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2019 Supreme(Bom) 2309
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
K.K. Sonawane, J.
Javed @ Babloo Nasirkhan - Appellant
Versus
State Of Maharashtra - Respondent
Criminal Appeal No. 314 of 2002, 263 of 2002
Decided On : 15-11-2019
S.S. Kazi, Advocate, P.K. Lakhotiya, Advocate
The central legal point established in the judgment is the requirement of proving lack of consent for the offense of rape as per Section 375 of IPC.
Headnote:
Rape - Criminal Law - IPC 375, IPC 506, Cr.P.C. 374 - The judgment discusses the scenario of the prosecution case, the evidence presented, and the arguments made by both the defense and the prosecution. The court analyzed the conduct and demeanor of the prosecutrix, the circumstances surrounding the alleged incident, and the medical evidence. It highlighted the legal provisions of IPC 375 and the requirement of proving lack of consent for the offense of rape. The court found that the prosecution failed to prove lack of consent and concluded that the appellants-accused cannot be held guilty for the offense of rape as contemplated under Section 375 of IPC. The impugned Judgment and order of conviction and resultant sentence were quashed and set aside, and the appellants-accused were acquitted from the charges.
Fact of the Case:
The prosecutrix, a 20-year-old married woman, alleged that she was forcibly raped by the appellants-accused in the house of an old lady where she and her nephew had taken shelter for the night. The Railway Police Personnel arrived at the spot after the incident and took the prosecutrix, her nephew, and the accused to the Police Station for further inquiry.
Finding of the Court:
The court found that the prosecution failed to prove lack of consent on the part of the prosecutrix, and the circumstances indicated that the prosecutrix had herself voluntarily taken participation in the alleged sexual activities. The court concluded that the appellants-accused cannot be held guilty for the offense of rape as contemplated under Section 375 of IPC.
Issues: The main issue was whether the appellants-accused were guilty of the offense of rape as alleged by the prosecutrix.
Ratio Decidendi: The court emphasized the requirement of proving lack of consent for the offense of rape as per Section 375 of IPC. It analyzed the conduct and demeanor of the prosecutrix, the circumstances surrounding the alleged incident, and the medical evidence to conclude that the prosecution failed to prove lack of consent, and therefore, the appellants-accused cannot be held guilty for the offense of rape.
Final Decision: The impugned Judgment and order of conviction and resultant sentence passed by the learned Additional Sessions Judge were quashed and set aside, and the appellants-accused were acquitted from the charges. The Criminal Appeals were allowed, and if the appellants-accused were in jail, they were to be set at liberty forthwith.
JUDGMENT
K K Sonawane, J. - These appeals are preferred by the appellants-accused under Section 374 of the Code of Criminal Procedure (Cr.P.C.) to agitate the validity and legality of the impugned Judgment and order of their conviction under Sections 376, 506 read with Section 34 of the Indian Penal Code (IPC) and resultant sentence imposed on them by the learned Additional Sessions Judge, Shrirampur, District Ahmednagar in Sessions Case No. 75 of 1994 dated 13-03-2002. The appellants were sentence to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 5000/- each in default to suffer further simple imprisonment for three months for the offence punishable under Section 376 read with section 34 of IPC. They are also sentenced to suffer rigorous imprisonment for six months for the offence punishable under Section 506 read with section 34 of the IPC. These sentences shall run concurrently.
2. Both these allied appeals are dealt with together for its adjudication on merit by this common Judgment as these appeals are arising from one and the same Judgment and order of conviction and resultant sentence rendered by Additional Sessions Judge in Sessions Case No. 75 of 1994.
3. The scenario of the prosecution case culled out in brief is that, the prosecutrix, a 20 years old married woman, on 24-01-1994 started proceeding to village Dighi, Taluka Shrirampur to see her brother. Her nephew Gokul Shriram Mali, 14 years old was accompanied with her for going to Dighi, Shirpur from her parents home at village Sanvatsar, Taluka Kopargaon. They both came to Kopargaon Railway Station and thereafter by Maharashtra Express Railway they arrived at Shrirampur Railway Station in the midnight at about 2.30 a.m. on 26-01-1994. It has been alleged that one old lady by name Shantabai met them at Shrirampur Railway Station. She made enquiry with the prosecutrix and her nephew Gokul about their destination. The old lady Shantabai disclosed that Shrirampur town is the big city and it would difficult in the wee hours of night to find out the residence of her brother. The old lady Shantabai asked the prosecutrix and her nephew to stay at her house in the night. The shanty of old lady-Shantabai was located in the hutment area abutting to railway track near Railway Goods Platform. After persuasion by old lady - Shantabai, the prosecutrix and her nephew agreed to accompany with her for stay at her shanty. Accordingly, in the intervening night of 25-01-1994 and 26-01-1994, the prosecutrix and her nephew slept at the house of old lady Shantabai. They both remained in the company of Shantabai for entire day on 26-01-1994 and also halted in the night hours in her shanty. According to prosecution, in the wee hours of night i.e. 3.00 a.m. on 27-01-1994, both the appellants-accused barged into the shanty of old lady-Shantabai. They gave threats and intimidated the old lady Shantabai and nephew Gokul. Thereafter, both the appellants-accused ravished the prosecutrix forcibly. At the time of committing sexual assault on prosecutrix , the old lady left the shanty and went outside the house. Thereafter, the prosecutrix and her nephew yelled for help. Meantime, the Railway Police Personnel arrived at the spot. They made enquiry with the prosecutrix and accused. The prosecutrix divulged about the sexual assault on her by the appellants-accused. The Railway Police Personnel took the prosecutrix, her nephew and appellants -accused to Shrirampur City Police Station for further process.
4. Pursuant to First Information Report (FIR) of prosecutrix, the Police of Shrirampur City Police Station registered the crime No. 20 of 1994 under Sections 376 and 506 read with Section 34 of the IPC and set the penal law in motion. The prosecutrix and both the appellants were sent to Government Hospital for medical check up. IO visited to the spot of incident and drawn the panchnama. He recorded statements of witnesses acquainted with the facts of the case. He seized the cloths
