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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
Vibha Kankanwadi, J.
Santosh s/o. Raising Chavan – Appellant
Versus
The State of Maharashtra, Through Police Station, In-charge, Begumpura – Respondent
Criminal Appeal No. 0300 of 2017
Decided On : 06-10-2018
Indian Penal Code, 1860 - Section 376, 323, 504, 506 r/w. 34 - Criminal Procedure Code, 1973 - Section 357, 437A - Scheduled Castes and Scheduled Tribes Act – Section 3 (1) (x) - Appeal - Challenging his conviction – Salesgirl – Harassment - Forcible sexual intercourse – Threaten to kill - Prosecutrix was working as Salesgirl for a detergent company - She was dealing in Marketing - She was residing with other salesgirls - She used to go to CIDCO area in connection with her work - She has left that job - She had gone to CIDCO area in connection with marketing of products - She met a person near CIDCO Bus stand - That man took her to his house under the guise of purchasing products - He did not purchase anything - He demanded sexual favour to her - She refused but he had sexual intercourse with her by giving threat to kill, by giving promise to marry and maintain her - Thereafter, on many occasions he used to take her and used to have forcible sexual intercourse with her - He used to give promise to marry every time and was avoiding on one or other pretext - He had exploited her sexually - She became pregnant - She had told this fact to her mother - Prosecutrix and her mother went to house of accused and his father - She disclosed that she is pregnant from accused and asked him to marry with her - Accused told that she is Maang by caste, which is inferior and he has no intention to marry with her - Accused and his father had then assaulted by fist blows to prosecutrix and her mother and abused them in filthy language - They were threatened not to come again and not to make any complaint with police - Prosecutrix went to police station and lodged First Information Report - On basis of said FIR, crime vide came to be registered and investigation was undertaken – Held, Evidence of prosecutrix does not inspire confidence - Ingredients of offence under which learned Trial Court has convicted accused No. 1/present appellant are not attracted at all - Case has not been proved by prosecution beyond reasonable doubt - Learned Trial Court has not taken into consideration all above reasons - Conviction deserves to be set aside by allowing appeal - Learned Trial Court has granted compensation of Rs. 1,00,000/- to prosecutrix and male child under Section 357 of Code of Criminal Procedure - Since appeal deserves to be allowed order of payment of compensation is also required to be set aside - Another point as to why this order of compensation is not sustainable is that learned Trial Judge has not clarified as to whether said order is passed under Section 357 (1) of Code of Criminal Procedure or under Section 357 (3) of Code of Criminal Procedure - We must, however, observe that there exists a distinction between fine and compensation, although, in a way it seeks to achieve same purpose - An amount of compensation can be directed to be recovered as a fine but legal fiction raised in relation to recovery of fine only, it is in that sense ‘fine stands on a higher footing than compensation awarded by Court - While convicting accused No.1 under both sections, learned Trial Court has awarded fine - That means fine was part of sentence awarded under those sections - Appeal is hereby allowed.
1. Present appeal has been filed by the original accused challenging his conviction by Special Judge (Additional Sessions Judge7), Aurangabad, in Sessions Case No. 308 of 2011 on 27-06-2017 for the offence punishable under Sec. 376 of Indian Penal Code and Sec. 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act
[For short, "Atrocities Act"].
2. Prosecution has come with a case that Prosecutrix was aged 24. She was working as Salesgirl for a detergent company. She was dealing in Marketing. She was residing with other salesgirls in Shaktinagar, behind Hotel Devapriya. She used to go to CIDCO area in connection with her work. Thereafter she has left that job. She had gone to CIDCO area in connection with marketing of products, about a year prior to 05.09.2010. She met a person near CIDCO Bus stand. That man took her to his house near Harsul Jail Quarter under the guise of purchasing the products. He did not purchase anything. However, he demanded sexual favour to her. She refused but he had sexual intercourse with her by giving threat to kill, as well as by giving promise to marry and maintain her. Thereafter, on many occasions he used to take her to his Harsul Quarter and used to have forcible sexual intercourse with her. He used to give promise to marry every time and was avoiding on one or the other pretext. He had exploited her sexually since year prior to July 2010. Thereafter she became pregnant. She had told this fact to her mother. Prosecutrix and her mother went to the house of accused and his father at Harsul Quarter. She disclosed that she is pregnant from accused and asked him to marry with her. Accused told that she is Maang by caste, which is inferior and he has no intention to marry with her. Accused and his father had then assaulted by fist blows to prosecutrix and her mother and abused them in filthy language. They were threatened not to come again and not to make any complaint with police. Thereafter Prosecutrix went to police station Begampura and lodged First Information Report (FIR) on 05-09-2010. On the basis of said FIR, crime vide C. R. No. 120 of 2010 came to be registered and investigation was undertaken.
3. Prosecutrix was sent for medical examination. Panchanama of the spot was executed. Statements of the witnesses were recorded. Accused persons came to be arrested. Medical examination of accused No. 1 was conducted. Samples were collected. Clothes were seized. Muddemal articles were sent for chemical analysis. After collecting certificate of caste and medical examination, charge-sheet was filed. During the pendency of the trial, prosecutrix gave birth to a child. The DNA test has been done after obtaining samples.
4. Both the accused remained present before the Special Judge. Charge came to be framed against them. They pleaded not guilty. Trial has been conducted. Prosecution has examined 7 witnesses to support its story. After considering the evidence on record and hearing both sides, the learned Trial Judge has held accused No. 1 guilty of committing offence punishable under Sec. 376 of Indian Penal Code. He has been sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.2,000/- i/d. to suffer simple imprisonment for one month for the said offence. Accused No. 1 has been further held guilty of committing offence punishable under Sec. 3 (1) (x) of Atrocities Act and has been sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs. 1,000/- i/d. to suffer simple imprisonment for one month. He has also been directed to pay compensation of Rs.1,00,000/- under Sec. 357 of Code of Criminal Procedure to the prosecutrix and the male issue. Hence, this appeal by original accused No. 1.
5. It will not be out of place to mention here that accused No. 1 is acquitted of the offence punishable under Sec. 323, 504, 506 r/w. 34 of Indian Penal Code. Accused No. 2 has been acquitted of the offence punishable under Sec. 323, 504, 506 r/w.
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