Laxmibai vs Sukanand

Jawad Rahim, J.—Complainant is in revision against acquittal of the respondent for the offence punishable under Sections 323, 376, 451, 420. 504 and 506, I P.C. read with Section 3(1)(x) and (xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. Heard Sri S.M. Kalwad, learned counsel for the petitioner and Sri Laxman Mantagani, learned counsel for the respondent, and perused records. It reveals:

a) P.W. 1-Laxmibai lodged report at the jurisdictional police station on 4.6.2009 alleging she was acquainted and familiar with the respondent herein as he was working in the same office. During such friendship, she revealed to him she was a widow; he became closer to her.

b) On 18.1.2009 at 11.00 p.m. he is alleged to have gone to her house and against her will had sexual intercourse. According to her, he promised to marry her, though she disclosed she has a son aged 10 years and it may not be possible. However, when she objected to his intimacy, he reiterated he would many her and thereafter continued in such relationship till the month of April 2009.

c) Thereafter it is alleged, accused was transferred to Bagalkot; even after going there, he used to visit her. It is alleged on 29.4.2009, she went to his office to question him as to why he had become indifferent and was not visiting her She alleged, he became rude and told he has nothing to do with her; she was shattered and requested him to marry as promised, to which he refused.

d) It is alleged, when she started persisting, he abused her in vulgar language referring to her caste, knowing well she belonged to Scheduled Caste and by such act perpetrated atrocity.

e) The report was registered by CW19-Hasansab Imamsab Olekar, Sub Inspector and further investigation proceeded in Crime No. 85/09. Several witnesses were questioned and on the basis of their statement and details in the complaint filed by her, case for the offences referred to above were registered vide Ex. P2-4-FIR. After collecting medical report, final report was filed raising charge for the offences punishable under Sections 323, 376, 451, 420, 504 and 506, I.P.C. read with Section 3(1)(x) and (xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.

f) Respondent pleaded not guilty and was put trial in which 14 witnesses were examined by the prosecution and 24 documents were produced. Learned trial judge analyzing the evidence, opined prosecution has failed to establish the charge in the manner known to law and recorded acquittal which is assailed by the complainant.

Learned counsel for the petitioner would submit, complainant has revealed exactly what had happened between her and the respondent-accused for more than 4 months. From such relationship, it is clear respondent had sexual intercourse with her promising marriage and thereafter cheated her attracting the ingredients of Section 415, I.P.C. He submits, since accused had molested her, the offence comes within the mischief of Section 376, I.P.C. and therefore conviction had to be recorded. He submits, on 25.9.2009 when he threatened her of dire consequences and assaulted her, he exposed himself for the charge under Sections 323, 504 and 506, I.P.C. He would further submit, respondent has abused her referring to her caste, attracting the penal provisions of Section 3(1)(x) and (xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.

Learned counsel read out to me ocular testimony of the complainant-prosecutrix which contains reiteration of what she has stated in the complaint. No doubt prosecution has examined 14 witnesses, but in a case like this, material evidence of the victim would gain importance. Of course for reassurance, we look into the evidence of witnesses, if any, and circumstantial evidence.

In the present case, it suffices to consider what the complainant has deposed before court. From her deposition, it is clear complainant and respondent-accused were colleagues, being Govt. employees. She is a widow and has a son aged 10 years. It is her case she became friendly with the respondent which developed into a deep bond. Respondent is alleged to have taken advantage of it, and on 18.1.2009 entered her house and against her will, had intercourse. If that be so, she has not revealed in her evidence as to what was her reaction when he indulged in vulgarity. According to her, he promised to marry her and therefore she did not report. Even if we give margin and accept her theory, she has failed to explain why she was soliciting him till April 2009, i.e. for a period of four months. It is also her case, during this period respondent was a regular visitor and the relationship continued. To cap it, she has gone to his office on 25.9.2009 to question why he had stopped coming. This is not only indicative of the fact that it is the prosecutrix who wanted to continue the relationship with him. Even otherwise the fact that she was a willing partner to such act is evident from her down statement. Except for a casual statement that on 18.1.2009 when he came to her house at midnight and she asked him why he had come so late, she did not say whether she really resisted his move. On the other hand, after having such physical intimacy, she meekly accepted his proposition of marriage. Thus it is a case of the petitioner being a willing partner to the intimate physical act. The relationship appears to have soured and resulted in enmity only when he refused to marry her as per her own statement. In such a fact situation, it is difficult to accept her version that he indulged in the act of rape.

However we have to now see whether it amounts to cheating as alleged and canvassed by the learned counsel. The offence of cheating is defined in Section 415, I.P.C. We have to apply the definition to see whether the overt acts of the respondent-accused come within it. In the instant case, no doubt she states he offered to marry her, but there is no statement that he made such proposal only to exploit her sexually. The definition of ''cheating'' in Section 415, I.P.C. reads thus:

Cheating: Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not to deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat."

Had the petitioner alleged that the respondent first promised to marry her and induced her to act on that promise, the offence would fall under that provision, attracting punishment u/s 420, I.P.C., but the case is otherwise. According to her, after having intercourse, he promised to marry her and so she continued the relationship. Therefore the ingredients of Section 415, I.P.C. were not made out. Therefore the feeble attempt made by her to propound such case naturally had to fail.

So far as threat and physical assault is concerned, learned trial judge has disbelieved the witnesses who spoke about it and therefore not much needs to be discussed on that.

So far as the charge for the offences under Sections 504 and 506, I.P.C. and Section 3(1)(x) and (xi) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act is concerned, her statement is not corroborated by any other witness, and in the background of what she has stated, one can infer that there must have been quarrel between the two, but that may not have been with the intention to perpetrate atrocity to attract offence under the provision of Scheduled Caste and Scheduled Tribe Act outrage her modesty. To sustain the charge under the provision of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, prosecution must establish beyond reasonable doubt. A casual quarrel or utterance of words cannot be misconstrued as an act of atrocity. I have perused the reasoning of the learned trial judge. I am satisfied he has examined the evidence from all perspectives and has come to a logical conclusion. The charge against the respondent for the said offences is not proved. Even otherwise, when there are two views possible, the one which is in favour of the accused has to be accepted. In the instant case, out of the two views, one view is, because of strained relationship after long cohabitation, this complaint has been filed. Thus even though there is evidence tendered by her, it has not translated into acceptable legal evidence to convict the respondent. Being of this view, acquittal recorded by the trial court for the offences punishable under Sections 323, 376, 451, 420, 504 and 506, I.P.C. read with Section 3(1)(x) and (xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act is confirmed. The appeal, therefore, fails and is accordingly dismissed.