Criminal Appeal No. 717 of 2024 · Bombaybench High Court
Case Details
(1) 909 Criminal Appeal No. 717-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 717 OF 2024XYZ..Appellant(Informant/Victim)VERSUS1.Saddam Hussain Kayyum Qureshi,Age : 27 Years, Occ. Pvt. Service,R/o. Mukkam Post Rasalpur, Tq.Raver, Dist Jalgaon2.Jaka Urf Jakir Shaikh Subhan Qureshi(Pahelwan)Age : 48 Years, Occ. Business,R/o. Ghodepir Mohalla, Nandurbar,3.Sairabee Shaikh Jakir Shaikh,Age : 40 Years, Occ. Household,R/o. As above. ..Respondents(Ori. Accused Nos. 1 to 3)...Advocate for Appellant : Mr. Satej S Jadhav A.P.P. for Respondent/State : Mr. A. S. ShindeAdvocate for Respondent Nos. 1 to 3: Mr. Pratik P. Kothari ….CORAM : NITIN B. SURYAWANSHI AND SANDIPKUMAR C. MORE, JJ.DATED : 29st JULY 2025ORDER:- 1. The victim has filed this application under Section 372 ofthe Code of Criminal Procedure, challenging the impugned judgmentand order of acquittal passed by learned Additional Sessions Judge,Nandurbar in Sessions Case No. 16 of 2017. (2) 909 Criminal Appeal No. 717-2024.odt2.The victim lodged F.I.R, alleging that, prior to five yearsfrom the date of lodging of the F.I.R., she was working with accusedNos. 2 and 3 as maid. Accused No.1 is brother of accused No.3, andhe used to frequently visit to the house of accused Nos. 2 and 3 atRasulpur, Taluka Raver, Dist. Jalgaon and used to stay there for twomonths at a time. At that time, accused No.1 kept physical relationswith her, by giving a false promise of marriage. The physical relationswere seen by accused No.2, and accused No.2 asked the victim not todisclose the same to anybody. The victim used to visit room ofaccused No.1 at Jalgaon. They used to have physical relations in thesaid room, and even at Lodge at Amalner. At the time of physicalrelations, accused No.1 used to give her a promise of marriage. Shebecame pregnant due to the physical relations by accused No.1. Whenshe told this fact to accused Nos. 2 and 3, they told her that accusedNo.1 is taking education, and assured that they will perform hermarriage with accused No.1. Accused No.1 on affidavit has stated thathe will marry the victim. Accused Nos. 2 and 3 gave her pills, onconsuming the pills, she suffered abortion.3. On 25.09.2016, victim asked accused No.1 about themarriage, however, he gave evasive reply. On taking information, thevictim came to know that, marriage of accused No.1 was arrangedwith daughter of Faulad from Jamudgaon. When this fact was told by
Legal Reasoning
(3) 909 Criminal Appeal No. 717-2024.odtvictim to accused Nos. 2 and 3, they refused for the same, and droveher out of their house. On these allegations, the F.I.R was registeredat crime No. 148 of 2016 under Sections 376, 313, read with Section34 of the Indian Penal Code with Nandurbar Police Station.4. On completion of investigation, charge sheet was filed,and the accused were charged under Sections 376 (1), 313 and 147read with Section 34 of the Indian Penal Code. In support of its case,six witnesses were examined by the prosecution. The trial Court onappreciation of evidence acquitted the accused. Hence, the appeal.5.Heard learned Advocate for the appellant, learnedAdvocate for respondent Nos. 1 to 3 and learned A.P.P. for therespondent/ State. Perused the record.6.Learned Advocate for the appellant has assailed theimpugned judgment of acquittal, contending that the stamp paper onwhich, accused No.1 had given an undertaking to perform marriagewith the victim is placed on record. It is in the handwriting of accusedNo.1, which proves that accused No.1 was giving false promise ofmarriage to the victim, and because of the same, the victim indulgedin physical relations with him. He further contended that, accusedNos. 2 and 3 have abated the crime committed by accused No.1, andbecause of the tablets given by accused Nos. 2 and 3, the victim has (4) 909 Criminal Appeal No. 717-2024.odtaborted the child. In spite of this evidence on record. Trial Court haserroneously acquitted the accused persons. He, therefore submitsthat, this is a fit case to set aside the acquittal, hence, appeal needs tobe admitted.7.Learned A.P.P. adopted the arguments of the appellant andsubmitted that, the appeal needs to be admitted in view of evidencebrought on record by the prosecution.8.Learned Advocate appearing on behalf ofrespondents/accused, on the other hand supported the impugnedjudgment of acquittal. He submits that, admittedly the victim hasalleged that the offence had taken place between 2013 to 2016 forwhich F.I.R. was lodged in 2016. In her evidence no specific dates andtime of alleged incidents of rape, are given by the victim. Taking intoconsideration the admissions given by the victim and prosecutionwitnesses, the trial Court has rightly disbelieved the prosecution caseand has acquitted the accused. He, therefore, submits that, there is nomerits in the appeal and same deserves to be dismissed at thethreshold.9.Perusal of the evidence of the victim and otherprosecution witnesses shows that, the relations between the victimand accused No.1 were consensual. Admittedly, the victim was major
Legal Reasoning
(5) 909 Criminal Appeal No. 717-2024.odtat the relevant time. She has failed to give the exact date, time andplace where the physical relations took place between her and accusedNo.1. Though it is alleged by her that, for four to five times she hadphysical relations with accused No.1 at the house of accused Nos. 2and 3 on the ground floor during the night time, there is evidence onrecord that accused Nos. 2 and 3 have six children in the age group of4 to 16 years, and they were sleeping in the kitchen at the groundfloor. In these circumstances, it is difficult to accept the contention ofthe victim that, accused had forcible physical relations with her at fourto five times in the kitchen.10. In the affidavit sworn by accused No.1, no date ismentioned. It is only stated that accused No.1 would marry with thevictim. In view of the admission given by the victim that till theengagement of accused No.1 he was ready to marry with her, it is clearthat, the alleged promise to marry was not a false promise ofmarriage, and it appears that due to the refusal of parents andrelatives of accused No.1, he could not marry the victim. In NaimAhamed Versus State (NCT of Delhi) [2023 Law Live (SC), 66]following observations are made by the Apex Court :-“it would be a folly to treat each breach of promise tomarry as a false promise and to prosecute a person foroffene of rape under Section 376 of Indian Penal Code.Difference between giving a false promise and committing (6) 909 Criminal Appeal No. 717-2024.odtbreach of promise by the accused is, in case of falsepromise, the accused right from the beginning would nothave any intention to marry the prosecutrix and wouldhave cheated or deceited the prosecutrix by giving a falsepromise to marry her only with a view to satisfy his lust,whereas in case of breach of promise one can not deny thepossibility that the accused might have given a promisewith all seriousness to marry her and subsequently mighthave encountered certain circumstances unforeseen by himor the circumstances, beyond his control, which preventedhim to fulfill his promise ”.11. The case of accused No.1 is squarely covered by the aboveobservations. In the present case also the prosecution has failed toprove that accused No.1, right from the beginning, was not intendingto marry with the prosecutrix, and by giving false promise to marry,only with a view to satisfy the lust, he had given the false promise ofmarriage to her. This appears to be a case of breach of promise, anddue to refusal of the parents, accused No.1 could not marry the victim.12.The victim gave no details as to when she becamepregnant, when she was given the contraceptive pills, and when shesuffered abortion. The same also was not revealed during theinvestigation.13.This fact is admitted by P.W.6 Investigating Officer Shri (7) 909 Criminal Appeal No. 717-2024.odtBhosale. There is no evidence on record to connect accused Nos. 2and 3 with the present crime. The victim has admitted in her evidencethat, she came to know about the engagement of accused No.1 priorto 18 to 20 days of lodging of the First Information Report. Prior tothat, accused No.1 was ready to marry with her. Since the marriage ofaccused No.1 was settled with the niece of accused No.2, he alsorefused for marriage of the victim with accused No.1. Therefore,accused Nos. 2 and 3 appear to have been involved in the presentcrime by the victim. From the evidence on record, it is clear that, theprosecution has failed to prove its case against the accused beyondreasonable doubt. The trial Court has rightly appreciated the evidence,and by reasoned judgment and order, acquitted the accused. No caseis made out by the appellant to interfere in the impugned judgmentand order of acquittal. The appeal being devoid of merits, is dismissed. (SANDIPKUMAR C. MORE) (NITIN B. SURYAWANSHI ) JUDGE JUDGEY.S. Kulkarni