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2010 DIGILAW 71 (BOM)

Govind Shripat Maraskolhe v. State of Maharashtra

2010-01-15

A.P.BHANGALE

body2010
Judgment : This appeal is directed against judgment and order dated 05.04.2007 passed by Ad hoc Additional Sessions Judge - 1, Wardha in Sessions Trial No. 56/2006 whereby the appellant has been convicted for offence punishable under Section 376 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for seven years and fine in the sum of Rs.1000/-, in default, to suffer R.I. for one month and for offence punishable under Section 363 of the Indian Penal Code and sentenced to suffer R.I. for two years and fine in the sum of Rs.500/-, in default, to suffer R.I. for 15 days and for offence punishable under Section 366 of the Indian Penal Code and sentenced to suffer R.I. for three years and fine in the sum of Rs.500/-, in default, to suffer R.I. for 15 days. 2. Briefly stated facts are:- First informant (PW1) lodged report FIR No. 126/2004 at Deoli Police Station, District Wardha on 29.10.2004 at about 04:00 p.m., complaining about kidnapping of his daughter Ku. Manisha aged about 14 years by the accused Govinda aged about 25 years and offence under Sections 363 and 366 of the Indian Penal Code was registered and taken up for investigation by PSI Adhav (PW8). Victim was traced on 14.11.2004 and brought to Police Station and her statement was recorded which revealed incident that the accused had in the guise of promise to marry her had enticed the victim and had developed affair with her and taking disadvantage of her loneliness at her parent's home and raped her. On 20.10.2004 at about 07:00 p.m., the accused met her at village Fair and enticed her by auto rickshaw to Wardha, Majra and Sawad. They stayed at Sawad in the house of one Sudhakar Uike till 13.11.2004. The accused had regularly committed sexual intercourse with her. Afterward the accused had asked victim to bring money from her relatives. On 14.11.2004 at about 09:00 a.m., victim could meet her maternal uncle who was searching for her. She was then taken to nearest police station and then to Deoli Police Station. Thus offence punishable under Section 376 of the Indian Penal Code was added to report already lodged. The victim and the accused after his arrest were referred for medical examination. She was then taken to nearest police station and then to Deoli Police Station. Thus offence punishable under Section 376 of the Indian Penal Code was added to report already lodged. The victim and the accused after his arrest were referred for medical examination. Upon completion of investigation the accused was charge sheeted before JMFC, 3rd Court, Wardha who committed the case to the Court of Session at Wardha. The charge was framed on 09.08.2006 to which the accused pleaded not guilty and claimed trial. The prosecution examined 11 witnesses to prove the case against the accused. The trial Court found the accused guilty and convicted the accused as above. 3. Learned Advocate for appellant submitted that the appellant/accused had love affair with the prosecutrix and she was consenting party to relationship. Learned Advocate further submitted that the prosecution has failed to prove that prosecutrix was a minor girl at the time of incident. It is contended that ossification test of prosecutrix was suppressed which if disclosed could have shown that prosecutrix was not minor girl. Learned Advocate for the appellant placed reliance upon ruling in the case of Shyam and another .v. State of Maharashtra (reported in AIR 1995 SC 2169 ) to submit that if prosecutrix did not resist being taken away by the accused she must be held as willing party to go with the accused on her own in such cases conviction under Section 366 of the Indian Penal Code was held unsustainable. Reliance is then placed upon ruling in the case of Y. Srinivasa Rao .v. State of A.P. (reported in 1995(2) Crimes 451 (AP)) to argue that the school certificate showing date of birth from the first school wherein prosecutrix was admitted is required to establish her date of birth. Reliance is then placed upon ruling in the case of Ashok Bhaurao Gaikwad .v. State of Maharashtra (reported in 2009 All MR (Cri) 131) to argue that prosecutrix who was on the verge of majority was well acquainted with the accused and had voluntarily accompanied with the accused to various places without raising alarm and made no attempt to flee from the company of accused. In such case in the absence of medical evidence to prove that she was below 16 years of age and while no injury was found on her private parts it was held that intercourse was voluntary and conviction was set aside. Learned Advocate for the appellant lastly submitted in view of ruling in the case of Yogesh Sitaram Dhage .v. State of Maharashtra (reported in 2009 All MR (Cri) 3676) that in case of love affair when prosecutrix was below 16 years of age the sentence was reduced to three years from seven years. 4. Learned APP opposed these submissions stoutly on the ground the evidence led in the present case do not leave any scope for arguments advanced on behalf of the appellant. It is submitted by learned APP that father of the prosecutrix stated that at the time of incident age of prosecutrix was 13 years and there was no cross-examination to this evidence. The prosecutrix (PW5) also deposed her date of birth as 22.10.1990. Her testimony remained unchallenged as to her date of birth. PW10 Doctor Smita Pawde also deposed that prosecutrix Manisha was aged 14 years on the date 14.11.2004 when examined she found hymen absent, vagina admitting two fingers easily and prosecutrix habitual to sexual intercourse. The evidence of doctor remained unchallenged as cross-examination was declined on behalf of the appellant/accused. It is further submitted that Headmaster Mr. Dhok (PW11) deposed about the date of birth of prosecutrix as 22.12.1990 on the basis of admission register (Exh.66) from school record. Thus there was no any evidence to the contrary on behalf of appellant. Learned APP relied upon ruling in the case of State of Maharashtra .v. Gajanan @ Hemant Janardhan Wankhede (reported in 2008 Cri.L.J., 3549) to argue that as held by Hon'ble the Apex Court the age of the prosecutrix in the present case was duly proved and she was minor girl below 16 years of age at the time of incident of rape as well as kidnapping and, therefore, the contentions on behalf of defence cannot be accepted. Learned APP submitted that sufficient evidence beyond reasonable doubt was led to bring home guilt to the appellant/accused. The trial Court had considered the entire evidence to reach logical conclusion as to finding of guilt and conviction. 5. I have considered submissions. Perused rulings cited and also evidence led. Learned APP submitted that sufficient evidence beyond reasonable doubt was led to bring home guilt to the appellant/accused. The trial Court had considered the entire evidence to reach logical conclusion as to finding of guilt and conviction. 5. I have considered submissions. Perused rulings cited and also evidence led. About age of the prosecutrix, there appears clear and unchallenged evidence of the prosecutrix herself, her father and the Headmaster from her school deposing about date of birth of prosecutrix based upon unchallenged school record. The prosecutrix in the present case was aged below 16 years of age at the time of incident of kidnapping and rape as deposed by her. The evidence of prosecutrix (PW5) contained detailed history of events of rape and kidnapping and appears natural and truthful. It inspires confidence to believe that she was kidnapped and then sexually exploited and raped by the appellant/accused while she could not have validly consented for sexual intercourse with the accused. There is sufficient credible evidence to prove that prosecutrix was much below the age of 16 years at the time of incident and thus accused could not have claimed benefit of her alleged consent for his sexual advances towards her which resulted in crime of kidnapping and rape. Accused when cohabits with a 15 years old girl, consent of prosecutrix, even if spelt out by circumstances, was immaterial or irrelevant. Even if consent exists, nature of such consent cannot absolve the accused from guilt. Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. It should, therefore, be considered a crime against humanity. The rulings cited on behalf of the appellant; in the peculiar facts and circumstances of this case are not attracted and hence cannot come to the rescue of the appellant. The trial Court was justified in the facts and circumstances established to hold the accused guilty of offence of kidnapping and rape and rightly convicted him. The sentences imposed were directed to run concurrently and need not be interfered for want of any special or adequate reasons. 6. The appeal lacks merit and deserves dismissal. It is dismissed accordingly.