The absence of physical resistance does not imply consent in cases of familial rape, where trust is exploited, and corroborative evidence is crucial for conviction.

JUDGMENT :

(G.A. Sanap, J.)

1. In this appeal, challenge is to the judgment and order dated 21.03.2022 passed by the learned Additional Sessions Judge, Chandrapur (for short ‘the learned Judge’), whereby the learned Judge convicted the appellant/accused for the offences punishable under Sections 366, 376(2)(f) and 376(2)(n) of the Indian Penal Code (for short ‘the IPC’) and sentenced him to suffer rigorous imprisonment for five (05) years and to pay a fine of Rs.2000/-, in default of payment of fine further directed to suffer simple imprisonment for six months for the offence punishable under Section 366 of the IPC and he is further sentenced to suffer rigorous imprisonment for fourteen (14) years and to pay a fine of Rs.2000/-, in default of payment of fine further directed to suffer simple imprisonment for six months for each of the offences punishable under Section 376(2)(f) and 376(2)(n) of the IPC.

2. Background facts PW-1/Prosecutrix is the informant. The crime against the appellant, who is her son-in-law, was registered on 23.12.2018. The prosecution case which emerges from the report and other material is that the prosecutrix is doing the business as a flower vendor at Golbazar in the vicinity of Chandrapur Bus Stand. There was marital discord between the appellant and his wife Deepmala. They have two daughters, namely Shravani and Vaishnavi. The wife of the appellant was residing separately at Nagpur. On 21.12.2018, the prosecutrix had received a phone call from her granddaughter Shravani. She informed prosecutrix that she was not feeling well. The prosecutrix promised her to come to Nagbhid and meet her. The prosecutrix was supposed to go to Nagbhid for that purpose.

3. It is stated that on 21.12.2018, in the evening, the appellant came to her shop and quarreled with her. The appellant told her to reunite his wife with him. The appellant at that time compelled her to accompany him to Nagbhid, where the Shravani was residing. The prosecutrix even otherwise wanted to go to Nagbhid to meet her granddaughter. She accompanied the appellant on the motorcycle. The appellant at village Lohara purchased country liquor. At about 10:00 p.m., on the way to Nagbhid, the appellant stopped his motorcycle and drank the country liquor. He told the prosecutrix that, as her daughter is not living with him, he wanted to establish physical relations with her. The prosecutrix was shocked, and she told the appellant that he should not talk like that as she was like his mother. However, the appellant did not pay any heed to her request. The appellant caught hold of her hand and took her in the jungle beside the road. The appellant beat the prosecutrix, brought her down on the ground and committed a forcible intercourse with her. After an interval of some time, he again committed sexual intercourse with her.

4. It is stated that at the scene of the occurrence the keys of the motorcycle, which had been kept by the appellant in his pocket, fell down and later on he could not trace it out. Due to this, the appellant manually pushed his motorcycle and took it towards the chowki of the forest department. On reaching there, he told two persons present at the chowki that he lost the keys of motorcycle, when he had gone to attend the nature’s call and requested them to help him in searching the keys. One of the watchmen helped the appellant in searching the keys in his mobile light. It is stated that while the appellant and one watchman were searching for the keys, 2-3 other persons came to the said chowki. The prosecutrix was with them. The prosecutrix told these persons about the forcible rape committed on her by the appellant, who is her son-in-law. Those persons did not pay any attention to her. They told her that they had to perform their duty in the night and instructed them to leave the spot.

5. It is the further case of the prosecution that the appellant then went ahead with the prosecutrix on the motorcycle. The appellant stopped his motorcycle