Bombay High Court
Aba @ Dinkar Girdhar Koli vs The State Of Maharashtra on 3 April, 2008
Author: V.R. Kingaonkar
Bench: V.R. Kingaonkar
JUDGMENT V.R. Kingaonkar, J.
1. Challenge in this appeal is to Judgment dated 27th August, 1996, rendered by learned Additional Sessions Judge, Amalner, in Sessions Case No. 23 of 1996, whereby appellant, named above, has been convicted for offence punishable under Section 376 of the I.P. Code and sentenced to suffer rigorous imprisonment for five (5) years and to pay fine of Rs. 1000/-, in default to suffer rigorous imprisonment for three (3) months.
2. Briefly stated, background facts giving rise to the prosecution are as follows:
The residential houses of prosecutrix (PW Shashikala) and the appellant are situated in proximity of each other. The appellant called her in one room at his house. He committed forcible sexual intercourse with her and threatened her not to tell the incident to anyone in the vicinity. He threatened her that she would be done to death if she would disclose such incident to anyone else including her parents. The prosecutrix was later on called by the appellant to his house on 3-4 more occasions and sexual intercourse was committed with her. She was then studying in 10th standard and was aged about 14-15 years. The prosecutirx noticed absence of menstruation cycle. She laboured under impression that she was pregnant. She approached the appellant and told him that she was pregnant from him. He told her to do whatever she wanted to do and stopped further conversation with her. She felt cheated. Hence, on 1st February, 1996, under the fear that her parents would be defamed, she consumed insecticide with a view to commit suicide. She started vomiting thereafter. Her father shifted her to Government Hospital at Dhule. She was treated for some period. Her statement was recorded while she was under medical treatment in the Government Hospital. She narrated to the police as to how she was ravished by the appellant from time to time and why she attempted to commit the suicide. The police registered offence against the appellant on basis of said statement of the prosecutrix. The necessary investigation was carried out. The appellant was chargesheeted for offences punishable under Sections 376 and 506 of the I.P. Code.
3. A charge (Exh-2) was framed only for offence punishable under Section 376 of the I.P. Code. The learned Sessions Judge called upon the appellant to explain the material evidence. The appellant pleaded that there was love affair between the prosecutrix and himself. He asserted that due to mutual consent, the sexual relationship was developed. He denied that the prosecutrix was subjected to forcible sexual intercourse against her will. He also denied that the prosecutrix was minor at the relevant time. It is contended that the prosecutrix was major and, hence, no offence of rape was committed by the appellant.
4. At trial, the prosecution examined seven (7) witnesses in support of its case. The learned Sessions Judge came to conclusion that the prosecutrix was minor at the relevant time and, therefore, there was no question of her consent for commission of the sexual intercourse. The learned Sessions Judge further held that the prosecutrix was ravished by and succumbed to the further sexual advances of the appellant due to threats given by him. The learned Sessions Judge, therefore, convicted the appellant for offence punishable under Section 376 of the I.P. Code.
5. Mr. Warma B.R., learned advocate for the appellant, would submit that the evidence of the prosecutrix clearly shows her consent and that she was a willing party to the sexual intercourse. He would point out that she repeatedly visited house of the appellant. He contended that the belated disclosure made by the prosecutrix was outcome of tutoring by her father and other family members. He argued that age of the prosecutrix was more than sixteen (16) years at the relevant time. He would submit that the school record is without foundation and cannot be relied upon. He urged to acquit the appellant by giving benefit of doubt in the context of age of the prosecutrix. Mr. Borade N.H., learned A.P.P., however, supports the impugned judgement.
6. At the outset, I may mention here that age of the prosecutrix is the most vital issue involved in the present appeal. For, if it is proved that she was minor at the relevant time, then her consent would not make any difference. It will be necessary thereafter to see as to whether the prosecution story regarding forcible sexual intercourse committed by the appellant is worthy of reliance. Out of the seven (7) witnesses examined by the prosecution, PW1 Suresh is the panch who attended spot panchanama (Exh-8). The spot panchanama would show topography of the residential premises of the appellant. It is significant to note that the appellant is member of "koli" community whereas the prosecutrix is member of "Sonar" (goldsmith) community. The versions of PW3 Hiralal, who is father of the prosecutrix, PW4 Chandrakant, clerk attached to Tahsil Office, PW5 Nagraj Patil of the school, relate to age of the prosecutrix. The charge (Exh-2) shows that the prosecutrix was aged 17 years at that time when the trial began.
7. The version of the prosecutrix would show that she was called inside the house by the appellant in one room and was ravished though she pleaded with him not to do the sexual act. She states that he had threatened her that he would tell all the members of the vicinity about the incident. She further states that he threatened her to kill if the incident was disclosed to anyone. Her version reveals that after about two and half (2 1/2) years, she could not get the Menstruation cycle and, hence, she suspected that she was pregnant. Thereafter, she consumed some insecticide. She was rushed to Government Hospital by her father. Her statement was then recorded by the police. Thus, for about two and half years, repeatedly, the appellant committed sexual intercourse with her at his residential premises. Her evidence does not show that the appellant told her to do whatever she liked to do and dislodged his responsibility for the pregnancy. She corroborates the F.I.R. (Exh-11). Her cross-examination reveals that after attaining puberty, she and the appellant came into contact with each other. She admitted that about one (1) year prior to the examination, she attained puberty. Thus, since about July, 1995, she developed sexual relationship with the appellant. Her version reveals that at interval of 8 to 15 days, she used to visit house of the appellant and there was intercourse between them. Needless to say, she was visiting his house from time to time as and when opportunity was available and they used to indulge in the sexual escapades. She admits, unequivocally, that inspite of such repeated sexual intercourses, she did not disclose anything to anyone else before the police recorded her statement. She admits that after the sexual intercourse, she used to put on her undergarments and used to return home. She further admits that prior to her consuming of insecticide, there was quarrel between her family members and the family members of the appellant. She further admits that her parents instructed her that she shall state before the police to the effect that she had consumed the insecticide due to the commission of sexual intercourse by the appellant.
8. The cross-examination of the prosecutrix shattered her veracity. It gives a serious jolt to the prosecution case regarding commission of sexual intercourse by the appellant without consent of the prosecutrix. It appears that the prosecutrix used to meet the appellant at his house, repeatedly, and some times even without his invitation. In other words, the adolescent love affair appears to be the reality and not that the appellant forcibly committed the sexual intercourse with the prosecutrix. It is also unbelievable that for a considerable period of more than one (1) year, she was under spell of so called threats given by the appellant. It is manifest that she gave the police statement (Exh-11) as per instructions of her father. It is important to note that she was admitted in the hospital on 01-02-1996 and her police statement was recorded on 06-02-1996. The delay of five (5) days speaks volume against the prosecution.
9. The Apex Court in Bibhishan v. State of Maharashtra 2007 AIR SCW 7358 had an occasion to deal with somewhat similar fact situation. In the given case, the accused - Bibhishan had allegedly called the prosecutrix in his house on fake pretext and subjected her forcefully to intercourse. No injury was found on her body. The Apex Court held that the accused was entitled to benefit of doubt in the circumstances of the said case. Herein, the prosecutrix was probably visiting house of the accused on her own accord though initially he might have induced her by calling her to his house. Their meeting each other lateron became a routine love making.
10. As stated before, the most important issue involved in this case relates to age of the prosecutrix. The prosecutrix gave her age as 17 years when she was examined before the Sessions Court. She referred to the instances of sexual intercourse which occurred prior to about one year i.e. in 1995. It is explicit that she was about 16 years at the relevant time. She states that she studied upto 10th standard but failed in the 10th standard. She states that for the first time, she appeared in 1995 for Examination of 10th standard. Her testimony reveals that she failed on 2-3 occasions during the educational tenure. She failed in 2nd standard on one occasion, third standard on another occasion and 10th standard on 3rd occasion. Obviously, she lost three (3) years during the relevant period from initial admission in the school till she failed in 10th standard on second occasion. She has no personal knowledge regarding her birth date.
11. The Medical Certificate (Exh-22) reveals that her age was given by the Medical Officer as 16 years and she was found pregnant. The duration of pregnancy was of 27 weeks. PW Hiralal states that he gave birth date of the prosecutrix to the Head Master of the school at time of her admission, as 31st August, 1979. He admits that the prosecutrix was born at village Sakli, Taluka Yawal in the house of his inlaws. His version reveals that he could not locate age of the prosecutrix at the time of her admission in the school. He admits, however, that generally, the child is admitted in the school at age of 6/7 years. His version reveals that he gave the age of the prosecutrix on surmises.
12. PW4 Chandrakant is the Senior Clerk attached to Tahsil Office. He recorded dying declaration of the prosecutrix, but it has no evidentiary value at the present because the prosecutrix survived. Coming to the version of PW5 Nagraj, who is Head Master of the School, it can be gathered that when the prosecutrix was admitted in the school, then her birth date was recorded as 31st August, 1979. He corroborates the birth certificate (Exh-16). He also produced copy of the school leaving certificate (Exh-36). He admits that the entry about birth date of the prosecutrix was recorded when she was admitted in the school for 6th standard. That entry was taken on basis of school leaving certificate, issued by the Primary School. He admits that he cannot tell whether the birth date was recorded on basis of Gram Panchayat record or Civil Hospital record. The basis for taking such an entry in the school record is apparently the information given by father of the prosecutrix.
13. PW6 Rashid is Superintendent attached to Panchayat Samiti, Yawal. His version purports to show that he issued the birth certificate on basis of the Gram Panchayat record regarding birth of the prosecutrix. He corroborates the certificate (Exh-45). He states that original birth register shows her birth date as 31st August, 1979 as per entry at serial No. 116 (page No. 11). He admits that the column No. 15 of the said register does not bear signature of the person who gave information regarding birth date of the child. He further admits that there is no signature of the informant. He further admits that the entry has been recorded as last entry of that date. He further admits that the entries do not show whether the female child was born in Maternity Home or in the house.
14. The prosecution evidence discloses that date of birth of the prosecutrix was informed by PW5 Hiralal (father of the prosecutrix) in the school on basis of surmises. The entries in the school register do not show that they were recorded as per the entries in the birth register maintained by the Gram Panchayat of village Sakli, Taluka Yawal. The father of the prosecutrix is inhabitant of village Tamaswadi, Taluka Parola.
15. The Apex Court in Ravinder Singh Gorkhi v. State of U.P. , held that when the register maintained by school does not show the basis for the entry regarding birth date, then the school leaving certificate cannot be relied upon. The relevant observations are to be found in para No. 37 and may be usefully quoted as below:
37. ...A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of the Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a Judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted.
Similar view is taken by a Division Bench of this Court in Gangadhar s/o Gonduram Tadme v. Trimbak s/o Govindrao Akingire and Ors. .
16. The standard of proof required in a criminal case is of high degree. Where there is ambiguity or doubt regarding authenticity of the birth record, it would be permissible to seek help available from other information. As stated before, the prosecutrix failed thrice in her brief educational career. Even assuming, she was admitted at the age of six (6) years in the Primary School, then also it would appear that she was more than sixteen (16) years of age at the relevant time when she started indulging in the sexual relationship with the appellant. It need not be reiterated that the case appears to be of love affair developed between the prosecutrix and the appellant. The affair fizzeled out when she became pregnant and the two (2) families quarrelled with each other. Under these circumstances, it is difficult to say that the offence falls within the ambit of Section 375 Clause 6th of the Indian Penal Code. Once it is found that the prosecutrix may not be aged below 16 years and that there was a love affair developed between the two young members of opposite sex, it goes without saying that the charge of rape cannot stick to the appellant.
17. Considering the foregoing reasons, I have no hesitation in holding that the prosecution failed to establish the charge for offence of rape beyond reasonable realm of doubt. It is not proved with certainty that the prosecutrix was below 16 years of age and as such, her consent was immaterial. The appellant, therefore, deserves acquittal on account of benefit of reasonable doubt which emerges from the circumstances and the evidence on record. In this view of the matter, the appeal succeeds.
18. In the result, the appeal is allowed. The impugned Judgment of conviction and sentence rendered by the learned Additional Sessions Judge, Amalner in Sessions Case No. 23/1996, is set aside. The appellant stands acquitted of the offence punishable under Section 376 of the I.P. Code. His bail bonds be deemed as cancelled. The fine amount, if deposited, shall be refunded to him.