1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.453 OF 2008 Laxman s/o Vilas Gaikwad, age: 20 years, Occ: Nil, R/o Mohoj (Kd.), Tq.Pathardi, District Ahmednagar. Appellant Versus The State of Maharashtra Respondent Mrs.S.S.Jadhav, advocate for the appellant. Mr.V.H.Dighe, A.P.P. For the Respondent. CORAM: R.M.BORDE, J. DATE : 08th June, 2009. JUDGMENT: 1 Appellant-original accused is challenging the judgment and order of conviction and imposition of sentence passed by Additional Sessions Judge, Ahmednagar on 5 th July, 2008 in Sessions Case No. 125/2006. 2 Accused was prosecuted for commission of offence punishable under Section 376 and 506 of the Indian Penal Code. Accused is held guilty for commission of offence punishable under Section 376 (1) of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.5000/-, in default of payment of fine, to suffer simple imprisonment for one year. He is also held guilty for commission of offence punishable under Section 506(II) of 2 the Indian Penal Code and is sentenced to suffer rigorous imprisonment for five years. It is directed by the trial Court that both sentences shall run concurrently. 3 Accused and prosecutrix Vaishali are residents of village Mohoj Khurd, taluka Pathardi, District Ahmednagar. The alleged incident had occurred on 23.04.2006 at about 7.30 p.m. near the river flowing in village Mohoj. The age of prosecutrix, at the relevant time, was 15 years, whereas, accused was of 19 years of age. The prosecutrix had completed her examination of 9 th Standard at the relevant time. The residences of prosecutrix and accused are adjacent to each other. It is the allegation of prosecution that accused used to tease the prosecutrix by saying that he is in love with her. The prosecutrix had made complaint in that regard to her maternal grand mother by name Shantabai Baban Chavan six months back. The maternal grand mother of prosecutrix thereafter had been to the house of accused and reprimanded him not to indulge in such acts. 4 It is further alleged that on 23.04.2006, at about 7.30 p.m., prosecutrix had reached near the river for relieving herself. At that time, accused came from behind, gagged her mouth and extended threats by brandishing a knife that if she raises alarm, she would be killed. It is alleged that accused thereafter dragged her to open space and made her to fell down there. Accused is alleged to have removed clothes i. e. salwar and nicker on the person of prosecutrix and committed sexual intercourse with her against her wish and without her consent. It is alleged that accused had committed sexual intercourse with the prosecutrix on 3 two occasions. Thereafter, prosecutrix was permitted to leave. She wore her clothes and came to her residence at about 9.00 p.m. It is alleged that due to fear, she did not disclose the incident to anyone during night. Father of the prosecutrix was out of station and he reached home on the next day. The prosecutrix disclosed the incident to her mother on the next day morning and her mother, in turn, informed father of the prosecutrix in respect of alleged incident. The complainant thereafter proceeded to lodge report with police on 24.04.2006. On receipt of information, police recorded Crime No.I-54/2006 for offences punishable under Sections 376 and 506 of I.P.C. against the accused. Police conducted further investigation in the matter and also caused arrest of the accused. After completing investigation, police submitted charge sheet against the accused in the Court of Judicial Magistrate, First Class, Pathardi. The case, being triable by the Court of Sessions, was committed to the Sessions Court, Ahmednagar. The trial Court framed charge vide Exhibit-2, which was explained to the accused. Accused pleaded not guilty to the charge and claimed to be tried. He has put forth plea of alibi and led evidence on his behalf to substantiate his defence. After recording evidence of the prosecution and statement of accused under Section 313 Cr.P.C., trial Court recorded finding of guilt against accused and on conviction, he is sentenced to suffer imprisonment for a period, as stated above. 5 In order to bring home guilt against the accused, prosecution has examined in all eleven witnesses. The star witness on behalf of prosecution, of course, is prosecutrix herself P.W.1 – Vaishali. She has deposed before the Court that she herself along with her parents, 4 grand parents, are residing at village Mohoj Khurd. At the relevant time, she was studying in 9 th standard in New English School. Accused Laxman is from same village and he is her neighbour. The prosecutrix has stated that accused used to blow whistle at her and used to tell her that he is having love affair with her. Complaint, in that regard, was made by the prosecutrix to her grand mother Shantabai some six months back. Her grand mother Shantabai convinced parents of accused Laxman, however, there was no improvement in the behaviour of Laxman and he used to tease the prosecutrix. The prosecutrix has stated about the occurrence of incident dated 23.04.2006. She has stated that while she had been towards river for latrine, at that time, accused came on spot and by extending threats to her, has committed rape on her person. It is stated by her that accused had committed rape on her person on two occasions. According to her, she resisted, however, accused did not budge and committed offence of rape on her. She has stated that she informed the matter to her father on the next day morning and thereafter they proceeded to lodge report against accused at Police Station. In the cross examination, she has stated that she is acquainted with the accused and his family members and that there are no disputes between herself and accused and his family members. She was asked, as to whether mother of the accused was Sarpanch of village panchayat, however, she has expressed her ignorance about it. She stated that while lodging report, it was reported by her to the police that she had disclosed the incident to her father, however, she cannot assign any reason as to why said fact is not appearing in her statement. So also, she having put resistance at the time of committing the act by accused is concerned, she states that she informed the police in that regard, however, she 5 cannot assign any reason as to why the fact, that she put resistance while accused committed the act, is not mentioned in the report. The prosecutrix has also stated in her deposition before the Court that there are scratches on her back and hand only. It was suggested to her that, as she had slept on the rough surface near the river, she had sustained the abrasions to her back. Thus, the defence has suggested that abrasions on the back of prosecutrix are as a result of portion of her body coming in contact with rough surface on the bank of river. 6 Another witness examined by the prosecution is mother of the prosecutrix – P.W.4 Alka w/o Navnath Wandekar. The witness has stated about disclosure made by Vaishali to her as regards happening of incident. She has stated in her deposition that on the day of incident, at about 9.00 p.m., her daughter came back to home and thereafter had gone to sleep. Prosecutrix disclosed the incident to her at 10.00 a.m., whereas, prosecutrix Vaishali had disclosed the incident to her mother i.e. P.W.4 in the morning of 24 th. The material disclosure made by P.W.4 in her cross examination is that accused belongs to Kaikadi community, whereas the prosecutrix and her parents belong to high caste. The house of prosecutrix is near the `Gharkool’ allotted to accused. She has stated that her family members wish that accused should not reside in the `Gharkool’ and there is enmity between them on that count. She has further disclosed that they have compelled the accused to leave locality by saying that he should not reside in the said house and further it is also disclosed that they are not having talking terms with the accused and have boycotted them. 6 7 It would be appropriate to scan the medical evidence in respect of examination of prosecutrix and accused. Dr.Vikas Gadkal is examined as P.W.11, who has conducted examination of prosecutrix and accused. The prosecutrix was taken to the hospital by police on 24.04.2006 for examination. The prosecutrix had given the history of sexual assault committed on her on 23.04.2006. However, while mentioning the date in the certificate, the witness has put the date as 24.04.2006 due to oversight. According to him, it should be 23.04.2006. Even after overlooking this discrepancy, it transpires on perusal of medical certificate that the doctor has found few abrasions on the person of prosecutrix, which are: 1. two fine linear abrasions over right forearm – size 2 cm. 2. Contusion over medial border of right scapula 2 x 1 cm. 3. Multiple small imprint abrasion reddish black below left infra- scapular – 3 x 1 cm. 4. Abrasion ½ x ½ cm. right scapular’ and 5. Abrasion over chest right mid-axial line with scab formation 3 x 1 cm. The abrasions, which were found on the person of prosecutrix are on the shoulder region and one abrasion over the chest and two abrasions over right forearm. It was suggested to the prosecutrix that the abrasions on her back are as a result of her body coming in contact with rough surface near river bed. Other injuries, which are abrasions, do not indicate or lead to a conclusion that there was resistance by the prosecutrix. It is also to be noted that there were no injuries found on the person of accused. 7 8 After scrutinizing the evidence of prosecution witnesses as well as medical evidence, it is canvassed by learned Counsel for the appellant that even if it is assumed that the alleged incident has taken place, it appears to be a consensual act. The argument advanced by learned Counsel for appellant-accused needs serious consideration. Admittedly, accused and prosecutrix are known to each other, as they are neighbours residing in the same locality. The prosecutrix is aged 15 years, whereas accused is aged 19 years. It is stated by the prosecutrix herself that accused used to tell her that he is in love with her. There does not appear to be any evidence of resistance being put by the prosecutrix while commission of the act by accused. The reason for arriving at the conclusion that act being consensual, is that there were no injuries found on the person of accused, whereas the abrasions, which were found on the person of prosecutrix, were on back and on shoulder region. Those are possible because of her body having came in contact with rough surface. The prosecutrix herself has stated in her deposition that accused has committed the act repeatedly. Considering these circumstances, it does appear that the sexual intercourse allegedly committed by the accused, in all probabilities, may be consensual. It appears that parents of prosecutrix do not approve of the intimacy between prosecutrix and accused. P.W.4 – mother of prosecutrix, has in terms, stated that their family members do not like the accused residing in near vicinity and further that family members of prosecutrix are not on talking terms with the family of accused and they have boycotted him. It appears that filing of the complaint belatedly is an outcome of rivalry between two families. Furthermore, it appears that mother of the accused was Sarpanch of 8 village, whereas, relations of the prosecutrix are representatives of village panchayat and one of them was Upasarpanch of the village. It is also to be taken note of, that prosecutrix, at the relevant time, was 15 years of age. She has surely reached the age of understanding. So also, age of accused, at the relevant time, was of 19 years. The possibility of their having intimate relations cannot be ruled out. Even if it is assumed that act committed by the accused is with consent, however, as age of prosecutrix, at the relevant time, was less than 16 years, in view of provisions of 375 (sixthly), the act done by the accused would amount to offence. Section 375 (sixthly) provides that sexual intercourse with a woman with or without her consent, when she is under 16 years of age, amounts to offence of rape. Even if it is considered that the act committed by the accused is consensual, still, nevertheless, the act amounts to an offence. However, considering the circumstances of the case, I am of the opinion that the punishment of rigorous imprisonment for ten years, imposed by the trial Court, appears to be too harsh. In the circumstances of the case, I am of the opinion that accused shall be sentenced for a minimum term of imprisonment, as provided under the Indian Penal Code. In my opinion, imposition of sentence of seven years would serve ends of justice. 9 So far as allegations in respect of commission of offence punishable under Section 506(II) is concerned, considering totality of circumstances, as well as on appreciation of evidence placed on record, I am of the opinion that the prosecution has failed to establish that the prosecutrix was intimidated by the accused. As I have stated above, act of the accused with the prosecutrix appears to be consensual, the 9 charge under Section 506 (II) of the I.P.C. cannot be said to have been established. Accused-appellant is, therefore, entitled to be acquitted in respect of charge of commission of offence punishable under Section 506 (II) of the Indian Penal Code. 10 In this view of the matter, appeal by appellant-accused deserves to be partly allowed and same is accordingly allowed partly. The judgment and order dated 05.07.2008, recorded by Additional Sessions Judge, Ahmednagar in Sessions Case No.125/2006, convicting accused-appellant Laxman s/o Vilas Gaikwad for offence punishable under Section 376 (I) is maintained. However, order of sentence of rigorous imprisonment for 10 years, imposed by the trial Court, is modified and is reduced to 7 (Seven) years. Accused-appellant shall undergo rigorous imprisonment for a period of seven years. Accused-appellant shall pay amount of fine of Rs.5000/-, in default of payment of fine, he is directed to undergo simple imprisonment for a period of one year. The direction issued by the trial Court in respect of disbursement of fine amount to the mother of prosecutrix, by way of compensation under Section 357(1) of the Code of Criminal Procedure, is maintained. The judgment and order of conviction and sentence for the offence punishable under Section 506 (II) of I.P.C. is set aside. Accused-appellant is acquitted in respect of charge of commission of offence punishable under Section 506 (II) of I.P.C. Accused is entitled for the benefit of set off for the period during which he remained behind bar. (R.M.BORDE) JUDGE ******* adb/criappeal45308