Bombay High Court
Maroti S/O Undaraji Wankhede vs State Of Maharashtra on 8 October, 2002
Equivalent citations: 2003CRILJ778, 2003(1)MHLJ900
Author: D.D. Sinha
Bench: D.D. Sinha
JUDGMENT D.D. Sinha, J.
1. Heard Mr. Patwardhan, learned counsel for the appellant and Mr. Sonare, learned Additional Public Prosecutor for the respondent-State.
2. The criminal appeal is directed against the Judgment and order, dated 4th February, 2002, passed by the Second Additional Sessions Judge, Yavatmal, in Sessions Trial No. 152 of 1994, whereby the present appellant is convicted for the offences punishable under Sections 363, 366 and Section 376 of the Indian Penal Code.
The case of the prosecution, in nutshell is as follows :--
3. The appellant-accused had started his brick kiln in the field of the maternal uncle of the prosecutrix-Ku. Sandhya, in the year 1994. Father of the prosecutrix, the complainant-Madhukar Mahadevrao Thakre, was working on that brick kiln of the accused. The accused, at the relevant time, was residing at the house of the complainant-Madhukar Mahadev Thakre. The accused some time prior to the incident of rape in question tried to outrage the modesty of prosecutrix Sandhya at her house, since her father Madhukar Thakre and his wife had gone to a fair at village Sawanga. The parents of the prosecutrix returned from the fair and after taking dinner, they went to sleep. On the same night at . about 10-00 p.m., the prosecutrix Sandhya was washing utensils. At that time the accused came near her and told her to come with him on the next day and further threatened that if she refuses, he would commit her murder.
4. The prosecutrix Sandhya was less than sixteen years of age at the relevant time. She was residing at village Indrathana with her parents and was studying in VIIIth Standard in the English High School, Chinchgaon. She was doing up and down from village Indrathana and was attending the school at Chinchgaon. On the next date, i.e., on 15-4-1994, the prosecutrix Sandhya was going to the school along with other students. The appellant-accused gave her a signal that she should proceed ahead and the accused would follow her. The accused took the bicycle from the house of the prosecutrix and followed her upto Chinchgaon. The accused gave a threat of murder and kidnapped the prosecutrix Sandhya. He asked her to sit on the bicycle and brought her to village Deothana. Thereafter, both of them went to Pusad town. From there the accused brought her to Umarkhed and lastly they went to village Piranji. During these days, both of them saw two movies, one at Pusad and other at Umarkhed. As per the prosecution case, the accused committed intercourse with the prosecutrix without her consent and against her will twice at village Piranji. On the same night, police officials from Police Station Umarkhed came to the house of the person at Piranji where the accused and the prosecutrix stayed at the relevant time and caught hold of the appellant-accused who was in the company of the prosecutrix.
5. Since the prosecutrix Sandhya was missing since 15-4-1994, her father, the complainant - Madhukar Mahadevrao Thakre, lodged a report in the Police Station vide Exh. 31 and the Crime No. 71 of 1994 was registered on the basis of the said report for the offences under Sections 363, 366 of the Indian Penal Code and at the later point of time, during the course of investigation when it was revealed that the accused has also committed rape on the prosecutrix, Section 376 of the Indian Penal Code was added.
6. The Police brought the accused and prosecutrix Sandhya first lo Umarkhed Police Station and thereafter they took them to Ner Police Station. The accused was formally arrested and was referred for medical examination. The doctor examined the accused and issued a Medical Certificate (Exh. 24). The police also referred the prosecutrix Sandhya for medical examination. After examining the prosecutrix Sandhya, Medical Certificate at Exh. 40 was issued. Police prepared spot Panchanama (Exh. 26) in presence of Panchas. Police seized underwear of the accused which was stained with semen as per Seizure Memo (Exh. 20). Police also obtained sample of semen of the accused as well as pubic hair of the accused and seized the same as per Seizure Panchanama (Exh. 22). Vaginal smear of the prosecutrix was obtained and sealed and also pubic hair of the prosecutix. These articles were seized as per Seizure Memo (Exh. 21). The Police also seized a frock of the prosecutrix, one skirt and one Manila as well as a cycle manufactured by M.R.I. Company from Balu Gulabrao Mankar, resident of Pusad, as per Seizure Panchanama (Exh. 23). Police also recorded statements of witnesses.
7. Ku. Sandhya Madhukar Thakre, the prosecutrix, was studying in VIIIth Standard in English High School at Chinchgaon. As per school record, her date of birth is 1-7-1978. Shri Ramesh S. Korde, the Headmaster of the school, issued a certificate about her date of birth (Exh. 46) on the basis of the Dakhal Kharij Register (Exh. 47). The prosecution also produced a Certified Copy of Birth Register of the village Indrathana regarding date of birth of Ku. Sandhya vide Exh. 42. As per certified copy of the Birth Register of Village Panchayat, Indrathana, her date of birth is 1-7-1978. The date of incident is 15-4-1994 and on that day, the age of the prosecutrix Sandhya was fifteen years nine months and fourteen days. She was below sixteen years of age at the time of incident. Police after completion of regular formalities of investigation, filed a charge-sheet against the appellant-accused for the offences punishable under Sections 363, 366, 376 of the Indian Penal Code.
8. The charges under Sections 363, 366 and 376 of the Indian Penal Code were framed against the accused as per Exh. 11. The same were read over and explained to the accused in vernacular. The accused pleaded not guilty to the said charges and claimed to be tried. It is the defence of the accused that there was a dispute between the accused and the maternal uncle of the prosecutrix named Govind on the point of brick kiln and, therefore, to take possession of the brick kiln and to drive out the accused from the said brick kiln, father and the maternal uncle of the prosecutrix falsely implicated the accused in the crime in question. In short, the defence of the accused is that of total denial. The accused denied the charges and claimed to be tried.
9. In the instant case, though the prosecution has in all examined 11 prosecution witnesses, however, the material evidence is that of P. W.I-Sandhya, the prosecutrix, P.W.3-Madhukar, the father of the prosecutrix, P.W.S-Ramesh S. Korde, Headmaster of New English High School and PW10 - Dr. Sushama Khodve, who has examined the prosecutrix.
10. Mr. Patwardhan, the learned counsel appearing for the appellant-accused, contended that the appreciation of evidence done by the trial court is not proper and, therefore, the finding of conviction recorded by the trial court against the appellant-accused for the offences charged is also unsustainable in law. It is contended that right from the beginning the conduct of the prosecutrix is such that she on her own voluntarily accompanied the appellant-accused and was a consenting party right from the beginning till they are apprehended by the police on 19-4-1994 at Piranji. It is contended that the prosecutrix had ample opportunity to disclose the fact of threat, if any, given by the accused, to her parents, brothers and her classmates. It is contended that there is nothing on record to show that the prosecutrix disclosed the fact of threat either to her parents or anybody else though there was ample opportunity for her to do so. It is contended that the prosecutrix on her own on 15-4-1994 left the school and accompanied the accused and both of them stayed at village Deothana till 16-4-1994. It is contended that the accused brought the prosecutrix from her school which is situated at Chinchgaon on his bicycle to Deothana. The prosecutrix did not raise any alarm while she was taken to Deothana from Chinchgaon by the accused on bicycle. It is contended that on 16-4-1994, the accused as well as prosecutrix went to Pusad and stayed at the house of the sister of the accused Nirmala Mankar. The prosecution has examined the husband of Nirmala, namely Balu as P.W.6. It is contended that P.W.6 - Balu has not supported the case of the prosecution and, therefore, permission was sought by the prosecution to declare this witness hostile and accordingly P.W.6-Balu was declared hostile. It is contended that when the appellant and the prosecutrix Sandhya were at Pusad, they went and saw a movie. On 17-4-1994 both of them went to Umarkhed in a truck. Both of them saw another movie at Umarkhed and went to village Piranji by bus and reached village Piranji at about 8-00 p.m. It is contended that right from 15-4-1994 till 17-4-1994, the prosecutrix had an ample opportunity to disassociate herself from the company of the accused. However, the conduct of the prosecutrix is otherwise. She willingly and voluntarily accompanied the accused and both of them went to various places.
11. Mr. Patwardhan, the learned counsel appearing for the appellant, contended that on 17-4-1994, the accused and prosecutrix reached village Piranji and stayed with one Kisan who is related to the accused. It is further contended that the alleged incident of rape, according to the prosecution, has taken place on 18-4-1994. It is submitted that though it is presumed that there was an intercourse committed by the appellant-accused with the prosecutrix on 18-4-1994 while they were at village Piranji, the prosscutrix was a consenting party to the act of rape and the same is not committed by the accused without her consent and against her will. It is, therefore, contended that the total conduct and behaviour of the prosecutrix right from 14-4-1994 till they are apprehended by the police on 19-4-1994 would show that she had voluntarily with her free will and on her own came out of the guardianship of her parents and, therefore, this is not the case where the ingredients of Sections 363 and 366 of the Indian Penal Code are established by the prosecution. It is contended that in the present case there is no question of the accused either abducting or kidnapping the prosecutrix by extending threats as alleged by the prosecution. It is submitted that the material on record would show that the prosecutrix on her own voluntarily came out of the lawful guardianship of her parents and accompanied the appellant-accused and, therefore, the finding recorded by the trial court convicting the appellant-accused for the offences under Sections 363 and 366 of the Indian Penal Code cannot be sustained.
12. Mr. Patwardhan, the learned counsel, argued that in view of the evidence of the father of the prosecutrix Madhukar, it can safely be said that the prosecutrix, at the relevant time, was above the age of 16 years. It is contended that Madhukar, i.e., father of the prosecutrix, who is examined as P.W.3 by the prosecution in his examination-in-chief has stated that his daughter Sandhya was born at Pimpri (Ijara). He has further stated that she was born in the month of July, 1978. It has come in the evidence of this witness that when prosecutrix Sandhya was two years of age, her father Madhukar shifted from village Pimpri (Ijara) to village Indrathana. It is submitted that it has come in the cross-examination of this witness (P.W.3) that the marriage of the elder sister of prosecutrix Lalita had taken place when she was eighteen years of and P.W.3 has specifically stated in the cross-examination that on the date on which he was cross-examined, the age of Lalita was about 27 to 28 years. This witness has further stated that Lalita was born after 4-5 years of his marriage, and further stated that age of this witness Madhukar on the date of his cross-examination was 50. It has come in the cross-examination of this witness that Lalita took education only upto third standard and there is a three years' gap in between the birth of Lalita and Bhaskar (the elder brother of the prosecutrix). This witness has further stated in the cross-examination that prosecutrix Sandhya was born after two-three years after the birth of Bhaskar. The learned counsel, therefore, contended that if we go by the chronology given by this witness in respect of birth of his children, at the relevant time, Lalita, the elder sister of the prosecutrix, was 27 years of age; the elder brother Bhaskar was born three years after the birth of Lalita. That means, the elder brother of the prosecutrix Bhaskar must be about 24 years of age and since Sandhya, the prosecutrix, was born two-three years after the birth of Bhaskar, she must have been above twenty years of age at the relevant time. It is contended that all these aspects are finding place in the cross-examination of the father of the prosecutrix Madhukar and, therefore, it cannot be brushed aside and need to be considered in its right perspective. Mr. Patwardhan, learned counsel for the appellant, therefore, contended that the theory put forth by the prosecution that the prosecutrix, at the relevant time, was less than 16 years of age has been demolished by the father of the prosecutrix himself and, therefore, the appreciation of evidence of P. W. 3 done by the trial court is not proper.
13. Mr. Patwardhan, learned counsel, contended that the circumstances on record would show that the prosecutrix voluntarily with her free will accompanied the accused and stayed with the accused right from 15-4-1994 till 19-4-1994. Therefore, the prosecution failed to prove the offence punishable under Section 376 of the Indian Penal Code, with the result the finding of conviction recorded by the trial court under Section 376 of the Indian Penal Code is bad in law and cannot be sustained. In order to substantiate this contention, reliance is placed on the Judgment of this Court in Balasaheb v. State of Maharashtra, 1994 Cr.LJ. 3044 as well as the Judgment of the Apex Court in Shyam and Anr. v. State of Maharashtra, 1995 SCC (Cri.) 851.
14. Mr Patwardhan, learned counsel appearing for the appellant, alternatively contended that in view of the facts and circumstances of the present case, the sentence of seven years' rigorous imprisonment awarded by the trial court for the offence under Section 376 of the Indian Penal Code is excessive and disproportionate and if at all it is presumed that the act committed by the accused falls within the ambit of Section 376, Indian Penal Code, the sentence ought to have been much less than seven years for the reason that the conduct, behaviour of the prosecutrix would demonstrate that she on her own free-will not only accompanied the accused and went with him to various places, but also was a consenting party to the act of intercourse and, therefore, for these reasons the sentence of seven years awarded by the trial court is totally excessive. It is further contended that the accused is in jail for three years and five months and the ends of justice would be met in case the sentence awarded for the offence under Section 376 of the Indian Penal Code is reduced to three-and-half-years and the accused may be released on the basis of the sentence already undergone.
15. Mr. Sonare, learned additional Public Prosecutor, on the other hand, supported the judgment and the findings of conviction recorded by the trial court. It is contended that in the instant case the accused was not only known to the prosecutrix and her family, but was residing with them and was aware that the prosecutrix at the relevant time, was studying in VIIIth Standard and was minor. It is contended that before the incident in question, the appellant had misbehaved with the prosecutrix at her residence when her parents had gone to a fair at village Sawanga and the prosecutrix, at that time, she warned him not to misbehave with her. The accused at that time gave threat to the prosecutrix and told her not to disclose this incident to anybody including her family members. It is contended by the learned Additional Public Prosecutor that the conduct of the prosecutrix even prior to the incident in question reveals that she was never a willing party to the acts of the accused.
16. The learned Additional Public Prosecutor states that the evidence adduced by the prosecutrix would show that the accused on 14-4-1994 told the prosecutrix, while she was at her residence, to accompany him on the next day from the school. The accused further threatened her that if she does not come with him, he will commit her murder. It is submitted that the prosecutrix on the next day, i.e., on 15-4-1994, went to her school at Chinchgaon and told her classmate Ms. Kavita Gawande and Ms. Sharda Thakre that she has to leave the school; otherwise she will be murdered. It is further stated that the accused was standing near the Neem tree in front of the school. The prosecutrix came out of the school on the road where the accused asked her to sit on his bicycle and brought her back to village Deothana. It is submitted that the accused thereafter took her to Pusad and Umarkhed towns, and village Piranji. On 18-4-1994, the accused committed sexual intercourse without her consent and against her will while they were at the house of one Kisan, who was the resident of Piranji. It is contended that the prosecutrix, at the relevant time, told the accused to behave properly with her and objected to his advances. The prosecutrix wanted to shout for help. However, the accused had pressed her mouth by hand. The accused also threatened to kill the prosecutrix in case she shouts. It is further contended that the prosecutrix complained of severe pain due to penetration of penis of the accused into her vagina. The learned Additional Public Prosecutor contended that in view of the above referred facts, it is apparent that the prosecutrix was never a consenting party to the act committed by the appellant-accused.
17. The learned Addl. Public Prosecutor further contended that the prosecutrix was sent for medical examination immediately on the next day. She was examined by Dr. Sushama Khodwe (P.W. 10) and during the course of medical examination she has noticed injuries on the private part of the prosecutrix and opined that the prosecutrix was subjected to intercourse. It is, therefore, contended that the evidence of the prosecutrix is corroborated by the medical evidence.
18. Mr. Sonare, learned additional Public Prosecutor, contended that the prosecution has placed reliance on the documents, i.e., Exh. 46 - Certificate regarding birth issued by the Headmaster, Exh. 47 - Dakhal Kharij Register and Exh. 42 - Birth Certificate issued by the Sarpanch of a Group Gram Panchayat of village Indrathana. It is submitted that the prosecution has examined Ramesh Shrikrishna Korde, the Headmaster of the school of the prosecutrix as P.W.8. It is submitted that in his evidence this witness has proved the contents of Certificates at Exhs. 46 and 47. It is submitted that Exh. 42 being a public document, the same is admissible in evidence. The date of birth shown in all these documents is 1-7-1978, The incident in question had taken place on 15-4-1994 and, therefore, at the relevant time, the prosecutrix was of fifteen years, nine months and fourteen days. It is submitted that the prosecution succeeded in proving that at the relevant time the prosecutrix was below the age of 16 years. The learned Additional Public Prosecutor, on the backdrop of the above referred evidence brought on record, states that the finding of conviction recorded by the trial court is sustainable in law. It is further contended that in the instant case the trial court has awarded a minimum punishment of seven years provided under Section 376 of the Indian Penal Code and there are no circumstances or reasons on record to reduce the sentence awarded by the trial court for the offence punishable under Section 376 of the Indian Penal Code. The learned Additional Public Prosecutor, in order to substantiate his contention, placed reliance on the Judgments of the Apex Court in Harpal Singh and Anr. v. State of Himachal Pradesh, , Krishna Lal v. State of Haryana, and Bharwada Bhoginbhai Hirjibhai v. State of Gujrat, .
19. I have given my anxious thought to the contentions canvassed by the respective counsel and the evidence adduced by the prosecution.
20. In the instant case, the prosecution has examined in all eleven prosecution witnesses in order to prove the charges against the accused. Out of these witnesses, the evidence of P.W. 1-Sandhya, the prosecutrix, P.W.3-Madhukar, the father of the prosecutrix and the complainant, P.W.8-Ramesh Shrikrishna Korde, the Headmaster of the School where Sandhya studied and P.W.10-Dr. Sushama Khodwe, who has examined the prosecutrix, is relevant and the prosecution claimed to have proved the case against the accused for the offences charged on the basis of the evidence of these witnesses apart from others.
21. P.W. 3-Madhukar Mahadev Thakre is the father of Sandhya. In the examination-in-chief, this witness has stated that at the time of incident he was residing at village Indrathana with his family members. At the time of incident, according to this witness, his daughter Sandhya (prosecutrix.) was fifteen years of age. He has also given approximate ages of other children he has in his examination-in-chief. He has specifically stated in his chief that the prosecutrix was born at Pimpri (Ijara), Taluka-Ner. She was born in the month of July, 1978. It was the time when sowing operations were going on in the fields and that is the reason he positively remembers her date of birth. He has further deposed that his family shifted from village Pimpri (Ijara) to village Indrathana and at that time the prosecutrix was about two years of age. He has further stated in chief that there is a common Village Panchayat for village Pimpri (Ijara) and village Indrathana. He had given information to the Village Panchayat Office about the birth of prosecutrix Sandhya and an entry of the date of birth of Ku. Sandhya was taken in the Village Panchayat office. This witness has further deposed in chief that the accused, at the relevant time, was residing at his house. It is stated by him that on 15-4-1994 prosecutrix went to the school as usual in the morning. At that time the accused was present in his house- After Sandhya left for the school, the accused took the bicycle from his house and left his house within ten to fifteen minutes. He has further deposed that since his daughter Sandhya (Prosecutrix) did not return home, he enquired from the other students of her school and they informed that the prosecutrix did not appear in the examination and left the school. This witness thereafter went to the house of another student Kavita Gawande in order to find out whether his daughter Sandhya was with her. However, Kavita Gawande was not present in her house. The accused also did not return home and, therefore, Madhukar suspected some foul play. He thereafter went to the Police Station at Ner and lodged a written report (Exh. 31) on 16-4-1994 in the noon, which bears his signature. This witness stated in the First Information Report that his daughter Sandhya, aged about 15 years, a student of VIIIth standard, on 15-4-1994 at about 6.30 a.m., went to the school at Chinchgaon for solving her paper and did not return. He tried to find out the whereabouts of his daughter Sandhya. However, she could not be traced. In the said report, he has also stated that the accused, who had come to his village to start his business of brick Kiln and who was residing at his house, had also left his house about 7-00 O'clock in the morning on 15-4-1994 along with his bicycle and has also not returned till that time. He has expressed his suspicion that the accused might have kidnapped his daughter and, therefore, requested the police to do necessary investigation in this regard.
22. P.W.3-Madhukar further stated in his chief that when his daughter Sandhya was brought back by the police, she told him that the accused forcibly took her with him and threatened her and committed rape on her.
23. In the cross-examination, the defence did not succeed in shattering the ocular testimony of this witness, nor could bring on record any contradictions or omissions vis-a-vis the First Information Report, which was lodged by P.W.3-Madhukar. It is, no doubt, true that this witness in the cross-examination gave the approximate ages of his children including that of the prosecutrix Sandhya. However, it needs to be remembered that the ages, which he has given in respect of his children, are totally based on approximation and, therefore, that cannot be taken as accurate in order to decide the age of the prosecutrix Sandhya, particularly in view of the positive statement made by this witness in the chief that Sandhya was born in the month of July, 1978 and he himself informed the Village Panchayat Office about it. In my opinion, there are no material contradictions and omissions in the evidence of this witness. As per the version of this witness, Sandhya, the prosecutrix, at the relevant time, was less than sixteen years of age and was studying in VIIIth Standard in the school situated at Chinchgaon and she left for the school in the morning on 15-4-1994 and did not return home. Similarly, the accused was residing with this witness, who had also left the house in the morning and did not return home. Therefore, this witness suspected some foul play and lodged the First Information Report in this regard on 16-4-1994.
24. The important evidence in the present case is that of prosecutrix Sandhya, who is P.W.1. The prosecutrix in her chief has deposed that at the time of incident she was studying in VIIIth standard in the English High School at Chinchgaon. Her age was fifteen years and was residing at Indrathana and was doing up and down from there. The accused started his brick kiln in the field of her maternal uncle Ramesh Kadekar. The father of the prosecutrix Madhukar was working on the brick kiln of the accused and the accused was residing with them. The prosecutrix has further deposed in her chief that her father and mother had gone to Sawanga in a fair. Her elder brother Bhaskar and younger brother Chandrashekhar and she herself were in the house. The accused, finding her alone, pressed her hand and thereafter pressed her breasts. This witness told the accused to behave properly and she did not like his behaviour. She has further deposed that at that time the accused told her not to disclose this fact to her parents. It has come in her evidence that her parents returned from the fair and after taking dinner they went to sleep. At about 10-00 p.m. the prosecutrix was washing utensils. At that time the accused came near her and told her that on the next day she should not solve her question paper in the examination and she should come with him. She has also stated that the accused told her that if she does not come with him, he would commit her murder.
25. P.W. 1, the prosecutrix, further deposed that on the next day when she was on her way to school, the accused gave her a signal and from his gesture, she could make out that he was telling her to go ahead and he would follow her. It has come in her evidence that the accused took a bicycle from her house and followed her while on way to the school along with Chandrashekhar and other students of the village Indrathana. The question papers were distributed to the students. At time prosecutrix told her friends Ms. Kavita Gawande and Ms. Sharda Thakre that she is required to leave the school; otherwise she will be murdered. She saw the accused standing under the Neem tree in front of the school. She came out of the school. Accused asked her to sit on the bicycle and brought her to village Deothana at the house of the person known to the accused. As per her version, they both reached village Deothana at about 5-00 to 6-00 p.m.. They took dinner in that house and slept there. On the next day, the accused took her to Pusad town on a bicycle at the house of sister of the accused Nirmala Mankar. The accused took her to a movie and on that day they stayed at the house of the sister of the accused at Pusad.
26. The prosocutrix further deposed that on the next day the accused took her in a truck to Umarkhed where he took her to see a movie and on the same day by bus the accused took her to village Piranji. They reached village Piranji at 8-00 p.m.. They resided at Piranji in the house of a person known to the accused. They took dinner and slept in that house. The accused did nothing on that day. On the next day, they stayed in the said house and after taking dinner, the prosecutrix went to sleep. The accused tried to pull her and because of that the prosecutrix was awakened. The accused kept his hand on her breasts. The prosecutrix at that time told the accused to behave properly. However, the accused removed her nicker. The prosecutrix was resisting by moving her legs and wanted to shout. However, the accused had pressed her mouth by hand and committed rape on her. She has specifically deposed that the accused gave a threat to kill her in case she shouts. She has stated that there was a severe pain due to penetration of penis of the accused into her vagina. Semen of the accused fell on her body. The accused after five to ten minutes again committed sexual intercourse with her. At that time, some semen of the accused fell into her vagina. She has further deposed that in the same night police of Umarkhed came there and apprehended both of them and brought them to Umarkhed Police Station. She has also stated in chief that her date of birth in the school record was 1-7-1978.
27. In the cross-examination of this witness, she has admitted that the day on which her parents had gone to a fair at Sawanga, the accused came near her and kissed her cheeks. She has denied the suggestion that at that time the accused did not press her breasts. It has come in the cross-examination that at that time the accused caught hold of her hand and, therefore, she was angry with the accused. It has also come in the cross-examination of the prosecutrix that after she entered the classroom, she told her friend Ms. Kavita Gawande that the accused was following them by road on a bicycle. She did not solve the question paper and left the examination hall when the teacher was not present. She has also admitted in the cross-examination that the accused asked her to sit on the carrier of the bicycle. The accused, at that time, was not under the influence of liquor, The accused brought her from village Chinchgaon to village Deothana. It has come in her cross-examination that when the accused was committing rape on her, she was resisting the act; but she does not remember whether her bangles were broken at the time of incident of rape. However, she has further stated that she was struggling by moving her hands and legs at the time of commission of rape and specifically stated that the accused committed rape on her at village Piranji. She has also categorically stated in the cross-examination that since the accused pressed her mouth by hand, she could not shout loudly at the time of commission of rape. It has also come in the cross-examination of the prosecutrix that in the beginning the accused pressed her mouth and asked her to keep quiet and at the time of sexual intercourse, there was a pain and the blood came out from her vagina. It has also come in the cross-examination that when the accused was committing rape on her, one hand of the accused was kept under her waist and in another hand, he was holding his penis. She has specifically denied the suggestion that the accused is involved in a false case in order to take possession of a brick kiln of the accused and to drive him out from the brick kiln.
28. From the entire evidence of the prosecutrix (P.W.I), it is apparent that the material particulars of the prosecution case unfolded by this witness in the examination-in-chief are reaffirmed in the cross-examination and, therefore, in my opinion, the ocular testimony of this witness is not at all affected in the cross-examination. On the other hand, the defence has virtually admitted all the material particulars of the prosecution case including the act of sexual intercourse committed by the accused at village Piranji. The evidence of this witness is most natural and does not suffer from any contradiction or omission, muchless material one, and inspires confidence.
29. It will be appropriate, at this stage, to consider the evidence of Dr. Sushama, who is P.W.10. Dr. Sushama had examined the prosecutrix after the incident on 19-4-1994. The evidence of the lady doctor reveals that on 19-4-1994 she was attached to Primary Health Centre, Ner, as a Medical Officer. The prosecutrix was produced before her and on examination of the prosecutrix, Dr. Sushama found following injuries :--
"Lacerated wound 1/4 cm. x 1/4 cm. inner part of vagina.
Sign of inflammation present.
Hymen was ruptured."
The doctor has expressed that the injury can be caused by a forcible intercourse and opined that the intercourse has taken place. The cross-examination of this witness is innocuous and, therefore, the ocular testimony of this witness remained intact and was not affected at all in the cross-examination. The evidence of doctor completely corroborates the testimony of the prosecutrix that the accused has committed forcible intercourse with her on 18-4-1994 at village Piranji.
30. Another relevant prosecution witness examined by the prosecution to prove the age of the prosecutrix is P.W. 8-Ramesh Korde, the Headmaster of the English High School, Chinchgaon. This witness has stated in his chief that on 1-5-1994 he was the Headmaster of the English High School, Chinchgaon, Police demanded a Certificate of date of birth of Ku. Sandhya Madhukar Thakre (prosecutrix). He issued the Birth Certificate of Sandhya, the prosecutrix, at Exh. 46 on the basis of Dakhal Kharij Register of the school. As per this certificate, the date of birth of the prosecutrix is 1-7-1978. This witness had brought original Dakhal Kharij Register of the English High School in the court. The original was shown to him and he admitted to be the same. He has further deposed that in this register entry in the name of the prosecutrix is mentioned at Serial No. 151. In the column of names of parents, the name of Madhukar Mahadev Thakre, resident of Indrathana, is mentioned and in the column of date of birth, the date, which is mentioned, is 1-7-1978. Exh 47 is the true copy of page No. 22 of this Dakhal Kharij Register. This witness has further deposed that the English High School, at the relevant time, was conducting Classes from VHIth Standard upto Xth Standard and as per Dakhal Kharij Register, the prosecutrix was admitted in the school on 29-6-1993 in VIIIth Standard. The date of birth of the prosecutrix. i.e., 1-7-1978, is mentioned in the Dakhal Kharij Register of the New English High School, Chinchgaon, on the basis of the Transfer Certificate of the previous school - Uccha Prathmik Marathi Shala, Chinchgaon. The Dakhal Kharij Register was inspected by Block Education Officer, Ner, on 28-10-1993. The cross-examination of this witness did not yield much results. There are no contradictions or omissions in the evidence of this witness, muchless the material ones. The evidence of this witness proves Exhs. 46 as well as 47 and in both these documents the date of birth of the proscutrix is shown as 1-7-1978 and there is hardly anything brought on record by the defence in order to dislodge this aspect of the matter, except the approximate ages given in the evidence by the father of the prosecutrix P.W.3-Madhukar. It is, no doubt, true that in the cross-examination of P.W.3-Madhukar, he has given the approximate dates and time in respect of the dates of birth of his children. However, in my opinion, that will not affect the positive evidence coming forward from P.W.8 in respect of date of birth of the prosecutrix. The documents Exhs. 46 and 47 are the authentic records of the school maintained in normal course of official rules and duly proved by P.W.8 - the Headmaster of the School and, therefore, the date of birth mentioned in these documents needs to be accepted in the facts and circumstances, of the present case.
31. Now, the important aspect, which needs to be considered at this stage, is the scheme of provisions of Sections 363, 366 and 376 of the Indian Penal Code, vis-a-vis the facts and circumstances of the present case Section 363 of the Indian Penal Code provides punishment for an offence of kidnapping. However, Section 361 deals with the offence of kidnapping of a minor girl below 18 years of age from the lawful custody of guardians of such a girl. As far as the present case is concerned, it is necessary to bear in mind that the object of this section is such as to protect children of tender age from being abducted or kidnapped for improper purposes, as for the protection of the rights of the parents and guardians having lawful charge or custody of minor. On the plain reading of this section, the consent of minor, who is taken or enticed, is wholly immaterial. It is only the guardians' consent which takes the case out of its purview. It is also not necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keepings of the lawful guardian would be sufficient to attract the provisions of this section. The taking need not be by force, actual or constructive and it is immaterial whether the girl consents or not. There must be a taking of a child out of possession of parents. The offence of kidnapping from lawful guardianship is complete when the minor is actually taken from lawful guardianship. The taking, which constitutes an offence, is complete as soon as girl is removed from the lawful guardianship. The question of age of the victim girl is an important factor in order to attract the provisions of this section. The girl, who is kidnapped, has to be below the age of eighteen years at the time of incident.
32. So far as the provision of Section 366 of the Indian Penal Code is concerned, it contemplates that the consent of the girl does not exonerate the seducer if she is below the age of 18 and the underlying policy of the section is:--
(1) to uphold the lawful authority of parents or guardians over their minor wards, (2) to throw a ring of protection round the girls themselves, and (3) to penalize sexual commerce on the part of the person who attempts to corrupt the morals of the minor girls by taking improper advantage of their youth and inexperience.
It is no doubt true that in a given case if a girl below 18 years of age voluntarily leaves the protection of her guardian to join the accused and there is no evidence of any inducement made by the accused. In a situation like this, it may be possible to hold that the element of taking or inciting being absent, accused may not in a given case come under the scheme of Section 366 of the Indian Penal Code. However, this aspect ultimately would depend upon the facts and circumstances of each case as well as the evidence brought on record by the prosecution.
33. Lastly, it is necessary to consider the purport and requirement of sub- Clause (6) of Section 375 of Indian Penal Code in order to find out whether the prosecution has proved these aspects. In view of Sub-clause (6) of Section 375 of the Indian Penal Code, sexual intercourse with a girl below 16 years of age constitutes an offence of rape, no matter whether the victim girl consented or not to sexual intercourse when the girl is below 16, her consent is immaterial even if the girl is not modest or was a willing party to the sexual intercourse. Similarly, it is also necessary to mention that the presence or absence of injury on the body of the rape victim is relevant to decide whether there is coitus consensual or not. In view of Section 114A, Evidence Act, inserted by Criminal Law (Amendment) Act, 1983, if the rape victim says in her evidence that she did not consent to the sexual intercourse, the onus to prove consent lies on the accused. The fact of sexual intercourse, however, is required to be established by the prosecution at any rate.
34. In view of the above referred legal position, it will be appropriate to consider the prosecution evidence in order to find out whether the prosecution has succeeded in the present case in proving the offences charged against the appellant. In the instant case, P.W.3-Madhukar, the father of the prosecutrix lodged First Information Report on 16-4-1994, since the prosecutrix did not return home from the school. In the said report, he has also expressed his suspicion that the prosecutrix might have been kidnapped by the appellant-accused, since the accused also did not return home after he left the house on 15-4-1994. The material witness is the prosecutrix (P.W.I), who has categorically stated in her evidence that when the accused pressed her hand and breasts at her house while her parents had gone to see a fair, she told the accused not to misbehave with her. Similarly, it is stated by her in her chief that the accused told her not to appear in the examination and solve question paper and asked her to leave the school and accompany him; failing which he would commit her murder. This witness has further stated in her evidence that she told this fact to her classmate's Kavita Gawande and Sharda Thakre and left the school. The accused was waiting for her. When the prosecutrix approached him, he asked her to sit on the carrier of the bicycle and took her to village Deothana. The evidence of the prosecutrix would further show that the accused took her to Pusad town as well as Umarkhed and thereafter took her to village Piranji. She has specifically stated that on 18-4-1994 while they were in the house of Kisan (P.W. 5) (the person known to the accused) at village Piranji, the accused kept his hand on her breasts. She specifically told the accused not to misbehave with her. However, the accused took out his underwear and her nicker and pressed her mouth by his one hand. The prosecutrix resisted her by moving her legs and though she wanted to shout, she could not shout since the accused had kept his hand on her mouth. She has also stated that the accused threatened her that if she shouts, he would kill her. She has further stated that the accused committed rape on her and she experienced severe pain due to penetration of penis of the accused in her vagina. There are no contradictions and omissions in the evidence of the prosecutrix and all the material particulars of the prosecution case mentioned by this witness in her evidence stand completely corroborated by the evidence of Dr. Sushama (P.W. 10), who has noticed a lacerated wound of 1/4 cm. x 1/4 cm. in the inner part of vagina and signs of inflammation. Hymen was ruptured and it was expressed by the doctor that this injury can be caused by forcible sexual intercourse and opined that the intercourse has taken place. The evidence of the doctor has not been affected in the cross-examination. Similarly, the prosecution has produced Exh. 46, i.e., Certificate regarding date of birth issued by the Headmaster of the school, Exh. 47, i.e., Dakhal Kharij Register of the school. Both these documents are proved by P.W.8-Ramesh Korde, the Headmaster of the English High school, wherein the date of birth of the prosecutrix is mentioned as 1-7-1978. Similarly, there is another document placed on record by the prosecution, i.e., Exh. 42 - the Birth Certificate issued by the Sarpanch of a common Gram Panchayat, wherein the date of birth of the prosecutrix is shown as 1-7-1978. This document being a public document is admissible in evidence.
35. On the backdrop of the above referred evidence, it can safely be held that on 15-4-1994, the prosecutrix was below the age of 16 years and the accused took her out of the keeping of lawful guardians, i.e., her parents, under the threat and, therefore, in the instant case the prosecution succeeded in proving the offence of kidnapping under Section 361 of the Indian Penal Code as well as offence under Section 366 of the Indian Penal Code. Even otherwise the consent of the minor is immaterial in case of kidnapping and, therefore, the contention canvassed by the learned counsel for the appellant that the prosecutrix on her own free will voluntarily left the custody of her guardian parents and went along with the accused on her own in view of the evidence on record cannot be accepted.
36. Similarly, this is not the case where the prosecutrix can be said to be a consenting party to the act of sexual intercourse. On the other hand, the evidence on record reveals that she tried her best to prevent the accused from committing the sexual intercourse with her. The conduct of the prosecutrix would show that she not only resisted the accused, but also wanted to shout for help. However, she could not do so since her mouth was pressed by the accused with his one hand. Similarly, the injuries on her private part would show that it was the forcible sexual intercourse committed by the accused. P.W.10, who had examined the prosecutrix, has also expressed in her evidence that the injury, which is noticed on the private part of the prosecutrix, can be caused by forcible sexual intercourse. The evidence adduced by the prosecution, therefore, proves the fact of rape committed by the accused. Even otherwise the consent of a minor is immaterial, not relevant and cannot be treated as a consent in law. The act of sexual intercourse even then would fall within the ambit of Sub-clause (6) of Section 375 of the Indian Penal Code.
37. At this stage, it will be appropriate to consider the law laid down by the Apex Court explaining the legal position with respect to an offence punishable under Section 366 of the Indian Penal Code. In the case of State of Haryana v. Raja Ram, , the Supreme Court has allowed the appeal of the State and set aside the order of acquittal passed by the High Court and restored the order of trial court both on conviction and sentence. In para 8 the Apex Court has observed thus:--
"The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges, of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor ..... out of the keeping of the lawful guardian of such minor" in Section 361, are significant. The use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control : further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section."
The present case stands on a much better pedestal than the case which was before the Supreme Court. In the instant case, as already referred to hereinabove, the prosecutrix, at the relevant time, was minor, was taken away from the guardianship of her parents under threat. It is sufficiently proved by the prosecution that at the relevant time she was below the age of 16 and, therefore, in view of the ratio laid down by the Apex Court in the above referred Judgment, the conviction and sentence awarded by the trial court under Sections 363 and 366 of the Indian Penal Code is just and proper and is also sustainable in law. Similarly, in the case of Harpal Singh and Anr. v. State of Himachal Pradhesh, AIR 1981 SC 367, the Apex Court has considered the aspect of victim girl below the 16 years of age vis-a-vis the theory of consent as well as evidentiary value of the entry made by concerned official in discharge of his official duty. In para 2 of its Judgment, the Apex Court has observed thus :--
"2. Mr. Hardy laid emphasis on the circumstances that no injury was detected on the private parts of the girl and that she was found to have been used to sexual intercourse and argued that it was a case of sexual intercourse by consent. This argument will be of no avail to the appellants if once it is proved that the girl was below 16 years of age, because in that case the question of consent becomes wholly irrelevant."
Similarly, in para 3 of its Judgment, the Apex Court has further observed thus :-
"3. In the instant case the prosecution has proved the age of the girl, by overwhelming evidence. To begin with, there is the evidence of Dr. Jagdish Rai (PW 14) who is a radiologist and who, after X-Ray examination of the girl found that she was about 15 years of age. This is corroborated by Ex. PF, which is an entry in the admission register maintained at the Government Girls High School, Samnoli (wherein the girl was a student) and which is proved by the Head Master. That entry states the date of birth of the girl as 13th October, 1957. There is yet another document, viz. Ex. PD, a certified copy of the relevant entry in the birth register which shows that Saroj Kumari who according to her evidence was known as Ramesh during her childhood, was born to Lajwanti wife of Daulat Ram on 11-11-1957. Mr. Hardy submitted that in the absence of the examination of the officer/chowkidar concerned who recorded the entry, it was inadmissible in evidence. We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author. From whatever angle we view the evidence, the conclusion is inescapable that Saroj Kumari was below 16 years of age at the time of occurrence."
In view of the above referred ratio laid down by the Apex Court in Harpal Singh's case, the consent given by the girl below 16 years of age for sexual intercourse becomes wholly irrelevant and cannot be treated as a consent in law. However, in the present case, there is a positive evidence on record to show that the prosecutrix was not at all a consenting party to the act of sexual intercourse. Similarly, Exh. 47 is Dakhal Kharij Register and the entry in respect of the date of birth of the prosecutrix is made in that register by the concerned officer in discharge of his official duty and, therefore, it is admissible in evidence. The date of birth of the prosecutrix in the said Dakhal Kharij Register is mentioned as 1-7-1978. Apart from that, there is evidence of the Headmaster, who has proved Exh. 46. Hence in the instant case, it can safely be held that the prosecutrix, at the relevant time, was below 16 years of age and, therefore, the finding of conviction recorded by the trial court for the offence punishable under Section 376, Indian Penal Code, also is just and proper and sustainable in law.
38. As far as the Judgment of this court in Case of Balasaheb v. State of Maharashtra, 1994 Cri.LJ. 3044 cited by the learned counsel for the appellant is concerned, the same may not be of much help to the appellant in view of the facts and circumstances of the present case and the law laid down by the Apex Court in the judgments referred to hereinabove. So far as another Judgment of the Apex Court in case of Shyam and Anr. v. State of Maharashtra, 1995 SCC (Cri.) 851 cited by the learned counsel for the appellant is concerned, the facts in that case are entirely different. In the said case the Apex Court held thus :--
"3. In her statement in court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so-called 'taking', it does not seem that the prosecutrix was truthful in that regard."
In the case in hand, the fact of giving threat by the accused to the prosecutrix is proved by the prosecution and, therefore, the ratio laid down by the Apex Court in the aforesaid case does not help the case of the appellant.
39. The another Judgment of this Court in case of State of Maharashtra v. Surendra Kumar Mevalal Mehesh, 1999(1) Mh.LJ. 22 cited by the learned counsel for the appellant will have no bearing in view of the facts and circumstances of the present case, as the same was based on the ratio laid down by the Apex Court in case of S. Vardarajan v. State of Madras, wherein the girl was though below 18 years of age but since she and the accused were having an affair, which included telephonic conversation, the Supreme Court took the view that in spite of the fact that she was below 18 years of age when the accused took her away, no offence of kidnapping could be made out. However, in the instant case, the prosecutrix was taken away out of guardianship of her presents under a threat of murder and, therefore, the ratio laid down by the Apex Court in S. Vardarajan's case is not attracted. Consequently, the judgment of this court in case of State of Maharashtra v. Surendra Kumar Mevalal Mehesh, 1999(1) Mh.LJ., 22 does not further the case of the appellant.
40. The contentions canvassed by the learned counsel for the appellant on the backdrop of the above referred facts and law, cannot be accepted. As far as the quantum of sentence awarded by the trial court for the offence punishable under Section 376 of the Indian Penal Code is concerned, the trial court has already taken a lenient view and awarded a minimum sentence prescribed for the offence of rape and since the accused had forcibly carried away a minor girl and had committed rape on her with the result injuries were caused to the private part of the prosecutrix, the trial court took a view that the sentence lower than the minimum could not have been awarded and there are no special reasons on record to do so. In the circumstances, the contention canvassed by the learned counsel for the appellant in this regard is also rejected.
For the reasons hereinabove, the appeal is dismissed.