1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1104 OF 2007 Namdeo Sonu Gavali .Appellant Age:25 yrs, Occu:Service R/o.Wani, Borichapada, Taluka Dindori, District Nashik. V/s. The State of Maharashtra .Respondent Mr.Arfan Sait, Advocate, for the Appellant Ms Rajeshree Gadhvi, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 15TH DECEMBER, 2011 ORAL JUDGMENT . Heard the learned counsel for the respective parties. 2. This appeal, by appellant convicted by the learned Ad-hoc Additional Sessions Judge-3, Nashik for the offence punishable under Section 376 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years, is being taken up for expeditious hearing out of 2 turn, since the appellant has already suffered imprisonment of five years and ten months out of his seven years sentence and has not been able to avail of the bail granted to him. 3. Facts which are material for deciding this appeal are as under :- The victim was studying in 7 th Std but had possibly given up Schooling and used to go for the other work. She knew the appellant, since he used to visit village for fixing dish antenna for television sets. A month prior to the incident, she claims to have served water to the appellant at her house. On 17 th February, 2006 at about 5:00 p.m. when she was returning home after completing her work in the field, the appellant called her to a river bank and then committed rape upon her. Her cries attracted her parents. The appellant was apprehended and soon thereafter, a report was made to the police. The appellant as well as victim were 3 subjected to medical examination. Police registered an offence, recorded panchanama of the spot, seized incriminating articles, sent them to the Forensic Science Laboratory, recorded statements of witnesses and on completion of investigation sent charge sheet to the Court of the Judicial Magistrate F. C., Dindori, District Nashik. The learned Magistrate committed the case to the Court of Sessions at Nashik. The learned Additional Sessions Judge charged the appellant for the offences punishable under Sections 376 and 506 of the Indian Penal Code. Since the appellant pleaded not guilty, he was put on trial at which the prosecution examined in all nine witnesses in its attempt to bring home guilt of the appellant. After considering the prosecution evidence in the light of defence of false implication refused by the appellant, the learned Additional Sessions Judge convicted and sentenced the appellant as indicated earlier. 4 Aggrieved thereby, the appellant is before this Court. 4. I have heard the learned counsel for the appellant and the learned APP for the respondent  State. With the help of both the learned counsel I have gone through the evidence on record. PW-1 the prosecutrix stated about the manner in which the incident occurred. She stated that she is one of the 6 sisters, three being elder than her and two younger than her. She stated that when she raised cries and her parents reached, the appellant started running away but was caught by the police. She stated that she had left the school, since she did not like to study. However, in the report at Exhibit 16 she had stated that on the incidental day she had not gone to the school because she had not done her home work. She does not seem to have suffered any injuries as a result of her having intercourse with the appellant. PW-2 5 Gangubai and PW-3 Popat are her parents, who state that they reached the place in search of their daughter and on complaint of their daughter that she had been raped, caught hold of the accused, who was there itself, and brought him to the village and thereafter, took him to the police station. It was suggested to the parents that the victim used to meet the appellant and did not heed the parents advice to keep away from the appellant. They denied this suggestion. PW-4 Dr. Hiraman Jivan Gangode had examined the appellant and found the appellant was under the influence of liquor and had also abrasion on left arm and forearm. The cross examination of Dr. Hiraman Gangode was directed to elicit from him that the victim would suffer some injuries, if subjected to a rape in the circumstances found on the spot. PW-8 Dr. Monali Chandrakant Pansare and PW-9 Dr. Gorakhanah Kisanrao Gore are two Doctors, who examined the victim and found there were no 6 marks on her person to indicate that she had been subjected to any recent rape that she was habituated to intercourse and that she was under the age of 18 years. 5. PW-5 Motiram Pandurang Tungar is a panch at the seizure of victim's nicker vide Exhibit 13. PW-5 Motiram Tungar admitted in his cross examination virtually the entire story sought to be set up by the defence that the appellant and victim used to meet frequently and victim did not heed her parent's advice. The witness seems to have accompanied the victim's father to the police station as well. 6. PW-6 Rambhau Savaliram Mahale, Head Master of the school where the victim was taking education proved School Leaving Certificate vide Exhibit 16, which curiously does not show the date on which the victim left the school. It shows that the victim was studying in 7 th Std 7 since June, 2005. Mahale had stated that the victim had left the school after she passed 7 th Std examination. PW-7 PSI Sunil Digambar Nandwalkar conducted investigation. 7. The learned counsel for the appellant submitted that the victim was above 16 years of age, and, as could be seen from the evidence of PW-5 Motiram was friendly with the appellant. He submitted that since this friendship itself was disapproved by the victim's parents, they may have falsely implicated the appellant. The cross examination of PW-5, in fact, went on in the direction of suggestion that there was consensual sexual intercourse. The cross examination of Doctors as well as Head Master and parents was directed to show that the victim was above 16 years in age. The doubts about the date of birth recorded in the School Leaving Certificate at Exhibit 16, and the Medical Certificate at Exhibit 26 showing that the 8 victim was below 18 years of age would leave a possibility that victim may be above 16 years of age at the relevant time. The learned counsel for the appellant, however, submitted that it was for the prosecution to prove by unimpeachable evidence the victim was less than 16 years, if the prosecution wanted to establish that it was a statutory rape. Probabilities would be sufficient for the defence to rebut the case set up by the prosecution but as far as the prosecution is concerned, it must prove all the ingredients of the offence to the hilt. 8. All the same, the defence had not suggested to the prosecutrix that she had consented to sexual intercourse and since the victim states that she had resisted and she had been forced into intercourse by the appellant, even if the prosecutrix is held to be above 16 years, the act amounts to rape. However, in these circumstances, the learned Additional 9 Sessions Judge could have seen that harsh punishment of imprisonment seven years was not called for. 9. In view of this, Appeal is partly allowed. Conviction of the appellant for the offence punishable under Section 376 is maintained but the sentence of rigorous imprisonment for seven years imposed upon the appellant is reduced to sentence of rigorous imprisonment for five years with a fine of ` 500/- or in default further rigorous imprisonment for two months. The appellant be set at liberty, if not wanted in any case if he has served the sentence. Copy of the Judgment should be delivered to appellant in the Central Prison at Nashik. (R.C.CHAVAN, J.)