((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.428 OF 1996 Kripashankar @ Pappu P. Singh Applicant versus The State of Maharashtra Respondent Mr.M.S.Mohite, advocate for applicant. Mr.Y.S.Shinde, APP for State. CORAM : A.S.OKA, J. DATE : 16th January 2009 JUDGEMENT :- 1. The appellant has been convicted for the offences punishable under sections 366 and 376 of the Indian Penal Code. For the offence punishable under section 376 of the Indian Penal Code the appellant has been sentenced to undergo rigorous imprisonment for seven years and for the other offence under section 366 he has been sentenced to undergo rigorous imprisonment for five years. For both the offences fine of Rs.1,000/- has been imposed and in default of fine, the appellant had been directed to undergo rigorous imprisonment for six months. Both the sentences have been ordered to run concurrently. ((-2-)) 2. Before referring to the submissions made by the counsel appearing for the appellant and the learned APP appearing for the State, it will be necessary to briefly refer to the case of the prosecution. 3. According to the case of the prosecution the prosecutrix is the daughter of one Ramnayan Pande. According to the case of the prosecution, at the relevant time, the age of the prosecutrix was fourteen years and the prosecutrix was a student of 9th standard in a school at Boisar. On 28th March 1995 the prosecutrix had been to the school as usual but she did not return to her house. The father of the prosecutrix tried to search the prosecutrix. According to the prosecution the appellant-accused was residing in the close vicinity of the house of the prosecutrix. It is the case of the prosecution that though the father of the prosecutrix could not trace her, he noticed that the appellant-accused who was an auto rickshaw driver by occupation was not present in his house. The case of the prosecution is that the appellant-accused was on the visiting terms in the house of the ((-3-)) prosecutrix. As the father of the prosecutrix apprehended that the appellant-accused might have kidnapped her, he lodged a report with the Police on 29th March 1995. After registration of the FIR the Police learnt from one Prakash, a friend of the appellant-accused, that the appellant-accused had proceeded to his native place along with the prosecutrix. The case of the prosecution is that after completing the necessary formalities the Police proceeded to Uttar Pradesh to the native place of the appellant-accused. However, they could not succeed in tracing out the appellant-accused. 4. According to the prosecution the appellant-accused became aware of the said fact and he along with the prosecutrix proceeded to Mumbai. On 10th May 1995, the prosecutrix was left at Palghar Railway Station and the appellant ran away. Thereafter the prosecutrix approached her maternal uncle and disclosed the incident to him. Her maternal uncle informed the complainant i.e. the father of the prosecutrix and on 13th May 1995 the prosecutrix was brought home by her father. 5. The prosecution examined six witnesses. ((-4-)) The first witness is Ramnayan Pande, the father of the prosecutrix and the complainant. The second witness is the prosecutrix. The third witness examined by the prosecution is one Ramnath Kankare, the Head Master of Sevashram Vidyalaya, Boisar where the prosecutrix had taken education. The fourth witness is Smt.Kunda Kini, the In-charge of Zilla Parishad School, at Boisar. The fifth and sixth witnesses are Madhukar Kumbhar and Nilgounda Patil are the officers concerned with the investigation. 6. PW-1 Ramnayan Pande i.e. the complainant and father of the prosecutrix stated that he has two daughters including the prosecutrix. He stated that the date of birth of the prosecutrix is 8th March 1981 and at the relevant time she was studying in Sevashram Vidyalaya and her age was 14 years. He stated in the deposition that on 28th March 1985 as usual the prosecutrix proceeded to the school in the morning by carrying her school bag but she did not return back though normally she used to return by 1’o clock in the afternoon. When he noticed that his daughter did not come back by usual time, he made enquiries by ((-5-)) approaching the school. He tried to locate the prosecutrix at places of his relatives. On the next day he approached the Police Station and lodged a complaint. He thereafter learnt that the appellant-accused was also missing from his house from 28th March 1995. According to him, on 31st March 1995 he felt that the appellant-accused must have kidnapped his daughter and, therefore, he lodged a complaint to the Police. He stated that he visited the house of the appellant-accused in Uttar Pradesh but the prosecutrix was not present. On 10th May 1995 the appellant-accused brought the prosecutrix to Mumbai. He stated that on 11th May 1995 he received an intimation from his brother-in-law that his daughter has come to his house. The Police recorded the statement of the said witness on 16th May 1995. In the cross examination he admitted that he has not produced any certificate issued by J.J.Hospital disclosing the date of birth of his daughter. He admitted that he had not mentioned the date of birth of his daughter while lodging a complaint on 29th March 1995. He denied the correctness of the suggestion that his daughter disclosed to him that she had gone along with the appellant- accused to perform a marriage. ((-6-)) He stated that his daughter disclosed that the appellant- accused got reduced into writing a letter from her. 7. The prosecutrix was examined as PW-2. She stated that the appellant-accused used to come to her house and she was acquainted with the appellant-accused and she used to meet the appellant-accused. She stated that she was having a love affair with the appellant- accused. Her case is that though the appellant-accused was insisting on keeping physical relationship, she declined. According to her two or three days thereafter in the house of one Gulabi Shahane, the appellant-accused committed sexual intercourse against her will. She stated that 15-20 days thereafter the applicant-accused repeated the act. 8. She stated that on 28th March 1995 the accused met the her and threatened to kill her father if she refused to accompany with him. She stated that the appellant-accused took her to the Railway Station where his friend Prakash brought tickets. Thereafter they proceeded to Kurla and from Kurla they proceeded to Banaras ((-7-)) by train. From Banaras Station the appellant-accused and prosecutrix went to Jaipur by bus and stayed in the house of the sister of the appellant. Thereafter, they proceeded to the native place of the appellant and stayed at the house of the wife of the appellant’s brother. They stayed at the said place for a period 15-20 days. She stated that in the said house the appellant committed sexual intercourse for about two to three times. She stated that thereafter they stayed at the place by name Shelkhar. From the said place they proceeded to Dilkhan Nagar where they were made aware by the brother of the appellant that the Police were after them. They decided to return to Mumbai and for three to four days, they stayed at Dadar. Thereafter they proceeded to Palghar where they stayed for five to six days at the house of the appellant’s friend. After staying at the said place for five to six days, they proceeded to Dadar and on 10th May 1995 they came to Palghar. According to her the appellant left her at Palghar Railway Station on the pretext that he wanted to meet an advocate. By 7.00 p.m. the appellant did not turn up and therefore, she approached the house of her ((-8-)) maternal uncle and disclosed the said fact. Thereafter, she was taken to the Police Station and subsequently she was referred to the hospital for examination. The prosecutrix was extensively cross examined by the advocate for the appellant. In the cross examination her attention was invited to a portion marked "A" (Exhibit-25) of her statement. She admitted of having told the Police that the appellant committed sexual intercourse against her will. Her attention was invited to the statement made by her in her evidence that near Railway bridge, the appellant had threatened to kill her father if she refused to accompany with the appellant- accused. She, however, stated that she was not in a position to tell as to why this was not mentioned in her statement. 9. PW-3 was earlier working as a Head Master of Sevashram Vidyalaya, Boisar. He stated that on 1st November 1990 he was working as Principal of the school and the prosecutrix Nilima was admitted to the school in 5th standard on 11th June 1990. He stated that previously the prosecutrix was studying in Zilla Parishad school, at Boisar. He stated that entries were made in the school register ((-9-)) on the basis of the school leaving certificate issued by the Zilla Parishad School. He stated that in the said school leaving certificate the date of birth of the prosecutrix is shown as 8th March 1981. He stated that the prosecutrix was admitted in the Zilla Parishad school on 11th July 1986 and she left the school on 3rd May 1990. 10. He stated that the prosecutrix studied up to 9th standard in the school and thereafter her name was removed from the school due to her continuous absence. The witness produced the original record in respect of admission and date of birth of the prosecutrix. He stated that on receipt of application and school leaving certificate, he entered the date of birth in the register and the date of birth of the prosecutrix as per the register was 8th March 1981. He stated that at the time of admission, the prosecutrix was nine years old and therefore her age was 15 years when she was studying in 9th standard. He proved the bona fide certificate obtained by the parents of the prosecutrix and the said bona fide certificate was admitted in evidence. In the cross examination he admitted that there is no ((-10-)) mention in the register on what basis the date of birth is entered. In the cross examination he admitted that the date of birth was entered on the strength of bona fide certificate and no enquiry was made by him in this behalf. At exhibit-28 the prosecution produced school leaving certificate issued by the Zilla Parishad School, Boisar disclosing the birth date as 8th March 1981. Reliance is also placed by the prosecution on certificate dated 3rd February 1996 issued by Sevashram Vidyalaya. The fourth witness is Smt.Kunda Kini was in-charge teacher of the Zilla Parishad School, Boisar. She stated that the prosecutrix was admitted in first standard on 11th July 1986. She stated that the teacher who admitted the prosecutrix might have seen the documents while admitting the prosecutrix. She referred to the entry of date of birth in general register showing the date of birth of the prosecutrix as 8th March 1981. The prosecution also produced extract of the birth and death register issued under Rule 9 of the Maharashtra Registration of Birth and Deaths Rules, 1976 which showed that the date of birth of the prosecutrix was 28th February 1981. ((-11-)) 11. The learned counsel appearing for the appellant has taken me through the notes of evidence, the impugned judgement and other relevant documents on record. He submitted that as far as documents relating to the age of the prosecutrix are concerned, the same are not sufficient to prove the age of the prosecutrix. He submitted that the entry of the age of the prosecutrix has not been made in the record of the school on the basis of any authentic entry regarding date of birth and the information entered is the one which is supplied by the parents at the time of securing admission to the school. He submitted that at the fag end of the trial a certificate issued by Municipal Authorities was produced by the prosecution. Apart from the evidence of the other witnesses, he invited my attention to the evidence of Madhukar Kumbhar at exhibit-39. The said witness stated that he has produced the birth extract of the prosecutrix. He pointed out that in the cross examination the witness admitted that he did not ascertain the genuineness of the said extract. He submitted that the prosecution could not have been permitted to produce the said extract especially at the fag end of the trial. He ((-12-)) invited my attention to the discrepancies in the evidence regarding date of birth of the prosecutrix. His submission is that in absence of any authentic document of the proof of the age of prosecutrix it cannot be presumed that her age was below 16 years. Inviting my attention to the depositions of the other witnesses and especially the deposition of the prosecutrix, he submitted that this was a case of wilful consent on behalf of the prosecutrix. He invited my attention to the portion of the statement of the prosecutrix recorded by the Police which has been admitted in evidence. He submitted that the said portion marked "A" of the deposition clearly establishes the case of consent. He submitted that the version of the prosecutrix is not worthy of acceptance. His submission is that even the medical evidence does not support the prosecution. He submitted that even according to the case of the prosecutrix she moved along with the appellant from place to place up to the State of Uttar Pradesh. He pointed out that according to the prosecution case from 28th March 1995 the prosecutrix travelled with the appellant-accused and she had several opportunities to protest. His submission is ((-13-)) that apart from the fact that the evidence of the prosecutrix does not inspire confidence, in any event, the prosecution has not established that at the relevant time the age of the prosecutrix was 16 years. He, therefore, submitted that apart from the fact that the case of the prosecution has not been established beyond reasonable doubt, even assuming without admitting that the guilt of the appellant was held as established, there are adequate and special reasons to impose a sentence of imprisonment for a term less than seven years. He invited my attention to a decision of the learned Single Judge of this Court in the case of Nitin Pandit Sapkar Vs. The State of Maharashtra decided on 22nd October 2008 in Criminal Appeal No.1217 of 2003 and submitted that there is a case made out for exercising the power of this Court under the proviso to section 376(1) of the Indian Penal Code. 12. The learned APP supported the impugned judgement and order. His submission is that the conviction under section 376 of the Indian Penal Code can be based on uncorroborated testimony of the prosecutrix. He submitted ((-14-)) that considering the evidence on record and the gravity of the offence, this is not a case for invoking the proviso to section 376(1) of the Indian Penal. Code. He, therefore, submitted that the appeal deserves to be dismissed. 13. I have given careful consideration to the submissions made by the learned counsel for the appellant and the learned APP for the State. As far as offence under section 376 of the Indian Penal Code is concerned, the legal position is well settled. There can be a conviction of an offender under section 376 of the Indian Penal Code on the basis of uncorroborated testimony of the prosecutrix and only as a matter of prudence that the Court will draw support or assurance to the testimony of prosecutrix from the other evidence. It will be necessary to consider the controversy raised regarding the date of birth of the prosecutrix. The complainant (i.e. father of the prosecutrix) has disclosed her date of birth as 8th March 1981. In the cross examination he stated that he has submitted bona fide certificate of his daughter issued by the school to the Police but he did not produce any certificate from the J.J.Hospital. In the ((-15-)) cross examination of the said witness there is no specific challenge to the date of birth disclosed as 8th March 1981. 14. It will be necessary to refer to the deposition of PW-3 Ramnath Kankare who was employed in Sevashram Vidyalaya, Bhoisar as Head Master. He stated that one Nirmala Pande was admitted in the school in fifth standard on 11th June 1990 and prior to that she was studying in Zilla Parishad School, at Boisar. He stated that on the strength of the school leaving certificate of Zilla Parishad school at Boisar, the school authorities entered the date of birth of the prosecutrix in the record of the school. He stated that the school leaving certificate has already been issued to the prosecutrix disclosing her date of birth as 8th March 1991. He stated that the prosecutrix was admitted in the school of Zilla Parishad on 11th July 1986 and she left the said school on 3rd May 1990 and from 11th June 1990 the prosecutrix was admitted in his school. He stated that the parents of the prosecutrix have produced the bona fide certified issued by the said school and he proved the said certificate in the evidence. In the cross examination he ((-16-)) admitted that there is no mention in the register on what basis the date of birth is entered. He admitted that the entry of date of birth has been made on the strength of bona fide certificate submitted by the parents of the prosecutrix. 15. PW-4 Smt.Kunda Raghunath Kini is a teacher working in the CIDCO Colony School, Boisar. She produced the general register of the school and the entry made in the general register of the date of birth of the prosecutrix as 8th March 1981. She produced on record a xerox copy of the extract of register as well as admission form. In the cross examination of the witness, she admitted that there is no mention on the document regarding to the age verified by the teacher on the admission form. 16. PW-5 Madhukar Kumbhar, a police officer also deposed before the Court. He stated that he has produced the birth extract of the minor girl issued by the Mumbai Municipal Corporation. In the cross examination he stated that he did not obtain the birth extract of the minor prosecutrix either from J.J.Hospital or from other hospital. He stated ((-17-)) that the certificate produced by him was handed over to him by the complainant. 17. All these documents have been considered by the learned Judge. It must be noted here that PW-4 Smt.Kumda Kini stated that on 11th July 1986 the prosecutrix was admitted to her school in first standard. She has produced the admission form at Exhibit-37 which disclosed the date of birth as 8th March 1981. She has also produced the extract of school register which disclosed her date of birth as 8th March 1981. Thus, the entry has been made in the register of the school on the basis of the date of birth disclosed in July 1986 by the parents of the prosecutrix. On the basis of the said documents entry of date of birth of the prosecutrix as 8th March 1981 has been made in the records of the schools. 18. The learned counsel appearing for the appellant had made submissions as regards the manner in which a document was produced by the prosecution which is at Exhibit-41/1. The said document is the birth extract of the prosecutrix issued by the Municipal Corporation of Greater Mumbai under Rule 9 of the ((-18-)) Maharashtra Registration of Births and Deaths Rules, 1976. The said birth extract shows that the date of birth is 28th February 1981. Thus, in the documents earlier produced by the prosecution the date of birth is shown as 8th March 1981 and in the document at Exhibit-41-1 the date of birth has been described as 28th February 1981. The learned Judge has, therefore, taken the year of birth of the prosecutrix as 1981 and therefore, he recorded a finding that on the date of the incident i.e. 28th March 1995, the age of the prosecutrix was below 16 years. In my view, considering the evidence on record, the learned Judge was right in coming to the conclusion that on the date of commission of the offence, the age of the prosecutrix was less than 16 years. 19. As far as offence under section 376 of the Indian Penal Code is concerned, it is well settled law that the conviction can be based on uncorroborated testimony of the prosecutrix and in a given case only as a rule of prudence the Court may draw the support from other material on record. Therefore, the version of the prosecutrix will have to be scrutinised and it will have to be decided whether it is worth ((-19-)) believing. 20. It must be remembered that the evidence of the prosecutrix was recorded on 28th February 1996 i.e. nearly after eleven months from the date of the alleged incident. The prosecutrix disclosed that she was a student of 9th standard. On reading of the deposition it appears that she has disclosed the facts in detail. She has admitted that she was acquainted with the appellant-accused and she used to meet the accused. She has stated about the first sexual intercourse committed by the appellant-accused in the house of neighbour Gulabai Shahane. She has narrated the incident of 28th March 1995 when the accused took her to his native place in Uttar Pradesh. She has described what transpired subsequently after she was taken to the State of Uttar Pradesh. In the cross examination her attention was invited to the portion marked ‘A’ of her statement. She admitted that she had stated the said portion before the Police. The English translation of the said Portion "A" reads thus : "... ... After about four to five months, as he desired to have physical ((-20-)) relations, he asked me about the physical relations. But initially I refused. But when he pulled me close to him I also developed a desire. Therefore, we committed sexual intercourse in the rear side room of Gulabi Shahane. At that time the said lady was in another room of her house. After about 10 to 15 days, we again met in the room of Gulabi Shahane. Upon seeing me and Krupashankar Singh she went to another room. We again committed the sexual intercourse. After 15 to 20 days thereafter again we committed sexual intercourse in her room." An omission brought on record regarding the statement of the prosecutrix that on 28th March 1995 the appellant threatened her to kill her father if she refused to accompany him to the native place. Thus, except for minor variations and discrepancies, there is nothing in the evidence of the prosecutrix which will compel the Court to discard her version. It must be remembered that a school going girl taking education in 9th standard has deposed before the Court regarding the incidents which were spread over for a period of two months. Her version appears to be natural and there is nothing in her deposition which creats a doubt about her version. A girl in a tradition bound non-permissive society would be normally reluctant to admit any incident which is likely to reflect upon her character. ((-21-)) 21. The complainant i.e. the father of the prosecutrix stated that the appellant-accused was residing in the vicinity of his house and he noticed that he was absent from his house from 28th March 1995 i.e. the day on which it is alleged that the appellant-accused had taken the prosecutrix to his native place in Uttar Pradesh. Though the certificate of the prosecutrix at Exhibit-33 has been admitted in evidence recording a conclusion that the hymen was torn, a submission was made that the doctor has not been