Difficult To Accept A Widow With Two Children Residing In A Thickly Populated Locality Could Be Forcibly Raped On Several Occasions: Bombay High Court

“In fact, there was long standing acquaintance between applicant and accused. It is difficult to accept that a widow with two children residing in a thickly populated residential locality could be forcibly raped not once but on several occasions,” said the court

A division bench of Justice Vibha Kankanwadi and Justice Abhay Waghwase of the Aurangabad bench was dealing with a criminal application filed by the man seeking to quash the charge sheet and FIR filed against him for offences punishable under Sections 376, 406, 427, 323, 506 of the IPC.

The woman’s case was that one night, the applicant entered her house in the presence of her children on the pretext of drinking water. He then brandished a knife threatening to kill her and raped her. He also threatened the lives of her children. After that the applicant repeatedly used to threaten her, and have forcible physical relations with her.

According to the woman, the applicant once demanded money and when she refused, he took her gold jewellery saying that he will mortgage it to get money. Fed up of his conduct, she approached the police. An FIR was registered and charge sheet was filed. Hence the present petition.

Senior Advocate Rajendra Deshmukh for the applicant submitted that the the woman resides in a thickly populated area and knew the applicant since long back. The allegations are vague and omnibus since there is no detail about when the alleged incidents took place. He also submitted that rape on knife point on a fully grown lady in her own house is not possible.

The sexual encounters between the two were consensual, the senior counsel said. He further pointed out that her own parents as well as her immediate neighbours did not know about the alleged incidents,.

APP M. M. Nerlikar for the State submitted that the investigation is over and there is ample material against the applicant. Hence, he should face trial.

Advocate P. N. Kalani for the woman said that there was no consensual act at any point of time. The informant did not resist the applicant to save her children, her counsel argued.

"She did not willingly submit. There was no consensual act at any point of time," Kalani argued.

The court noted that the alleged instances were reported for the first time six months after they began. From the supplementary statement of the woman, the court noted that the applicant is her neighbour who regularly visited her house and even helped her at times. 

"Her supplementary statement shows that she had even entrusted her ATM card for operation. Therefore, with such material on record, there is room to presume that there is long standing association between accused applicant and informant since lifetime of her husband," said the court.

The court also noted that the neighbours seem to be totally unaware about the alleged incidents. 

"Surprisingly informant’s parents have also given statement to police that their daughter was residing separately and neither she visited them nor she allowed them to come to her house and as such, they were completely unaware of any incident that took place," it said further.

The court said that the allegation about forcefully taking jewellery is false and an afterthought as the jeweller in his statement has said that the woman accompanied the applicant twice for mortgaging ornaments to raise money. The jeweller further said that the informant herself handed the over the ornaments, the court noted.

The bench further said that it is of the considered opinion that apart from inordinate delay in lodging FIR, the allegations of rape levelled against the applicant does not inspire confidence. 

"In our considered opinion, whatever sexual encounters took place between informant and applicant apparently seem to be consensual one, in the light of above discussed reasons. Therefore, making present applicant face trial with such allegations would render him not only hardship but great injustice," said the court, while quashing the FIR.

Case no.: Criminal Application No. 2624 of 2019

Case Title: Siddhodhan alias Shudhodan s/o Namdeorao Kurule v. State of Maharashtra

Citation: 2022 LiveLaw (Bom) 525