High Court · 2025
Legal Reasoning
-1- Cri.Appeal.1076.2024.IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.1076 OF 2024WITHCRIMINAL APPLICATION NO. 5012 OF 2024INCRIMINAL APPEAL NO. 1076 OF 2024X.Y.Z. … Appellant (Orig. Informant)Versus1.The State of Maharashtra,Through Police Station, Jawahar Nagar, Chhatrapati Sambhajinagar City, Tq. & Dist. Chhatrapati Sambhajinagar.2.Anil Chandan Pasaratte (Dead), 3.Chandan Fakira PasarteAge : 65 years, Occ: Retired,R/o. Vishnu Nagar, Near Gajanan Maharaj Temple,Buldhana, Dist: Buldhana.4.Sau. Mandabai W/o. Chandan Pasarate,Age : 62 years, Occ: Retired,R/o. Vishnu Nagar, Near Gajanan Maharaj Temple,Buldhana, Dist: Buldhana.5.Sau. Kamal W/o. Anil Pasarate,Age : 35 years, Occ: Retired,R/o. Vishnu Nagar, Near Gajanan Maharaj Temple,Buldhana, Dist: Buldhana.… Respondents(Resp. No.3 to 5 are Orig. Accused Nos.2 to 4)……Mr. Ishwar Kalyan Wagh, Advocate for Appellant.Mr. N. D. Batule, APP for Respondent No.1 – State.Mr. N. S. Ghanekar, Advocate for Respondent Nos.3 to 5....… -2- Cri.Appeal.1076.2024. CORAM :ABHAY S. WAGHWASE, J.RESERVED ON :30 JULY 2025PRONOUNCED ON :18 SEPTEMBER 2025JUDGMENT : 1.Original informant, who set law into motion by filing FIRNo.I-153 of 2014 against present respondents, is dissatisfied by thejudgment and order of acquittal passed by learned Additional SessionsJudge, Chhatrapati Sambhajinagar in Sessions Case No. 10 of 2015.Original informant has also pressed into service above CriminalApplication bearing No.5012 of 2024 by raising prayers to stay theimpugned judgment and order to the extent of releasing gold in favour oforiginal accused Nos.2, 3 and 4 (i.e. respondents herein).FACTUAL MATRIX2.In nutshell, the case before learned trial Court was that,present appellant lodged FIR against respondent nos.2 to 5 on14.06.2014, on the premise that, she was married, had children and herhusband worked abroad. She got acquainted with accused no.1 AnilChandan Pasrate (since deceased). They both exchanged their phonenumbers to each other and even deceased accused used to visit her. Heexpressed his love towards her and assured her of marriage by givingdivorce to his wife. In 2011, when her children were out of the house, -3- Cri.Appeal.1076.2024.she claimed that by mixing something in her tea, he had forciblyestablished physical relationship with her. He used to threatened to makeher photographs viral, demanded money from her and used to forciblymaintain physical relations with her for almost four years. She alsopermit him to operate her bank locker and finally accused took away goldornaments from the locker with her consent and knowledge for thepurpose of raising loan and ultimately refused to return it. Having feltcheated, she lodged report against accused no.1 and his family members,resulting into registration of crime no. I-153 of 2014 for offencepunishable under sections 376(i), 328, 385, 406, 114, 323, 504, 506 readwith section 34 of Indian Penal Code (IPC). Investigation culminated intofiling of charge-sheet and trial was conducted vide Sessions Case No. 10of 2015. By judgment and order dated 03.10.2024, trial ended intoacquittal of all accused from all charges.3.Feeling aggrieved by the judgment and order of acquittal,both, Appeal as well as Criminal Application are pressed into service,more particularly clause 5 of the operative part of the judgment, whichreads as under: “5. Vide application at Exh.130 gold weighing 232.02gm. freezed in Manpurram Gold Finance, Akashwani,Aurangabad, Branch Manager of the Manpurram GoldFinance, Akashwani, Aurangabad is hereby directed to
Legal Reasoning
-4- Cri.Appeal.1076.2024.release said gold jewelery as per rule by completingformalities in favour of the accused nos.2, 3 and 4, afterappeal period is over.”SUBMISSIONSOn behalf of Appellant : 4.Learned counsel for appellant pointed out that, informant,who is a victim, was a married lady. That, accused happens to be herrelative, took disadvantage of her being alone and her husband beingaway and abroad. He pointed out that, he made her drink laced tea andsexually exploited her, took photographs of her in nude condition and bythreatening to show the same to her relatives, he blackmailed her andtime to time against her wish, accused sexually ravished her. Accordingto learned counsel, merely because of fear of shame, victim did not lodgereport at that time. Learned counsel further submitted that, takingdisadvantage of acquittance and above photographs, he forciblyaccompanied her to her bank, joined him as co-operator of her locker andin her absence took away the 20 Tolas gold belonging to her. That, thereis cheating as well as sexual exploitation. That, victim has finallyapproached police and has lodged report. Learned counsel pointed outthat, victim has narrated entire story in her evidence at Exh.89. That, toled corroboration she had also examined another relative. He pointed outthat even bank officials and witnesses from financial institution, are -5- Cri.Appeal.1076.2024.examined on the point of operation of locker and borrowing loan. Thus,according to learned counsel, accused has not only sexually exploitedvictim, but has also retained gold ornaments belonging to informant andas he refused to return the same, complaint was lodged. Learned counselpointed out that, there was overwhelming evidence regardingcommission of forceful rape as well as cheating and taking away goldbelonging to informant. That, learned trial court failed to consider andappreciate informant’s evidence and not only acquitted the accused, butalso refused to handover gold belonging to her. Thus, according tolearned counsel, the order of trial court acquitting accused as well asdirecting the handing over of gold ornaments to original accused nos.2 to4 is illegal, erroneous and perverse and is required to be interfered byallowing the appeal.On behalf of Respondents : 5.Learned counsel for respondent nos.2 to 5 pointed out that,allegations are false, baseless and afterthought. That, informant in spiteof being married, and in spite of having children, had maintained friendlyrelations and subsequently willingly indulged in consensual sexualrelations. He pointed out that, the acquaintance of said relations were forfour years. That, main accused is now no more. Present respondents areparents and family members of main accused. That, they are falsely -6- Cri.Appeal.1076.2024.implicated. He pointed out that, as regards to allegations of cheating andtaking away gold ornaments is concerned, there is no credible or legallyacceptable evidence. That, complaint being belated, there is no proof ofownership of gold ornaments and therefore, learned trial courtcommitted no error whatsoever in passing the impugned judgment. Hepointed out that, at no point of time, either during pendency of trial oreven after conclusion of trial, any proceedings were initiated, supportedwith any material regarding ownership of ornaments so as to assert claimover it. That, present criminal application for return of gold ornamentshas no basis or foundation and consequently it is urged to be rejected.6.After hearing the above submissions and on complete re-appreciation of the evidence adduced before the trial court, it is emergingthat, present appellant had lodged report against accused no.1 Anil (sincedeceased) for commission of offence under sections 376(i), 328, 385,406, 114, 323, 504, 506 r/w section 34 of IPC. Present accused nos.3, 4and 5 seems to be parents and sister of main accused no.1, whoindisputably has expired during pendency of trial itself.7.Substance of the charge is that, on the promise of marriageand by making informant drink laced tea, she was sexually ravished.Photographs of said episodes were allegedly used to repeatedly sexually -7- Cri.Appeal.1076.2024.exploit her. Second allegation is that, by operating her bank locker, 20Tolas gold has been taken away without her consent for raising loan andretaining the gold ornaments.8.In the trial court, prosecution seems to have adducedevidence of in all seven witnesses i.e. PW1 victim informant; PW2 relativeof PW1; PW3 Vivek, PW4 Amrutlal and PW5 Sandip, Bank Officials; PW6Sagar, brother of informant and PW7 P.I. Sk. Salim, Investigating Officer.9.Here, crucial evidence is of victim PW1, PW2 her relativeand PW6 her brother. On visiting their testimonies and answers given incross examination, it is emerging that, victim is a married lady havingchildren and her husband seems to be working abroad. From hertestimony, it is emerging that, during her visits to her first maternalcousin’s place, she got acquainted with accused no.1 Anil, who happensto be brother-in-law of her such sister. Her testimony shows that she andaccused no.1 exchanged their numbers and were talking to each other.According to her, initially there was marriage proposal i.e. her marriagewith accused no.1, but said proposal had not materialize. She testifiedthat, during their meetings, accused expressed his love towards her andeven assured to remarry her by giving divorce to his wife. She claims thatshe had turned down the proposal, but he insisted for maintaining -8- Cri.Appeal.1076.2024.relations. Her evidence shows that, there was acquaintance betweenthem since almost 2011 and are admittedly relatives of each other thoughdistant one.10.Victim / informant’s evidence is at Exh.89 goes to show that,according to her, one day accused called her at his place on the pretext ofhe to be unwell and there she claims that he sought sexual favours fromher and on her refusal he offered her tea, which according to her wasintoxicated and during its influence he established sexual relationship.This according to her was the first sexual encounter, but as stated above,she is unable to give date, month or year. According to her, sincethereafter by threatening to make her photographs known to others, hemaintained sexual relations with her against her wish and evendemanded money from her. Then she states that in 2013, she shifted toPune i.e. after return of her husband, but still according to her, accusedAnil approached her and threatening to kill her children. To save hermarriage, she claims to have succumbed to the demands. Then she statesthat, in 2012, once while she was going to operate her locker at JalgaonPeoples Bank at Aurangabad, accused joined her, entered his name alsoalong with her for operating the bank locker and after seeing the gold inlocker, he demanded the gold for purchasing flat. She claims that, hethreatened and even took away the gold from her against her wish i.e. 20 -9- Cri.Appeal.1076.2024.tola gold by operating locker behind her back. Again in 2014, accusedcalled her on the pretext of returning the gold, but accused and his wifebeat her and drove her out of the house. Therefore, she approachedJawaharnagar Police Station.11.On visiting her cross, it is emerging that, she has admittedthat her marriage was performed in 2002. She admitted about notinquiring with accused about his wife. She admitted acquaintance,accused coming to Aurangabad from Buldhana to meet her, they bothmeeting outside the house. She is unable to tell when he maintainedphysical relations with her by expressing his love. She admitted that,since first visit of accused to her sister’s place till she visited his place,there were no demand of physical relations. She is unable to rememberthat she herself booked air tickets of herself and accused for a trip fromAurangabad to Bangalore, but she admitted that they had stayed atBangalore as well as Kuala Lumpur. She attending religious function withhim or joining for marriage ceremony of his friend and to be in thecompany of accused along with own son of which there are photographswhich she has admitted to be correct. There are omissions about shegaining consciousness, scolding accused for having sexual relations withher after making her drink tea. -10- Cri.Appeal.1076.2024.12.In further cross examination, she has admitted that she hadauthorized accused to operate her said locker and admitted that he washandling the locker for a period of one year and that after two yearsthereafter she has lodged complaint relating to the articles in locker. Restis all denial.13.Other witnesses i.e. her relative and brothers merely deposedabout getting knowledge about accused having sexual relations withvictim. Remaining witnesses are on the point of victim having banklocker, accused operating it, mortgaging the gold for borrowing loan andbecome defaulter. So much is the only evidence.14.Here, as seen from above, the victim a married lady and alsoa mother, alleges initial acquittance with deceased accused andsubsequently he expressing his love towards her while her husband wasabroad. She claims to have got acquainted with accused no.1 in 2011 andsaid relations seems to have lasted for almost four years of which she hasherself admitted. Except oral allegations about accused making her drinklaced tea at his house during her visit to him, there is nothing. She hasnot stated the period of such episodes. Her evidence shows that sheherself booked their tickets to go from Mumbai to Bangalore and KualaLumpur. Therefore, apparently, she seems to be a consenting adult to -11- Cri.Appeal.1076.2024.whatever relations were established between them. Her answers in thecross renders her allegations about being threatened and forced uponagainst her wish itself doubtful. Therefore, charge under section 376(i) ofIPC fails.15.In support of allegation of 328 of IPC is concerned, there isno distinct and cogent evidence. There is no prompt reporting, rathereven thereafter, there is continued acquaintance permitting accused tooperate her bank locker. There is no evidence suggesting availability ofessential ingredients of attracting section 328 of IPC.16.Her answers in cross examination that accused was with herwhen she went to open bank locker and her answer that she joined himand allowed him to operate her bank account inflicts serious blow to heraccusations about criminal breach of trust regarding taking away her goldornaments. As pointed out by learned counsel for respondents, theredoes not seem to be any efforts by her during trial to establish ownershipand possession of so called 20 Tolas gold to be part in the locker. There isno evidence to show that accused behind her back opened the locker andtook away 20 Tolas gold. Though there is witness about gold beingmortgaged for raising housing finance, it was expected of complainant tocogently establish that the said gold indeed belonged to her. There is nodistinct evidence in this direction also. -12- Cri.Appeal.1076.2024.17.Learned counsel for appellant seeks indulgence of this courtin appeal for granting stay to the order passed by learned AdditionalSessions Judge directing handing over of gold to accused nos.2, 3 and 4.As pointed out, no distinct efforts were done by appellant either duringpendency of trial or post conclusion of trial asserting claim andownership over the gold ornaments i.e. by invoking section 452 of Cr.P.C.Though, now in appeal attempt is made to bring on record documents ofownership of gold, entitlement of the gold is to be established in the trialand not in this court. For said reasons, prayer for stay to the operativepart of clause (5) also cannot be granted.18.In the light of above discussion, there is no perversity in thefinding arrived at by the learned trial court. No patent error or illegalityhas been brought to our notice in the appeal. Resultantly, there being nomerits in the same, I proceed to pass the following order.ORDER(i)The appeal is hereby dismissed.(ii)Criminal Application No. 5012 of 2024 is rejected. (ABHAY S. WAGHWASE, J.) Tandale