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2014 DIGILAW 2287 (BOM)

Balam v. State of Maharashtra

2014-11-14

A.M.THIPSAY

body2014
JUDGMENT A.M. Thipsay, J. 1. This Appeal is directed against the Judgment and order delivered by the Additional Sessions Judge, Pune in Sessions Case No.241 of 2011, whereby the learned Additional Sessions Judge convicted the appellant who was the accused no.2 in the said case, of an offence punishable under Section 376 of the Indian Penal Code and sentenced him to suffer R.I. for ten years and also to pay a fine of Rs.10,000/-(Rupees Ten Thousand). There was another accused the accused no.1 Manoj Raju Atole in the said case, but the learned Additional Sessions Judge acquitted him. 2. I have heard Mr.Daulat G. Khamkar, the learned counsel for the applicant, and Mr.Deepak Thakre, learned A.P.P. for the respondent State of Maharashtra. With their assistance, I have gone through the evidence adduced during trial and impugned judgment of conviction. 3. Though a number of contentions have been raised by Mr.Khamkar, the learned counsel for the appellant, in the course of arguments, the learned counsel submitted that he would not seriously challenge conviction of the applicant in view of the fact that the evidence indicates the victim to be of less than 16 years at the time of the incident. He, however, submitted that in the facts and circumstances of the case, the Appeal should primarily be considered for reduction of the sentence imposed upon the applicant by the trial Court, which, is according to him, is rather harsh. 4. In view of this submission, though the evidence adduced during the trial has been examined by me, and though the learned counsel for the petitioner as also the learned Additional Public Prosecutor has been heard in this regard, it is not necessary to discuss the entire evidence that was adduced before the trial Court. 5. The case of the prosecution was that the victim was abducted by the appellant and the other accused, was forcibly made to sit on a motor-cycle, was taken to a remote place against her wishes, and was raped by the appellant, as also the other accused. The contention advanced by the learned counsel for the appellant is basically that the version of the victim is unreliable. He submitted that the case clearly appears to be of consent i.e., the victim was apparently a consenting party to what appears to have happened. The contention advanced by the learned counsel for the appellant is basically that the version of the victim is unreliable. He submitted that the case clearly appears to be of consent i.e., the victim was apparently a consenting party to what appears to have happened. He also submitted that, that the victim exonerated the co-accused in her evidence indicates that the testimony of the victim was not worth placing implicit reliance. 6. I have carefully examined the evidence in that regard. 7. In the cross-examination, the victim admitted that she was acquainted with the appellant. She also admitted that she was taken on the motor-cycle through a road which was having heavy traffic with several shops situate there. She also admitted that the appellant, the other accused and she herself, had, on the way stopped to have Bhel at one place and that the appellant and the other accused actually consumed Bhel there. She has stated that she did not eat Bhel herself but it was because she was fasting on that date. She admitted that had it not been for the fast she too would have eaten Bhel. There are a number of improbabilities in her version to the effect that she was forcibly made to sit on a motor-cycle and was taken to a remote place against her will. However, what is further significant is that admittedly she was seen by her cousins Sarika Kate and Prakash Jadhav while she was going on the motor cycle along with the appellant and the accused and the other accused. The victim did admit in the cross-examination that when she had seen her cousins, she had felt that they would go home and tell her mother about her and that her mother would then be angry. The victim also admitted in the cross-examination that the fact regarding her having gone with the appellant and the other accused was told to her mother by Sarika Kate and Prakash Jadhav a fact with the mother tried to hide and suppress. Thus, there is certainly a case for doubting whether the victim was taken forcibly to a remote place by the appellant or the other accused, or whether she herself, voluntarily and willingly went with him. 8. However, the victim appears to be below 16 years of age. Her date of birth according to the prosecution is 4th October, 1996. Thus, there is certainly a case for doubting whether the victim was taken forcibly to a remote place by the appellant or the other accused, or whether she herself, voluntarily and willingly went with him. 8. However, the victim appears to be below 16 years of age. Her date of birth according to the prosecution is 4th October, 1996. The alleged incident had taken place on 13th December, 2010. Thus, the victim, at the material time, clearly, was of an age below 16 years. Though, it does appear to me that the victim was, in all probability a consenting party, in view of the fact that she was below 16 years of age at the material time, her consent would be quite immaterial in the context of the allegations against the appellant, of having committed rape. 9. Mr.Khamkar contended that the evidence regarding the age of the victim is not reliable. He did point out to me that the victim herself had given her date of birth as 4th October, 1993 during her. He also pointed out that the mother of the victim herself had given her date of birth as 4th October, 1993 at one place and as 4th October, 1994 at another place. He submitted that these discrepancies about the age of the victim should be taken in to consideration to doubt the version of the prosecution to the effect that the victim was below 16 years of age at the material time. The learned Additional Public Prosecutor submitted that the discrepancies between the oral evidence of the victim, as regards her birth, and the record in respect of the date of birth of the victim, as available in the records of the school, should be resolved by placing more reliance on the record. I have carefully gone through the relevant evidence and I find that the certificates issued by two different schools in which the victim had studied, indicate, her date of birth as 4th October, 1996. Even the birth certificate which was tendered in evidence shows her date of birth as 4th October, 1996. The learned Additional Public Prosecutor is right in submitting that the entries in the relevant record which has been made in the normal course, would have much more evidentiary value then oral evidence about the date of birth given by the witnesses. 10. The learned Additional Public Prosecutor is right in submitting that the entries in the relevant record which has been made in the normal course, would have much more evidentiary value then oral evidence about the date of birth given by the witnesses. 10. Even so, I have examined the medical opinion with respect to the age of the victim. The same has been opined to be 14 years. Even, if some margin of error is considered, the victim clearly appears to be below 16 years of the age on the date of the incident. 11. Since the finding of conviction is not being challenged, it is not necessary to discuss the other evidence except observing that the fact that the appellant had intercourse with the victim ,cannot be doubted, from the evidence on record. 12. Though in view of the finding arrived at by the trial Court about the age of the victim being below 16 years at the material time which does not seen to be suffering from any error or infirmity, the appellant cannot be absolved of the offence on the ground that the victim was a consenting party, still, the case of the appellant can, in the circumstances, be treated sympathetically for the purposes of considering the reduction of the sentence imposed upon him. 13. There is also substance in the contention advanced by the learned counsel for the appellant that the victim, though had initially accused the co-accused Manoj also, subsequently, for reasons known to her, exonerated him while giving evidence before the trial Court. The victim's claim that it was a case of 'mistaken identity' which on the face of it, cannot be easily accepted. Thus, the victim appears to have, for whatever reasons, resiled from original version and has certified the innocence of the co-accused. 14. The appellant, at the material time was only 19 years of age. He had no past criminal record to his discredit. His parents are present in the Court and I find that family ties of the appellant are not severed. 15. 14. The appellant, at the material time was only 19 years of age. He had no past criminal record to his discredit. His parents are present in the Court and I find that family ties of the appellant are not severed. 15. Considering that the case appears to be of the consent of the victim, though in view of the age of the victim, the applicant has to held as guilty of rape, still, this coupled with the victim's exonerating the co-accused which seems suspicious, and the age of the applicant, makes out a case for leniency in the matter of sentence. The sentence of imposition of 10 years, as imposed on the appellant appears to be rather harsh and uncalled for, to me. 16. Undoubtedly, the minimum sentence provided for the offence punishable under Section 376 of the IPC is imprisonment for a term which shall not be less than seven years. The learned Additional Public Prosecutor, therefore, submitted that it would be mandatory to impose a sentence of imprisonment for a period of seven years, even if this Court is inclined to reduce the sentence imposed upon the applicant by the trial Court. I have carefully considered the matter. Section 376 of the Indian Penal Code, as its stands today, does not leave any discretion to the Court to impose a sentence of imprisonment for a period of less than seven years. The said Section was substituted by Act 13 of 2013. Section 376 as it stood before the said substitution by the Amendment Act, contained a proviso to Sub-section (1) thereof, which read as under : 'Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years'. 17. Thus, when the offence was committed by the appellant, the proviso was very much in existence and it was, therefore, open for the Court to impose a sentence of imprisonment for a term of less than seven years. 18. In my opinion, there are special and adequate reasons in this case to impose a sentence lesser than the one prescribed as minimum. 18. In my opinion, there are special and adequate reasons in this case to impose a sentence lesser than the one prescribed as minimum. In brief, these reasons may be summarized as follows: (a) The victim appears to be a consenting party and the appellant is to be held guilty of rape only in view of the age of the victim which apparently was less than 16 years at the material time. (b) The victim, apparently, has resiled from her original version and has exonerated the co-accused, and this conduct of the victim is rather suspicious and inexplicable. (c) The victim did not report the matter to any one and the incident came to light only after the cousins of the victim reported the fact of their having seen the victim with the appellant and the co-accused, and when the mother questioned the victim about her conduct. (d) The appellant at the material time was only 19 years of age without any antecedents. 19. Considering all the aspects of the matter and after hearing the learned counsel for the appellant as also the learned Additional Public Prosecutor, I am inclined to reduce the sentence imposed upon the appellant by the trial Court. 20. In the result, the Appeal is partly allowed. 21. The order of conviction of the appellant, as recorded by the learned Additional Sessions Judge is maintained. However, the substantive sentence imposed upon the appellant is reduced to R.I. for a period of five years. 22. The conviction of the appellant with respect to the offences punishable under Sections 363 IPC and 506(II) of the Indian Penal Code and the sentences imposed therefor are maintained. 23. Save and except as aforesaid, no other order in this Appeal, which stands disposed of in the aforesaid terms.