appellant had promised to marry her. 8. That being the position, the ratio of the judgment in the case of Uday (supra) in paragraphs 23 and 24, the Apex Court has observed as under:- 23.Keeping in view the approach that the Court must adopt in such cases, we shall no proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown up girl studying in a college. She was deeply in lover with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She 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. Despite this, she did not resist the overtures of the 5 (crim apeal 6 of 2001) 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, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us 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. 24.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 from them. Even the prosecutrix stated that she had full faith in him. It appears that the matter got complicated on account of the prosecutrix becoming pregnant. Therefore, on accoun tof the resultant pressure of the prosecutrix and her brother the appellant distanced himself from her. 6 (crim apeal 6 of 2001) 9. The ratio of the said judgment, therefore, in my view, would squarely apply to the facts of the present case. In this case, it has come on record that the prosecutrix belongs to Mahadev Koli Tribes whereas the accused belongs to Warli Adivasi. Both the Appellant and the prosecutrix belong to different communities. There is no evidence to prove conclusively that the Appellant never intended to marry her. It is possible that he wanted to marry her but he was not in a position to gather enough courage to disclose his intention to his family members. The Appellant, at the relevant time, was only 18 years of age whereas the prosecutrix was of 20 years of age and, therefore, the accused could not have gathered courage to inform his parents about his intention to marry her. Therefore, there is no evidence on record to suggest that the accused had given a promise to marry her and later on he had avoided to fulfill his promise. 10. In my view, therefore, the Learned Additional, Sessions Court, Palghar is clearly erred in coming to the conclusion that the accused committed an offence under section 417 of the Indian Penal Code. The appeal is, therefore, allowed. The conviction of the 7 (crim apeal 6 of 2001) Appellant for the offence punishable under section 417 of the Indian Penal Code and the sentence awarded by the Sessions Court is quashed and set aside. The Appellant is on bail. The bail bonds are cancelled. (V.M. KANADE J.)