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2005 DIGILAW 1543 (BOM)

Motiram Govindrao Kamdi v. State of Maharashtra

2005-11-14

A.P.LAVANDE, D.S.ZOTING

body2005
D. S. ZOTING, J. :- This is an appeal preferred by the original accused against the judgment and order of conviction and sentence dated 30-01-2002 passed by the Special Judge, Gadchiroli in Special Case No.2 of 2000 whereby the appellant (hereinafter referred to as the "accused") has been convicted and sentenced for offence under Section 376 of the Indian Penal Code to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to suffer further rigorous imprisonment for two years. 2. The facts which are not in dispute may be briefly stated as under: Accused Motiram Govindrao Kamdi was working as Head-master of the Government Post Basic Ashram School, Bhakrondi, Tahsil Armori, District Gadchiroli. Prabhakar Ganesh Mane (P.WA) was working as Head-master of the Secondary Ashram School at Bhakrondi. Prosecutrix was student of 8th standard in the said Ashram School. She was admitted in the hostel run by the Ashram School. Hostel and the Ashram School are situated in the same premises. P. W.II Jijabai is the mother of prosecutrix. Jijabai has three daughters. Prosecutrix (P.W.1) is the second daughter of Jijabai. Shewanta is the eldest and Vanita is the youngest daughter of Jijabai. Jijabai is resident of Bhansi. The distance between village Bhakrondi and village Bhansi is about 4 kms. These are the facts which are not in dispute. 3. The prosecution case arises out of the First Information Report 30-03-2000 lodged by Jijabai (P.W.11). The prosecution story as revealed in the FIR may be stated in brief is as under. Before 3-4 days of the report, one teacher of the Ashram School visited her house and informed her that her daughter is not attending the School and she was directed to bring her daughter to the school at about 04.00 p.m. When Jijabai enquired with her daughter as to why she is not attending the school, she told her that students tease her as "Kamdi Master" and she started weeping. On further query made by Jijabai, she told her that while she was student of 6th standard, the accused used to call her to his house for doing house-hold work whenever his wife was not in the house and he committed rape on her during the period of two years. On further query made by Jijabai, she told her that while she was student of 6th standard, the accused used to call her to his house for doing house-hold work whenever his wife was not in the house and he committed rape on her during the period of two years. The complainant further alleged that her daughter told her that she had not disclosed this fact to anybody as the accused had threatened that she would be defamed. It is also alleged that the accused promised to perform marriage with her. For this reason also, she had not disclosed this fact to anybody. On 01-03-2000 the accused had sexual intercourse with her against her will and, therefore, she raised shouts. Her friends heard the said shouts and they saw her and the accused in the said house. Again on 07-03-2000 some students peeped from the window when the accused was forcing her to have sexual intercourse with her and since then students started teasing her in the namy of Kamdi master. The oral report lodged by Jijabai was reduced into writing. On the basis of this report, PSI Mankar (P.W.8) registered the crime against the accused. He visited the spot of incident and drew panchanama. He seized the clothes of the prosecutrix. He obtained Birth Register from the Head-master of the School which revealed that prosecutrix's date of birth was 27-02-1985. The accused was arrested. His clothes were attached under seizure panchanama. The prosecutrix was referred to Medical Officer for examination. The Medical Officer referred her to the Radiologist for determination of her age. Radiologist opined that the age of the prosecutrix is between 15 and 16 years only. Accused was also referred to the Medical Officer for his medical examination. Seized articles along with vaginal swab of the prosecutrix and blood sample of the accused were sent to Chemical Analyser. Shri. Shewale, SDPO carried out further investigation. He recorded statements of witnesses and after completion of investigation, the accused was charge-sheeted for the offence under Section 376 of the Indian Penal Code and Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act in the Court of Judicial Magistrate, FC, Gadchiroli. 4. Shri. Shewale, SDPO carried out further investigation. He recorded statements of witnesses and after completion of investigation, the accused was charge-sheeted for the offence under Section 376 of the Indian Penal Code and Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act in the Court of Judicial Magistrate, FC, Gadchiroli. 4. As the offence under Section 376 of the Indian Penal Code and Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act is exclusively triable by the Special Court, the learned Magistrate committed the case to the Sessions Court for trial according to law. 5. The charge under Section 376 of the Indian Penal Code and Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act was framed against the accused. It was read over and explained to the accused in vernacular. The accused pleaded not guilty and claimed to be tried. Defence of the accused is two-fold. According to him, he has not committed rape on prosecutrix. In the alternative, he pleaded that sexual intercourse was committed with consent of prosecutrix and she is above 16 years of age and, therefore, the alleged act does not constitute any offence. According to him, he lodged report against one Maniram Halami on the allegation that he assaulted one Nirmala, the student of Ashram School. Said Maniram belongs to Students Federation. Nandu Narote and Daulat Dhurve are the leaders of Students Federation. As he lodged report against Maniram, the leaders of Students Federation got enraged. They pressurised Jijabai and, therefore, false report came to be lodged by Jijabai at the behest of the leaders of Students Federation. He has not adduced any evidence in his defence. 6. During trial, evidence of as many as twelve witnesses has been recorded. After going through the entire evidence especially the evidence of prosecutrix (P.W.1), her mother Jijabai (P.W.11), Sunita (P.W.3), Prabhakar Mane (P.W.4) and Dr. Malik (P.W.5), the Trial Court found that the accused is guilty of the offence under Section 376 of the Indian Penal Code and he has been convicted and sentence in the manner as stated in paragraph 1 of this judgment. 7. We have heard arguments advanced by Mr. M. R. Daga, the learned counsel for accused and Mr. Anoop Parihar, the learned APP for the respondent State of Maharashtra. 8. Mr. 7. We have heard arguments advanced by Mr. M. R. Daga, the learned counsel for accused and Mr. Anoop Parihar, the learned APP for the respondent State of Maharashtra. 8. Mr. Daga, the learned counsel for accused submits that the oral evidence tendered by the prosecution is not sufficient to connect the accused with the offence of rape and there is no medical proof to lead to an inevitable conclusion that there was sexual intercourse committed by accused with prosecutrix. He further submits that the evidence relied upon by the Trial Court so as to annex the offence of rape with regard to the proof of age of the prosecutrix is insufficient and hence, offence of rape cannot be said to have been committed at all. He further submits that under such circumstances the finding recorded by the learned Special Judge holding the accused guilty for the offence under Section 376 of the Indian Penal Code is not legally sustainable and the order of conviction and sentence is liable to be quashed and set aside. He further submits that the First Information Report came to be lodged under the pressure from leaders of Students Federation. He further submits that the prosecutrix herself admits that she was born in the year 1981 whereas the FIR arises out of the alleged incident of the year 2000 and as such, the prosecutrix was more than 16 years old. He has drawn our attention to certain admissions given by the prosecutrix in her cross-examination especially the admission to the effect that the accused and the prosecutrix had sexual intercourse with the consent of each other and they were apprehended by the students and, therefore, the report was lodged. He further submits that under the circumstances, the Trial Court was in error to have come to its finding holding the accused guilty of the offence punishable under Section 376 of 'the Indian Penal Code. He has cited the decision of the Andhra Pradesh High Court in the case of Talla @ Cakkula Sam path Vs. State of A. P. reported in 2002(2) Crimes 437. He has cited the decision of the Andhra Pradesh High Court in the case of Talla @ Cakkula Sam path Vs. State of A. P. reported in 2002(2) Crimes 437. Lastly, it is contended that if it is held that the age of prosecutrix is less than 16 years as on the date of offence, but the fact remains that she has attained the age of discretion as on the date of offence and sexual intercourse was with her consent and, therefore, the imprisonment for life awarded by the Trial Court is too harsh and the same may be reduced to the imprisonment already undergone. 9. As against this, Mr. Anoop Parihar, the learned APP has fully supported the finding recorded by the Trial Court. He submits that there is ample evidence to show that the prosecutrix was born in the year 1985 and as such, her age was not more than 16 years as revealed from the school record as well as the medical evidence and, therefore, her consent for sexual intercourse is immaterial. He further submits that the accused has relied upon the fabricated 'record of date of birth of the prosecutrix and as such, the said record cannot be accepted in evidence. He has relied upon the decision of the Supreme Court in the case of State of H. P. Vs. Shree Kant Shekari reported in AIR 2004 SC 4404 . He submits that offence under Section 376 of the Indian Penal Code is punishable with imprisonment for life. Under such circumstances, the punishment awarded by the Trial Court is proper and the order of conviction and sentence does not call for any interference in the appeal. 10. Having heard the arguments advanced by both the parties and after going through the entire evidence of the prosecution, we find that there is ample cogent, reliable and trustworthy evidence to sustain the order of conviction for the offence under Section 376 of the Indian Penal Code passed by the learned Special Judge, for the following reasons. 11. The principle as to what should be the approach required to be adopted by the Court in rape cases is enunciated by the Supreme Court in the latest decision in the case if Visveswaran Vs. State Rep. 11. The principle as to what should be the approach required to be adopted by the Court in rape cases is enunciated by the Supreme Court in the latest decision in the case if Visveswaran Vs. State Rep. By S.D.M. reported in 2003 AIR SCW 2541 : [2003 ALL MR (Cri) 1401 (S.C.)] as under: "It has to be borne in mind that approach required to be adopted by Courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity. Courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the Courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in acquittal. In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved." 12. In the case of State of Punjab Vs. Gurmit Singh reported in AIR 1996 SC 1393 , the Supreme Court held as under: "The testimony of the victim in sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to get weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is notan accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable." 13. For testing the case in hand on the principles referred to above, let us examine the evidence on record. To begin with, we would first like to deal with the evidence of prosecutrix (P.W.I). For testing the case in hand on the principles referred to above, let us examine the evidence on record. To begin with, we would first like to deal with the evidence of prosecutrix (P.W.I). She gave evidence that she was living in the hostel since the time she was studying in 6th standard. She stated that when she was in 6th standard, the accused who was Head-master used to call her at her residence during absence of his wife for fetching water and washing utensils. According to her, for the first time, accused committed rape on her in his house when his wife went to another village. As regards this incident, she deposed that the accused held her hands, took her to his bed, removed her clothes and committed sexual intercourse with her. She stated that the accused threatened her that if she disclosed the incident to anybody, she would suffer from social ignominy. She has made it clear that the accused committed only one act of sexual intercourse when she was in 6th standard and he had committed sexual intercourse with her twice when she was student of 7th standard and one act of sexual intercourse with her when she was in 8th standard. As regards the last incident of committing sexual intercourse with her she stated that she was studying in 8th standard along with Shashikala Kallo and Shashikala Madavi. Both Shashikalas were sent for fetching water. Then accused held her hand; she was reluctant, but the accused laid her down on the floor and had sexual intercourse with her. When she was saying 'no' to the accused, somebody peeped into window and then students started teasing her as "Kamdi Bai". She, therefore, stopped going to the School. She further stated that as she remained absent, teachers visited her village and requested her mother to come to the school and, therefore, her mother took her to the school and on enquiry made by the teacher in the school, she disclosed the incident. Then the report was lodged. She stated that whenever the accused used to have sexual intercourse with her he was saying that he would perform marriage with her. Then the report was lodged. She stated that whenever the accused used to have sexual intercourse with her he was saying that he would perform marriage with her. Thus, as regards the cause as to why she had not disclosed the incident to anybody she has come up with two-fold reasons i.e. the threat of defamation by accused and promise given by him to perform marriage with her. Though in examination-in-chief she has narrated four incidents of sexual intercourse with her, her cross-examination reveals that the accused had sexual intercourse with her on so many occasions. Her cross-examination further reveals that the sexual intercourse was performed with her consent. This is evident from the facts narrated by her to the effect that whenever she used to go to the house of accused, both Shashikala Kallo and Shashikala Madavi used to remain outside the house and she and accused used to latch the door from inside. She deposed that she continued visiting the house of accused with Shashikala Kallo and Shashikala Madavi. She also admitted that as the students of School apprehended her with accused in the house of accused, she stopped going to the school. She admits that whenever there used to be sexual intercourse, other girls used to be out of the room and she used to return to the hostel after it was calm. She deposed that she was visiting the house of accused after every 2-4 days and the same act used to be repeated. She further admits that the accused did not force her to have sexual intercourse and she was visiting the house of accused at her own accord. Though she has stated that the accused promised her that he will perform marriage with her but it appears that this reason was put forward by her as the members of the Students Federation insisted her to put forward this reason. 14. Another witness Sunita Madavi (P.W.3) stated that the prosecutrix was voluntarily visiting the house of accused and was remaining upto 8-9 p.m. in the house of the accused. This also indicates that the prosecutrix was a consenting party to the act of sexual intercourse. As regards the last incident giving rise to the report, she stated that she along with Sarita Halami and Lalita lale went towards the house of accused. This also indicates that the prosecutrix was a consenting party to the act of sexual intercourse. As regards the last incident giving rise to the report, she stated that she along with Sarita Halami and Lalita lale went towards the house of accused. She and other girls peeped from the window and saw that the accused caught hold of prosecutrix with both of his hands and dragged her and then extinguished the lamp. Her evidence supports the case of prosecution i.e. the act of sexual intercourse by accused with prosecutrix and as regards the consent of the prosecutrix. The evidence of prosecutrix further finds support in medical evidence (exhibit 26). In this certificate, doctor opined that the prosecutrix is habituated to sexual intercourse and no signs of forceful sexual intercourse were noticed by the doctor. Thus, the fact that the prosecutrix was consenting party to the sexual intercourse finds corroboration from the medical report (exhibit 26). In her cross-examination the prosecutrix has, in clear terms admitted that she herself and the accused used to have sexual intercourse with consent of each other. However, as she was apprehended by the students, the incident is disclosed. From the admission given by the prosecutrix, there cannot be any doubt that the accused had sexual intercourse with her consent and not under threat or any promise and her evidence in this regard will have to be accepted because it is difficult to believe that a young girl like the prosecutrix will come up with a false case where her honour as well as the honour of her family is involved. Moreover, testing the case on the legal principle laid down in Visveswaran Vs. State Rep. By S.D.M., [2003 ALL MR (Cri) 1401 (S.C.)] (cited supra), we find that the testimony of prosecutrix is worthy of credence and thus, the prosecution has fairly established that the accused committed sexual intercourse with her on several occasions including the last incident as narrated by this witness as well as P.W.3 Sunita. 15. According to learned APP, the age of prosecutrix was less than 16 years and, therefore, whether the sexual intercourse was with or without her consent is immaterial. Learned APP submits that there is a School record to show that the prosecutrix was born on 27-02-1985. Mr. 15. According to learned APP, the age of prosecutrix was less than 16 years and, therefore, whether the sexual intercourse was with or without her consent is immaterial. Learned APP submits that there is a School record to show that the prosecutrix was born on 27-02-1985. Mr. Daga, the learned counsel for accused submits that the prosecutrix herself has admitted that she was born in the year 1981 and the Birth Register (exhibit 51) showing her date of birth as 10-04-1981 has been produced which clearly shows that she was more than· 16 years at the time of incident. In this regard we would first like to refer to the School record. The date of birth and caste certificate (exhibit 38) shows that the prosecutrix belongs to Gond caste and she was born on 27-02-1985. This certificate has been issued on the basis of School Admission Register. It was issued by Head-master Mane (P.W.4) who stated that the certificate was prepared on the basis of "Dakhal-Kharij Register". Registration number of the prosecutrix was 884. Relevant extract of the School Admission/Leaving Register is placed on record at exhibit 49. As per this Register, the date of birth of prosecutrix is 27-02-1985 and the date of her admission in 1st standard is shown as 07-07-1992. The First Information Report was lodged on 30-03-2000. There is no evidence nor even a suggestion that the prosecutrix failed in any examination. So, normally if she was admitted in 1992, she would appear in 8th standard in the year 2000. Under such circumstances also the date of birth appears Correct. Record at exhibit 48 shows that the entry in regard to date of birth viz. 27-02-1985 of the prosecutrix has been made on the basis of statement given by her mother Jijabai: In addition to this, there is extract of Attendance Register (exhibit 40) placed on record of the case which also shows the date of birth of prosecutrix as 27-02-1985. Entry in the Hostel Attendance Record (exhibits 41 and 42) also shows the date of birth of prosecutrix as 27-021985. As per all these records, the age of the prosecutrix on the date of incident comes to the extent of 15 years. The said School record regarding age finds corroboration from the medical evidence given by Dr. Entry in the Hostel Attendance Record (exhibits 41 and 42) also shows the date of birth of prosecutrix as 27-021985. As per all these records, the age of the prosecutrix on the date of incident comes to the extent of 15 years. The said School record regarding age finds corroboration from the medical evidence given by Dr. Malik (P.W.S) who, on the basis of radiological test, opined that the age of the prosecutrix was between 15 to 16 years. He has categorically stated that she was not less than 14 years old and not more than 16 years old. He has negatived the suggestion given by accused to the effect that her age is more than 16 years. We have considered all this evidence carefully and we would like to deal with admissibility of such evidence. It would be just and proper to refer to some decisions of the Apex Court in this regard. They are - Umesh Chandra Vs. State of Rajasthan reported in AIR 1982 SC 1057 ; Mohd. Ikram Hussain Vs. State of U. P. reported in AIR 1964 SC 1625 ; Biradmal Singhal Vs. Anand Ram reported in AIR 1988 SC 1796 and Harpal Singh Vs. State of H.P. reported in AIR 1981 SC 361 . In Umesh Chandra Vs. State of Rajasthan (supra), it has been held that school certificates regarding the age are admissible under Section 35 of the Evidence Act. It has also been held that all that is necessary is that the document should be maintained regularly by a person whose duty it is to maintain the document and there is no legal requirement that the document should be maintained by a Public Officer only. In earlier decision of the Supreme Court in the case of Mohd. Ikram Hussain Vs. State of U.P. (supra), it was observed that the entry in the school register supported by an affidavit of the father stating the date of birth amounts to evidence of the age. Such entry in the school register is ante litem motam. Further, in Biradmal Singhal Vs. Anand Ram (supra), it has been observed that the entry in the school register is admissible in evidence under Section 35 of the Evidence Act. In Harpal Singh Vs. State of H.P. (supra), the entry in the admission register was relied upon as proof of age. 16. Further, in Biradmal Singhal Vs. Anand Ram (supra), it has been observed that the entry in the school register is admissible in evidence under Section 35 of the Evidence Act. In Harpal Singh Vs. State of H.P. (supra), the entry in the admission register was relied upon as proof of age. 16. As regards the admissibility of the school record as evidence of the age, it would also be just and proper to refer to the observations made by the Supreme Court at paragraph 14 in the case of State of H.P. Vs. Shree Kant Shekari (cited supra) relied upon by the learned APP. Paragraph 14 of the said decision reads as under: "We shall first deal with the question of age. The radiological test indicated age of the victim between 15 to 16-1/2 year. The school records were produced to establish that her date of birth was 10-04-1979. The relevant documents are Exs.PW6/ A to PW6/ C. The High Court was of the view that these documents were not sufficient to establish age of the victim because there was another document Ex.PW7/ A which according to the High Court did not relate to the victim. Merely because one document which was produced by the prosecution did not, according to the Court relate to the victim that was not sufficient to ignore the evidentiary value of Exs.PW6/A to Ex.PW6/ C. These were records regarding admission of the victim to the school and her period of study. These documents unerringly prove that the date of birth of the victim as per official records was 10-04-1979. Therefore, on the date of occurrence and even when the FIR was lodged on 20-11-1993 she was about 14 years of age. Therefore, the question of consent was really of no consequence." Though in the said case report of radiological test was available, the Apex Court had attached more weight to the record regarding admission of victim to the school and the period of study and accepted the same as proof of age. 17. There cannot be any doubt in the present case before us that the record is maintained by the School regularly through a person whose duty it is to maintain the said record. 17. There cannot be any doubt in the present case before us that the record is maintained by the School regularly through a person whose duty it is to maintain the said record. The entries in the School Register supported by affidavit of mother stating the date of birth of prosecutrix as 27-02-1985 amounts to the evidence of age and as such the entry in the School Register is admissible in evidence under Section 35 of the Evidence Act and, therefore, we are inclined to accept the said school record with respect to proof of age of the prosecutrix and as per the said record she was less than 16 years of age at the relevant time. It is also to be noted that the act of sexual intercourse with her was being committed from time to time for two years prior to the date of First Information Report as well as the last act of the sexual intercourse giving rise to First Information Report. At any rate, at the time of first intercourse, the prosecutrix was about 13 years old. 18. The learned counsel for the accused has placed much reliance on the extract of Birth and Death Register (exhibit 51), so also the fact admitted by the prosecutrix in her cross-examination that she was born in the year 1981. The Birth Certificate (exhibit 51) is issued by the Block Development Officer, Panchayat Samiti, Armori and Registrar (Birth and Death) is dated 20-01-2001. In this Certificate the date of birth of prosecutrix is shown as 10-04-1981. As regards the admission given by the prosecutrix it is to be noted that she has stated her age on oath as 16 years on the date of recording her deposition i.e. 04-07-2001. The FIR was lodged on 30-03-2000. So, obviously her age at the time of FIR was about 15 years. Therefore, in the light of school record, the stray admission given by the prosecutrix cannot and does not affect the merits of the prosecution case. As regards the Certificate (exhibit 51) issued on the basis of Birth and Death Register maintained by Gram Panchayat, it is to be noted that the said Certificate shows the date of birth of prosecutrix as 10-04-1981, as already pointed out. However, the said record appears to be fabricated as revealed in the evidence given by P.W.7 Shrikant Gautam, BDO. As regards the Certificate (exhibit 51) issued on the basis of Birth and Death Register maintained by Gram Panchayat, it is to be noted that the said Certificate shows the date of birth of prosecutrix as 10-04-1981, as already pointed out. However, the said record appears to be fabricated as revealed in the evidence given by P.W.7 Shrikant Gautam, BDO. According to him, the said certificate was issued by one Mr. Yeragude, in-charge Block Development Officer. In the said certificate the date of birth of prosecutrix is shown as 10-04-1981. The relevant entry is at sr. no.1O of Birth Register maintained by Pane hay at Samiti. As regards this entry, observations made by this witness are important. He stated that in the said Register, the entry at sr. no. 10 appears to have been newly inserted. Upto entry no.9 they appear to have been written in the same ink and the point of nib. He stated that the numbers have been changed from 10 to 13 to be 11 to 14. According to him, the entries upto sr. no.9 are for the month of March, 1981 and the original entries at sr. nos. 10 to 11 are for the month of April, 1981. He categorically stated that the newly inserted entry no.10 is in respect of the former month of March, 1981 and the date of birth is shown to be 10-04-1981. The date of birth originally appears to be 10-04-1981 and then it is overwritten as 05-04-1981. We have perused the said entry and it appears that after the entries of March, there was blank space and then there are entries for the month of April and entry no.10 appears to have been taken in blank space by converting the serial number from 10 to 13 to be 11 to 14. It is also to be noted that this Register pertains to group Gram Panchayat, Bhakrondi consisting of villages Bhakrondi, Bhansi, Mendha and Khadki and separate pages are maintained for each village. In this Register, pages no.23 to 34 are meant for village Bhansi. It has come in evidence of Jijabai (P.W.11), the mother of the prosecutrix that the prosecutrix was born at village Bhansi. Therefore, under such circumstances, the entry of date of birth of prosecutrix should have appeared in the pages meant for village Bhansi. In this Register, pages no.23 to 34 are meant for village Bhansi. It has come in evidence of Jijabai (P.W.11), the mother of the prosecutrix that the prosecutrix was born at village Bhansi. Therefore, under such circumstances, the entry of date of birth of prosecutrix should have appeared in the pages meant for village Bhansi. But there is no such entry on the said pages, but the entry no.l0 pertaining to the prosecutrix has been inserted in the entries for village Bhakrondi. P.W.7 Srikant has stated that there is no provision to make entry in the said Register after it is deposited in Panchayat Samiti unless order is sought from the Magistrate. He has stated that there is no 'order from Taluka Magistrate to insert such entry. He stated that whenever a person requests for issuance of birth certificate, it is issued provided the entries are in the Register. He has admitted that if there is any over-writing, then the Authority declines to issue certificate. He further admits that when certificate (exhibit 51) came to be issued there were no over-writings in the said entry and according to him, over-writings relating to the date of birth of prosecutrix must have been made after 20-01-2001. Thus, there cannot be any doubt that the record pertaining to the date of birth of prosecutrix showing it as 10-04-1981 appears to be fabricated and, therefore, such record cannot be relied upon. Thus, the Certificate (exhibit 51) issued on the basis of such fabricated record is of no avail to the accused. The Trial Court has considered this aspect carefully and while passing the judgment directed the Chief Executive Officer, Gadchiroli and the Superintendent of Police, Gadchiroli to take suitable action against the erring official Shri. Yergude and others who are instrumental in fabrication of the record. Thus, the certificate (exhibit 51) issued on the basis of fabricated record will have to be rejected. What we are then left with is school record showing the date of birth of prosecutrix as 27-02-1985 which has been accepted as a proof of her age for the reasons as already stated in the earlier paragraphs. Thus, the prosecution has succeeded in proving that the prosecutrix was less than 16 years old when the sexual intercourse was being committed by the accused intermittently for a period of about two years prior to filing of FIR (exhibit 58). Thus, the prosecution has succeeded in proving that the prosecutrix was less than 16 years old when the sexual intercourse was being committed by the accused intermittently for a period of about two years prior to filing of FIR (exhibit 58). As per Clause "sixthly" of Section 375 of the Indian Penal Code man is said to commit rape when he has sexual intercourse with a woman with or without her consent, when she is under sixteen years of age. As it is proved that the prosecutrix was under 16 years of age, the sexual intercourse committed by accused on the prosecutrix amounts to an offence of rape, punishable under Section 376 of the Indian Penal Code. 19. The learned. counsel for accused submits that the prosecutrix had attained the age of discretion and the accused had sexual intercourse with her consent and, therefore, the accused cannot be said to have committed rape on her. He has cited the decision in the case of Talla @ Cakkula Sam path Vs. State of A. P. (cited supra). In this case, the Andhra Pradesh High Court has held that even though in a case under Section 363, IPC prosecutrix is found less than 18 years of age on the date of occurrence but if she had attained age of discretion and had left her parents house on her own and moved with accused at different places, accused could not be said to have taken her away or enticed her from custody of her parents. In the present case before us, the accused is charged with having committed offence under Section 376 and not under Section 363 of the Indian Penal Code. The consent of prosecutrix for the act of sexual intercourse is no consent in the eye of law. The case cited by the learned counsel for accused is with reference to Section 363, IPC and it has no relevance with the crime under Section 376, IPC and as such, the said decision is of no avail to the accused and consequently the above contention raised by the learned counsel for the accused cannot be accepted. 20. The case cited by the learned counsel for accused is with reference to Section 363, IPC and it has no relevance with the crime under Section 376, IPC and as such, the said decision is of no avail to the accused and consequently the above contention raised by the learned counsel for the accused cannot be accepted. 20. Coming to the contention raised by the learned counsel for the accused as regards the sentence, it is pertinent to note that the Trial Court has awarded sentence of imprisonment for life to the accused for the offence under Section 376 of the Indian Penal Code. The learned counsel submits that the maximum punishment has been awarded and it is disproportionately heavy sentence unrelated to the gravity of offence. According to the learned APP, it is proper and in accordance with the provisions of Section 376, IPC. Section 376(1) of the Indian Penal Code prescribes minimum punishment of seven years and the maximum punishment of life imprisonment for the offence of rape. The offence committed by the accused falls under sub-section (1) of Section 376 of the Indian Penal Code. The sentence, to be appropriate, should be neither too harsh nor too lenient. Too lenient as well as too harsh sentence both lose their effectiveness. Under such circumstances, in fixing punishment for any offence, the Court has to take into consideration the nature of offence and the circumstances of a particular case. The offence under Section 376 of the Indian Penal Code is a heinous offence and it is necessary to award such sentence so as to produce deterrent effect on the offender and serve as an eye-opener to the rest. Taking into consideration the peculiar facts and circumstances of the case especially the circumstance admitted by the prosecutrix that she and the accused used to have sexual intercourse with consent of each other, in our opinion, the sentence of rigorous imprisonment for a period of eight years and fine of Rs.5,000/ - would adequately meet the ends of justice, and therefore, the appeal deserves to be partly allowed by maintaining the order of conviction passed by the Trial Court for an offence under Section 376 of the Indian Penal Code. However, the order pertaining to the sentence needs to be modified by substituting the sentence of imprisonment of rigorous imprisonment for a period of eight years instead of rigorous imprisonment for life. The remaining part of the impugned order as regards the set-off, property and compensation stands confirmed. 21. Before parting with the judgment, it is to be noted that the learned Special Judge while passing the impugned order, directed the Chief Executive Officer, Zilla Parishad, Gadchiroli and the Superintendent of Police, Gadchiroli to take suitable action against the erring official Shri. Yergude and others who are instrumental in fabrication of the record. The said order was passed on 30th January, 2002. In order to ascertain whether compliance of the said order is made or not, we directed the learned APP to collect information in this regard from the said Authorities. Learned APP submits that despite telephonic message given to the concerned Authorities they have not submitted any report in this regard. It appears that no such enquiry as directed by the learned Special Judge is made by the concerned Authorities. It is rather painful that officers of the rank of Chief Executive Officer and Superintendent of Police have not made compliance of the order and set free the erring officials who are instrumental in fabrication of the Birth Register. We, therefore, direct the Dy. Inspector General of Police, Nagpur and the Divisional Commissioner (Revenue), Nagpur Division, Nagpur to obtain report from the concerned Chief Executive Officer and Superintendent of Police as to whether the above-referred order passed by the Special Judge, Gadchiroli has been complied with or not. They are further directed to obtain compliance from the concerned Authorities and submit the same to this Court within a period of three months from the date of communication of this order.