Bombay HC : Affair gone bad no ground for rape charge
Bombay High Court
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 892 OF 2012
Manesh Madusudan Kotiyan
Age: 39 yrs. Occ. Service.
R/o. Room No.2, Manik Patil
Chawl, Eksar Road, Koliwada,
Borivali (West), Mumbai 400 103. … Appellant.
1. The State of Maharashtra
(at the instance of MHB Colony
Police Station, Mumbai in
C.R. No. 77 of 2010 tried in
Sessions Case No. 67 of 2010)
2 Miss. Smita Radhakrishna Kerkar
Age : 28 years, Occ. Service.
R/o Room No. 2, D.B. Kelkar Chawl,
Navagaon, Dahisar (East),
Mumbai 400 068. … Respondents.
Mr. Arfan Sait, Advocate appointed for Appellant.
Ms. A.T. Javeri, APP for Respondent No. 6State.
CORAM : SMT. SADHANA S. JADHAV, J
DATE : JULY 2, 2013
1. The appellant herein is convicted for the offence punishable under Section 376 of the Indian Penal Code and is sentenced to suffer R.I. for 7 years and to pay fine of Rs. 5,000/ i.d. to suffer R.I. for one month. He is also convicted for the offence punishable under Section 417 of the Indian Penal Code and is sentenced to suffer R.I. for one year and to pay fine of Rs. 1,000/i.d. to suffer R.I. for one week in Sessions Case No. 67 of 2010 by Additional Sessions Judge, Boriwali Division, Dindoshi, Mumbai. Hence, this Appeal.
2. Such of the facts which are necessary for the decision of this appeal are as follows :
(i) That one Smita Radhakrishna Kerkar was working at Virodhi Stationery Shop at I.C. Colony, Borivali, Mumbai. The appellant was also working there. After Smita left the job, the appellant had also quit the job. They started working at Balaji DTP Xerox Centre. On one fine day, the appellant proposed Smita. She accepted his proposal. They quit the job of Balaji DTP Xerox Centre and the appellant again started working with Virodhi Stationery Shop. Their acquaintance had turned into intimacy. On 5/11/2009 it was Sunday. The appellant had invited her informing her that it was his birthday. Smita went to meet him at the bus stop. Then they both went to Gorai beach. They checked in into a guest house in Gorai village to cut the cake on the occasion of his birthday. The appellant allegedly informed her that he wanted to marry her and on that ground he had solicited sexual
favours from Smita. Initially when she refused to oblige, he forced her and had forcible sexual intercourse with her. Thereafter, they did not see each other for 2-3days. The appellant had been to Manglore for one month. Smita tried to contact him on his cell phone. His brother received the phone. Smita learnt from his brother that the appellant was a married man and was having a son. However, the wife and son of the appellant were not residing with him.
(ii)The prosecution has further alleged that one day, the appellant called her on Boriwali Railway Station. She was accompanied by her mother. The appellant admitted that he was married man and having a son. He sought pardon from the mother and daughter. He informed them that his wife had filed proceedings in the court against him.
(iii) On 8/3/2010 Smita suspected that she has conceived and therefore, visited the doctor. Upon medical check up, the doctor informed her that she was carrying pregnancy of about 16 weeks. She informed the appellant about the same, upon which he told her that he would obtain divorce from his wife after 3 months and then he would marry her. It is alleged that he had avoided to marry her. He had not answered her phone call and therefore, on 27th March, 2010 she
approached M.H. B. Colony Police Station and lodged the report. On the basis of her report Crime No. 77 of 2010 registered against the appellant for offence punishable under Section 376, 420 of the Indian Penal Code. The appellant was arrested on 27th March, 2010 and has been in jail since then. The investigation was completed. Chargesheet was filed.
(iv) The case was committed to the Court of Sessions and registered as Sessions Case No. 67 of 2010. The prosecution examined 6 witnesses to bring home the guilt to the accused.
3 In fact, the entire case rests upon the substantial evidence of P.W. 2 Smita who happens to be the complainant. She has deposed before the Court as per her narration in the first information report. She has deposed in her examination in chief that when she met the accused at Boriwali Station alongwith her mother, the accused had expressed his willingness to marry her. She has admitted that in March, 2010 she had suspected that she had conceived pregnancy. The doctor had informed her that she was carrying pregnancy of about
4 months. Upon learning about her pregnancy the accused had told her that the divorce petition is pending in the court and therefore, they should wait for 3 months to get married. He had also assured her that he would marry her after obtaining divorce from his first wife. On 27th March, 2010, he had received a phone call from her. However, he gave evasive answers and therefore, Smita was constrained to approach M.H.B. Colony Police Station.
4 It is pertinent to note that in the crossexamination, she has categorically deposed that when the accused proposed to her she had not made any attempts to enquire about him. She has disclosed this fact to her mother after one month. In the crossexamination, she was confronted with her statement before the police. In the first information report she had not expressed any coercion on the part of the accused. Instead, she has stated that he had lured her and they had sexual intercourse and thereafter, they both returned to their respective homes. The contradiction is marked as portion marked “A”.
5 The omission is elicited in the crossexamination in respect of her
meeting the accused on 27th March, 2010. She has categorically admitted that she had love affair with the accused and in the eventuality that he is ready to marry her she is desirous to marry him.
Hence, it is clear from her deposition that on 27th March, 2010 she had lodged the FIR in a fit of rage.
6 P.W. 3 Mrs. Sanjivani Radhakrushna Kerkar, mother of Smita has deposed before the Court that her daughter had informed her that she was in love with the appellant and desired to marry him and therefore, she had been to Boriwali Station to meet the appellant. P.W. 3 learnt that the accused was a married man but she was assured that he would be taking divorce from his first wife and would then marry Smita. P.W. 3 has admitted that she learnt about pregnancy of Smita only when she was four months pregnant. She has also admitted that although Smita had asked her to make enquiry about
the appellant, she had not made any enquiry about the appellant since Smita was in love with the appellant.
7.It is clear from the testimony of P.W. 2 that she was in love with him. She had voluntarily visited Gorai village with him. She had not informed her mother as to what had happened at villageGorai. She has not specifically stated the date on which they had been to village Gorai. She has stated that she was persuaded to have sexual intercourse. It is pertinent to note that the appellant had never denied to get married to her. It is clear that right from the inception he had intended to marry her. Even P.W. 2 has admitted that he had informed her that he intends to marry Smita only after he has obtained divorce with his first wife. Therefore, it cannot be said that the appellant had made the representation deliberately with a view to elicit the assent of the victim without having the intention or indication to marry her and therefore, the consent given by her would not be vitiated. Right from
the inception the appellant wanted to marry her. The question that falls for determination is as to whether she was forced to have sexual intercourse with him. What needs to be distinguished is whether the accused exerted coercion. According to the prosecutrix, she had sexual intercourse with him only because he had assured her that he would marry her. Since there was an intention to marry her, it cannot be said that the consent was given under a misconception of fact.
8 In Strouds Judicial Dictionary, Stroud defines consent “as an act of reason weighing as in a balance the good and evil on each side.” In Words and Phrases, Permanent Edn Vd 8A the following passage is found
“Adult females understanding of nature and consequences of Sexual Act must be intelligent understanding to constitute consent.”
The Hon’ble Apex Court in the case of Dilip v/s. State of Madhya Pradesh has held that “Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of it’s significance and moral quality and there must be a choice between resistance and assail.”
9 In the present case, the complainant is an educated adult person. The appellant had proposed to her. She was fully aware of the fact that the appellant was attracted to her. She chose to accompany him to Gorai. She also checked into a hotel to celebrate his birthday. She was aware of the consequences. She had not cried for help and had not taken her resistance to a logical end. Hence, it would not be justifiable to hold that the consent was obtained by intimidation, force meditated imposition, circumvention surprise or undue influence. Hence the conviction of appellant for offence punishable under Section 376 of the Indian Penal Code would not be sustainable.
10 It appears from the deposition of the complainant that the appellant had not disclosed to the complainant at the outset that he was a married man and father of one son and further that his first wife had filed proceedings against him in the court and this suppression of fact would amount to cheating as defined under the Explanation of Section 415 which reads thus :
“Explanation A dishonest concealment of facts is a deception
within the meaning of this section.”
Therefore this Court held that the appellant by suppressing the fact has cheated the complainant. He has been convicted for offence punishable under Section 417 of the Indian Penal Code which needs to be upheld.
11 The very fact that the prosecutrix has admitted in the cross examination that she had a love affair with the accused and she desired to marry him. In these circumstances, offence under Section 376 of the Indian Penal Code would necessarily fail. It cannot be said that the accused had committed sexual intercourse at false promise of marriage. He was willing to marry her. The impediment was the proceedings filed by the first wife of the appellant. Even according to the complainant, the appellant had assured her that he would get married to her after obtaining divorce from his first wife. The prosecutrix had not even informed her mother that she was carrying pregnancy for a period of 4 months. The prosecutrix had given birth to a female child in August, 2010. The FIR was lodged on 27th March, 2010 and the appellant was taken into custody. It cannot be said that the appellant had at any point of time disowned the paternity of the child. He is in jail since 27th March, 2010.
12 For the aforementioned reasons, following order is passed :
(i) The Appeal is partly allowed.
(ii) The appellant herein is acquitted of the charge under Section 376 of the Indian Penal Code.
(iii) The conviction of the appellant for the offence under Section 417 of the Indian Penal Code is hereby confirmed. The appellant has undergone the sentence imposed upon him for the offence punishable under Section 417 of the Indian Penal Code. He has also undergone the default sentence.
(iv) He be released forthwith, if not required in any other case.
13 Criminal Appeal is disposed of accordingly.
14 Before parting with the Judgment, this Court record appreciation
for the efforts taken by Mr. Arfan Sait, Advocate appointed from High
Court Legal Services Committee, Bombay to represent the appellant.
The legal fees to be paid to him by the High Court Legal Services
Committee are quantified at Rs. 2000/. The said fees be paid to
Advocate Mr. Arfan Sait within three months from today.
(SMT. SADHANA S. JADHAV, J)