Bombay High Court
The State Of Maharashtra vs Machhindra @ Babdu G.Sonawane on 22 December, 2018
Equivalent citations: AIRONLINE 2018 BOM 1356
Author: Indrajit Mahanty
Bench: Indrajit Mahanty, V. K. Jadhav
APEAL. 713-97.
VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 713 OF 1997
The State of Maharashtra ... Appellant
(Original Complainant)
Vs.
Macchindra @ Babdu Gangadhar
Sonawane, Age 41 years,
R/a. Wad, Taluka - Chinchwad, ... Respondents
District Nashik (Original Accused)
***
Mrs. M. M. Deshmukh, APP for the Appellant - State.
Mr. Hrishikesh Mundargi a/w Shradha Sawant i/b Girish
Ghumre, for the Respondent .
***
CORAM : INDRAJIT MAHANTY, &
V. K. JADHAV, JJ.
Reserved for Judgment on : NOVEMBER 30, 2018.
Judgment Pronounced on : DECEMBER 22, 2018
JUDGMENT [PER : INDRAJIT MAHANTY, J.]
1. Present appeal under S. 378(1) Cr. P.C. 1973 has
been filed by the State of Maharashtra against the order of
acquittal dated 24.7.1997 passed by the learned 2 nd
Additional Sessions Judge, Nashik, of the offences punishable
under S. 376 and 342 of the Indian Penal Code.
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2. The prosecution case in brief is that on 1.12.1996
the victim, who claims to be of 11 years of age, i.e. at the time
of occurrence, was alone in her house, while her father had
taken her elder brother to a hospital, since he had sprain in the
back. Her mother, a farm labourer, had gone to work and to
collect firewood. At that time, the victim having no money had
a severe headache and finding no alternative, went to the
village grocery shop and requested the accused, for some
medicine at around 1.30 p.m. The accused finding the victim
to be alone closed doors of his shop and took the victim into
the house and committed rape on her.
3. It is further case of the prosecution that after
commission of the crime, the accused forcibly threw the victim
out of his house and the victim having no other alternative,
walked back to her house and sat in front of her house. It
appears from the evidence of the informant (PW 3) Khandu
Mali (father of the victim) who returned home at 3.00 p.m.
that he found the victim sitting in front of his hut with blood
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stained clothes. Some time later, the mother of the victim (PW
5) Shahabai Mali ,returned home from the place where she
was working as labourer, and after collecting the firewood.
When she came home, she noticed that her daughter / victim
was bleeding and lying on the ground. Immediately, the victim
was taken by her parents in their landlord's tractor to Manmad,
initially to one Dr. Joshi and since his dispensary was not open,
they took her to the hospital where Dr. Tuse examined the
victim and PW 5 Shahabai, learnt from Dr. Tuse that her
daughter / victim (PW 4) had suffered from a case of rape and
she was advised to take the victim to the municipal hospital. It
is further case of the prosecution that PW 5 Shahabai on
learning the possibility of rape of her daughter, inquired from
the victim about her condition and it is only then, that the
victim is stated to have informed her mother PW 5 Shahabai
that she had been raped by the accused and that the incident
had occurred in the afternoon. It is thereafter that PW 3
Khandu Mali, father of the victim, narrated the event in detail
in the Manmad Police Station.
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4. In the light of the aforesaid circumstances, the
accused faced the trial for the offences punishable under S. 376
and 342 of the Indian Pena Code. During the course of trial,
learned trial court framed following two points:
(i) Whether the accused person committed rape on the
victim?
(ii) Whether the accused person wrongfully confined
victim in his house?
5. The aforesaid points were answered in the negative
and order of acquittal was passed in favour of the accused.
Hence, the present appeal is filed by the Appellant-State.
6. Insofar as reasons for acquittal of accused given by
the learned trial court is concerned, the first point that he dealt
with was the "determination of age" of the victim.
7. In order to arrive at a conclusion, the learned trial
Judge has taken into consideration following aspects:
(a) The father of victim PW 3 and the victim PW 4 stated
on oath that the prosecution was approximately 11
years old and they could not recollect the date of
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birth;
(b) Admittedly, the victim has no birth certificate, no
school leaving certificate or any other documentary
evidence to prove the age of the victim;
(c) The only evidence placed on record is the certificate
issued by the Medical Officer from Civil Hospital,
Nashik. The said certificate is issued by Dr. Chavan,
who is a Radiologist and even though he was not
examined in the trial court, the said report was
submitted by Dr. Chavan to Dr. Kulkarni (PW 1) and
the report of radiological examination is exhibited as
Exhibit 18.
Dr. Kulkarni, who was examined as PW 1 based his opinion on
the X-ray and radiological test and determined age of the
victim to be 14 years. Dr. Kulkarni (PW 1) in his cross-
examination agreed that as per Modi's Jurisprudence, there is
margin of error when age is determined and stated that it is
true that as per renowned author of medical Jurisprudence,
Shri Modi, error of judgment of three years on either six and as
per author Dr. Parekh, it is two years at either side. Based on
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margin of error of 2-3 years, the trial court came to be
conclusion that the benefit of doubt should be given to the
accused, in the absence of any corroborative evidence to prove
otherwise. Accordingly, the learned trial court held that age of
the victim as 16 years (major).
8. Insofar as second point for determination is
concerned, i.e. whether the victim has given "consent" for the
alleged act, the trial court arrived at a finding that the victim,
who admittedly, had no money and her father had not
provided any money for buying any medicine for headache but
despite having no money, she went to the shop of accused-
respondent for purchasing medicine. The court further found
that there are several inconsistencies and improvements in the
evidence of PW 3 and PW 4 i.e. father of victim as well as
victim and held that the facts stated by the victim are so
improbable that "it is not possible to believe that against her
will or without her consent this act is committed". The
aforesaid conclusion was arrived at on the basis of further
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finding that in the "absence of any injuries" on the person of
respondent-accused, such as bites, scratches, etc. and absence
of resistance was apparent as the victim did not make any
attempt to run away or shout for help. In the light of the
aforesaid finding, the learned trial court concluded that the
victim had given her "consent" for sexual intercourse.
9. The first issue that needs to be determined in the
present appeal is reappraisal of the entire evidence produced in
the course of trial and once again to ascertain as to whether
the finding of the trial court insofar as age of the victim is in
accordance with law or not. In this respect, learned Additional
Public Prosecutor Mrs. Deshmukh placed reliance on the oral
testimony of the victim's father (PW 3) in which he has
categorically stated that age of the victim was approximately
11 years. The victim (PW 4) in her evidence has also stated
that her age was 11 years. It is further submitted that in the
absence of any documentary evidence. For determining age of
the victim, radiological test of her wrist and elbow was
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conducted by Dr. Chavan on 5.12.1996 and the report of Dr.
Chavan (Exhibit 18) was submitted to Dr. Kulkarni who was
examined as PW 1, and proved Exhibit 18 and more
importantly confirmed in his testimony that age of the victim is
14 years. It is therefore, submitted that margin of error of two
years on either side (as stated in medical jurisprudence of Dr.
Parikh and various judgments of Hon'ble Supreme Court), the
estimated age of the prosecutix would be between 12-16 years.
Learned APP submitted that in the course of determining age
of victim, in the circumstances that arise in the present case
where the victim is totally uneducated, as well as come from
the poorest of the poor family, various other aspects ought to
have been taken into consideration by the Court to determine
her age for the following reasons:
(i) Clause (2) of the radiological report (Exhibit 18) shows
that her "iliac crest epiphysis has not appeared.
Normally, it appears at the age of 14 years in female;
(ii) The medical certificate (Exhibit 23) issued by Dr. Tuse
(PW 2) of hospital at Manmad noted in fair amount of
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detail, the victim's physical growth and development of
sexual character. According to Exhibit 23, victim had a
moderate body built with a height of 4'-8" and weight
34 Kgs., she had 28 teeth, and there was absence of any
secondary sexual characters. Her menstruation cycle had
not commenced as yet. Furthermore, she had no signs of
developed breasts, growth of pubic hair scanty with no
eruption of axillary heir either.
10. It is submitted that all these physical parameters
would go to indicate that victim had not attained puberty
especially when she had no visible secondary sexual character
developed. It is contended that medical jurisprudence lays
great stress on the growth of secondary sexual character which
commences at the age of 13 , with appearance of menarch
being an important indication for the same. It is submitted on
behalf of the State that the trial court ought to have taken into
consideration the victim's overall behaviour, including her oral
testimony and the fact that the victim was an illiterate, coming
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from rustic background, coupled with poverty. In the light of
aforesaid submission, it is submitted that judicial discretion
ought to be exercised in determining the age of victim to be
less than 14 years and consequently the minor at the time of
occurrence.
11. The learned APP also placed reliance upon the
judgment of the Supreme Court in the case of Ramdeo
Chauhan Vs. State of Assam1 and submitted that the appellate
court has an obligation to scan the entire record of the trial and
determine the age of the victim afresh since the finding of the
learned trial court that the victim was 16 years of age is a
perverse finding in law and not supported by evidence on
record. It is therefore, submitted on behalf of the State that
the appellate court should determine age of the victim by
taking into consideration (a) physical characteristics of the
concerned victim (Exhibit 23); (b) oral testimony of the
witnesses; (c) X-ray / ossification test report (Exhibit 18).
1 (2001) 5 SCC 714
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12. The learned APP further placed reliance on the
judgment of the Apex Court in the case of Vijay @ Chinee Vs.
State of Madhya Pradesh2 to advance the contention that
while determining age of the victim, the background of the
prosecutix, both educational, financial as well as location ought
to be taken into consideration and adequate weightage should
also be given to the physical characteristics, general body
growth and secondary sexual characteristics of the victim. She
further placed reliance on the judgment of the Apex Court in
the case of State of Himachal Pradesh Vs. Mango Ram3 and
submitted that in the present case the victim's overall body
characteristics as well as radiological test (Exhibit 18) and
medical certificate (Exhibit 23) would adequately indicate that
the victim was a minor at the time of the occurrence.
13. The learned advocate Mr. Mundargi for the
respondent-accused, on the other hand, submitted that age of
the victim at the time of incident was 16 years or more and
2 (2000) 8 SCC 191
3 (2000) 7 SCC 224
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that she had attained the age of understanding and enable to
give her "consent" to the respondent-accused. He further
submitted that the only available material in order to
determine age of the victim is the document at Exhibit 18,
which estimates her age to be about 14 years. As per the 3
parameters considered by PW 1 in the above mentioned
document, parameter 1 estimates age of the victim to be more
than 14 years; whereas parameters 2 and 3 would put the
estimate of the victim's age to be less than 14 years. This,
according to the learned advocate, itself would be sufficient to
constitute that the age given in Exhibit 18 is not accurate and
subject to the rule of +2 and -2, contemplated in several books
of medical jurisprudence and toxicology. Mr. Mundargi further
contends that finding of PW 1 determining age of victim at
about 14 years cannot be accepted to be accurate, and creates
reasonable degree of doubt, and consequently the benefit of
doubt has to be given to the accused. He further submits that
reliance placed by the prosecution on Exhibit 23 is also
misplaced since the said medical certificate indicates that
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number of teeth in the mouth of victim is 28 as on 1.12.1996.
This would indicate that the victim had all her teeth (except 4
wisdom teeth) which establishes the fact that the victim was
more than 14 years of age.
14. Reliance is also placed on Modi's Jurisprudence
on age determination which is on Page No. 233, of the 24th
Edition 2011 in which it is mentioned that a person would get
his 28 teeth at about 14 years of age which also could be
suggestive of the fact that the victim was more than 14 years of
age at the time of the incident. This would also support the
contention of the accused that reasonable doubt on the age
exists, and consequently, rule of +2 and -2 would have to be
considered, the benefit accrued in favour of the accused.
15. The learned advocate also placed reliance on
following judgments:
(i) Rajak Mohammad Vs. State of Himachal Pradesh4;
(ii) State of Madhya Pradesh Vs. Anoop Singh5
4 (2018) 9 SCC 248
5 (2015) 7 SCC 773
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(iii) Mahadeo Mhaske Vs. State of Maharashtra6
(iv) Rajinder Chandra Vs. State of Chattisgarh7
(v) Arnit Das Vs. State of Bihar (SC)8
(vi) Kali Ram Vs. State of Himachal Pradesh9
16. It is well settled by the Hon'ble Supreme Court that
the courts are expected to deal with cases of sexual crime
against the women with utmost sensitivity and such cases need
to be dealt with sternly and severely. In this respect, it would
be appropriate to refer to paragraph 1 of the judgment of the
Apex Court in State of Punjab Vs. Ramdev Singh10, which
reads thus:
"1. Sexual violence apart from being a
dehumanizing act is an unlawful intrusion on the
right of privacy and sanctity of a female. It is a
serious blow to her supreme honour and offends her
self-esteem and dignity - it degrades and humiliates
the victim and where the victim is a helpless
innocent child or a minor, it leaves behind a
traumatic experience. A rapist not only causes
physical injuries but more indelibly leaves a scar on
the most cherished possession of a woman i.e. her
dignity, honour, reputation and not the least her
chastity. Rape is not only a crime against the person
6 (2013) 14 SCC 637
7 2002 Bom. C.R.(Cri.) 507
8 (2001) SCC 657
9 1973 SCC (2) 808
10 AIR 2004 SC 1290
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of a woman, it is a crime against the entire society.
It destroys, as noted by this Court in Shri
Bodhisattwa Gautam v. Miss Subhra Chakraborty
(AIR 1996 SC 922), the entire psychology of a
woman and pushes her into deep emotional crisis. It
is a crime against basic human rights, and is also
violative of the victim's most cherished of the
Fundamental Rights, namely, the Right to Life
contained in Article 21 of the Constitution of India,
1950 (in short the 'Constitution'). The Courts are,
therefore, expected to deal with cases of sexual
crime against women with utmost sensitivity. Such
cases need to be dealt with sternly and severely. A
socially sensitized judge, in our opinion, is a better
statutory armour in cases of crime against women
than long clauses of penal provisions, containing
complex exceptions and provisos.
17. Learned APP Mrs. Deshmukh placed reliance on the
judgment of the Hon'ble Supreme Court in Ramdeo Chauhan
@ Raj Nath Vs. State of Assam11 and submitted that finding
of the trial court in determining age of the victim has been
arrived in a purely mechanical manner and the marginal error
in age ascertained by radiological examination of 2 years on
either side has been utilised by the trial court for a finding that
the victim was major as on the date occurrence of crime. In
this respect, she submitted that in the aforesaid judgment, it is
11 (2001) 5 SCC 714
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stated in paragraph 21 that statement of the doctor is no more
than an opinion and the court has to base its conclusion upon
all the facts and circumstances disclosed on examining of the
physical features of the person whose age is in question, in
conjunction with such oral testimony as may be available, and
even though X-ray ossification test may provide a surer basis
for determining the age of an individual than the opinion of a
medical expert but it can by no means be so infallible and
accurate a test as to indicate the exact date of birth of the
person concerned. Too much of reliance cannot be placed
upon textbooks, on medical jurisprudence and toxicology while
determining the age of an accused. In this vast country with
varied latitudes, heights, environment, vegetation and
nutrition, the height and weight cannot be expected to be
uniform. Therefore, it is contended on behalf of the State that
the learned trial court has not only mechanically applied the
margin of 2 years to the age of victim, but also has placed too
much reliance upon textbooks on medical jurisprudence and
toxicology, without itself coming to a conclusion, based on the
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facts and circumstances of the present case relating to the
examination of the physical features of the victim.
18. At this stage, it becomes imperative for us to first of
all go through the evidence on record of the present case for
the purpose of appreciating the finding of the learned trial
court insofar as determination of age of the victim is
concerned. In this respect, reference needs to be made to a
judgment of Hon'ble Apex Court in the case of Vijay @ Chinee
Vs. State of Madhya Pradesh (supra). In the said judgment,
Hon'ble Supreme Court has laid down the procedure for
determination of age of the victim in paragraph 27, which
reads as under:
"Determination of Age
27. As per Modi's Medical Jurisprudence and
Toxicology, 23rd Edn., the age of a person can be
determined by examining the teeth (Dental Age),
Height, Weight, General appearance (minor signs)
i.e. secondary sex characters, ossification of bones
and producing the birth and death/school registers
etc. However, for determining the controversy
involved in the present case, only a few of them are
relevant. "
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In paragraph 25 of the said judgment, it is also
observed as under:
Injury on the person of the victim
"25. In the case of Gurcharan Singh v. State of
Haryana AIR 1972 SC 2661, this Court has held
that "the absence of injury or mark of violence on the
private part on the person of the victim is of no
consequence when the victim is minor and would
merely suggest want of violent resistance on the part
of the victim. Further absence of violence or stiff
resistance in the present case may as well suggest
helpless, surrender to the inevitable due to sheer
timidity. In any event, her consent would not take
the case out of the definition of rape .
..."
19. In the case at hand, evidence on the following
aspect, as emanated from examination of victim is noted as
under:
1. Examination of No. of
teeth (dental teeth-
age) 28 7 / 7
7/7
2. Height 4' - 8" Exhibit 23
Weight 34 Kg.
General Body Moderate
Build (minor
signs)
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3. Secondary Sex Not developed
characters
Hair L. Axillary Not yet
erupted Exhibit 23
Pubic Scanty,
not well
developed.
Breast Not developed.
4 Ossification of bone
(i) Head of radius epiphysis
appeared and found.
Normally, it finds at the age
of 14 years in female;
(ii) Iliac crest epiphysis not
appeared. Normally, it
appears at the age of 14 Exhibit 18
years in female;
(iii) Lower end of Ulnar epiphysis
appeared but not found.
Normally, it appears at the
age of 8 to 10 years in
female.
Hence, radiological age is about
14 years.
20. In the light of aforesaid findings while the
Radiologist has opined that the victim's radiological age is
about 14 years, similarly, PW 1 Dr. Kulkarni in his evidence
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opined as follows:
"On the basis of said X-Ray and radiological test,
age of the said girl is determined. I found her age to
be 14 years. My opinion is based on the report
submitted by our radiologist Dr. P. C. Chavan."
21. Dr. S. B. Tuse (PW 2) who had examined the victim
at Manmad stated that he had examined the victim and
enquired from her relative as to whether she is getting
menstruation, to which he got reply in the negative, and he
noticed that "there was a profused bleeding and her total
clothes were blood stained." He examined the private part and
noticed injuries on the hymen. Hyminal tear was there, which
is explained in the clock form as 12 O'clock, 3 O'clock, 6
O'clock and 9 O'clock. Then he forwarded the patient to the
Rural Hospital, Manmad. He further sated that he noticed that
injury to the private part was due to the forceful intercourse
committed on her.
22. We are fully aware of the fact general rule about
age determination is that age as determined can vary + 2 or -2
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years. But it would be useful for us to take note of the
guidelines rendered by the Hon'ble Supreme Court in the case
of Mukarrab Etc. Vs. State of U. P.12 herein the Apex Court
while considering a case under the Juvenile Justice (Care &
Protection) Act, 2000 placed reliance on various judgments of
the Hon'ble Supreme Court, referred to in paragraph 23, which
are quoted as under:
23. In Criminal Appeal No. 486 of 2016 dated
12.05.2016, Parag Bhati (Juvenile) through Legal
Guardian-Mother-Smt. Rajni Bhati v. State of Uttar
Pradesh and Anr., after referring to Abuzar Hossain
case and other decisions of this Court, this Court
held as under:
26. It is no doubt true that if there is a clear and
unambiguous case in favour of the juvenile
accused that he was a minor below the age of 18
years on the date of the incident and the
documentary evidence at least prima facie proves
the same, he would be entitled to the special
protection under the JJ Act. But when an
accused commits a grave and heinous offence
and thereafter attempts to take statutory
shelter under the guise of being a minor, a
casual or cavalier approach while recording as
to whether an accused is a juvenile or not
cannot be permitted as the courts are enjoined
upon to perform their duties with the object of
12 2016 )12) SCALE 379
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protecting the confidence of common man in
the institution entrusted with the
administration of justice.
27. The benefit of the principle of benevolent
legislation attached to the JJ Act would thus
apply to only such cases wherein the accused is
held to be a juvenile on the basis of at least prima
facie evidence regarding his minority as the
benefit of the possibilities of two views in regard
to the age of the alleged accused who is involved
in grave and serious offence which he committed
and gave effect to it in a well-planned manner
reflecting his maturity of mind rather than
innocence indicating that his plea of juvenility is
more in the nature of a shield to dodge or dupe
the arms of law, cannot be allowed to come to his
rescue.
[Emphasis added]
From the above decision, it is clear that the
purpose of Juvenile Justice Act, 2000 is not to
give shelter to the accused of grave and heinous
offences. "
23. It would be relevant here also to take note of the
fact that when evidence of victim (PW 4) was recorded, the
court itself accepted the fact that the victim was a child. The
learned trial court having accepted and having recorded age as
11 years, thereafter proceeded to ask question to the victim in
order to determine as to whether the victim was mentally
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adequate / moderate to give evidence in the trial. The court
having asked such question and obtained answers from the
victim, satisfied of the availability of the victim to lead
evidence in the trial, allowed the prosecution to examine PW 4
as victim in the case.
24. The aforesaid aspect of trial would also be an
indicator (though not conclusive) that the trial court even prior
to recording evidence of victim (PW 4), had already
determined the victim to be a child witness.
25. From the above, it would be clear that the Hon'ble
Supreme Court held that the purpose of Juvenile Justice Act is
not to shelter the accused of henious offences and extending
the same principle to the facts of the case in hand, the benefit
of the so called rule of + 2 and -2 years ought not to be ipso
facto extended as a right to the benefit of an accused for the
aforesaid self same reason. We are of the considered
view that when an accused commits a grave and heinous
offence and thereafter attempts to take shelter under the claim
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that the victim being a major, extending the principle of +2
and -2 years to the age of victim, may in our opinion, amount
to a casual or cavalier approach, while determining as to
whether the victim is a minor or not. The courts are enjoined
with the duty to perform its obligations with the object of
protecting the confidence of common man in the institution
entrusted with the administration of justice. No doubt, great
respect has to be shown to various legal authors but the
manner of applicability of their views would have to remain
subject to appreciation of facts of each case by the court
dealing with such matter and such medical principles ought not
to be applied mechanically.
26. We are of the considered view that the medical
evidence in the present case about age of the victim is "about
14 years". If the principle of +2 and -2 years is applied, then
the victim could be either 12 years or 16 years. In the case at
hand, the age determination test, as noted in the table above in
paragraph 17 would clearly assist us in determining that at the
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very least, the victim was less than 16 years of age on the date
of incident, and therefore, a minor.
27. The aforesaid view expressed by us is further
strengthened by the fact that while medical tests have been
conducted to determine her age indicates that her age to be
that of a minor. A victim, who is admittedly a minor and if
medical tests are conducted for determination of age, and even
assuming that such medical determination the supports the
claim of minor victim, the principle of +2 and -2 cannot and
ought not to be mechanically applied to deprive the minor
victim of the protection available to such a minor. The same in
our considred view would result in failure of the court from
performing its duties in protecting the confidence of the
common man in the institution. While relying on the medical
evidence recorded in the course of trial, as well as oral
testimonies of both PW 3 (father of victim) and PW 4 (victim),
we are of the considered view that the learned trial court has
erred and has acted in casual or cavalier manner in
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determining the victim's age to be that of a major.
28. The next issue that has been dealt with by the trial
court is issue of "consent". While we arrived at a finding that
the victim was minor on the date of the incident, and
consequently, there is no necessity for us to enter into the issue
regarding whether she had given her consent or not, yet for the
sake of completeness of judgment, we proceed to deal with the
said issue as well. We have already noted hereinabove the
findings of the trial court on the issue of consent and also the
contentions advanced on behalf of the respondent-accused in
the matter. One of the reasons ascribed by the learned
Sessions Judge for arriving at his conclusion was the absence of
any injury on the person of the victim, such as bite marks,
scratches, etc. to indicate any resistance by her, nor did the
victim make any attempt to run away or shout. Absence of any
injury on the body of the victim cannot lead to a conclusion
that she had given her consent and all that it indicates is that
she did not put up resistance. Lack of any resistance or
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absence of injury on the body of the victim are of no
consequence vis-a-vis the issue of consent.
29. It is also important to take note of the judgment of
the Hon'ble Apex Court in the case of Vijay @ Chinee
(supra)and the fact that Section 114A of the Indian Evidence
Act, 1872 had come to be inserted by way of amendment in the
year 1988, the same is extracted with Section 4 of the said Act
hereinbelow:
S. 114A. Presumption as to absence of consent in
certain prosecutions for rape - In a prosecution for
rape under clause (a) or clause (b) or clause (c) or
clause (d) or clause (e) or clause (g) of sub-section
(2) of Section 376 of the Indian Penal Code (45 of
1860), where sexual intercourse by the accused is
proved and the question is whether it was without
the consent of the woman alleged to have been
raped and she stated in her evidence before the
Court that she did not consent, the Court shall
presume that she did not consent."
"S. 4. "May presume".- Whenever it is provided by
this Act that the Court may presume a fact, it may
either regard such fact as proved, unless and until it
is disproved, or may call for proof of it.
"Shall presume".- Whenever it is directed by
this Act that the Court shall presume a fact, it shall
regard such fact as proved, unless and it is
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disproved."
30. The aforesaid provision is clear and specific that
where sexual intercourse by accused is proved and the question
is whether it was without consent of a woman, alleged to have
been raped and if she states in her evidence before the court
that she did not consent, the court shall presume that she did
not consent. In the case at hand, the victim (PW 4)
categorically and repeatedly has stated in her evidence that not
only she never consented to the sexual act, but also she
categorically denied of having any relationship with the
accused, saying that "it is not true to say that I myself and
accused had a fair love affair, that too with consent. It is not
true to say that I was having fair relations with him with
consent." Therefore, since the victim in this case has
categorically denied consent for sexual intercourse, we are of
the considered view that the learned Sessions Judge has lost
sight of the provisions of Section 114-A of the Evidence Act,
and consequently erred in the finding on the issue of consent
itself. We are also at variance of the findings arrived by the
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trial court and also conclude that in the facts and situation of
the present case, victim did never gave her consent for any
sexual intimacy.
31. It would be important for the purpose of this case
to take note of the following:
(i) In the oral testimony, the victim informed the court
that she was forcibly taken to the room of the accused
and was also "forced "to lie on the bed;
(ii) The victim expressed deep pain and discomfort by
"crying out loud" during the forced penetration;
(iii) The victim categorically denied of having any affair
with the accused and denied consenting of having any
relations whatsoever with the accused;
(iv) The victim bleed profusely and her dress was soaked
in blood and felt giddy and unstable after commission
of the crime;
(v) Upon her medical examination, her hymen was found
to be torn in all four directions (3 o'clock, 6 o'clock, 9
o'clock and 12 o'clock positions), apart from the
inflammation and profuse hemorrhage that was found
from tear margins, as found from the medical
certificate (Exhibit 23);
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(vi) Slight tear was present on her fourchette region,
indicating use of extreme force or violence;
(vii) A blood stained quilt was recovered from the house of
the accused which on chemical analysis was found to
contain the blood group "A", (i.e. the same blood
group as that of the victim) whereas the accused's
blood group was "B";
(viii) PW 2 Dr. Tuse, who examined the victim has stated in
his evidence that on examination of the victim, he
found that there was forcible intercourse with the
victim (his report is at Exhibit 24);
(ix) After the criminal act, the accused forcibly threw the
victim out of his house.
32. In conclusion, we would like to record that after
having gone through the entire evidence, both documentary
and oral led in the course of trial, keeping in mind the fact that
the victim was born in a family of abject poverty, no education
whatsoever and had gone to the grocery shop owned by the
father of the accused literally begging him for medicine for the
headache for which she was suffering pain and the trauma that
the victim must have undergone, the shame and indignity
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suffered by her being thrown out of the house after the rape
was committed, staggering to her house, sitting outside her
house in the condition that she was unable to tell her sister
who inquired from her about what had happened, and
thereafter being carried to Dr. Tuse at Manmad. It is only at
such a stage that the victim has the courage to tell her mother
(PW 5) about what had transpired on that afternoon. Even
though the incident took place in the year 1996, we remain
with the fervent hope and confidence that protecting the
confidence of the common man in the institution entrusted
with the administration of justice is reaffirmed. In the result,
we are inclined to quash and set aside the order of acquittal of
the accused of the offence under S. 375 I. P. C.,punishable
under S. 376 of I. P. C.
Sd/- Sd/-
[V. K. JADHAV, J.] [INDRAJIT MAHANTY, J.]
33. The learned advocate Mr. Hemant Sharma i/b
Shradha Sawant appearing for the respondent-accused submits
that accused was of 19 years of age at the time of the
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occurrence, and there has been substantial delay in the trial
and in the appeal, and therefore, a lenient view should be
taken by the Court and the proviso to Section 376(2) of the
I.P.C. should be applied and the Court should consider the
imprisonment for a term less than the minimum statutory
period.
34. The learned APP, on the other hand, submits that
the victim who was a minor, and the circumstances would
indicates that a lenient view ought not to be taken in this
matter.
35. The issue regarding the power of a Court to impose
a lesser punishment under the proviso to sub-section (2)
Section 376 was considered by the Hon'ble Supreme Court in
the case of State of Madhya Pradesh Vs. Balu13, where the
High Court had reduced the sentence of a convict from guilty
of offence under S. 375 of the I.P.C. to the period undergone.
The Hon'ble Supreme Court noticed that the sympathy shown
13 AIR 2005 SC 222
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by the High Court was wholly misplaced and likely to send
wrong signal. Their Lordships further found that the High
Court grossly erred by reducing the sentence imposed by the
Sessions Court. In the aforesaid judgment, reliance was placed
on 3-Judge Bench judgment of the Hon'ble Supreme Court in
the case of State of Karnataka Vs. Krishnappa14 while
considering the question of reduction of sentence in a rape
case, it observed thus:
"The approach of the High Court in this case, to
say the least, was most casual and inappropriate.
There are no good reasons given by the High Court
to reduce the sentence, let alone "special or adequate
reasons". The High Court exhibited lack of sensitivity
towards the victim of rape and the society by
reducing the substantive sentence in the established
facts and circumstances of the case. The courts are
expected to properly operate the sentencing system
and to impose such sentence for a proved offence,
which may serve as a deterrent for the commission
of like offences by others."
36. In view the submission cited hereinabove, we pass
the following order.
ORDER
(i) Appeal is allowed. 14 2000 (4) SCC 75 33 /35 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 23:30:33 ::: APEAL. 713-97. (ii) The Respondent-accused Macchindra @ Babdu
Gangadhar Sonawane is convicted for the offence punishable under S. 376 of the Indian Penal Code and sentenced to suffer 7 years rigorous imprisonment.
(iii) The Respondent-accused shall pay fine of Rs. 1,00,000/- (Rupees one lakh), in default to suffer further one year rigorous imprisonment. Amount of fine is to be deposited in the trial court. On depositing the fine amount of Rs. 1,00,000/- in the court, the same shall be paid to the victim towards compensation.
(iv) Accused-respondent is entitled to the benefit of set off under S. 428 Cr. P.C.
(v) Accused-respondent shall surrender the trial court within a period of one month. Bail bond of the accused stands cancelled.
(vi) We further direct the Secretary of the District Legal Services Authority, Nashik District to locate victim of this case and get application from her, as required 34 /35 ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 23:30:33 ::: APEAL. 713-97.
under the National Legal Services Authority compensation scheme for consideration of payment of compensation under the Compensation Scheme for Women Victims / Survivors for Sexual Assault / other Crimes -2018, and we hope and trust that such an application will be dealt with necessary sympathy that the case deserves.
(vii) The registry to supply copy of this judgment to the Secretary, District Legal Services Authority, for necessary compliance.
Sd/- Sd/-
[V. K. JADHAV, J.] [INDRAJIT MAHANTY, J.]
Vinayak Halemath
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