1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.25 OF 1998 Supadu Ahmed Tadvi age 27 years, resident of Nashirabad, Taluka and District Jalgaon (at present in Central Jail, Harsu, Taluka and Dist. Appellant/ori. Aurangabad.) Accused. versus The State of Maharashtra Respondent/ ori.complt. ----- Shri J.R.Shah, Advocate (appointed) for appellant. Shri K.M.Suryawanshi,APP for the Respondent-State. Coram : P.R. Borkar, J. Date : November 16,2009 ORAL JUDGMENT 01. This is an appeal preferred by the accused, being aggrieved by the judgment and order passed by the learned II Additional Sessions Judge, Jalgaon, in Sessions Case No.131 of 1997 decided on 3.1.1988, whereby accused is convicted for offences punishable under Sections 363, 366, 2 376 and 504 of Indian Penal Code. For offence under section 363 of IPC, he is sentenced to suffer rigorous imprisonment for three years and pay fine of Rs.1000/=, in default rigorous imprisonment for one month. For offence under Section 366 of IPC, accused is sentenced to suffer rigorous imprisonment for five years and fine of Rs.1000/=, in default rigorous imprisonment for one month. For offence under Section 376 of I.P.C. he is sentenced to suffer rigorous imprisonment for seven years, fine Rs.1000/= and in default, rigorous imprisonment for one month and for offence punishable under Section 506 of I.P.C. he is sentenced to suffer rigorous imprisonment for two years. All sentences are to run concurrently. 02. Briefly stated, case of the prosecution is that the victim (PW-4) was residing with her parents at village Nashirabad in Taluka and District Jalgaon. The victim was below 16 years of age when the alleged incident took place on 26.3.1997. PW-1 is mother of the victim. She 3 stated that on 26.3.1997 when she was at house, the victim left the house saying that she wanted to answer nature's call, but she did not return and therefore her father gave information to the police that his daughter was missing. When the parents of the victim were making enquiry about her, Sham Dhobi and Santosh Mali told them that on the day of incident they saw the victim boarding S.T. bus with appellant-accused. On enquiry, it was found that the appellant was also missing and he had shifted his household articles and therefore complaint was lodged by PW-1 the mother of the victim with police on 5.4.1997. 03. The victim was found by police on 11.5.1997 and she gave statement that the appellant came to reside in her neighbourhood about six months before along with his wife and thus she got acquainted with him. Five-six months prior to her statement, the wife of the appellant deserted him and one or two months thereafter, there was divorce by the appellant to his wife and he started residing alone. He was working as a 4 waiter in Hotel Soni. Father of the victim was was agricultural labour. The acquaintance of the victim and the appellant developed and 7-8 days before they left Nashirabad, the appellant suggested her that both should run away and marry and reside at Aurangabad. So, there was promise by appellant to marry the victim. Thereafter the appellant stated to the victim that he would shift his household articles to Aurangabad and accordingly he shifted the articles to Aurangabad. On 26.3.1997, the appellant-accused asked her to come to S.T. stand. Accordingly, she went to the bus stand from her house under the pretext that she was going for answering nature's call. Appellant-accused was present at the bus stand. Both went to Bhusawal first, and then to Pachora. At Pachora, they wanted to stay in a lodge, but the lodge owner refused to give room and so appellant took the victim to the house of his cousin Nissar Tadvi, but he was not at house. Thereafter, on next day they went to Aurangabad at the house of one Sherkhan Tadvi, another cousin of the appellant and stayed there for 8-10 days. 5 During that period, appellant expressed to the victim his desire to have sexual intercourse with her, but she refused saying that they were not yet married. On this, appellant assured that he would certainly marry with her and therefore she should allow him to have sexual intercourse with her. On her refusal, threats were accorded by appellant to kill the victim and then he had sexual intercourse with her every day for 1-1/2 months. The accused had taken one room on rent and they resided there. There the appellant-accused used to threat the victim and have sexual intercourse with her. 04. On 9.5.1997, approximately between 10.00 a.m. to 10.30 a.m., police came and took the victim to the police station and recorded her statement. It is, therefore, case of the prosecution that under false promise of marriage, the appellant kidnapped the victim and took her to Aurangabad and raped her. 05. The trial court recorded evidence of eight witnesses and relying upon their testimonies 6 the order of conviction and sentence as aforesaid came to be passed and it is this order which is challenged in this appeal. 06. Heard Shri J.R.Shah, learned Advocate appointed for the appellant and Shri K.M.Suryawanshi A.P.P. for the Respondent-State. In this case, in order to prove the age of the victim, PW-6 Smt. Dagadabai Bhagale who is Head Mistress of Girl's School, Nashsirabad, is examined. She deposed that since December 1996, she had been working as Head Mistress in the said school. The school leaving certificate (Exh.21) was issued by her in her handwriting. She had also brought original register of admission of students and as per the said register, date of birth of the victim is 4.7.1981 and her name was entered in the said register on 22.6.1987. The witness deposed that the age of the victim was entered in the register when the victim took admission in the school and entry regarding her age was taken as per the information given by the parents of the victim. In the cross examination, the witness has 7 stated that the practice of verifying the birth certificate was introduced recently and the name of the victim is entered prior to that. The witness stated that she has no personal knowledge regarding entries. It may be noted that in 1987, there was no reason for parents to give false birth date of their daughter and therefore the school leaving certificate can be considered as genuine document. 07. The trial court has discussed this aspect in details in paragraph 8 of its judgment. The learned Judge has mentioned that besides the school leaving certificate, there is also statement of PW1-the mother of the victim, so also the evidence of the victim (PW-4) to the effect that her age was 16 years when the incident took place. The trial court held that the school leaving certificate and the evidence of PW-6 Head Mistress Dagadabai Bhagale are trustworthy. 08. The learned Advocate Shri J.R.Shah referred to two cases. The first case is of 8 Bikasdas vs. State of Maharashtra (Criminal Appeal No.700/2008) decided on 20.7.2009. In that case, as discussed in paragraphs 14 and 15 of the judgment, the date of birth of the victim, appearing in the school leaving certificate, so also in the birth register, was entered on the basis of affidavits filed by one Ashok Chavan. After Ashok Chavan was examined as a witness, on 6.7.1996 the affidavit and the application were given for taking entry of date of birth in the birth register. There was discrepancy about the place of birth in the school leaving certificate and the birth register. It was mentioned in the school record that the birth of the victim therein was at Shrirampur, which was inconsistent with the entry in the birth certificate. Considering the facts of the case, both the certificates were found to be not reliable. It is observed in paragraph 15 that normally, the birth date is reliable when parents give such information, still in the case before the court, there were certain difficulties in placing implicit reliance on their versions. In 9 the cited case, Ashok Chavan and Shobha, the parents of the victim, were illiterate and doing manual work. In the circumstances, entry in the school leaving certificate was held to be not reliable. 09. In the case of Chidda Ram vs. State, 1992 Cri.L.J. 4073, it has been observed thus; " A school certificate or an admission form is not a conclusive evidence of the age of the prosecutrix. The unproved and unexhibited School certificate cannot be treated as evidence. In fact, the ossification test is not a sure test as to the age of the prosecutrix. It gives only an approximate age which may vary by two years on either side. The medical opinion that the prosecutrix was below 16 years, this fact only gives approximation of the age." So, in that case school leaving certificate was not proved. 10. In Dilip Singh vs. State of Bihar 2005 (1) SCC 88, it is observed in paragraphs 26 and 28 that, the representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination 10 to marry her, will vitiate the consent. In the facts of that case, it was held that there was no such intention to deceive the victim. In this case, there are no suspicious circumstances as in the case of Chidda Ram (supra). 11. We have mainly the evidence of victim PW-4 at Exh. 16. She deposed about promise given by the appellant to marry her and on that assurance she went to the S.T. stand on call by the appellant. According to the victim, accused also gave threats to her and forced her to enter the S.T. bus and took her first to Bhusawal and then to Pachora where they lived for sometime and went to maternal uncle of the accused. Thereafter they came to Aurangabad and stayed with another uncle of the appellant-accused for 8-10 days after which the appellant took a room on rent. The victim also deposed that although she refused, the accused by threats compelled her for sexual intercourse. The victim in paragraph 3 of her deposition stated that the accused was promising her that he would marry her, but he did not marry. 11 The cross examination of the victim discloses how she and the appellant came to know each other and were on visiting terms and how they decided to elope and marry. 12. There is corroboration to the evidence of the victim, in the form of statement of her mother (PW-1) who lodged complaint (Exh.11) on 5.4.1997. She deposed that her daughter was kidnapped by the appellant under some false pretext. She further deposed that the appellant had shifted his household articles to Aurangabad. 13. We find further corroboration from PW-5 Sham Sonawane, who has stated that he had seen the appellant and the victim boarding a bus on 26.3.1997 at about 5.30 p.m. and, therefore, he informed the mother of the victim. 14. There is also evidence of PW-3 Nimbaji Vahur who is resident of Aurangabad. He deposed that the appellant had taken room on rent from him and was residing in the said room with a girl. He 12 proved panchanama Exh.15. 15. The medical certificate of the victim is on record at Exh.8, which shows that she was habituated to sexual intercourse. There is no other evidence regarding actual rape. The trial court has considered this evidence at para 15 onwards of its judgment. It is observed that 5-6 days before the incident of 26.3.1997, the appellant had left room where he was residing at Nashirabad and shifted his household articles to Aurangabad. So, there was a plan to leave with victim permanently and the victim was accordingly taken into confidence under the false promise of marriage. The accused was a married mature man, whereas the victim was minor, immature girl. Apart from that, consent of parents of the victim was not taken. Assuming that consent of victim was taken, it is settled law that such consent of a girl below 16 years of age or consent obtained under false promise to marry is no consent in the eye of law. 13 16. After giving anxious thought to all the aspects of the matter, in my considered opinion, this is not a case wherein interference in the order of conviction and sentence is called for. In the result, criminal appeal is dismissed. The impugned order of conviction and sentence is confirmed. It is stated before this court that the appellant has already undergone the sentence. Office to verify and, if necessary, take appropriate steps. 17. Advocate Shri J.R.Shah was appointed to conduct the appeal on behalf of the appellant. Professional fees of Advocate is quantified at Rs. 2000/=. pnd/criapl25.98 (P.R.BORKAR, J.) /