Bombay High Court
Ravindra Dinkar Patil vs State Of Maharashtra on 29 July, 1988
JUDGMENT
1. Appellant takes exception to the conviction and sentence recorded against him for the commission of an offence punishable under S. 376 of the Indian Penal Code.
2. The prosecution case was that the Appellant and the prosecutrix Shila came from warring families of village Beed, Taluka Karvir, Dist. Kolhapur. In spite of the considerable ill-will between the two families, the young persons fell in the love with each other and but for the intervention of their elders, would have got married. Shila was born on 24 August 1965 at a maternity home run by Dr. (Mrs.) Chitre at Kolhapur. On 18 April, 1980, the Appellant lured Shila to accompany him from the place where she was residing at Kolhapur to the home of a friend Shivaji Karande. After the evening meal, Shivaji's wife Anjali went to sleep on the floor with her child. Shivaji had gone to work and that left the family cot unoccupied. That cot was taken over by the Appellant and Shila. In the course of the night, the Appellant suggested that Shila submits her body to him as one day they would be man and wife. Shila was unwilling but the Appellant overcome her resistance by force and twice had intercourse with her. The sexual act left Shila in great pain, but she could do nothing.
3. In the meantime the disappearance of Shila had become known to the persons with whom she was staying at Kolhapur. The girl was traced to the house of Shivaji Karande. Shila was taken to the Police Station and after recording her statement, sent to Dr. Gurav for an examination of her person pr. Gurav examined her clinically as also radiologically. This examination showed that her hymen was torn and congested. As to her age, the test indicated that the same ranged between 14 to 16 years. Appellant was arrested on 21 April, 1980 and he was sent for examination to Dr. (Mrs.) Bindage. Having regard to lapse of time, she could not give any opinion as to if, at all he had had sexual intercourse. As to the age of the accused Dr. Mrs. Bindage was of the view that it could be within 18 to 20 years. The clothes of the girl, the accused and the bed sheet on the cot on which the two had slept were sent for chemical examination. Except for some blood stains on the underwear of Shila neither blood nor semen could be detected on the other garments. The evidence in relation to age showed Shila to be below 16 years on the night of the occurrence. After completion of the investigation, the Police put up a charge sheet in the court of the Chief Judicial Magistrate at Kolhapur. The usual enquiry being over, the Appellant was committed to stand trial in the Court of Session. He was charged with the commission of offences punishable under sections 363, 366 and 376, I.P.C. His defence was one of denial. It was not correct to say that Shila was below the age of 18 years on 18, April 1980. She was infatuated with him and this was despite his best efforts to persuade her to give up her love for him in view of their being within the prohibited degrees of relationship and therefore not in a position to marry each other. Taking advantage of Shila's disappointment at the advice given, her family members had instigated her to make a false accusation against him.
4. In support of its case the prosecution examined a large number of witnesses. The evidence having concluded the Accused was questioned to enable him to explain the circumstances falling in the evidence against him At that time he came out with the defence summarised above. The Additional Sessions Judge held the Accused not liable for the offences punishable under sections 363 and 366, I.P.C. He found that Shila was a consenting party to the sexual intercourse with the Appellant. However, this would not absolve the Appellant as on the date of the incident Shila was below 16 years of age. On the point of sentence the learned Judge held that but for the obstinacy of the two families, the girl and the boy could have got married and in the fitness of things he would have given the Appellant the benefit of Probation of Offenders Act. Unfortunately, that indulgence could not be shown to the Appellant as the offence under S. 376, I.P.C. was punishable with imprisonment for life. Relutantly the learned Judge imposed on the Appellant a sentence of one month's S.I. and a fine of Rs. 1000/-. In case the fine amount was not paid, the Appellant was to undergo additional R.I. for four months.
5. Having regard to the submissions made before me, the points for determination are -
(1) Did the prosecution prove that on the night between 18 and 19 April, 1980, Shila was below the age of 16 years ? (2) Did the prosecution prove that the Appellant had sexual intercourse with Shila on the aforesaid night ? (3) What order ?
My findings on the above points, for reasons given below, are -
(1) No. (2) No. (3) Appeal allowed.
6. The evidence in regard to the age of Shila on 18 April, 1980 consists of conjencture, expert's evidence and the records from the school which she attended and the maternity home in which she is supposed to have been born. Significantly no entry or certificate from the birth register has been placed on record. This omission has not been properly explained. The birth of Shila took place at Kolhapur which has a local body since quite some time. In recent times that Municipal Council has been up-graded into Corporation. After her birth the child must have been removed to village Beed. One expects an entry in relation to the date of Shila's birth made at Beed assuming for some reason her elder had forgotten to intimate the date of birth to the local authority at Kolhapur. She comes from a well to do family and it cannot be readily believed that this family would omit to do the normal thing, viz. to intimate the birth of a child in the family to the local authorities responsible for maintaining records relating to births and deaths. The available record is widely divergent. According to the school record Shila was born on 1 June, 1964. The clinic where she was barn shows her date of birth to be 24 August, 1905. Bath cannot be true and their variation compels me to discard them. Dr. Gurav opines that the girl could have been anywhere between 14 to 16 years of age on the date he examined her the margin of error being two years on either side. If Shila could be shown to have been born before 19 April, 1964, the Accused would be in the clear. The school record shows that she was barn on 1 June, 1964. Taking this as the base and giving room for the usual margin of error, made more strong by the omission of the prosecution to produce the extract from the birth register, I hold that Shila was most probably born prior to 19 April, 1964. If that be correct then she was not 16 years of age on the fateful night (sic).
7. The next question is whether the Accused had sexual intercourse with Shila on the aforementioned night. On this point Shila's version about the resistance put up by her has been disbelieved by the learned trial Judge. He is of the view that the disinclination pleaded by Shila in her testimony is bereft of credence. Shila had voluntarily come to the house of Shivaji Karande with the Appellant and she did so for the obvious reason that she was very much in love with him. In spite of this conclusion, the learned Judge has persuaded himself to accept the claim of Shila that the Appellant had sexual intercourse with her. This does not appeal to reason. The situation was not such as to facilitate a stealthy intercourse between the boy and the girl. Even though Anjali had gone to sleep with the child on the floor, she was very much in the same room as the Appellant and Shila. In fact so small is the room that the place where Anjali was sleeping was virtually cheek-by-jawl with the cot which the Appellant and Shila were occupying. Sleeping together on the cot itself must have been a source of embarrassment to Shila if not the Accused. Shame comes naturally to a young girl and all said and done Anjali was a stranger. Even if it be possible to believe that the couple lay together on the cot it is difficult to believe that the Appellant could have sexual intercourse with the girl and that too twice during the course of the night. The only evidence said to corroborate Shila is her torn hymen and the presence of blood stains on her underwear. But as against this is the absence of semen and blood stains not only on the other garments of the couple but also the bed-sheet. All these garments were subjected to chemical analysis and barring some blood stains on the underwear of the girl there was nothing incriminating on the other articles. It is possible that the Appellant may have tried to gratify his roused passion by necking with the girl To overcome the passion he might have touched the girl's private parts forcibly with his hands. This was either misunderstood or misconstrued by the girl I hold that the evidence in relation to sexual intercourse lacks that degree of credibility which is required for recording a conviction under S. 376, I.P.C. The result of the foregoing discussion is that on the crucial point the prosecution fails. Therefore, the conviction and sentence recorded against the Appellant cannot be sustained. The Appeal is allowed and the Appellant acquitted of the offence punishable under S. 376, I.P.C. Fine if paid be refunded unto him. Bail bonds furnished by and on his behalf stands vacated.
8. Appeal allowed.