Bombay High CourtNana Vitthal Mane vs The State Of Maharashtra on 28 February, 2023Author:Sarang V. KotwalBench:Sarang V. Kotwal1 of 16              204-apeal-42-20 (Judgment)\n\n\n                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                                      CRIMINAL APPELLATE JURISDICTION\n\n                                      CRIMINAL APPEAL NO. 42 OF 2020\n\n                     Nana Vithal Mane                                    ..Appellant\n                          Versus\n                     The State of Maharashtra & Anr.                     ..Respondents\n\n                                                  WITH\n                                   INTERIM APPLICATION NO. 1394 OF 2022\n                                                    IN\n                                      CRIMINAL APPEAL NO. 42 OF 2020\n                                                __________\n\n                     Ms. Tripty M. Kapadia (Appointed Advocate) a/w. Chitra Mhaske\n                     for Appellant.\n\n                     Mr. S. R. Agarkar, APP for State/Respondent No.1.\n\n                     Mr. Sagar Amrut Rane (Appointed Advocate) for Respondent No.2.\n                                              __________\n\n                                             CORAM : SARANG V. KOTWAL, J.\n                                             DATE : 28 FEBRUARY 2023\n\n                     ORAL JUDGMENT:1.           The Appellant has challenged the Judgment and order\n\n                     dated 08/03/2018, passed by learned Additional Sessions Judge,\n\n                     Solapur, in Sessions Case No.332 of 2016. The Appellant was\n\n                     convicted for commission of offence punishable U/s.376 of the\n\n        Digitally\n        signed byI.P.C. and was sentenced to suffer R.I. for ten years and to pay a\n        VINOD\nVINOD   BHASKAR\nBHASKAR GOKHALE\nGOKHALE Date:2023.03.02\n        14:41:46\n        +0530\n                      Gokhale2 of 16                    204-apeal-42-20 (Judgment)\n\n\nfine of Rs.10000/- and in default of payment of fine to suffer R.I.\n\nfor six months. The fine amount was directed to be credited to the\n\nGovernment. In addition, he was directed to pay Rs.50000/- by\n\nway of compensation to the victim within three months from the\n\ndate of the Judgment. He was granted set off U/s.428 of the Cr.p.c.2.          Heard Ms. Tripty Kapadia, learned appointed advocate\n\nfor   the    Appellant,   Shri.      Agarkar,   learned   APP      for     the\n\nState/Respondent No.1 and Shri. Sagar Rane, learned appointed\n\nadvocate for the Respondent No.2.3.          The prosecution case is that, the victim used to take her\n\ncattle for grazing in their agricultural field. The appellant was\n\nworking as a labourer with one of the villagers. He also used to\n\ntake his cattle for grazing. At that time, he committed rape on the\n\nvictim on two to three occasions; resultantly, she became pregnant.\n\nHer parents enquired with her, but she did not answer as to how\n\nshe became pregnant. She was scolded and beaten by her parents.\n\nShe left her house for about four months, but then she was traced.\n\nOn enquiries made by her mother, she narrated that the appellant\n                          3 of 16               204-apeal-42-20 (Judgment)\n\n\nhad committed rape on her. The parents approached the police and\n\nthe F.I.R. was lodged at Solapur Taluka police station vide\n\nC.R.No.262 of 2016 on 03/07/2016 at about 10.30p.m. The\n\nappellant was arrested on 04/07/2016 and since then he is in\n\ncustody. The investigation commenced. The statements of various\n\nwitnesses were recorded. Different panchanamas were recorded. A\n\nchild was born to the victim on 05/11/2016. The blood samples\n\nfor D.N.A. testing in respect of the appellant, the victim and the\n\nchild were sent to F.S.L. The D.N.A. report was received\n\nmentioning that the victim and the appellant were the biological\n\nparents of the child. At the conclusion of the investigation, the\n\ncharge-sheet was filed. The trial was conducted before learned\n\nAdditional Sessions Judge, Solapur.4.       During trial, the prosecution examined eight witnesses\n\nincluding the victim, her parents, the carrier of samples, the\n\nMedical Officer and the investigating officers. The D.N.A. report\n\nwas produced on record at Exhibit 36.5.       The defence of the appellant was of total denial. He had\n                           4 of 16                204-apeal-42-20 (Judgment)\n\n\nnothing to say about the D.N.A. report. Learned Trial Judge\n\nobserved that, though, the victim's father claimed that she was\n\nmentally challenged, he did not find it as the correct fact as the\n\nvictim could give rational answers. There was nothing on record to\n\nsuggest that she was suffering from any such disadvantage.\n\nLearned Trial Judge took recourse toSection 114-Aof the\n\nEvidence Act. He relied on the deposition of the victim herself to\n\nreach a conclusion that there was no consent involved. The D.N.A.\n\nreport, according to him, showed that the appellant had\n\ncommitted this act. Based on this reasoning, he convicted and\n\nsentenced the appellant, as mentioned earlier.6.        The victim is examined as PW-4. She has deposed that,\n\nshe knew the appellant. She used to go for grazing the cattle.\n\nWhile she had gone to her agricultural field for grazing the cattle\n\nin the summer, the appellant had forcible sexual relations with her.\n\nThereafter, she missed her menstrual cycle. She became pregnant\n\nfrom him. She gave birth to the child in the Civil Hospital, Solapur.\n\nShe could not tell her own date of birth. Her father had lodged the\n\ncomplaint and the police had recorded her statement.5 of 16               204-apeal-42-20 (Judgment)\n\n\n              In her cross-examination, she stated that they had 19\n\nto 20 acres of agricultural land. It was a barren land. The other\n\nvillagers also used to bring their cattle for grazing in their land.\n\nShe had not stated before the villagers that the appellant had\n\nforcible sexual relations with her. She accepted that, she had not\n\ntold her parents about her pregnancy and from whom she had got\n\npregnant. She accepted that, her parents had beaten her and had\n\nabused her. She had left her house for about one and half month\n\nbecause of the harassment caused by her parents. When she\n\nreturned home, the other women from the village enquired with\n\nher about her pregnancy, but she did not tell them the name of the\n\nperson who was responsible for her pregnancy. She denied that the\n\nsexual relations were with her consent. She also denied the\n\nsuggestion that, she got pregnant out of the consensual sexual\n\nrelations.7.           PW-1 was the father of the victim. He was the first\n\ninformant. He has deposed that the victim was mentally\n\nchallenged to some extent since her birth. They had two cows. The\n\nvictim used to go to their agricultural field for grazing cows. She\n                          6 of 16                204-apeal-42-20 (Judgment)\n\n\nused to go at 10.00a.m. and used to return at 5.00p.m. The\n\nappellant was also grazing the cattle of one Gavali from their\n\nvillage. He used to take his cattle in PW-1's agricultural field.\n\nPW-1's wife had informed him about the victim's pregnancy. He\n\nhad shouted at the victim and, therefore, she had left the house.\n\nHe approached the Tanta Mukti President. He advised PW-1 to\n\napproach the Taluka police station. Therefore, he went to Taluka\n\npolice station with the victim and lodged the F.I.R. The F.I.R. is\n\nproduced on record at Exhibit 12. According to him, the victim's\n\nstatement was recorded by the police. He identified the appellant\n\nin the court. His own statement was recorded U/s.164 of the\n\nCr.p.c. The victim delivered a baby boy after four months from\n\nlodging the F.I.R. He has deposed that the appellant was married\n\nand had two children.In the cross-examination, he admitted that the victim's\n\nage was between 20 to 23 years. His evidence was recorded on\n\n25/04/2017 and the alleged incident had taken place around\n\nMarch 2016. Thus, even at the time of the incident i.e. around\n\nMarch 2016 the victim was about 18 years of age. In any case, it is\n                           7 of 16                 204-apeal-42-20 (Judgment)\n\n\nnot the prosecution case that the victim was below 18 years of age\n\nat the time of the incident. He further admitted that, even after the\n\nvictim was beaten she did not disclose how she got pregnant. He\n\nvolunteered that the victim had told him the reason of her\n\npregnancy. He deposed that, they had not approached any doctor\n\nfor the victim's mental condition.8.        PW-2 was the mother of the victim. After starting\n\nrecording her evidence to some extent, learned Trial Judge\n\nobserved that, she was unable to give proper and rational answers.\n\nShe was unable to understand the questions and, therefore, she\n\nwas discharged. Considering this observation, her evidence will\n\nhave to be left out of consideration.9.        PW-3 Ashok Chavan was the President of Tanta Mukti\n\nSamiti of the village. He deposed that, two women from the village\n\ninformed him that the victim had got pregnant and he should look\n\ninto the matter. He denied the suggestion that the victim had got\n\npregnant because she was raped by the appellant. After this\n\nanswer he was declared hostile and was cross-examined by learned\n                          8 of 16                204-apeal-42-20 (Judgment)\n\n\nAPP. But he denied further suggestions. In any case, he did not\n\nknow anything about the incident personally. Therefore, his\n\nevidence is not of much importance.10.      PW-5 Anis Shaikh was the carrier who had carried the\n\nsamples of the appellant's blood for D.N.A. testing. He had carried\n\nthe samples on 08/07/2017 to F.S.L. Pune.11.      PW-6 Dr. Vrushali Bavage had examined the victim on\n\n04/07/2016. The victim's mother had given history of the incident\n\nblaming the appellant. It was also told to PW-6 that the victim was\n\nmentally challenged. On her medical examination, she found that\n\nthe victim was 28 weeks pregnant. She collected the necessary\n\nsamples for sending to Forensic Department. The victim delivered\n\na male child on 05/11/2016. After that, the D.N.A. sample of the\n\nbaby was sent for analysis. The D.N.A. report was received\n\nsubsequently. It is produced on record at Exhibit 36. PW-6 went\n\nthrough the D.N.A. report. She has deposed that the appellant and\n\nthe victim were the biological parents of the victim's baby. The\n\nvictim was discharged from the hospital after two months, after\n                          9 of 16                 204-apeal-42-20 (Judgment)\n\n\nthe delivery of the child. PW-6 has further deposed that the\n\nvictim's family was not ready to keep the baby and had intended to\n\ngive it for adoption. But she did not know what happened after\n\nthat.In the cross-examination, she admitted that it was not\n\nmentioned in her certificate that the victim was mentally\n\nchallenged. PW-6 volunteered that the psychiatrist's opinion was\n\nobtained from the concerned department and it was mentioned in\n\nthe case history. As mentioned earlier, the D.N.A. report is\n\nproduced on record at Exhibit 36.12.       PW-7 A.P.I. Babasaheb Koli was the first investigating\n\nofficer. After registration of the F.I.R. vide C.R.No.262 of 2016 on\n\n03/07/2016 at Solapur Taluka police station, he had referred the\n\nvictim for medical examination to Civil Hospital, Solapur. The\n\nvictim's statement was recorded by a woman P.S.I. i.e. PW-8. The\n\nvictim was sent for medical treatment to Civil Hospital, Solapur.\n\nThe appellant was arrested. The statements of the witnesses were\n\nrecorded. The clothes of the appellant were seized. The spot\n                           10 of 16               204-apeal-42-20 (Judgment)\n\n\npanchanama was conducted. He had asked for D.N.A. kit for\n\nD.N.A. testing. He had obtained the D.N.A. report. He had filed the\n\ncharge-sheet against the appellant.13.       PW-8 P.S.I. Amruta Patait had recorded the victim's\n\nstatement on 03/07/2016. She denied the suggestion that the\n\nvictim told her that the act was committed with her consent.This, in short, is the evidence led by the prosecution.14.       Learned counsel for the appellant submitted that, the\n\nlong silence on the part of the victim indicates that it could be a\n\ncase of consent. The victim had not blamed the appellant. She had\n\nnot told his name to her parents in spite of their beating; instead,\n\nshe had left her house for more than a month. This all indicates\n\nthat, it was a case of consent. Without prejudice to this submission,\n\nshe further submitted that, it is not conclusively proved that the\n\nappellant has committed this offence and the D.N.A. report is not\n\nfree from doubt. She further submitted that, there is no other\n\ncorroborative piece of evidence. The evidence of the victim's\n\nparents does not support the prosecution case. The Analyst who\n                          11 of 16               204-apeal-42-20 (Judgment)\n\n\nhad conducted the D.N.A. test was not examined. Finally, she\n\nsubmitted that, considering the over all circumstances, some\n\nleniency be shown to the appellant by reducing the substantive\n\nsentence, as the appellant is in custody since 04/07/2016.15.       Learned counsel for the respondent No.2 and learned\n\nAPP opposed these submissions. They submitted that the victim\n\nhas specifically stated that there was no consent and rape was\n\ncommitted against her wish. The D.N.A. report is the strong\n\nevidence against the appellant. There are indications that the\n\nvictim was not mentally alert and, therefore, the appellant had\n\ntaken advantage of the situation.16.       I have considered these submissions. As far as the\n\ncapacity of the victim to give consent is concerned, no specific\n\ncharge was framed U/s.376(2) of theI.P.C. There was nothing to\n\nshow that the victim was suffering from any mental disadvantage.\n\nLearned Trial Judge has observed that the victim was capable of\n\nunderstanding the questions and was able to give clear and\n\nrational answers. He did not find anything even to suggest that she\n                           12 of 16                 204-apeal-42-20 (Judgment)\n\n\nwas not able to understand the questions.17.       Learned Trial Judge thereafter relied on the presumption\n\nU/s.114-A of the Evidence Act, which reads thus:"114-A. Presumption as to absence of consent in\n          certain prosecution for rape. - In a prosecution for\n          rape under clause (a), clause (b), clause (c),\n          clause (d), clause (e), clause (f), clause (g), clause(h), clause (i), clause (j), clause (k), clause (l),\n          clause (m) or clause (n) of sub-section (2) ofsection 376of the Indian Penal Code (45 of 1860),\n          where sexual intercourse by the accused is proved\n          and the question is whether it was without the\n          consent of the woman alleged to have been raped\n          and such woman states in her evidence before the\n          Court that she did not consent, the Court shall\n          presume that she did not consent."However, as can be seen that there was no charge\n\nU/s.376(2) of theI.P.C. and none of the sub clauses ofSection\n\n376(2)of the I.P.C. are applicable in this case. Therefore, it is not\n\nnecessary to take recourse toSection 114-Aof the Evidence Act in\n\nthis particular case. Instead, the evidence of the victim will have to\n\nbe considered minutely. As reproduced earlier, the victim has\n\ncategorically stated that the appellant had established forcible\n\nphysical relations with her. She denied the specific suggestion that,\n                          13 of 16                204-apeal-42-20 (Judgment)\n\n\nit was an act committed with her consent. There is no reason to\n\ndisbelieve her deposition in that behalf. There is no other\n\ncircumstance brought out on record either through the defence\n\nevidence or through the evidence led by the prosecution to even\n\nsuggest that it could be a case of consent. Therefore, it is not\n\npossible to hold that the physical relations were kept with the\n\nconsent of the victim. The fact that the physical relations were\n\nestablished is sufficiently proved through the D.N.A. report. The\n\nvictim had became pregnant and had delivered a male child on\n\n05/11/2016. The D.N.A. testing showed that the victim and the\n\nappellant were the biological parents of the child. Therefore, these\n\nbasic facts are sufficiently proved by the prosecution beyond\n\nreasonable doubt that physical relation was established by the\n\nappellant with the victim against her wish resulting in her\n\npregnancy and finally in the birth of a child. It is not the\n\nprosecution case that the victim was below 18 years of age.\n\nTherefore, the charge was framed U/s.376 of theI.P.C. and not\n\nunder theProtection of Children from Sexual Offences Act. In this\n\nparticular case, there was clear absence of consent and, therefore,\n                           14 of 16              204-apeal-42-20 (Judgment)\n\n\nall the ingredients of Section 375 of the I.P.C. are fulfilled\n\nattracting sentence U/s.376 of the I.P.C.18.       The next question which would call for consideration is\n\nabout the quantum of sentence. When the offence was committed\n\nin the year 2016 the minimum sentence provided U/s.376(1) of\n\ntheI.P.C. was for seven years. Learned Trial Judge has recorded\n\nthis fact in paragraph 38 of the impugned Judgment and has\n\nobserved that, the minimum sentence was for seven years. Having\n\nobserved this, he recorded his opinion that, looking at the nature\n\nof the offence, the sentence of 10 years of R.I. was justified. No\n\nfault can be found with this reasoning. However, there are certain\n\ncircumstances which I am taking into account. The appellant is\n\ncontinuously in custody since 04/07/2016. He has two children\n\nand a wife who are dependent on him. The victim had not named\n\nhim immediately and for a few months kept avoiding naming him.\n\nTherefore, though, I am inclined to show some leniency,\n\nconsidering that a child is born in this case, the sentence will be\n\nmore than minimum sentence. At the same time, if the\n\ncompensation amount is enhanced and is directed to be paid to the\n                           15 of 16                204-apeal-42-20 (Judgment)\n\n\nvictim, then his substantive sentence can be reduced to a certain\n\nextent; so that the victim will also get some compensation which\n\nshe can use for the benefit of her child. Considering this\n\ndiscussion, in my opinion, the appellant can be sentenced to suffer\n\nR.I. for eight years by way of substantive sentence. Though, he is\n\ndirected to pay the compensation of Rs.50000/- on failure of such\n\npayment, no 'in default' sentence was awarded; this needs to be\n\nmodified and the appellant will have to suffer the 'in default'\n\nsentence. To that extent, the operative part of the impugned\n\nJudgment and order needs modification. With the result, the\n\nfollowing order is passed.ORDERi)   The Appeal is partly allowed.ii) The conviction of the Appellant recorded for\n                  commission of offence punishable U/s.376 of theI.P.C. is maintained. However, instead of R.I. for\n                  10 years, he is sentenced to suffer R.I. for eight\n                  years and to pay a fine of Rs.75000/- and in\n                  default of payment of fine he shall undergo\n                  further R.I. for one year and six months.16 of 16                    204-apeal-42-20 (Judgment)iii) If the fine amount is deposited, Rs.65000/- be\n   paid to the victim as compensation U/s.357 of\n   the Cr.p.c. .iv) The Appellant is granted set off U/s.428 of the\n   Cr.p.c.v) The other clauses in the operative part of the\n   impugned Judgment and order which are not\n   inconsistent         with   this   operative     part,     are\n   maintained as they are.vi) With these observations, the Appeal is disposed\n   of.vii) With disposal of          the    Appeal, the       Interim\n   Application No.1394 of 2022 is also disposed of.(SARANG V. KOTWAL, J.)