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2018 DIGILAW 3031 (BOM)

Raju Deorao Bhurse v. State of Maharashtra

2018-12-21

M.G.GIRATKAR

body2018
JUDGMENT : M.G. Giratkar, J. None appears on behalf of the applicant/accused. Non bailable warrant was issued by this Court on 12.09.2018. It was not served. This Court, on 30.11.2018, issued bailable warrant of Rs.5,000/-. It is duly served on the applicant/accused. Sessions Judge, Gadchiroli reported about the service of bailable warrant to the applicant/accused. Even though, the applicant remains absent. His Counsel also remains absent. Revision is of the year 2007. Hence, with the assistance of Shri V.P. Gangane, learned Additional Public Prosecutor, the matter is being decided finally. 2. Learned APP has pointed out the judgment of Assistant Sessions Judge, Gadchiroli which was confirmed by the Sessions Judge, Gadchiroli on 07th March, 2007 in Criminal Appeal No. 02 of 2006. Learned APP has submitted that there was no dispute about the sexual intercourse by the applicant/accused. The only dispute in respect of age of the prosecutrix. As per the defence of accused, she was more than 16 years at the time of incident. But, it is brought on record by birth certificate (Exh. 27) that she was born on 30th October, 1983 and incident took place on 20.01.1999 which shows that she was aged about 15 years 02 months and 20 days. Therefore, it is clear that she was below 16 years of age at the time of incident. Therefore, her consent is immaterial for sexual intercourse. 3. Shri Gangane, learned APP has further submitted that very lenient view is taken by the trial Court while convicting the accused. He was sentenced to imprisonment for two years and fine of Rs.3,000/-. He has submitted that there is no merit in the revision and the same is liable to be dismissed. 4. Perused the impugned judgment. From the perusal of well reasoned judgment of first appellate Court, delivered by Sessions Judge, Gadchiroli, it is clear that the defence of applicant/accused is only in respect of age of prosecutrix. There is no dispute about the sexual intercourse. Another defence taken by the applicant is that the victim did not lodge report immediately. From the evidence on record, it appears that the victim could not have disclosed the incident to her parents or anybody. She disclosed the incident because she was not feeling well and her mother called doctor. Victim was vomiting. Another defence taken by the applicant is that the victim did not lodge report immediately. From the evidence on record, it appears that the victim could not have disclosed the incident to her parents or anybody. She disclosed the incident because she was not feeling well and her mother called doctor. Victim was vomiting. After examination, doctor told her mother that she was carrying pregnancy and thereafter the victim disclosed the name of applicant/accused to her parents. It was natural for the young girl to conceal such heinous act. She could not disclose the incident. Nature compelled her to disclose the incident. Sexual intercourse is not so seriously disputed. The dispute is in respect of age of victim. Birth Certificate (Exh.27) is filed on record which shows her date of birth is 30th October, 1983 and first incident of sexual incident took place on 20th January, 1999. Therefore, it is clear that she was below 16 years of age at the time of sexual intercourse. As per Section 375 of the Indian Penal Code, if the girl/lady is below 16 years of age then her consent is immaterial. Even if the sexual intercourse took place with her consent, then also it amounts to rape. Hence, the learned trial Court and first appellate Court rightly recorded their findings holding that the accused has committed offence punishable under Section 376 of the Indian Penal Code. Most lenient view is taken by the trial Court and also the first appellate Court. There is no merit in the revision. 5. Hence, in view of the above, revision is dismissed. Trial Court is directed to execute the punishment awarded to the applicant.