1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.76 OF 2004 Bharat Ganpati Dikle, age: 40 years, Occ: Agriculture, R/o Tandulwadi, Tq. Kallam, District Osmanabad. Appellant Versus 1 The State of Maharashtra 2 Ranjana d/o Sopan Shelke, age: 15 years, Occ: Education, R/o Khamaswadi, Tq.Kallam, District Osmanabad, through natural guardian Sopan s/o Baba Shelke, Occ: Agri., R/o Khamswadi, Tq.Kallam, District Osmanabad. Respondents Mr. N.G.Kale, advocate for the appellant. Mr. Dilip Bankar Patil, A.P.P. For Respondent No.1-State. Mr.S.J.Salunke, advocate holding for Mr.V.D.Salunke, advocate for Respondent No.2. WITH CRIMINAL APPEAL NO.01 OF 2004 Sau.Chandrakala w/o Bharat Dikle, age: 37 years, Occ: Household & Agriculture R/o Tandulwadi, Tq.Kallam, District Osmanabad. Appellant Versus 2 1 The State of Maharashtra 2 Ranjana d/o Sopan Shelke, age: 15 years, Occ: Education, R/o Khamswadi, Tq.Kallam, District Osmanabad. Respondents Mr. N.G.Kale, advocate for the appellant. Mr. Dilip Bankar Patil, A.P.P. For Respondent No.1-State. Mr. S.J.Salunke, advocate holding for Mr.V.D.Salunke, advocate for Respondent No.2. WITH CRIMINAL APPEAL NO.97 OF 2004 The State of Maharashtra Appellant Versus Sou.Chandrakala w/o Bharat Dikle, age: 35 years, Occ: Agri., R/o Tandulwadi, Tq.Kallam, District Osmanabad. Respondent Mr. Dilip Bankar Patil, A.P.P. For appellant-State. WITH CRIMINAL APPLICATION NO.242 OF 2007 WITH CRIMINAL REVISION APPLICATION ST.NO.28 OF 2007 Ranjana d/o Sopan Shelke, age: 15 years, Occ: Education, R/o Khamaswadi, Tq.Kallam, District Osmanabad, through her father Sopan s/o Baba Shelke, 3 age: 75 years, Occ: Nil, R/o as above. Applicant Versus 1 The State of Maharashtra; 2 Bharat s/o Ganpati Dikle, age: 40 years, Occ: Agril., R/o Tandulwadi, Tq.Kallam, District Osmanabad. 3 Sow.Chandrakala w/o Bharat Dikle, age: 35 years, Occ: Household, R/o Tandulwadi, Tq.Kallam, District Osmanabad. Respondents Mr. S.J.Salunke, advocate for the applicant. Mr. Dilip Bankar Patil, A.P.P. For Respondent No.1-State. CORAM: R.M.BORDE, J. DATE : 17 th June, 2009. JUDGMENT: 1 Criminal Appeal No.76 of 2004 is preferred by accused no.1 Bharat Dikle raising exception to the order of conviction and sentence recorded by II Ad hoc Additional Sessions Judge, Osmanabad on 04.12.2003 in Sessions Case No.138/2001 convicting accused no.1 for an offence punishable under Section 376 of I.P.C. and directing him to undergo sentence of rigorous imprisonment for a period of seven years and to pay fine of Rs.5000/-, in default of payment of fine, he is directed to suffer rigorous imprisonment for two years. Accused no.1 Bharat is also 4 convicted along with accused no.2 Chandrakala, his wife, for commission of offence punishable under Section 292 read with Section 120B of I.P.C. They are directed to undergo sentence of rigorous imprisonment for a period of two years and to pay fine of Rs.1000/-, in default of payment of fine, to suffer rigorous imprisonment for a period of six months. 2 Accused no.2 Chandrakala has also presented appeal, which is registered as Criminal Appeal No.1/2004 raising exception to the order of conviction and sentence recorded against her. Accused nos.1 and 2 are further convicted for an offence punishable under Section 506 (2) read with Section 34 of I.P.C. and are sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.500/-, in default of payment of fine, to suffer simple imprisonment for three months. 3 The State has also preferred an appeal bearing Criminal Appeal No.97/2004 under Section 377 (I) of the Code of Criminal Procedure requesting for enhancement of sentence awarded to accused no.2 Chandrakala w/o Bharat Dikle. 4 Revision has been presented, being Criminal Revision Application St.No.28/2007, by the complainant along with Criminal Application No.242/2007 seeking condonation of delay in presenting Revision Application. Complainant is seeking enhancement in the substantive sentence of imprisonment awarded against accused. 5 Accused no.1 was prosecuted for commission of offence punishable under Section 376 of I.P.C., while accused nos.1 and 2 were 5 charged for commission of offence punishable under Section 292 and 506 (2) read with Section 34 of I.P.C. 6 Brief facts of the prosecution case can be summarised as below: Complainant Ranjana d/o Sopan Shelke, aged 14 years, is resident of village Khamaswadi and she was residing along with her father Sopan and mother Vatsalabai and step mother Sheshabai. Accused no.2 Chandrakala is sister’s daughter of Sheshabai, senior wife of Sopan. Accused no.1 Bharat is husband of accused no.2 Chandrakala. Complainant was on visiting terms with accused. Accused are resident of Tandulwadi. It is stated that in summer season of preceding year, complainant had been to Gangapur along with accused and other family members and at that time, she resided at village Tandulwadi for about 15 days and returned back to her village. It is claimed that at the time of Laxmi festival of the preceding year, accused no.2 Chandrakala had been to the to village of parents of complainant and extended a request to send complainant to village Tandulwadi. It is claimed that complainant had been to village Tandulwadi at the time of Laxmi festival and returned back after two days. 7 At the time of Diwali of the year 2000, accused no.1 Bharat had been to village Khamswadi and took complainant along with him to village Tandulwadi. After lapse of about 7 days after menstruation cycle of complainant, it is claimed that accused no.2 Chandrakala offered her “oti”. It is claimed that during night time, accused no.1 had forcible 6 intercourse with complainant. It is claimed that accused no.1 assured complainant that he would marry with her. It was also further informed that she is the only daughter of her parents and with a view to retain the estate in the family, it is desirable that she should marry accused no.1 Bharat. After few days, complainant returned back to her village. It is claimed by the complainant that she was threatened by accused and warned against disclosing the incident to anybody else. It is further claimed by complainant that she was taken to Yermala for witnessing fair during the year 2001. Accused had been to Yermala and took complainant along with him to village Tandulwadi. It is further claimed that during night time, accused Bharat had forcible intercourse with complainant. It is further claimed by complainant that accused no.2 Chandrakala snapped photographs of complainant and accused no.1 Bharat in compromising position. It is further claimed that father of complainant was suffering from disease “Nalgud”. Accused no.1 Bharat met father of complainant and one Janardhan Diwane at village Dudhalwadi Pati and shown obscene photographs to them. It is further claimed that accused no.1 Bharat told her father that he has performed marriage with complainant and also further threatened him saying that he would show the photographs to other villagers and relatives if father of complainant does not reach complainant to his house. Father of complainant thereafter inquired about the incident to the complainant. In the meantime, father of complainant also received a legal notice issued by accused no.1 Bharat through one advocate Shri Hanumantrao Deshmukh on 22.06.2001 urging him to send complainant to his house as he claims to have performed marriage with her. 7 8 After receipt of notice, father of complainant took complainant to Bhoom Police Station and lodged F.I.R. on 27.07.2001. After receipt of complaint, crime was registered at Sr.No.150/2001. Investigation was conducted by P.S.I. Aghav. Complainant was referred to Medical Officer for examination, who issued certificate certifying that age of complainant to be between 14 to 16 and half years. It was also certified by Medical Officer that complainant is accustomed to sexual intercourse. Accused no.1 was also sent for medical examination. On conducting medical examination, it was certified that accused no.1 is capable of performing sexual intercourse. It was also certified by the doctor that there are no signs of either old or fresh wounds or injuries on private parts. After conducting investigation, police authorities submitted charge sheet to the Court of Judicial Magistrate, First Class, Kallam. The case, being triable by the Court of Sessions, was committed to the Court of Sessions at Osmanabad. 9 Accused were explained the charge levelled against them, who claimed to be innocent. After recording evidence of the prosecution and statements of accused recorded under Section 313 Cr.P.C., trial Court came to the conclusion that prosecution has proved guilt against accused and on recording order of conviction, directed them to undergo sentence, as noted above. 10 In order to bring home guilt of accused, prosecution has examined as many as 17 witnesses. Considering nature of offence, most important witness in the matter is prosecutrix herself. She has stated contents narrated in the complaint. I have scrutinised evidence of 8 prosecution witnesses with the assistance of learned Counsel appearing for respective parties. The incidents stated by complainant had occurred some one and half years prior to lodging of F.I.R. 11 Learned Counsel appearing for accused has vehemently contended that allegations levelled in the complaint are quite vague. Complainant or any of the prosecution witnesses have not stated about exact date of happening of incidents. It is claimed that although act alleged consist of series of episodes spanning for a period of more than 6/7 months, yet complainant did not bother to inform anybody for sufficiently long duration i.e. for a period of about one and half years after the first episode and in any eventuality, after a period of about one year from the last narrated episode. It is claimed that the prosecution has not proved that prosecutrix is a minor girl. It is claimed that she has attained the age of understanding and even if assuming that there is act of sexual intercourse, it is with the consent of prosecutrix. It is further claimed that father of prosecutrix has fained ignorance about the exact date of birth of prosecutrix and date of birth recorded in the school record. My attention is drawn to the statement of father of prosecutrix who has stated, during his cross examination, that his brother had accompanied the prosecutrix while she was admitted to the school and the witness (father of prosecutrix) does not have exact knowledge of date of birth recorded in the school. It is claimed that the doctor has certified age of the prosecutrix between 14 to 16 and half years and considering the margin of error, it has to be assumed that prosecutrix has in fact attained age of majority. 9 12 The argument advanced by learned Counsel appearing for accused no.1 is not acceptable for the reason that prosecutrix has herself stepped into the witness box and deposed about her age. The school record duly proved by the prosecution shows that at the time of happening of first episode of sexual assault, prosecutrix was of 14 years of age. The doctor has also deposed that while prosecutrix was examined, she was aged between 14 to 16 and half years. The incident in question has taken place some year back prior to examination by doctor. Thus, taking into consideration all the relevant aspects, it has to be assumed that the prosecutrix was a minor girl at the time when incident in question has taken place. 13 That, so far as argument in respect of vagueness of complaint is concerned, it does not have any substance. The complainant has given graphic details in her complaint. She has specifically attributed the act of forcible intercourse to accused no.1. The first episode of sexual assault had taken place during Diwali of the year 2000. Thereafter further incidents of sexual assault were repeated after Laxmi festival and during Yermala fair. 14 That, so far as the act of having sexual intercourse by accused no.1 with prosecutrix is concerned, even if assuming that the act was with consent of prosecutrix, the consent being of a minor girl, cannot be said to be valid. The act of accused no.1 having sexual intercourse with prosecutrix, who had not yet attained majority, in itself is an offence. It is true that there are no signs of resistance appearing on the body of either prosecutrix or accused no.1. There are no signs of either old or fresh 10 wounds or injuries on the body of prosecutrix or accused. Taking into consideration the act of keeping silence by prosecutrix for a period of more than a year also adds to the suspicion. There was a reluctance on the part of prosecutrix to disclose about the incident to her parents or anybody else. 15 The allegations in respect of extending of threats by accused no.1 or accused no.2 have not been substantiated by the prosecution. Although the prosecutrix has stated about involvement of accused no.2 also, however, taking into account nature of offence and details of relevant circumstances, implication of accused no.2 in the crime appears to be suspicious. It is also to be noted that although first incident in respect of sexual intercourse had taken place in the year 2000, the prosecutrix appears to have willingly accompanied accused persons to their village and resided with them for days together. It is claimed that episodes of having sexual intercourse with prosecutrix were repeated on number of occasions. It is to be noted that prosecutrix is resident of village Khamswadi and was residing with her parents. She was urged to accompany accused persons on different occasions during the span of last one and half years to their place. The prosecutrix appears to have willingly accompanied accused persons to their village. She does not even disclosed the incidents to anybody. All these circumstances go to show that allegation levelled against accused no.2 in respect of extending of threats by her to the prosecutrix does not appear to be probable. There is also no corroboration to the version of complainant by any of the prosecution witnesses. All other witnesses came to know about the incidents only after about one and half years. Considering all these 11 circumstances, I am of the opinion that involvement of accused no.2 in the crime and role played by her has no attributes of culpability. 16 So far as allegation in respect of criminal conspiracy raised against accused nos.1 and 2 is concerned, there is no material to arrive at such conclusion. The prosecution version itself is shrouded with above noted deficiencies. On perusal of the evidence and on consideration of all relevant circumstances, it does appear that the prosecutrix was a willing party to the act of having sexual intercourse with accused no.1. She had attained the age of understanding, however, these ingredients also, are not suffice to acquit accused no.1. The fact remains that he had sexual intercourse with a minor girl which, in itself, is an offence. The trial Judge was, therefore, justified in holding accused no.1 Bharat guilty for offence punishable under Section 376 of I.P.C. and I do not find any reason to cause interference in that regard. 17 That, so far as conviction and sentence imposed by trial Court against accused no.2 for offence punishable under Section 292 I.P.C. is concerned, there is absolutely no material to sustain the allegations. It is alleged that accused no.2 was instrumental in snapping photographs, which are stated to be obscene. Firstly, the version put up by the prosecution has no corroboration from any other witness. Even if assuming that statement by the prosecutrix bears the ring of truth, still the photographs themselves do not appear to be obscene. Section 292 of I.P.C. is quoted below: 292 Sale, etc., of obscene books, etc.- (1) For the 12 purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. (2) Whoever- (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or (b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or (c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, make produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or (d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or (e) offers or attempts to do any act which is an offence under this section, shall be punished on first conviction with imprisonment of either description for a term which 13 may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees. Exception – This section does not extend to- (a) any book, pamphlet, paper, writing, drawing, painting, representation or figure- (i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or (ii) which is kept or used bona fide for religious purposes; (b) any representation sculptured, engraved, painted or otherwise represented on or in- (i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, or (ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose. I have perused the photographs placed on record by the prosecution. In my opinion, those are not obscene in nature. The photographs, in fact, give an impression that prosecutrix was willing party. In any eventuality, ingredients of Section 292 of I.P.C. are not satisfied so as to call for imposition of punishment against accused no.2. In this view of the matter, I am of the view that conviction and sentence imposed by trial Court against accused no.2 is liable to be quashed and set aside. 18 In view of the reasons recorded above, appeal presented 14 by the State also does not call for any interference. As there is substantive appeal by the State, Revision Application at the instance of complainant also need not be entertained. The Revision Application is tendered some two years and eight months late. The application seeking condonation of delay in preferring Revision Application need not be entertained in view of substantive appeal preferred by the State. The application seeking condonation of delay tendered by complainant, being Criminal Application No.242/2007, therefore, stands rejected. Consequently, Revision Application also does not call for interference. 19 It is stated that accused no.1 has already undergone sentence of rigorous imprisonment as directed by the trial Court and on completion of period of sentence, he has been released from jail. The appeal preferred by accused no.1 Bharat, being Criminal Appeal No. 76/2004 stands allowed partly. The conviction and sentence imposed by trial Court against accused no.1 for offence punishable under Section 376 of I.P.C. is confirmed. However, accused no.1 stands acquitted for offence punishable under Section 292 read with Section 120B I.P.C., so also accused no.1 stands acquitted for an offence punishable under Section 506 (II) read with Section 34 of I.P.C. The appeal preferred by accused no.2 Chandrakala, being Criminal Appeal No.1/2004 stands allowed. The conviction and sentence imposed by the trial Court against accused no.2 for offence punishable under Section 292 read with Section 120B of I.P.C. as well as for offence punishable under Section 506 (II) read with Section 34 of I.P.C. stands quashed and set aside and accused no.2 (appellant in Criminal Appeal No.1/2004) stands acquitted of the charge levelled against her. Appeal preferred by the State, being Criminal 15 Appeal No.97/2004 stands dismissed. Criminal Application No.242/2007 along with Criminal Revision Application preferred by complainant also stand rejected. (R.M.BORDE) JUDGE ***** adb/criappeal7604