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2016 DIGILAW 814 (BOM)

Suresh v. State of Maharashtra

2016-04-27

Z.A.HAQ

body2016
JUDGMENT : Z.A. Haq, J. 1. Heard Shri D.A. Sonwane, learned Advocate for the appellant and Shri S.S. Doifode, learned Additional Public Prosecutor for the respondent. 2. The appellant has challenged the judgment passed by the learned Additional Sessions Judge convicting him for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay fine of Rs. 2,000/- and in default of payment of fine, to suffer further rigorous imprisonment for period of three months. 3. The case of the prosecution is:- The complainant-Ku. Shalini (aged about 14 years 11 months 9 days at the time of incident) filed report with the police station stating that she was having love affair with the accused No.1 (appellant) and the accused No. 1 assured her that he will marry her and had sexual intercourse with her forcibly. The complainant alleged that accused No. 2-Sunil had embraced her on road and outraged her modesty. On the complaint made by the complainant, the investigation was undertaken and charge-sheet was filed before the Judicial Magistrate First Class who committed the case to the Court of Sessions as the offence is triable by the Court of Sessions. The Sessions Court framed the charge and explained it in vernacular to the accused. Both the accused did not accept the guilt and claimed to be tried. The trial is conducted and by the impugned judgment the accused No. 1 (appellant) is convicted for the offence punishable under Section 376 of the Indian Penal Code and the accused No. 2-Sunil Kisanji Shrirame is convicted for the offences punishable under Sections 354 and 506 of the Indian Penal Code. 4. Shri D.A. Sonwane, learned Advocate for the appellant has submitted that considering the averments made in the complaint and the evidence of the prosecutrix (P.W.1), it is clear that there was a love affair between the appellant and the prosecutrix and the sexual intercourse was with the consent of the prosecutrix and therefore, the appellant cannot be held guilty for the offence punishable under Section 376 of the Indian Penal Code. The submission cannot be accepted as undisputedly age of the prosecutrix was below sixteen years. The submission cannot be accepted as undisputedly age of the prosecutrix was below sixteen years. Even if it is considered that the intercourse was with consent of prosecutrix, in view of the fact that at the time of incident the prosecutrix had not completed sixteen years of age, in view of the sixth description below Section 375 of the Indian Penal Code, as it stood at the time of incident, it has to be held that the appellant is guilty of offence punishable under Section 376 of the Indian Penal Code. The findings recorded by the learned Additional Sessions Judge on this point are proper. 5. The learned Advocate for the appellant has submitted that even if it is held that the appellant is guilty of commission of offence under Section 375 of the Indian Penal Code punishable under Section 376 of the Indian Penal Code, considering the fact that the intercourse was with consent of the prosecutrix, the sentence imposed by the learned Additional Sessions Judge is required to be modified and lesser sentence should be imposed on the appellant. The learned Advocate for the appellant has submitted that the fact that prosecutrix was minor at the time of incident would be relevant for the purposes of holding the appellant guilty of the offence, but it will not be relevant for considering the quantum of sentence to be imposed on the appellant. In support of the submission, the learned Advocate has relied on the judgment given in the case of Bandu alias Charandas Dighade v. State of Maharashtra reported in 2003 Cri.L.J. 1990. It is submitted that the appellant was aged about twenty-four years at the relevant time and was working as labour and considering that the intercourse was with the consent of the prosecutrix, it would be appropriate that the appellant be sentenced for the period for which he had been in Jail. It is submitted that the appellant is in Jail since 24-12-2011 i.e. for more than four years and four months and this period be treated as the period of sentence to be imposed on the appellant. 6. The learned Additional Public Prosecutor has submitted that the learned Additional Sessions Judge has rightly imposed the sentence of seven years on the appellant as per Section 376 of the Indian Penal Code, as it stood at the relevant time. 6. The learned Additional Public Prosecutor has submitted that the learned Additional Sessions Judge has rightly imposed the sentence of seven years on the appellant as per Section 376 of the Indian Penal Code, as it stood at the relevant time. It is submitted that if the sentence has to be below seven years then there have to be special reasons as laid down in the judgment given in the case of State of M.P. v. Makhmal Khan and others reported in 2005 Cri.L.J. 4363. It is submitted that, in the present case, there are no special reasons for imposing sentence less than seven years on the appellant. It is prayed that the appeal be dismissed. 7. Though the prosecution has alleged that the appellant committed forcible intercourse, it has not been established. The medical examination report does not support the allegations of forcible sexual intercourse. It is not explained by the prosecution as to why the doctor who examined the prosecutrix has not been produced as witness. In these facts, it cannot be said that the prosecution has established that the appellant committed sexual intercourse on the prosecutrix forcibly. 8. The submission made on behalf of the appellant that considering the evidence on record which establishes that the intercourse was not forcible, the sentence lesser than seven years be imposed on the appellant, requires consideration. Considering the proposition laid down in the judgment given in the case of Bandu alias Charandas Dighade(cited supra), it has to be held that the fact that the prosecutrix was minor at the time of the incident would not be relevant for considering the quantum of sentence to be imposed on the appellant. Considering the fact that the appellant was aged about twenty-four years at the time of incident and was working as labour to earn his livelihood and was not involved in any other crime and the evidence on record does not establish that the appellant committed the sexual intercourse forcibly, in my view, the following order would sub-serve the ends of justice:- (i) The conviction of the appellant for the offence punishable under Section 376 of the Indian Penal Code in maintained. (ii) The imposition of fine of Rs. 2,000/- on the appellant and the directions that in default of payment of fine the appellant shall undergo rigorous imprisonment for three months are maintained. (ii) The imposition of fine of Rs. 2,000/- on the appellant and the directions that in default of payment of fine the appellant shall undergo rigorous imprisonment for three months are maintained. (iii) The order passed by the learned Additional Sessions Judge sentencing the appellant to undergo rigorous imprisonment for seven years is modified. It is directed that the appellant shall undergo rigorous imprisonment for the period for which he had been in Jail. (iv) If the custody of the appellant is not required in any other case, he be released. (v) The fees of Shri D.A. Sonwane, learned Advocate appointed to represent the appellant is quantified at Rs. 5,000/-. (vi) The appeal is partly allowed in the above terms.