((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.318 OF 1996 Dilip Laxman Jadhav Appellant versus The State of Maharashtra Respondent Mr.S.P.Prabhu, Advocate appointed for the appellant. Mr.J.P.Yagnik, APP for the State. CORAM : A.S.OKA, J. DATE : 11th February 2009 JUDGEMENT : 1. Heard learned counsel for the appellant and learned APP for the State. By the impugned judgement and order, the appellant-accused has been convicted for the offence punishable under sections 363, 366-A and 376 of the Indian Penal Code. The appellant has been directed to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-. In default of payment of fine, the appellant has been directed to undergo rigorous imprisonment for one year. 2. According to the case of the prosecution, ((-2-)) the prosecutrix Manisha Shantaram Pawar was a resident of Village Kudali, Taluka Roha, District Raigad. At the relevant time i.e. in the year 1990 she was residing in Government Girls Hostel, at Mahad along with other girl students. 3. The case of the prosecution is that before the Ganpati Festival of the year 1990, the prosecutrix was proceeding towards her native place. For that purpose the prosecutrix was proceeding towards the State Transport Bus Stand for boarding a bus. At that time the accused came there and enquired with the prosecutrix. He offered the prosecutrix to take her to the bus stand by his auto rickshaw. The prosecutrix accepted the offer and took a seat in the auto rickshaw of the appellant. Thereafter the appellant represented that he had some work at Mangaon and therefore he would take the prosecutrix up to the bus stand of Mangaon. The appellant-accused reached Mangaon along with the prosecutrix. When the prosecutrix ultimately asked the accused to stop the rickshaw, he stopped the same away from the bus stand and suddenly informed the prosecutrix that she should stay with him at ((-3-)) Mangaon. The prosecutrix did not accept the suggestion. The appellant said that if his suggestion was not accepted, then he will commit suicide and will leave a suicidal note holding the prosecutrix responsible for his death. According to the prosecution case, though she was not willing to stay and she was eager to go to her native place, all of a sudden the accused took out some pointed thing which was attached to key-chain and inflicted some injury on his own wrist which immediately started bleeding. The appellant took the prosecutrix to Suswagat Lodge at Mangaon. On the same night the appellant committed forcible intercourse with the prosecutrix. In the morning at 7.30 a.m. he dropped the prosecutrix at the bus stand and thereafter the prosecutrix proceeded to her native place. Before leaving her the appellant warned her not to disclose the incident to anyone as it will hamper her reputation. After staying at her house during Ganpati Festival she came back to Mahad. She avoided to sit in the auto rickshaw of the appellant. According to the prosecution case, the appellant represented to the prosecutrix that he was desirous of talking to her and under the threat he took the ((-4-)) prosecutrix to his room. Thereafter the appellant took the prosecutrix to Birwadi. At the said place a boy from the native place of the prosecutrix noticed the appellant and the prosecutrix together and the said boy questioned the appellant. There was some heated discussion on this aspect. On the way back from Birwadi, the appellant represented the prosecutrix that said boy could inform the fact that they were together to the father of the prosecutrix who was Police Patil of the village. The appellant represented that there was distinct possibility that the father of the prosecutrix will come to Mahad and take the prosecutrix to her native place. Therefore, the appellant impressed upon the prosecutrix that on the next day if she comes near the place known as "Chavdar Lake" he will meet her and will marry with her. Accordingly on 17th September 1990 the prosecutrix came near Chavdar Lake. The appellant took the prosecutrix by a Maruti Van to Bhor Town. From Bhor Town the appellant and the prosecutrix travelled by S.T.Bus and reached Pune. In Pune the appellant hired a room in Samrat Lodge situated near Pune Railway Station. An entry was made by the prosecutrix in the register of ((-5-)) the lodge at the instance of the appellant. It is stated that on 17t, 18th and 19th September 1990 the appellant and the prosecutrix stayed together in the room and during all the three nights the accused committed the offence of rape against the prosecutrix, notwithstanding the resistance of the prosecutrix. On 19th September 1990 the appellant demanded the gold ear rings of the prosecutrix representing that he was short of money and he will require the money for further stay. Though the prosecutrix refused, the appellant forcibly took prosecutrix to a jewellery shop where her ear rings were sold for an amount of Rs.500/-. 4. After coming back from jewellery shop, in the bag of the appellant, the prosecutrix found a small under garment of woman. On questioned, the appellant avoided to answer whether he was married. 5. On 20th September 1990 taking advantage of temporary absence of the appellant, the prosecutrix booked a trunk call to Mahad Girls Hostel. By the time the call was connected, the appellant reached the place and snatched the receiver and disconnected the call. ((-6-)) 6. The telephonic call was connected to the Girls Hostel, Mahad and a servant in the hostel recognized the voice of the prosecutrix and she informed the Police about the said call. 7. Afterwards, the Police personnel, relatives of the prosecutrix and lady Superintendent of the hostel proceeded to Pune. They made enquiries in the telephone exchange and from the telephone exchange they gathered information that the telephone number from which the call was made at Mahad was of Samrat Lodge, Pune. At about 1.00 a.m. on 21st September 1990 PSI Jadhav along with his police staff and lady Superintendent of Girls Hostel reached Samrat Lodge and found that the prosecutrix and appellant were living in Room no.122. The PSI knocked the door and the door was opened by the appellant who was wearing only a Lungi on his person. It was found that the prosecutrix was sleeping on the bed in the room and she had covered her person by a bed sheet. She was instructed to get up. She disclosed that she was not wearing any cloths except an underwear. She was provided with cloths and the underwear on the person of the ((-7-)) prosecutrix and all other articles including the bed sheets were seized and accordingly a Panchanama was drawn. The prosecutrix and accused were brought back to Mahad by the police party. 8. The charge was framed against the appellant under sections 363, 366-A and 373 of the Indian Penal Code. The defence of the appellant was of denial. 9. The learned advocate appointed to espouse the cause of the appellant has taken me through the evidence and the impugned judgement. He submitted that the evidence on record shows that at the relevant time the age of the prosecutrix was sixteen years. Inviting my attention to the evidence of the prosecutrix he submitted that the said evidence was totally unreliable and unworthy of acceptance. He submitted that even if the said evidence is accepted as it is, it was a case of clear consent on the part of the prosecutrix. He submitted that the prosecutrix had many opportunities to protest but she has not done so. He submitted that looking to the case made out by the prosecutrix in her evidence, it was ((-8-)) obvious that there was no enticing or taking away the prosecutrix on the part of the appellant and the offence under section 363 is not made out. He submitted that on plain reading of section 366-A of the Indian Penal Code, the said offence was not made out. He submitted that as the evidence of the prosecutrix is not worth accepting, the learned Judge has committed gross error in convicting the appellant under section 376 of the Indian Penal Code. 10. The learned APP appearing for the State supported the impugned judgement and order. He submitted that the appellant is a married man who by giving false promises to the prosecutrix induced her to travel with him up to Pune and in the lodge at Pune has committed the offence under section 376 of the Indian Penal Code. He submitted that since the prosecutrix was admittedly below the age of eighteen years on the date of the offence, the offence under section 363 was clearly established by the prosecution as the prosecutrix was taken away from the lawful custody of her guardian. He submitted that looking to the heinous crime committed by the appellant who was already ((-9-)) married, no interference is called for. 11. It will be necessary to refer to the evidence of the prosecution witnesses with a view to appreciate the submissions. The first witness examined by the prosecution is Shantaram Balkrishna Pawar who is the father of the prosecutrix. He stated that at the time of incident, the prosecutrix was fifteen and a half years old. He stated that from first to seventh standard, the prosecutrix studied while staying with his brother-in-law at Village Tise on account of his poor financial condition. After completing the education up to 7th standard, his brother-in-law admitted the prosecutrix in Government Girls’ Hostel, at Mahad for further education. He stated that the prosecutrix was the student of 12th standard at the relevant time at Ambedkar College, at Mahad. He stated that during holidays and festivals he used to go to Mahad to bring back the prosecutrix to his village. He stated that on some holidays he used to visit Mahad to meet the prosecutrix. 12. He stated that in the month of September 1990 for Ganpati Festival the prosecutrix came ((-10-)) back to her village. She stayed for fifteen days. He stated that he accompanied his daughter to Mahad after fifteen days stay at village. On 18th September 1990 his brother-in-law visited his house and stated that a lady clerk from the Girls’ Hostel at Mahad had enquired about the prosecutrix. The enquiry was made about whereabouts of the prosecutrix. He stated that on the very night he alongwith his brother-in-law started searching his daughter and made enquiries with the relatives. They also visited the Hostel at Mahad. But there was no trace of the prosecutrix. He stated that he was aware that the authorities of the hostel had reported the incident to the Police. He stated that after he lodged complaint with the Police Station, his daughter was found at Pune. He admitted that he had no talk with his daughter about the incident which took place. He stated that in the year 1990 the prosecutrix could not complete her 12th standard education. He stated that she was taking education and was residing with his brother in law. 13. PW-2 is Miss Nirmala Kamal Patil who was working as Maid Servant cum Peon at the ((-11-)) Government Girls’ Hostel, at Mahad. She stated that in September 1990 the prosecutrix was residing in the hostel. She stated that whenever resident girl of the hostel goes out of the hostel, an entry in the register of the hostel has to be made by concerned girl. She stated that in the early morning the students studying in 12th standard used to leave the hostel to attend tution class and from tution class they used to go to the college. She stated that on 17th September 1990 the prosecutrix left the hostel at 5.45 a.m.. She stated that she came to know that the prosecutrix did not attend the coaching class and failed to report to the college. She stated that some of her friends also made enquiries in the hostel. She, therefore, stated that she proceeded to inform the Police. 14. She stated that on or about 21st September 1990 a telephonic call was received by the hostel from Pune from the prosecutrix. The phone was for one Draupadi Jadhav who was a friend of the prosecutrix. She stated that she could recognize the voice of the prosecutrix and thereafter she heard some talk that the prosecutrix should not open her mouth and the ((-12-)) telephone was disconnected. She stated that on 22nd morning the prosecutrix was brought by the Police. She identified the appellant in the Court. 15. The third prosecution witness is Smt.Sarojini Digambar Khole. She was working as Superintendent of Girls’ Hostel, at Mahad. She stated that on 17th September 1990 she was required to attend a meeting of the Committee at Mumbai and she came back late in the night on 17th September 1990. She stated that while she was taking rest, a student by name Vandana came to her room and brought a tea for her. The said student informed the witness that the appellant was not in the hostel from 17th September 1990. Thereafter PW-3 started making enquiries and proceeded to lodge a complaint with the Police. Thereafter she described as to how she proceeded to Pune alongwith Police party. In her examination-in-chief she has described as to what transpired after the name and addresses of the lodge from which the telephone call was made at the hostel at Mahad was traced out. She stated that the said lodge by the name Samrat Lodge was located and at about 1.30 a.m., she alongwith Police party ((-13-)) proceeded to visit the said Samrat Lodge. In her examination in chief, she described what transpired thereafter which read thus :- ... ... The name of Manisha was also found in the register. Manisha was found in the Samrat Hotel at 1.30 a.m. Accused and Manisha were found in one room of the Hotel. When we had ranged the bell of the room, that time accused had opened a door. He was putting on a Lungi. As Manisha was found sleeping on the bed. Manisha was sleeping having a bedsheet on her person, but under the bedsheet cover she was having only underwear on her person. Manisha was asked to put on the clothes on her person and her underwear was immediately seized. Police had made writing immediately like panchanama. In my presence police prepared a panchanama of the room. It bears my signature, it is Exh.13. Whatever clothes and bag were found in the room, it was seized by the police. Bag before the court article no.1 is the same. All the articles seized are before the Court. .. .." 16. PW-4 is Draupadi Jadhav was also a student studying in the said hostel at Mahad. She stated that on the relevant day the prosecutrix did not attend the coaching class. She stated that the appellant-accused used to ply an auto rickshaw at Mahad and on two or three occasions she alongwith the prosecutrix had travelled by the auto rickshaw of the appellant to the college from the place of coaching class. She stated that she was aware that the appellant-accused was married person having ((-14-)) issues. In the cross examination she pleaded ignorance about the correctness of the suggestion that the appellant was having love affair with the prosecutrix. 17. PW-5 Dondiram Tukaram Mohite was examined to prove that the appellant was a married person. PW-6 Deelip Krishna Jadhav stated that he alongwith his brother Ramchandra were running business of travel company. He stated that on 17th September 1990 in a Maruti Car owned by him he took the appellant to Hirdoshi from Mahad. At that time he noticed that one girl was with him. The appellant and the said girl had come near a place known as "Chavdar Lake" and they boarded the car at the said place. PW-7 Arjun Shankar Sakpal is a formal witness. PW-8 Pradeep Gajanan Gholap was PSI attached to Mahad City Police Station. His evidence is also not relevant for consideration. PW-9 Laxman Krishna Jadhav is a Panch witness who recovered the gold ear rings at the instance of appellant. 18. PW-10 Mrs.Usha Prabhakar Kudalkar was working as Head-Mistress in Tharwal Kanya Mahavidyalaya, at Mahad from 1st June 1992. ((-15-)) She stated that as per the record of the school, the date of birth of the prosecutrix was 6th June 1974. She produced the original register of the school before the Court to prove the said entry. PW-11 Ramesh Vyankatesh Nayak was working with Suswagat Lodge at Mangaon in the year 1990. He stated that on 17th August 1990 a passenger named Jadhav came at about 10.30 to 11 p.m. for staying in the lodge and said Jadhav was having a girl aged about 16 to 17 years old with him. He identified the appellant in the Court. He stated that the appellant-accused and the girl left the lodge at 7.30 a.m.. 19. PW-12 Chunilal Ladhaji Oswal is the person running a jewellery shop. According to him, on 19th September 1990 at about 4.30 p.m., the appellant alongwith a girl came to his shop. They were desirous of selling gold ear rings. He stated that he took the said ear rings from them and paid them Rs.500/-. A receipt for the said transaction was prepared by the witness. It is stated that he identified the accused in the Court. PW-13 Vishwanath Laxman Jadhav is the real brother of the appellant Dilip . Hardly anything turns on his deposition. PW-14 ((-16-)) Prabhakar Dharma Patil was attached to Police Station, Mahad. He recorded the complaint of Ms.Nirmala Kamal Patil. PW-15 is the prosecutrix. 20. When the offence alleged is under section 376 of the Indian Penal Code, it is not necessary to have any corroboration to the testimony of the prosecutrix and only as a matter of prudence the Court may seek an assurance to the testimony of the prosecutrix from the other material on record. Therefore, her evidence will have to be scrutinized very carefully. She stated that every day in the early morning she used to attend the coaching class of Nandu Mehta and after attending the coaching class, she used to directly go to the college. In paragraph 1 of the examination-in-chief she stated that she was not knowing the appellant but the appellant used to ply an auto rickshaw at Mahad. In paragraph 2 she reiterated that the accused was not known to her. She stated that the accused being brother of her friend Draupadi Jadhav, on some occasions she used to go to college by auto rickshaw of the appellant. She stated that at the time of Ganpati Festivel she did ((-17-)) not come contact with the appellant. Further part of her evidence is very crucial which will have to be quoted :- "... ... At the time of Ganpati festival I have not come in contact with the accused. I was going to class, and a bag was with me as I was to give my clothes in Laundry for wash. AT that time, one Maruti Car came near Chavdar Tale, it was about 6.00 a.m. In the Maruti Car someone had pushed me, there was a driver in the Car. Then thereafter, I do not know what happened. When I came to consciousness, at that time I was found myself in one room and accused Deelip was there. I asked accused why he brought me to room and allow me to go. At that time accused said I am not concerned with it. He said that, he was having liking for me, since many days and he was to marry me. I told him that, I am then student and this thing will be not liked by my family members. He insisted that he will marry me, but I said that I will not marry him and I may be allowed to go home. Then accused 2, 3 times tried to rape me. Tried to rape me, means he had removed my clothes from my person. Even I had made scrabble of nail on his person while protecting myself. Ultimately, he had committed rape on me. He had repeated rape on me twice. In that room there was only door for exit and whenever accused was going out he used to lock it." In paragraph 3 the prosecutrix stated as follows : "3. The accused took me in a rickshaw to the shop of one goldsmith. I was standing outside the goldsmith shop. Accused went in the shop and brought the cash of ear-rings from the shop. From ((-18-)) the shop of goldsmith accused again brought me to a room. At that time, I came to know that I was in a room of one lodge. Then I found that I will not be free from the hands of the accused, hence I started behaving good with the accused. And it has created a confidence in the mind of the accused that I will stay with him. Hence accused stopped locking the door of the room while going out." She described as to how she telephoned to hostel at Mahad. She stated that at about 1.00 a.m. in the night along with the Police the hostel Superintendent Mrs.Khole, her father and her maternal uncle and her uncle came to the lodge. She identified the accused in the Court. The recording of evidence was adjourned for recess. After recess she came out with altogether a new story of the incident which had allegedly occurred 22 to 25 days before 17th September 1990. In paragraph 8 of her deposition, she has deposed as under:- "8. Whatever I stated in my police statement and before the Magistrate is correctly recorded, as per my version. About 20 to 25 days before the incident of Maruti Car, accused took me to Mangaon. Accused took me to Suswagatam Lodge. He took me there at about 10 to 10.30 p.m. On that day, I was going to my village for Ganesh Festival. On that day, after finishing my class I came to Shivaji Chowk. Accused asked me where I was going. He said that he will reach me to S.T.Stand. At S.T.Stand accused said that he got some work at Mangaon, so he will reach me to Mangaon. Accused did not stop his Rickshaw, but he took the ((-19-)) same to Arawali Phata. Accused said that I should not go to my village on that day. But I insisted that I will go to my village. At that time, accused took something from the key chain in his hand and inflicted injuries on his hand and then accused said that if I did not stay at Mangaon, then I will be responsible and he will say to public anything false. Then accused took me to Suswagat Lodge at Mangaon. There, in the Lodge room accused committed a rape on me. At that time I resited the act of the accused. On next day morning accused left me at Mangaon stop. ..." Thereafter the prosecutrix stated that at that time she was not aware that the appellant was a married person. She came to know about it after she was brought to Mahad Police Station from Pune. Paragraph 9 of her deposition reads thus:- "9. After I came back to Mahad, after the Ganpati Festival, once accused threatened me that if I failed to go with him, he will told the public the incident at Mangaon took place. Hence once accused took me to village Birwadi in his rickshaw. He took me to Birwadi as accused wanted to tame my photographs alogn with him for a proof. At that time, at Birwadi, a person from my village named as Shekar Kadam met us. Shekhar Kadam asked the accused he had brought me to Birwadi. Then Shekhr Kadam and accused had some talk. I was frightened that Shekhar will tell against me to my parents. Accused also said