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2007 DIGILAW 1432 (BOM)

Sanjay Madhukar Moon v. State of Maharashtra

2007-10-04

C.L.PANGARKAR

body2007
ORAL JUDGMENT: 1. This is an appeal by the accused who was convicted under Section 366 and 376 of the Indian Penal Code and was sentenced to suffer imprisonment of 10 years on both counts. The appellant shall hereinafter be referred to as accused. 2. The facts giving rise to this appeal are as under - Complainant Mandabai lives along with her two sons, husband and the daughter in Ganeshpeth area. Her mother Chandrabhagabai resides near Maroti temple, Vakil peth. The accused along with his wife was living in the house owned by Chandrabhagabai as a tenant. Complainant Mandabai and her daughter Mausami used to visit the house of Chandrabhagabai. They, therefore, got acquainted with accused Sanjay. The accused also used to visit the house of complainant. On 9/5/1996, complainant's father expired. The complainant, therefore, went to the house of Chandrabhagabai and stayed with her for 4-5 days. Mausami, however, used to stay with Chandrabhagabai and visit the house of Mandabai. She too got acquainted with accused Sanjay. Mandabai belongs to Kunbi community while accused belongs to Baudha community. On 26/6/1996, Mausmi ñ the prosecutrix ñ went to the school in the morning at 10.30. She did not return in the evening. Complainant Mandabai took a search and lodged report with the police that Mausami was missing. On 27/6/1996, the father of accused Sanjay came to Sanjay's house and told his wife Vaishali that Sanjay had taken Mausami with him to his village and was saying that he would marry her. The mother Chandrabhagabai, therefore, informed the complainant Mandabai. The complainant, therefore, lodged the report (Exh.20) that the accused has kidnapped her daughter who is 13 years of age only. The police registered the offence. It is alleged that thereafter the complainant, accused's wife and accused's father went to village Talni, rescued Mausami and brought her back. Mausami was sent for medical examination and it was found that she was subjected to sexual intercourse. Accused was also examined and it was found that he was capable of performing intercourse. The clothes of the prosecutrix Mausami were seized by the police. They were sent to the Chemical Analyser and after completion of the investigation, a charge sheet came to be filed. The Judicial Magistrate (F.C.) committed the case to the court of Sessions. 3. Accused was also examined and it was found that he was capable of performing intercourse. The clothes of the prosecutrix Mausami were seized by the police. They were sent to the Chemical Analyser and after completion of the investigation, a charge sheet came to be filed. The Judicial Magistrate (F.C.) committed the case to the court of Sessions. 3. The court of Sessions framed the charge, recorded the evidence and held the accused guilty and sentenced him accordingly. 4. I have heard the learned counsel for the accused and the learned Additional Public Prosecutor for the State. I have also perused the record. 5. The prosecution examined eight witnesses. They are ñ PW 1 Mausami ñ the prosecutrix, PW 2 Dr.Manik ñ the Medical Officer, PW 3 Mandabai ñ the mother of prosecutrix, PW 4 Dinesh ñ the panch, PW 5 Kirti ñ the Head Mistress of the school, PW 6 Ashok is also a panch, PW 7 is another panch and PW 8 is P.S.I. Patil ñ the Investigating Officer. 6. It is the case of the prosecution that at the time of incident, the victim was only 13 to 14 years old. It is merely suggested in cross-examination to PW 1 Mausami that she was 18 yeas of age and she has denied the suggestion. Mausami - PW 1 positively tells her date of birth as 17/8/1982. PW 3 Mandabai ñ the mother ñ states that Mausami was only 13 years of age and in cross-examination gives correct date of birth. The prosecution has also examined the Head Mistress of the school in which Mausami was taking education. She is PW 5 Kirti. She states that Mausami was admitted in the school on 11/7/1988 and her date of birth according to admission register is 17/8/1982. She produced the copy of the school living certificate (Exh.28). This entry of date of birth is taken in 1985. At that time at least the father of the girl did not know that he would require it for this purpose. Hence, it must be assumed that he gave correct date of birth. Even the Medical Officer PW 2 Dr.Manik says that victim was only 13 years of age. There is therefore ample evidence that the victim girl was much less than 16 years of age. Hence, it must be assumed that he gave correct date of birth. Even the Medical Officer PW 2 Dr.Manik says that victim was only 13 years of age. There is therefore ample evidence that the victim girl was much less than 16 years of age. Since she was less than 16 years of age at the time of incident, consent, if any, she had given, is immaterial. 7. It is in the evidence of PW 1 Mausami that accused was living as a tenant in her grand-mother's house and she used to go to her grand-mother's house and she used to talk to the accused. It is further stated that she used to help accused to fetch water early in the morning and wife of the accused used to sleep on the terrace. It is further in her evidence that in May, 1996, when she want inside the house, the accused closed the door of the house and committed sexual intercourse with her and gave her a threat that he would commit suicide if she disclosed the incident to anybody. It is next in her evidence that accused once came to her school, took her on Luna to his aunt's house and later when his aunt went outside, he again committed sexual intercourse with her. It is further in evidence that he then took her to Wardha and then to village Talani at the house of his relative. Further she deposes that thereafter the wife of the accused, her own mother and maternal uncle came to Talni and both of them were brought to Nagpur and then she was sent for medical examination. If the crossexamination of the witness is seen, there is not even a suggestion to the witness that accused did not have sexual intercourse with her. It is suggested to the witness that she had consumed insecticide and threatened the accused that he should marry her. It is also suggested that she was 18 years old. Thus, the accused, in fact, raises a defence of consent. We have seen that the victim was much less than 16 years of age. Therefore, the consent is absolutely immaterial. There is nothing in her evidence to discard her testimony. Further her evidence is fully corroborated by PW 2 Dr.Manik who had examined her immediately. Thus, the accused, in fact, raises a defence of consent. We have seen that the victim was much less than 16 years of age. Therefore, the consent is absolutely immaterial. There is nothing in her evidence to discard her testimony. Further her evidence is fully corroborated by PW 2 Dr.Manik who had examined her immediately. She found that victim was habituated to sexual intercourse and victim has given history of sexual assault repeatedly by same person. This evidence clearly supports the version of PW 1 that she was repeatedly sexually assaulted by the accused. 8. The clothes of the victim were seized by the police. The police have seized the skirt of the victim and had taken blood and semen sample of the accused. They were sent to the Chemical Analyser. The report of the Chemical Analyser is at Exh.13. It shows that the skirt had few semen stains and they were of blood group 'A'. The blood group of accused is also found to be 'A'. This also corroborates the version of victim Mausami. There is thus enough of evidence that the accused had sexual intercourse repeatedly with the victim. The Sessions Judge has rightly held the accused guilty. We have already seen that the age of the girl was only 13 years. She has told that the accused had taken her away from the school directly and moved her from place to place until she was rescued by her mother. She was thus removed from the lawful custody of her parents by the accused by inducement. Thus, all the ingredients of offences under Section 366 and 376 of the Indian Penal Code have completely been proved. There is no reason to interfere with the order of conviction and sentence. There is, therefore, no merit in the appeal. It is accordingly dismissed.