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2008 DIGILAW 1414 (BOM)

Somnath Bhanudas More v. State of Maharashtra

2008-09-29

K.U.CHANDIWAL

body2008
JUDGMENT:- In Sessions Case No.74/ 2006, the learned Additional Sessions Judge. Shrirampur convicted the accused no. 1 for the offence punishable under Sections 366-A and 376 of the Indian Penal Code thereby directing him to suffer rigorous imprisonment for five years, with fine and rigorous imprisonment for seven years with fine respectively. The other accused were acquitted. The said judgment of conviction, is challenged by this appeal. 2. The facts, in brief, essential for the present decision are: the victim having born on 26.7.1992 studying in 10th Std. is daughter of complainant - Balasaheb Laxman Kalapure (PW.l) Accused No.1, a married person, resides in the same village. He developed intimacy with the victim, eloped her on 11.09.2006, for which he had interactions of accused nos.2 and 3. The father was worried himself sick. It was the villagers, who communicated him having seen the accused no. 1 and moving with victim. The suspicion, which the complainant was nursing against the accused no. 1 was cemented and consequently, he approached Newasa Police Station and an offence under Sections 363, 366-A read with 34 of the Indian Penal Code was registered, vide C.R. No.164/2006, dated 13.09.2006. 3. The accused and victim were found in a room at MIDC, Ahmednagar, as informed to police by wife of accused. A spot panchanama was drawn. Both the accused and victim were brought to the police station. Statement of the victim was recorded. The apparels of the victim and accused were taken charge. 4. Charge-sheet against the accused came to be filed before the learned Judicial Magistrate First Class, who took cognizance under Section 209, Cr.P.C. and committed the case to the Additional Sessions Judge at Shrirampur. The charge below Exhibit-19 was explained to the accused. Plea of the accused is at Exh.20. The prosecution put in seven witnesses and closed the evidence. The defence of the accused is that of total denial, as disclosed in the statement under Section 313. Cr.P.C. 5. The father of the victim is P.W.I - Balasaheb; P.W.2 - Dipali Balasaheb Kalapure (hereinafter referred a, victim). P.W.3 - Annasaheb Darandale is the Head Master of the School, where the prosecutrix was taking education and he has produced the birth record at Exhibits-40, and 42 showing that the victim was born on 26.7.1992. The Certificate at Exhibit 42 came to be issued on 26.9.2006. P.WA is Suresh Narayan Shitole. P.W.3 - Annasaheb Darandale is the Head Master of the School, where the prosecutrix was taking education and he has produced the birth record at Exhibits-40, and 42 showing that the victim was born on 26.7.1992. The Certificate at Exhibit 42 came to be issued on 26.9.2006. P.WA is Suresh Narayan Shitole. He saw the accused and prosecutrix on 11.09.2006 and also was a witness to panchanama Exhibit-45 of the room where the victim and the accused were found together. P.W.5 - Navnath Annasaheb Pawar is the tailor residing in the same village. He knows the accused no. 1 and 3 as also the victim. They all are his customers. The accused nos. 1 and 3 approached him for collecting the apparels of the victim, which incidentally were in un stitched condition, and he handed over them to accused nos.1 and 3. This was to establish nexus between the accused, taking apparels of the victim while carrying her away on 11.09.2006. P.W.6- Dr. Ramesh Ramprasad Ghumre, examined the accused and the victim. P.W.7 is the Investigating Ofiicer - Babaji Buwaji Garje. He recorded F.I.R. and carried the investigation including seizure panchanama (Exh.44). The arrest panchanama of the accused (Exh.55), with forwarding letter to Medical Officer sent on 19.9.2006; seizure of apparels of the victim and the accused are at Exh.-45 and 46. Since the Medical Officer communicated to P.W.7 that on medical examination of the victim, he found that she suffered sexual assault, the offence under section 376 of IPC was applied. Seized property was produced before the Court. 6. The learned defence counsel stressed by reading the evidence that the manner in which the victim moved on fateful day with the accused and other persons from her village while in school uniform, then changed her apparels and accompanied with accused in motor vehicle and other persons with other passengers, and moved in an auto rickshaw, speaks that it was by her own will, wish and desire that she roamed with accused no. 1 and there was no instance that the accused could allure her under the pretext of providing her job. She could have retaliated having ample opportunities to her to do so. 7. 1 and there was no instance that the accused could allure her under the pretext of providing her job. She could have retaliated having ample opportunities to her to do so. 7. The next point urged by the learned Counsel for the appellant is, the victim was a major about 16 years and the birth record produced at the behest of the victim or her father cannot be looked into as it is manufactured document or that it is creating a doubt in the mind of the Court. The victim had puberty since three years, which gives a presumption that she was more than 16 years of age. The victim even quoted her age to be 16 years to the medical officer (P.W.6). 8. Section 375 of IPC contemplates that a man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :- "First, - Against her will: Secondly, - without her consent, Thirdly, - with her consent, when her eon sent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly, - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married, Fifthly, - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly, - With or without hereonsent. when she is under sixteen years of age." 9. The entire controversy in the matter revolves around the Certificate of birth issued by the Competent Authority of the Gram Panchayat which is at Exhibit-37 and the Certificate at Exhibits-40, and 42, issued by P.W.3 in the capacity as Head Master. Before commenting on the legality of such certificate, one should not be oblivious to the provisions of the Registration of Births and Deaths Act, 1969, and in particular Sees. 11 and 17 thereof. Before commenting on the legality of such certificate, one should not be oblivious to the provisions of the Registration of Births and Deaths Act, 1969, and in particular Sees. 11 and 17 thereof. Basically the registration of births and deaths record in view of the statutory provisions has a presumptive value, unless it is established otherwise, the presumption surrounding such document will prevail and shall persist. On perusal of the Certificate, Exh.-37, what I find is, it has been issued by the Gram Panchayat and signed by the Village Development Officer, Gram Panchayat, Narayanwadi, Tq.-Newasa, having issued by invoking provisions of Sections 12 and 17 and Rule 9 of the Registration of Births and Deaths Act, 1969 and Rules 1976. The Certificate is issued from original records of the Gram Panchayat. It discloses name of the girl (victim), gender as female, Date of birth as 26.10.1992 and the registration date as 28.10.1992, registration no.25, Place of birth as Narayanwadi, Village Narayanwadi, Tq.-Newasa, District-Ahmednagar, Name of mother Sindhubai while name of father as Balkrishna Laxman Kalhapure. This certificate is issued on 20.10.2007. Since the certificate itself demonstrates having registered vide Registration No.25 in the register maintained by the Gram Panchayat, Narayanwadi and having got it registered on 28.10.1992. It is difficult to believe and digest for an incident occurred in the year 2006, record could have been manipulated by the harassed father, PW.1 way back on 28.10.1992. Therefore, criticism to Exh.-37, i.e. the Birth Certificate is taken away. 10. Now comes the document at Exhibit-40, and 42. Exhibit-40 is a Bonafide Certificate showing that the victim was studying in Xth Std. during the academic year 2005-2006 having her date of birth as 26.07.1992. The second certificate (Exh.41) is a communication to the Police Officer dated 15.09.2006 issued by the Head Master that the victim Dipali did not attend the school from 11.09.2006. The third certificate (Exhibit-42) is the School Leaving Certificate issued under Rule 17, Chapter II of the Grant in Code which also in column no.4 demonstrates her date of birth as 26.7.1992 and having admitted in the school on 14.6.2004. It is brought in the evidence of P. W.3 - Annasaheb Darandale that he had original record of Narayanwadi Primary School brought in court. A question to this effect was asked in the cross-examination. However, such record is not before the Court. It is brought in the evidence of P. W.3 - Annasaheb Darandale that he had original record of Narayanwadi Primary School brought in court. A question to this effect was asked in the cross-examination. However, such record is not before the Court. Non-production of the record will not dilute evidentiary value of Exhibit-40 or 42 as they stand on the original record maintained by the school in ordinary course of activities and have been issued by P.W.3 in his official capacity as Head Master. It is obvious that P.W.3 has no grudge/interest in favour of or against the case of the accused or has no reason to favour the case of the victim. The narration of P. W.3, about the details in the record or entry by black ink in the primary school record, will not be changing colour and complexion of the matter to raise any doubt on the aspect of entry in original record showing date of birth of the victim as 26.7.1992. 11. The father - P.W.1 has given chronological details of birth of his children at the time of lodging F.I.R. Exhibit-30, his son Kishor is 17 years, Sagar is 15 years and the victim Dipali is 16 years. In the cross- examination, P.W.I has accepted that Kishor and Sagar are elder to the victim Dipali. If this is so, from any angle, the victim Dipali should be less than 15 years as Sagar was shown to be of 15 years of age, though at the reverse of the F.I.R. Exh.30, age of the victim is referred as about 16 years as recorded by Police Officer and even I find that while narrating the incident, P.W.1 and P.W.2 have stated to P.W.6 that she was about 16 years, still the record maintained by the officials will prevail on all such oral testimonies of either P.W.I orP.W.2 orP.W.6. The official record, having been maintained since inception of the birth of the victim, In the facts and circumstances of the individual case, cannot be said that the father or the victim should know the correct date of birth. This is more so, as they are coming from downtrodden community and residing in village, as the father is a mason while the victim was studying in IXth/Xth Std. This is more so, as they are coming from downtrodden community and residing in village, as the father is a mason while the victim was studying in IXth/Xth Std. Expectation of accurate date of birth from such villagers is a mystery in itself and, therefore, cannot be given much importance to their narrating age of the victim to be 16 years. 12. The attaining puberty three years prior to the incident, will have to be taken in right perspective and cannot be said that the victim had attained puberty when she was 15 years. The law on this point is clear. In Indian culture, puberty to female is attained at the age of 12 to 13 years of age, depending on the cultural atmosphere, environment in which she is brought up and the set up of society In which she has been grown. In such eventuality, attaining puberty three years prior to the incident will not indicate that she was more than 16 years on the date of incident. Having stated so about the age and the medical evidence, what I find is the victim was oscillating between 13 to 14 years at the material time. The variations in the date of birth recorded at Exhibit-40 as 26.7.1992 or at Exhibit-37 as 26.10.1992 will not make any change or will not raise any doubt in the mind because the original record at Exhibit-37 in otherwise, either the month of July or month of October, it will not be bringing the age of the victim as on the date of incident on 11.09,2006 beyond 16 years, In the above set of facts, claim and cotentions raised by the learned defence counsel that the victim was above 16 years is shattered and I hold the prosecution has proved that the victim was below 16 years at the material time, 13. After having reached to a finding that, the age of the victim to be below 16 years, then her allurement or sexual advances with the accused no, 1 at the room will not be coming within the definition of "consensual sex" as tried to be canvassed by the learned defence counsel. After having reached to a finding that, the age of the victim to be below 16 years, then her allurement or sexual advances with the accused no, 1 at the room will not be coming within the definition of "consensual sex" as tried to be canvassed by the learned defence counsel. As stated above, Section 375, Sixthly will bring out the case of the prosecution from the ambit of so called consent or the victim to be a party to the incest having taken place during her stay with the accused, even in the company the wife of accused no. 1 at the rented room at Ahmednagar. 14. The next point canvassed by the defence counsel is that in the presence of wife of the accused Rani how could there be sexual intercourse/relations between the appellant/ accused with the victim. It is the individual phenomena and illness of mind, behaviour that differs with every individual. There are cases of multiple sex and people indulge into heinous activities. There cannot be any broad parameters to be applied as every individual has his own way of behaviour. The Accused escorted the victim associated with his wife Rani and had gumption to the extent of indulging in sexual activities in presence of his wife, It could not be said to be a momentary lapse or a irresistible impulse of the Accused, He calculatedly eloped her under promise to provide Job, There was no reason obviously for the victim to falsely implicate the accused and that too against her cherished desire to be a virgin and getting adverse stigma in the society, Taking survey of all the facts, coupled with evidence of P. W.6 - Dr. Ramesh, wherein the victim has given history three times sexual assault by the accused and having certified the accused to be potent, capable of performing sexual acts, I have no hesitation, in my mind that the victim was subjected to sexual intercourse by the appellant/accused while she was taken to the room at Ahmednagar accompanying with his wife Rani and by virtue of age of the victim such sexual assault, incest between the accused and the victim P.W.2, will not be coming within bracket of consensual sex, but it will definitely be infractions of Section 375 of IPC attracting penal provisions of Section 376 of IPC. 15. 15. The accused is also facing charge below Exhibit 19 for the offence under section 363 read with 34 of IPC with other accused and also charge under Section 506 of IPC. In spite of Charge below Exhibit 19 to be clear, cogent. unfortunately. the learned Judge has convicted the accused for the offence punishable under section 366-A of IPC There is difference between Sections 366 and 366-A of IPC, which can be carved out by bare perusal of those two provisions as quoted hereinbelow- "366 - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend ten years, and shall also be liable to fine; and whoever. by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid." "366-A – Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extent to ten years, and shall also be liable to fine." 16. From the entire version of prosecution case, no where it is spelt out that the accused/appellant had kidnapped the victim to make her to suffer and face sexual intercourse with anybody else than himself. Therefore, the conviction of the accused for the offence under Section 366-A of IPC, will not be sustainable. However. it could have been a case for the offence under section 366 or 363 of IPC, But for the mistake, having been committed in the final order, its benefit will go to the accused. Therefore, the conviction of the accused for the offence under Section 366-A of IPC, will not be sustainable. However. it could have been a case for the offence under section 366 or 363 of IPC, But for the mistake, having been committed in the final order, its benefit will go to the accused. P.W.2 was in school uniform, she was taken by the accused/appellant and other witnesses. She was seen by P.W.4 and even other villagers. She had not complained while moving with the accused. At the instance of the accused. she even changed her school uniform, and put a saree on her person by going to the side of the field in a seeluded place. Had she any defence in her mind to escape from the clutches and custody or to rebel against the accused from the site from where she travelled with the accused no. I from her school to the destination at Ahmednagar, as indicated in her evidence, she had ample opportunities to retaliate, rebel and create horrible situation for Accused. 17. The law is well settled as declared in the matter of S. Varadrajan Vs. State of Madras, reported in AIR 1965 SC 942 . The Hon'ble Lordships have held :- "There is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian." 18. The narration attract such provisions. They are, all the accused, assuring the victim to provide a job at Ahmednagar, was put forward. However, in the cross-examination, the victim accepts that she had no desire to have a job, nor she asked accused no. I to do so. The narration attract such provisions. They are, all the accused, assuring the victim to provide a job at Ahmednagar, was put forward. However, in the cross-examination, the victim accepts that she had no desire to have a job, nor she asked accused no. I to do so. This deflates the stand taken by the complainant or the prosecutrix that the accused induced her or allured her to provide a job at Ahmednagar. Even if this theory is accepted to some extent, then comes the situation, having gone to the room on 11.09.2006, at no point of time, the Victim suggested or pointed out to the accused to move to her native place from the city. On the contrary, the accused no.1 was leaving the room or used to come late while in his absence his wife used to cook or even used to leave the room for purchase of vegetables in the market. The victim at such time was alone in the room. Inspite of such situation, the Victim did not opt to get golden opportunity encashed by creating rebellious approach against the accused by sneaking away from the said premises or making violence known to the neigh hours as the room is in a chawl and the place is densely populated area, in the city like Ahmednagar. Thus. the theory that the victim was enticed on the pretext of providing a job is also diluted and defaced cannot be further put In acceleration providing benefit to the accused. 19. The victim was below 18 years at the material time, when she had been with the accused on 11.09.2006 and remained in the company of the accused upto 18.9.2006. still all her movements narrated hereinabove amply demonstrate that she had opportunities to come out of clutches and clusters of the accused, she did not avail. She, on the contrary. remained in the custody and company of the accused. In the company of the accused. she had sexual advances on the first night, but she did not thereafter sneak away but continued with the accused and his wife and faced the situation further. The conduct of the victim in such eventualities demonstrates that the offence punishable under section 363 or 366 will not stand to the pedestal to bring within the terms of punishment. 20. she had sexual advances on the first night, but she did not thereafter sneak away but continued with the accused and his wife and faced the situation further. The conduct of the victim in such eventualities demonstrates that the offence punishable under section 363 or 366 will not stand to the pedestal to bring within the terms of punishment. 20. The accused is in custody from the date of his arrest and slapped imprisonment of seven years. Considering the age of the accused and the manner in which the offence has taken place, there are no aggravating circumstances. I propose to reduce the sentence from the period of seven years to five years while maintaining fine amount. Hence. Order: (i) The Appeal is partly allowed; (ii) The conviction of the accused/appellant for the offence under Section 366-A of IPC is set aside; (iii) The conviction of the accused for the offence punishable under section 376 of IPC is maintained. However, the sentence is reduced from seven years to undergo rigorous imprisonment for a period five (5) years with the same fine of Rs.2,000/- as was directed by the learned Additional Sessions Judge with default clause. (iv) The accused is entitled for set off as stipulated under Section 428 of Cr.P.C .. Appeal partly allowed.