1 cri.appeal 159-1991 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 159 OF 1991 Kisan @ Kishor Bhumayya Gundala, ) Age 22 years, Residing at 90/ ) 205, Jodbhavi Peth, Solapur ) ...Appellant (Orig.Accused) vs. The State of Maharashtra ...Respondent Mr.Rajesh S. Datar, Advocate appointed for the Appellant. Mr.Y.M. Nakhwa, APP for the Respondent-State. CORAM : J.H. BHATIA, J. DATED : NOVEMBER 23, 2010 ORAL JUDGMENT :- 1 The appeal is preferred by the accused who was convicted by the learned 5th Additional Sessions Judge, Solapur, in Sessions Case No.122/1990 for the offences punishable under Sections 363, 366 and 376 IPC and was sentenced to undergo RI for one year, 2 cri.appeal 159-1991 two years and three years with some fine, respectively. 2 Prosecution case in brief is that the accused and the prosecutrix were resident of Village Solapur. Anusaya, the elder sister of the prosecutrix was residing with her husband near Co- operative Hospital at Akkalkot road, Solapur. As her husband was ill for a period of about four to five months prior to his death on 22nd March, 1990, as per advice by their mother, the prosecutrix was living at the house of Anusaya to help her. Anusaya was residing as a tenant in the house of one Shamrao Gundala, who was uncle of the present accused. Therefore, the accused also used to visit the house of Shamrao. He also used to visit the house of Anusaya. As a result of his frequent visits to the house of Anusaya, the accused and the prosecutrix came to know each other and they fell in love. They also wanted to marry, however, it could not be materialised. On 17th March, 1990, the accused 3 cri.appeal 159-1991 married another girl. The prosecutrix also attended his marriage. Even after his marriage with another girl, love affair of the accused with the prosecutrix continued and he assured to marry the prosecutrix. A few days after his marriage, on 22nd March, 1990, husband of Anusaya died. As advised by the priest, Anusaya and her mother went to sleep at the Siddheshwar temple in the night of 1st April, 1990. PW 9 Bhugappa Gadagi, the father of prosecutrix and prosecutrix were at the house of Anusaya. At about 7.10 p.m., the accused called the prosecutrix and told her that he was going to marry her at Tulzapur. She also accompanied him. At about 7.15 p.m. they left the house of Anusaya, went to ST stand of Solapur by rickshaw and by bus, they went to Tulzapur, where they stayed in Ashirwad Lodge belonging to PW 8 Baburao Ingole. The accused filled in the register and put his name as K.B. Junavane and name of the prosecutrix was written as Lalita K. Junavane indicating that she was wife. In fact, his surname is Gundala. They stayed there for two nights 4 cri.appeal 159-1991 and also had sexual intercourse. On 3rd April, 1990, they went to the house of their friend Bharat Junavane at Solapur and next day, the accused left his house leaving the prosecutrix there only. After sometime, she also left the house and went to the house of her sister Anusaya and disclosed this whole incident to Anusaya. On 5th April, 1990, the prosecutrix lodged a report Exhibit 16 at the police station. Her medical examination was conducted. Crime No.68/1990 was registered. The accused was also arrested. He was also subjected to medical examination. Some statements were recorded. After investigation, the police filed charge sheet against the accused for the offences punishable under Sections 363, 366 and 376 IPC. 3 The charges were accordingly framed. The accused pleaded not guilty. According to him, he had not induced nor had promised to marry her but the prosecutrix had voluntarily accompanied him. He denied that he had committed rape on her at Ashirwad 5 cri.appeal 159-1991 Lodge. According to him, even after his marriage, the prosecutrix wanted to live with him, even as a second wife and with that intention, she had accompanied him. However, her sister, who was a local leader of communist party, instigated her to lodge a false report against him. 4 On behalf of the prosecution, in all 13 witnesses were examined. Several documents were also placed on record. Evidence of the prosecutrix, who is PW 3, is material. If her evidence is looked into along with the defence of the accused, it appears to be admitted fact that they were in love and they wanted to marry. However, they could not get consent of their parents and therefore, they could not fulfill their desire to marry. Meanwhile, on 17th March, 1990, the accused married another girl. In spite of that, his love affair with the prosecutrix continued and both wanted to marry each other. It appears that the prosecutrix was willing even to be second wife of the accused. On 23rd March, 1990, 6 cri.appeal 159-1991 Anusaya's husband died. On 1st April, 1990, as per advice of a priest, Anusaya and her mother went to Siddheshwar temple to sleep during the following night. At that time, the prosecutrix was at the house of Anusaya. According to her, in the evening, the accused came there and called her out. He asked her to take her purse saying that her mother had called her. She took her purse and then, he and the prosecutrix boarded a rickshaw. The accused took her to ST stand and on enquiry, he said that they were going to marry. From her evidence, it appears that after the accused told her that they were going to marry, she did not resist. They boarded a bus and went to Tulzapur. At Tulzapur, as per her evidence, they stayed in Ashirwad Lodge where visitors' register of the Lodge was filled in by the accused and he mentioned his name as K.B. Junavane while name of the prosecutrix was shown as Lalita K. Junavane. Her evidence also shows that they stayed in the said hotel for two days. They had sexual intercourse during the first night and again during 7 cri.appeal 159-1991 the second night. She admitted that the accused asked her to remove her clothes which she did. She removed the clothes herself and thereafter, they had sexual intercourse. It clearly shows that the prosecutrix was not only willing but also consenting party for the sexual intercourse. After two days, they left the hotel and went to Solapur and stayed at the house of PW 1 Bharat Junavane who happens to be a friend of the accused. There the prosecutrix was sleeping with mother of PW 1 Bharat inside the house while the accused was sleeping outside the house along with PW 1 Bharat Junavane. On next day, the accused left the house of Bharat without informing the prosecutrix and therefore, in the afternoon, she also left the house and went to her sister's house. The evidence of PW 1 Bharat also corroborates the version of the prosecutrix on facts. 5 If the cross-examination of the prosecutrix is carefully read, it becomes clear that the accused 8 cri.appeal 159-1991 also admits that he had been to Tulzapur along with the prosecutrix. They had stayed together in the said lodge for two nights and third day, they went back to Solapur and stayed at the house of PW 1 Bharat Junavane. 6 The learned Counsel for the accused mainly relied on two circumstances against the contention of the prosecution that the accused had sexual intercourse with the prosecutrix. Firstly, it is contended that the medical evidence does not corroborate the prosecution. Secondly, no blood stains were found on the bed sheet in the hotel room though according to the prosecutrix, some blood had oozed during the first night. As per evidence of PW 5 Dr.Charushila Patwardhan who had examined the prosecutrix on 6th April, 1990 at V.M. Medical College Hospital and as per the report issued by her, there was not external or internal injury on her person. There was no injury on the perineum, labia majora, minora; hymen appeared to be intact 9 cri.appeal 159-1991 and according to her, two finger PV could not be done. She explained that there were chances of hymen remaining intact if there was no complete penetration. She also stated that it is not necessary that in any intercourse, hymen must be ruptured and finally, she stated that no definite opinion could be given regarding recent forceful intercourse. In fact, from the evidence of the prosecutrix also, it does not appear that there was forcible sexual intercourse by the accused. Even though in examination in chief, the prosecutrix. uttered in one sentence that the accused had forcibly committed intercourse, in the next sentence she stated that forcibly means he had intercourse with her. Then she admitted that the accused had asked her to remove her clothes and she herself removed the clothes. In such circumstances, the possibility of any injury on her person was practically ruled out. The sexual intercourse had taken place during the night of 1st and 2nd April, 1990 while she was examined by Medical Officer on 10 cri.appeal 159-1991 6th April, 1990. In such circumstances, after three days, possibility of finding any swelling or inflammation on the labia majora or minora was also ruled out. It is also interesting to note that the Medical Officer did not clearly say that hymen was intact. She stated "hymen appears to be intact." In the final report also, she stated that she could not give any opinion that there was forcible intercourse. It does not mean that she had ruled out any sexual intercourse. 7 PW 8 Baburao Ingole was a conductor of Ashirwad Lodge, who proved the stay of the accused and the prosecutrix in the lodge from 1st April to 3rd April, 1990 and he also proved that the accused had mentioned his name as K.B. Junavane and the name of the prosecutrix was shown as Lalita K. Junavane indicating that the prosecutrix was wife of the accused. In the cross-examination, he only stated that he had not seen any blood on the bed sheet or the chader. He was owner of the lodge. The bed 11 cri.appeal 159-1991 sheets and clothes are changed by the attendants and not personally by the owner. If so many couples could go to stay in the lodge, the accused and the prosecutrix also stayed there as a couple indicating that they were husband and wife. During the first intercourse, it is not necessary that there should be severe bleeding. As stated by the prosecutrix, if there was some oozing of the blood, small blood stains on the bed sheet could have been ignored by the attendant also. Therefore, the statement of PW 8 Baburao that he had not seen blood stains on the bed sheet does not help the accused. 8 It is now well settled position in law that for the offence of rape punishable under Section 376 IPC, conviction can be based on the sole testimony of the prosecutrix also, if the court is satisfied that the evidence of prosecutrix is truthful. The prosecutrix in such offence is not treated as accomplice nor her evidence can be looked into with some suspicion or doubt. She is treated just like 12 cri.appeal 159-1991 victim of the offence. It is now well settled that no corroboration is required for her evidence to convict the culprit. However, if at all the Court needs to be assured that the evidence of the prosecutrix is truthful, it may look for some assurance from other evidence. Such assurance may come from medical evidence or other circumstance. In the present case, it is an admitted fact that the prosecutrix and the accused left Solapur together and went to Tulzapur. Both of them stayed in a lodge where they were shown to be husband and wife. They stayed there for two nights and the prosecutrix clearly states that during the both nights, the accused had sexual intercourse with her. She does not state that she was not willing or that she had not given consent. On the other hand, she has clearly stated both wanted to marry. The accused had taken her to Tulzapur with assurance that they were going to marry and when he asked, she also removed her clothes. It indicates that she willingly consented for the sexual intercourse. When a young 13 cri.appeal 159-1991 girl and a boy stayed together in a hotel away from the house as husband and wife, there could be no reason to disbelieve the version of the girl that they had sexual intercourse. Taking into consideration the circumstances, I find that the evidence of the prosecutrix is truthful and trustworthy and it is corroborated by the circumstances. 9 As it appears that the prosecutrix was consenting party to sexual intercourse, the question is whether her consent was valid. Under Section 375, a sexual intercourse with a woman even with her consent amounts to rape if she was under 16 years of age at the relevant time. PWS 10 Dnyaneshwar Gopal Mankeshwar was in charge of maintenance of Birth and Death Register in the Municipal Corporation, Solapur. He produced Birth Register. Exhibit 33 is the true copy of the relevant entry, which reveals that on 23rd April, 1974, one Petamma, wife of Bhugappa Gadagi had given birth to a female child at 14 cri.appeal 159-1991 Lady Duffrin Hospital and it was reported on 26th April, 1974. On 21st June, 1974, it was reported that the child was named as Lalita. Thus, this Birth Certificate clearly goes to show that the prosecutrix was born on 23rd April, 1974, she would have completed her age of 16 years on 23rd April, 1990. The incident of this case occurred on 1st April, 1990 and the accused had sexual intercourse with her during the nights of 1st and 2nd April, 1990. At that time, she had not completed 16 years of age. The learned Counsel contended that in the same record, age of Petamma was shown to be 20 years while it has come in the evidence of PW 9 Bhugappa that the prosecutrix was their 10th child. The learned Counsel contended that in view of this, the record of Birth Register does not appear to be correct. There is nothing on record to show that Petamma was the second wife of Bhugappa. According to him, the prosecutrix was their 10th child. If she was 10th child, naturally the age of the mother could not be 20 years at that time. Merely because 15 cri.appeal 159-1991 of the mistake in the age of the woman, who had delivered, it cannot be said that the complete record is not true. A mistake might have been committed in the age of the woman but the date of the birth of the child, names of parents, place of birth being a being a public hospital are noted. There is also noting that name of the child was recorded on 21st June, 1974, after the reporting was made. Nobody could have anticipated in the year 1974 that in future in 1990, there could be a criminal case involving the prosecutrix. Nobody could have falsely prepared the said record of the age. Therefore, it must be held that the her age was less than 16 years. 10 Besides this, even the Medical Officer Dr.Charushila Patwardhan also opined on the basis of X-ray plates and also ossification test that the age of the girl was more than 12 years and less than 16 years. This also provides corroboration to the prosecution case that she was less than 16 years. 16 cri.appeal 159-1991 10 As the prosecutrix was less than 16 years of age, her consent for sexual intercourse is not valid and the accused must be held to be guilty of committing the offence of rape. From the circumstances and evidence, it appears that he had induced her to accompany him with assurance of marriage and then he had also indulged in sexual intercourse with her and therefore, he could be also guilty for the offence punishable under Sections 363, 366 and 376 of IPC. Taking into consideration the facts and circumstances, it cannot be believed that the prosecutrix had suo motu left the house of her parents and then the accused had accompanied her nor even it is the case of the accused that after the prosecutrix had left the house, he accompanied her. It appears that before the trial court, reliance was placed on S. Varadarajan vs. State of Madras (AIR 1965 SC 942). Taking into consideration the facts and circumstances of the case, that authority cannot be of any assistance to the accused 17 cri.appeal 159-1991 in this case. 11 The offence under Section 376 is punishable with imprisonment for life or for a term which may extend to 10 years and with a fine and a minimum sentence will not be less than 7 years. However, the Court may, for adequate and special reasons mentioned in the judgment, impose imprisonment for a term of less than 7 years. The trial court has considered the facts and circumstances of the case and therefore, awarded imprisonment of three years for the offences of rape instead of minimum prescribed sentence of 7 years. Therefore, I do not see any reason to interfere with the sentence also. 12 For the aforesaid reasons, the appeal stands dismissed. The accused was granted bail and the Advocate was provided by the Legal Aid Authority to conduct the case on his behalf. As accused is not before the Court today, the trial court shall issue a warrant for his arrest for execution of the 18 cri.appeal 159-1991 sentence as per the law. (J.H. BHATIA, J.)