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2009 DIGILAW 1236 (BOM)

Yogesh s/o. Sitaram Dhage v. State of Maharashtra

2009-09-18

V.G.KINGAONKAR

body2009
JUDGMENT:- This appeal is directed against judgment rendered by learned Additional Sessions Judge, Aurangabad in Sessions Case No.74/2009 whereby the appellant has been convicted for offences punishable under Section 363 and 376 of the J.P. Code and is sentenced to suffer rigorous imprisonment for one (1) year and to pay find of Rs.1000/-, in default to suffer simple imprisonment for one month on first count and to suffer rigorous imprisonment for seven (7) years and to pay fine of Rs.3000/-, in default to suffer simple imprisonment for three (3) months on the second count. 2. Complainant PW Rajendra Korde is clerk in the office of Panchayat Samiti. He is inhabitant of village Khedle-Kajali. The appellant is remotely related to him. The parental house of the appellant is situated in a small locality (vasti) on way between village Khedle-Kajali and Pravara-Sangam. There is school at Pravara-Sangam which is around 5 kms. away from locality of village Khedlet Kajali. The prosecutrix is the second daughter 5 complainant PW Rajendra Korde. She was 1 aged about 15 years at the relevant time. She was attending 10th standard in the secondary English school at Pravara-Sangam in the relevant period. She used to commute to the school on a bicycle. 3. The prosecution case, stated briefly, is that the appellant had developed intimacy with the prosecutrix. He enticed her to go with him on assurance of performing marriage with her. They had eloped on 2nd June, 2008, but then complainant PW Rajendra had filed only a missing report as any prosecution could have probably ruined the marriage prospects of the prosecutrix. After a few days, the prosecutrix was restored to the custody of her father i.e. complainant PW1 Rajendra. The house of the appellant falls on the way of the school of the prosecutrix and there was apprehension that he would against allure her to go with him. There was a proposal to perform their marriage to which complainant PW Rajendra had initially consented to, but later on declined when he come to know that the appellant was already married. He found that the appellant was disgruntled when the marriage proposal was turned down. He further noticed that the appellant used to loiter in the proximity of his house. So, he reached the prosecutrix at farmhouse of his aunt on 22nd July 2008, situated near village Narayanapur. He found that the appellant was disgruntled when the marriage proposal was turned down. He further noticed that the appellant used to loiter in the proximity of his house. So, he reached the prosecutrix at farmhouse of his aunt on 22nd July 2008, situated near village Narayanapur. The appellant and his brother went to the farmhouse on 8th August, 2008 and kidnapped the minor prosecutrix on a motorcycle. He took her to various places. When he was contacted on mobile phone, he demanded ransom. Complainant PW Rajendra lastly agreed to pay amount of Rs.22,000/- to Rs.25,000/- as ransom amount. The appellant threatened to sell the prosecutrix to a brothel if the amount was not paid. Consequently, PW Rajendra lodged a report. After about a couple of months, on 28th October, 2008, the appellant alongwith the prosecutrix went to the Police Station at Waluj. He was arrested. The prosecutrix was subjected to clinical examination. Her statement was recorded. Her statement revealed that she was subjected to forcible intercourse by the appellant, without her consent, during the relevant period of their consortium. The police collected evidence pertaining to age of the prosecutrix, got recorded statements of witnesses and thereafter, charge-sheeted the appellant alongwith his mother and younger brother for commission of offences punishable under Sections 363, 364-A and 376 read with section 34 of the I.P. Code. 4. The appellant pleaded not guilty to the charge (Exh-12). His defence was that the prosecutrix was major and willignly accompanied him. According to the defence version, the appellant and the prosecutrix had entered the wedlock. He denied that he had used force against her to accompany him. He admitted that he and the prosecutrix went to several places, hotels and inns during the relevant period. He categorically denied that ransom amount was demanded from complainant PW Rajendra. 5. At the trial, the prosecutrix examined four (4) witnesses in support of its case. DW 1 Baban Rothe was examined by the defence (appellant). He is husband of the aunt of complainant PW Rajendra and with whom the prosecutrix was residing before she and the appellant eloped together on 8th August, 2008. 6. On appreciation of the evidence tendered by the prosecution, the learned Sessions Judge held that the prosecution duly established the fact that birth date of the prosecutrix is 10th August, 1993 and, therefore, she was aged below 15 years at the material time. 6. On appreciation of the evidence tendered by the prosecution, the learned Sessions Judge held that the prosecution duly established the fact that birth date of the prosecutrix is 10th August, 1993 and, therefore, she was aged below 15 years at the material time. The learned Sessions Judge held that there was no substance in the charge of demand for ransom nor the mother and the bother of the appellant were concerned with the offence of kidnapping and the alleged rape. The appellant came to be acquitted for offence punishable under Section 364-A of the I.P. Code. His mother and younger brother were acquitted for the offences punishable under section 363 read with section 109 of the I.P. Code. However, the learned Sessions Judge held that the appellant was guilty for the offences punishable under section 363 and 376 of the I.P. Code. He was accordingly convicted and sentenced as described hereinabove. 7. Mr. Damle V. N. would submit that in absence of ossification test, the age of r the prosecutrix could not be definitely determined. He would submit that the extract of the school record does not sufficiently establish the birth date of the prosecutrix. He contended that the finding about age of the prosecutrix has been erroneously recorded by the learned Sessions Judge. He argued that the prosecutrix failed to prove by reliable evidence that the prosecutrix was below 16 years of age at the time of alleged occurrence. He, therefore, submitted that the appellant could not have been convicted for offence of rape because there is no scintilla of evidence to infer that the prosecutrix was ravished by him under duress. He argued that the version of DW Baban makes it clear that the prosecutrix had contacted the appellant on his cell phone and had called him at the farmhouse. So, there was no taking away of the prosecutrix from the lawful custody of the complainant PW Rajendra and as such, the charge under Section 353 of the I.P. Code is also not sustainable. Hence, Mr. Damle urged to allow the appeal and acquit the appellant. Alternatively, he would submit that now the complainant PW Rajendra Korde and mother of the appellant have settled the matter. Hence, Mr. Damle urged to allow the appeal and acquit the appellant. Alternatively, he would submit that now the complainant PW Rajendra Korde and mother of the appellant have settled the matter. He would submit that since the complainant and the appellant are relatives and that now complainant PW Rajendra has agreed to recognize the marriage between the appellant and the prosecutrix, the appellant may be let-off on probation or on a minimum Sentence of the term which he has already undergone during course of the trial and after the conviction. As against this, the learned A.P.P. supports the impugned judgment. 8. Out of the four (4) witnesses examined by the prosecution, PW 1 Rajendra is father of the prosecutrix. It is explicit from version of PW Rajendra that on earlier occasion, the appellant had kidnapped Ii prosecutrix on 2-06-2008. He came to know that she had gone with him, yet, he lodged only a missing report at Newasa Police Station. His version purports to show that the appellant is distinctly related to him and, hence, when some of the relatives and his friends intervened, he agreed that marriage of the appellant and the prosecutrix would be performed. So, he did not prosecute the earlier complaint. He also wanted to protect reputation of the prosecutrix. His version purports to show that he made certain inquiries and came to know that the appellant was already married to one Amruta. So, he declined the proposal of their marriage. On the previous occasion, the appellant had reached the prosecutrix at the S.T. Bus stand of Ahmednagar wherefrom, she was brought a back home by him (PW Rajendra). Thus, he had not taken any serious action when the appellant and the prosecutrix had eloped on earlier occasion. 9. The version of PW Rajendra further purports to show that subsequently, again he noticed presence of the appellant nearby his house. He became suspicious when he noticed that the appellant used to loiter in the proximity of his house. So, in order to avoid repetition of the earlier incident, he reached the prosecutrix at house of his paternal aunt, namely, Jaibai w/o. Baban Rothe on 22nd June, 2008. She was residing with the family members of his aunt at village Narayanpur, in a farmhouse when the incident giving rise to the prosecution did occur. So, in order to avoid repetition of the earlier incident, he reached the prosecutrix at house of his paternal aunt, namely, Jaibai w/o. Baban Rothe on 22nd June, 2008. She was residing with the family members of his aunt at village Narayanpur, in a farmhouse when the incident giving rise to the prosecution did occur. His version purports to show that on 8th August, 2008, DW Baban telephonically informed him that the appellant and his younger brother took away the prosecutrix on a motorcycle. His version purports to show that he collected further information from mother of the appellant and contacted the appellant on his cell phone. He narrated as to how later on, the appellant and the prosecutrix appeared at the Waluj Police Station after about a couple of months. He corroborated recitals of his report (Exh.17). He categorically stated that birth-date of the prosecutrix is 10th August, 1993. The house of the appellant is situated in an agricultural land situated at a distance of about one and half kms. from the locality of village Khedle-Kajali. He deposed that birth certificate of the prosecutrix was submitted while admitting her for the first time in the school. He denied the suggestion that the prosecutrix was harassed by her step-mother and used to remain outside the house as a result of such harassment. His version purports to show that he did not visit the farmhouse of his aunt after the prosecutrix was left there since 8th August, 2008 and she was not then taking education while residing with the aunt. Nothing of much importance could be gathered from his cross-examination as regards the incident in question. 10. At this juncture, the testimony of DW 1 Baban Rothe may be considered. The prosecutrix was left at his house and was residing there till 8th August, 2008. She resided in the farm-house with DW Baban and other members of his family for about a couple of months. Therefore, version of DW Baban assumes significance. The testimony of DW Baban purports to show that the prosecution always used to tell him that she did not like to stay in the farmhouse with his family members and wanted to go back to the house of her father. He deposed that the prosecutrix used to make phone calls. Therefore, version of DW Baban assumes significance. The testimony of DW Baban purports to show that the prosecution always used to tell him that she did not like to stay in the farmhouse with his family members and wanted to go back to the house of her father. He deposed that the prosecutrix used to make phone calls. His version indicates, unmistakably, that on receiving the phone call of the prosecutrix, the appellant went to his farmhouse. He deposed that the prosecutrix collected her baggage and left farmhouse with the appellant after his arrival. He immediately informed the said fact to her father. Admittedly, he searched alongwith PW Rajendra to find out r whereabouts of the prosecutrix. The unimpeached version of DW Baban, who is husband of the aunt of complainant PW Rajendra, would establish the fact that the appellant went to his farmhouse after receiving telephonic call of the prosecutrix. In other words, it is duly proved that the prosecutrix had called the appellant at the farmhouse with a view to make good her escape and to go with him. There was no element of allurement held out by the appellant nor he forced her to go with him. 11. It is in the above background that version of the prosecutrix needs to be scrutinized with little more caution and care. The learned Sessions Judge noticed at the outset, before the recording of her testimony, that she appeared to be scared whilst in the witness box. Her version purports to show that the residential house of the appellant falls on the way to her school from village KhedleKajali. She narrated that the appellant used to intercept her on her way to the school. She further narrated that he compelled her to go with him on his motorcycle. They went to Pune. After 4/5 days, he reached her at Ahmednagar wherefrom, she telephonically contacted her father (PW Rajendra). Her father took her away to the house. Her version purports to show that due to harassment of the appellant, she was reached to house of her father's paternal aunt. She narrated that after some days, the appellant visited the farmhouse. He asked her to accompany him. She inquired as to where was she being taken with him. He told her that he would take her to house of her father. She narrated that after some days, the appellant visited the farmhouse. He asked her to accompany him. She inquired as to where was she being taken with him. He told her that he would take her to house of her father. However, she was taken by him on the motorcycle to his house. According to her, her uncle visited the house of the appellant when she was at this house. The mother of the appellant pushed her inside the house and closed the door. His mother informed her uncle that the appellant loves her and that she was going to perform his marriage with her. She gave money to the appellant and asked him to leave the house. 12. According to the prosecutrix, he took her to Manchar on the mother-bike at house of his friend. They stayed together at house of his friend for 20/25 days. He had committed forcible sexual intercourse with her during that period. Her version purports to show that the appellant received a call on his cell phone informing him that PW Rajendra had lodged a criminal complaint and, therefore, his family members, including the mother, were arrested. He took her to Pune and other places such as Nasik, Trimbakeshwar, Tirupati-Balaji, etc. He had committed forcible sexual intercourse with her during the said period at the places where they had gone including a lodge called "Bhakti Park Inn" at Shirdi. Her version purports to show that after about 4/5 days, of their common stay at village Dhakephal, he stopped committing sexual intercourse with her. He then asked her to wash all of his clothes. Lastly, on 28-10-2008, he took her to Waluj Police Station. Both of them appeared before the Police Station House Officer. 13. Cross-examination of the prosecutrix reveals that her mother had died during her childhood. It is probable that she was not being properly looked after by the father and the step-mother while she was taking education in the school at Pravara-Sangam. From her cross-examination, it is further explicit that when she had gone with the appellant at Pune, he assured her of marriage. Her conduct would surely indicate that she had willingly eloped with the appellant from the farmhouse of her father's aunt. Though she was in company of the appellant for a couple of months thereafter, yet, she never tried to contact her father. Her conduct would surely indicate that she had willingly eloped with the appellant from the farmhouse of her father's aunt. Though she was in company of the appellant for a couple of months thereafter, yet, she never tried to contact her father. They were moving from place to place. Both of them appeared together before the Police Station House Officer at Waluj Police Station. She did not give any complaint at that time. The appellant had no business to take the prosecutrix to the Police Station unless he was confident that she would support him. It need not be reiterated that version of DW Baban goes to prove the fact that it was the prosecutrix who contacted the appellant on the cell phone and, therefore, she immediately left with him after his arrival at the said farmhouse. Of course, if it is found that the prosecutrix was below 16 years of age, then her consent is hardly of any significance. Still, however, these important circumstances are required to be duly considered as mitigating factors while considering proportionality of the sentence. 14. As regards age of the prosecutrix, she gave her birth date as 10-08-1993. The version of PW Rajendra categorically shows that the birth date of the prosecutrix is 10-081993. The father's evidence cannot be lightly brushed aside. It is well settled that the parents are the best witnesses to gave authentic information regarding birth date of their child. The testimony of PW 4 Eknath goes to show that the school leaving certificate (Exh.52) is issued under signature of the Headmistress of Siddheshwar English School, Pravara-Sangam. It has come on record that during the relevant period, the prosecutrix was attending the said school. The school leaving certificate would show that her-birth date is 10-08-\993. His version purports to show that the entries in the school record are taken on basis of the original school leaving certificate filed at the time of admission of the student. The prosecutrix was previously student of Sunderbai Hiralal Gandhi Kanya Vidyalaya, Newasa. The testimony of PW Eknath also corroborates the relevant entry (Exh-43). Nothing of much importance could be gathered from his cross-examination. He is junior clerk attached to the school. He has no business to manipulate any false record regarding birth date of the prosecutrix. 15. From version of PW 3 PSI Rameshwar, it would be amply clear that he collected necessary evidence. Nothing of much importance could be gathered from his cross-examination. He is junior clerk attached to the school. He has no business to manipulate any false record regarding birth date of the prosecutrix. 15. From version of PW 3 PSI Rameshwar, it would be amply clear that he collected necessary evidence. On 28-10-2008, the prosecutrix was sent for medical examination. The medico-legal certificate (Exh-33) is not challenged during course of the trial. The recitals of the medico-legal certificate would show that age of the prosecutrix was recorded as 15 years. The X-Ray examination was also carried out. The hymen was found to bear old tears. Needless to say, she was subjected to sexual intercourse. No external injuries were found on her person. 16. Mr. Damle contented that the original certificate issued by the Village Panchayat ought to have been proved. He contended that Radiological examination of the prosecutrix could have confirmed her age but there is no opinion in this behalf. He argued that age of the prosecutrix is the important aspect and in absence of opinion of Radiologist, the stray entry in the school leaving certificate (Exh-52) will be of no much avail. The contentions of Mr. Damle are unacceptable. As stated before, father of the prosecutrix gave her birth date as 10-08-1993. His version is not shattered during the cross-examination on this score. There appears no reason to dislodge his version. The entry in the school leaving certificate (Exh-52) lends corroboration to the version of PW Rajendra i.e. father of the prosecutrix. The medical certificate gives only approximate assessment of the age. It is well known that there is always margin of error by two (2) years in the medical opinion about age of a person. The medical evidence cannot be, therefore, regarded as the conclusion proof about age of a person. The ossification test is generally regarded as one of the tests when the primary evidence is unavailable. The result of the ossification test depends on several factors like social conditions, genetic factors, nourishment and tropical conditions. The school record coupled with statement of the father would be sufficient to determine age of the prosecutrix in such a case. 17. One cannot be oblivious of the fact that father of the prosecutrix is an employee of Panchayat Samiti office at Newasa. He is not an illiterate person. The school record coupled with statement of the father would be sufficient to determine age of the prosecutrix in such a case. 17. One cannot be oblivious of the fact that father of the prosecutrix is an employee of Panchayat Samiti office at Newasa. He is not an illiterate person. So, it is difficult to say that he would not have kept note about the birth date of his daughter. Sometimes, an illiterate and rustic person may not remember the birth date of his son or daughter and may not be able to keep a track record thereof. In case of PW Rajendra, it is ordinarily' not possible that he did not maintain personal record about birth date of his daughter and son. There is no substantial reason to dislodge his version as regards age of the prosecutrix. 18. Mr. Damle seeks to rely on certain observations in "Balasaheb Vs. The State of Maharashtra" (1994) Cri.L,J. 3044). A Division Bench of this Court considered the medical evidence. The Division Bench held that where the occification test indicated age of the prosecutrix, then error of margin could be considered. It has been observed that the prosecutrix in the given case was said to be aged about 16 years as per the medical opinion of Dr. Khot and, therefore, by adding one year to such opinion, it could be held that the appellant in the said case was entitled to the benefit of reasonable doubt. He was entitled to advantage of marginal error. In the said case, opinion about age of the prosecutrix, was based on the occification test. In the present case, the X-ray examination was carried out. The medical opinion is, however, not obtained in far as the occification test is concerned. The medico-legal certificate (Exh-33) shows that the X-Ray examination was conducted. However, the appellant made not attempt to call the Medical Officer for cross-examination. His simple denial about age of the prosecutrix was not based on any material. 19. In ''Ravinder Singh Gorkhi Vs. State of U.P.", (2006)5 SCC 584 , the Apex Court considered the provision contained in section 35 of the Evidence Act. However, the appellant made not attempt to call the Medical Officer for cross-examination. His simple denial about age of the prosecutrix was not based on any material. 19. In ''Ravinder Singh Gorkhi Vs. State of U.P.", (2006)5 SCC 584 , the Apex Court considered the provision contained in section 35 of the Evidence Act. The Apex Court observed : "The age of a person as recorded n the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment, for contesting election, registration of marriage obtaining a separate unit under the ceiling laws, and even for the purposes of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A Court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of 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 case of abduction or rape, or similar offence where the victim or the prosecutrix...... " 20. Mr. Damle referred to "Lalta Prasad Vs. State of M.P., ( AIR 1979 SC 1276 ). The Apex Court noticed that there was no proof to conclusively establish the prosecution case as regards age of the girl. It was not proved by reliable evidence that the girl was below 16 years of the age at the time of occurrence. It was found that she had gone with the accused of her free will and there was evidence to show her consent to the sexual intercourse. It was in such a face situation that the accused (Lalta Prasad) was acquitted. Mr. Damle also referred to "Kuldeep K. Mahato Vs. State of Bihar" ( AIR 1998 SC 2694 : [1998 ALL MR (Cri) 1621 (S.C.)]), "State of Haryana Vs. Prem Chand"' (1997)7 SCC 756 and "Somnath Bhanudas More Vs. State of Maharashtra" 2009 ALL MR (Cri) 2308. The said three (30 cases care distinguishable on facts. The victims in all the above three (3) cases were not below 16 years of age at the relevant time. Prem Chand"' (1997)7 SCC 756 and "Somnath Bhanudas More Vs. State of Maharashtra" 2009 ALL MR (Cri) 2308. The said three (30 cases care distinguishable on facts. The victims in all the above three (3) cases were not below 16 years of age at the relevant time. It was proved that they were above 16 years and, therefore, the charge of rape was found unsustainable. There are cases and cases. In the present case, it is duly proved that the prosecutrix ws below 16 years of age when the incident occurred. Obviously, her consent for the sexual intercourse with the appellant is not a valid consent in the eye of law. For, she was incompetent to give such consent. 21. Considering the totality of the circumstances and the evidence on record, it is duly proved that the prosecutrix was below 16 years of age at the relevant time and was kidnapped by the appellant from lawful custody of aunt of the father. It is duly proved that he committed sexual intercourse with her after both of them eloped together. It is not proved, however, that he committed the sexual intercourse against her will and by use of force. She was a consenting party for the sexual intercourse as well as for the act of elopement. It need not be reiterated that she invited him at the place of vasti (residential farm-house) where she was lodged by her father. It is probable that she was attracted towards the appellant due to his regular contact during the period she used to attend the school. It is more probable that both of them wanted to marry each other. The prosecutrix was probably unhappy in the house of her father due to the lack of care. The offences are duly proved and there is hardly any person to deviate from the findings of the trial Court. The conviction of the appellant is, therefore, legal and proper. 22. It shall now advert to the question of proportionality of the sentence awarded to the appellant., Not only -that father of the prosecutrix (PW Rajendra) did not" take any action against the appellant when he and the prosecutrix had eloped together on the previous occasion, but it was proposed that their marriage should be performed. The appellant is remotely related to the complaint (PW Rajendra). The appellant is remotely related to the complaint (PW Rajendra). The version of PW Rajendra is that he declined to give the prosecutrix in marriage to the appellant because he came to know that the appellant was already married to one Amruta. There is no scintilla of evidence to show that the appellant was already married to any other woman by name Amruta. There is no scintilla of evidence to show that the appellant was already married to any other woman by name Amruta. What prima facie appears is that initially, PW Rajendra tried to suppress the incident of the elopement of the prosecutrix with the appellant and attempted to convince her to discontinue her intimacy with the appellant. She did not do so. It cannot be overlooked that she contacted the appellant on phone. 23. This is a case of fatal attraction and teenager's love affair. The appellant alone is not responsible though legally, he could be held responsible for the offence of kidnapping and the rape because consent of the prosecutrix is no consent in the eye of law. The subsequent development shows that PW Rajendra desires to compound the offence. An affidavit is filed by PW Rajendra to permit compounding of the offence. So also, mother of the appellant has filed similar affidavit. Both of them have stated that for the sake of love towards the children, it would be proper to "regularise the marriage as solemnized by them". At the same time, it cannot be ignored that the child marriage is illegal and impermissible. 24. Having regard to totality of the circumstances as discussed above, the substantive sentence of seven (7) years' rigorous imprisonment is too harsh. The Appellant deserves leniency. In my opinion, it would be appropriate to reduce the substantive sentence to three (3) years' rigorous imprisonment because by the end of such period, the prosecutrix perhaps would be major and then the appropriate decision can be taken by both of them. This is an exceptional case in which the sentence deserves to be modified. 25. In the result, the appeal is partly allowed only to the extent of the substantive sentence awarded by the learned Sessions Judge to the appellant for the offence punishable under Section 376 of the I.P. Code. The substantive sentence of seven (7) years' rigorous imprisonment, is reduced to the substantive sentence of three (3) years' rigorous imprisonment. 25. In the result, the appeal is partly allowed only to the extent of the substantive sentence awarded by the learned Sessions Judge to the appellant for the offence punishable under Section 376 of the I.P. Code. The substantive sentence of seven (7) years' rigorous imprisonment, is reduced to the substantive sentence of three (3) years' rigorous imprisonment. The remaining part of the sentence of fine and the sentence awarded for offence punishable under Section 363 of the I.P. Code as well the other part of the impugned judgment is maintained. Ordered accordingly.