IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1324 OF 2003 Shri.Rajan s/o Kannan Padiyachi, Indian inhabitant, Aged about 32 years, R/at N.R.C. colony, G.N.9/193, Mohane, Tal.Kalyan, Dist.Thane. ...Appellant/ (Accused at Adharwadi Jail, Kalyan) Accused No.1 Versus The State of Maharashtra (At the instance of Mahatma Fule Chowk Police Station, Kalyan) ...Respondent ...... Mr.Dipam D.Kathrani i/b Mr.Indrajeet Joshi for Appellant/accused No.1. Mr.K.V.Saste, A.P.P. for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. AUGUST 19, 2006. AUGUST 19, 2006. AUGUST 19, 2006. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This Appeal is filed by accused No.1 against the Judgment and Order passed by the Ist Ad-hoc Additional Sessions Judge, Kalyan dated October 8, 2003 in Sessions Case No.159 of 1997. The Appellant/accused No.1 along with two other : 2 : accused were charge-sheeted and tried for offence punishable under Sections 363 and 366 read with Section 34 of the Indian Penal Code (herinafter referred to as the ‘IPC’) as well as for offence punishable under Section 376 of the IPC. The prosecution case briefly stated is as follows : . The prosecutrix Vaijanta Nandabhau Pawar (hereinafter referred to as ‘prosecutrix’) was residing in a chawl in Mahatma Phule Nagar at Mohane, Taluka Kalyan, along with her parents - father Nandabhau Kisan Pawar, mother Ratnaprabha Nandabhau Pawar and other family members. The prosecutrix was a student of 10th standard in N.R.C. High School, Mohane, Tal.Kalyan, Dist.Thane. On 24th October 1996, the prosecutrix was to appear for 10th standard examination, which had commenced from 14th October 1996. When she was on her way to School, Appellant/accused No.1 contacted the prosecutrix. The prosecutrix followed the Appellant/accused No.1 and accompanied him to the house belonging to a person named Shivaji Bhoir where co-accused Bhima Gaikwad and Jitu @ Jitendra Sonawane were with them. The : 3 : accused No.1 gave false promises of love and marriage to the prosecutrix. It is alleged that the mother (PW 4) and maternal uncle of prosecutrix Rajendra Shripat Kurade (PW 1) came to know about this fact. Accordingly, the Uncle (PW 1) scolded the prosecutrix. It is alleged that on 29th October 1996 at about 12.30 noon, the mother of the prosecutrix accompanied the prosecutrix up to her School to attend the examination. At about 12.40 p.m. mother (PW 4) left the prosecutrix near the gate of N.R.C. High School and returned back home. Thereafter, Appellant/accused No.1, who was waiting for the prosecutrix near the School gate caught hold of the prosecutrix and threatened her saying that he would take care of her parents and maternal uncle. He also told the prosecutrix that her parents and maternal uncle undermine his guts. Thereafter, Appellant/accused No.1 made the prosecutrix sit in one auto-rickshaw and the prosecutrix was taken to Titwala. Co-accused Jitu was also accompanying them. They first visited Titwala Temple where Appellant/Accused No.1 gave one white saree and black blouse to prosecutrix and told her to change her dress. Accordingly, : 4 : prosecutrix changed her dress and put on the saree and blouse given to her by the Appellant. Thereafter, they visited Ganpati Temple and took darshan. From there, they went to Village Sangoda. At Village Sangoda, they stayed with one Vijutai Patil, who happened to be the Sarpanch of that village. It is alleged that after reaching Village Sangoda, co-accused Jitu left the spot. However, accused No.2 Bhima Gaikwad and one person Pandu Gaikwad arrived at Sangoda to assist and support Appellant/accused No.1. It is alleged that on the night of 29th October 1996, the Appellant/accused made prosecutrix to stay in the attic room in the house of Vijutai Patil, where he committed rape on the prosecutrix. Thereafter, on 30th October 1996, Appellant and his friend accused No.2 Bhima took prosecutrix to Titwala where they stayed in the house belonging to father-in-law of Ankush Patil, who is the friend of Appellant/accused No.1. It is alleged that even on that night, Appellant accused committed rape on the prosecutrix. Thereafter, on 31st October 1996 at about 10.30 a.m., Appellant/accused No.1 and accused No.2 Bhima and Ankush took the prosecutrix to Khadavli Railway : 5 : Station. From there, they went to the house belonging to Bandu Jadhav, which was situated outside the Village. In the evening, some persons arrived and they tried to placate prosecutrix and accused to return to Mohane. It is then stated that on 31st October 1996 at about 8.30 p.m. Appellant/accused No.1 took prosecutrix to Village Falegaon and from where took her to Village Khadavli. Thereafter, Appellant/accused No.1 took prosecutrix to Village Mohane where the Appellant had taken one hut on rent. The Appellant/accused made the prosecutrix to stay in the said hut with him. Thereafter, on the next day, both the Appellant and the prosecutrix proceeded to Ulhasnagar and took one room on rental basis, where they stayed between 1st November 1996 to 8th November 1996, during which period, the Appellant committed rape on the prosecutrix. It is further alleged that on 9th November 1996, Appellant/accused No.1 took the prosecutrix to Karjat. From there, they went to Tambas Gaon and stayed in the house belonging to Ramesh Jadhav for about three days. On 13th November 1996, Appellant and prosecutrix returned to Ulhasnagar and resided : 6 : in one hut situated at Gandhi Road, where Appellant/accused committed sexual intercourse with the prosecutrix. It is stated that thereafter on 16th November 1996, Appellant and prosecutrix went to Neral and stayed at Nirala Lodge at Neral. On the next day, they went to Matheran and in the evening, they returned back to Neral. Ultimately, the Appellant and prosecutrix returned back to Mohane on 21st November 1996 at about 10.30 p.m. On reaching Mohane, Appellant threatened the prosecutrix that he had taken photographs of the prosecutrix with him and if she deserted him, he would make those photographs public. When the Appellant/accused was taking the prosecutrix towards Railway Station, in the evening at about 4.00 p.m. at Ambivli Railway Station, some policemen caught hold of them and took them to Mahatma Phule Chowk Police Station. 2. On the basis of the above allegations, offence came to be registered against the Appellant and two other accused punishable under Sections 363, 366 read with Section 34 and Section 376 of the IPC against Appellant/accused No.1. The matter : 7 : was investigated. On completion of investigation, charge-sheet was filed. The matter was committed to Court of Sessions Judge, Kalyan at Kalyan. That Court framed charge against the accused, which reads thus : "C H A R G E I, R.S.Shrotriya, I Ad hoc Additional Sessions Judge, Kalyan do hereby charge you:- 1. Rajan Kannan Padiyachi, Aged about 32 years, R/at.N.R.C. colony, G.N.9/193, Mohane, Tal.Kalyan, Dist.Thane. 2. Bhima Namdeo Gaikwad, Aged about 26 years, R/at R.S. Jatwan Nagar, Mohane, Tal. Kalyan, Dist.Thane. 3. Jitu @ Jitendra Gulab Sonawane, Aged about 28 years, R/at. OPP.Kartik Mandir, R.S. Jatwan Nagar, Mohane, Tal.Kalyan, Dist.Thane. as follows:- You the accused named above, On 29/10/1996 at about 13.00 hrs to 14.00 hrs. from the road, near N.R.C. School, Mohane, Tal.Kalyan, District Thane within the jurisdiction of Mahatma Phule Chowk Police Station, in furtherance of your common intention kidnapped Miss Vaijanta Nandabhau Pawar a Minor, aged about 15 years, from the lawful guardianship of the : 8 : complainant Rajendra Shripat Kurhade and thereby committed an offence punishable U/sec. 363 r/w sec. 34 of the Indian Penal Code and within my cognizance. SECONDLY You the accused named above, on the aforesaid date, time and place, during the course of same transaction and in furtherance of your common intention kidnapped (or abducted) Miss Vaijanta Nandabhau Pawar a minor, aged about 15 years and took her to Sangoda gaon Falegaon, R.S.Tekdi, Titwala, Ulhasnagar, Karjat, Neral, Matheran, with intend that she may be compelled (or knowing it to be likely that she will be compelled) to marry against her will (or in order that the said Miss Vaijanta Nandabhau Pawar may be forced (or seduced) to illicit intercourse or knowing it to be likely that she will be forced (or seduced) to illicit intercourse and thereby committed an offence punishable U/sec. 366 r/w sec. 34 of the Indian Penal Code and within my cognizance. THIRDLY You the accused No.1 named above, on the aforesaid date, time and place, during the course of same transaction, committed rape on Miss Vaijanta Nandabhau Pawar and thereby committed an offence punishable U/sec. 376 of the Indian Penal Code and within my cognizance. And I hereby direct that you be tried by me on the said charges." 3. The accused pleaded not guilty. Accordingly, after proceeding with the trial, on : 9 : scrutiny of the evidence which had come on record, the Trial Court proceeded to record finding of guilt against the Appellant/accused No.1 only for offence punishable under Sections 363, 366 and Section 376 of the IPC. The Trial Court proceeded to acquit the co-accused Nos.2 and 3. The operative order passed by the Trial Court, which Judgment and Order is impugned in this Appeal, reads thus : ": O R D E R : Accused No.1 Rajan Kannan Padiyachi is convicted under section 235(2) of the Code of Criminal Procedure for the offence punishable under section 363 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. The accused shall also pay fine of Rs.1000/-. In default of payment of amount of fine accused Rajan shall further undergo rigorous imprisonment for one month. Accused No.1 Rajan Kannan Padiyachi is also convicted for the offence punishable under section 366 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and also to pay fine of Rs.1000/-. In default of payment of amount of fine accused shall further undergo rigorous imprisonment for one month. Accused No.1 Rajan Kannan Padiyachi is : 10 : further convicted for the offence punishable under section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. The accused shall also pay fine of Rs.1000/-. In default of payment of amount of fine accused shall further undergo rigorous imprisonment for one month. So far as substantive sentences of imprisonment award to accused Rajan Padiyachi for the offence punishable under sections 363, 366 and 376 of the Indian Penal Code are concerned, all the three sentences to run concurrently. Accused No.1 Rajan Kannan Padiyachi was in prison as under trial prisoner from 21.11.1996 to 17.12.1996. Accused Rajan is given set-of of this period during which he was in prison as under trial prisoner. Accused No.2 Bhima Namdeo Gaikwad and accused No.3 Jitu @ Jitendra Gulab Sonawane are acquitted for the offences punishable under sections 363 r.w. 34 and 366 r.w. 34 of the Indian Penal Code and set at liberty. Muddemal property that is the clothes and compass box be destroyed after one year after decision of the case. Copy of the judgment be supplied to accused No.1 Rajan Kannan Padiyachi forthwith and free of costs. Pronounced on this 8th day of October, 2003." 4. Having considered the rival submissions and going through the record of the case, insofar : 11 : as the finding of fact recorded by the Trial Court that the Appellant/accused had intercourse with the prosecutrix on several occasions between 29th October 1996 till 21st November 1996 is concerned, the same will have to be upheld. No argument was canvassed on behalf of the Appellant to persuade this Court to overturn the said finding of fact. The basis of challenge in this Appeal to the finding of guilt recorded by the Court below is essentially on the argument that the Trial Court has committed manifest error in concluding that the age of the prosecutrix at the relevant time was below 16 years which was the prosecution case. It was thus argued that if this Court were to negate the prosecution case that the age of prosecutrix was below 16 years at the relevant time, in that case, from the evidence on record, it can be safely inferred and held in favour of the Appellant that the prosecutrix was a consenting party right from the stage when she accompanied the Appellant on 29th October 1996 from the School till they returned back to Mohane on 21st November 1996. It is thus contended that neither finding of guilt for offence punishable under Sections 363, 366 or 376 : 12 : of the IPC can be sustained on accepting that fact situation. 5. Accordingly, I will straight away answer the issue as to whether the Trial Court was right in concluding that the prosecution has established the fact that the age of the prosecutrix at the relevant time was below 16 years of age. For recording this finding, the Trial Court has not only adverted to the ocular evidence of prosecutrix (PW 3), her mother (PW 4), her maternal uncle (PW 1), but also referred to the evidence of Gram Sevak (PW 7) Babasaheb Maruti Waghe, who had issued birth certificate (Exhibit 76) and the evidence of (PW 10) Dr.Sunita Arun Nahgolkar, who had issued medical report (Exhibit 85) after examining the prosecutrix. On analysing this evidence and the arguments of both sides, as noted in Paragraphs 43 and 48 of the impugned Judgment, the Trial Court proceeded to hold in favour of the prosecution and rejected the stand of the Appellant/accused in respect of the factum of age of the prosecutrix at the relevant time. The Trial Court has discussed the relevant evidence as well as the stand taken by : 13 : the Appellant with reference to such evidence in Paragraphs 52 to 55 and 58 of the impugned Judgement, which are reproduced thus : "52. In the instant case the most material factor is age of the prosecutrix. The prosecution has specifically contended that, at the time of the occurrence, prosecutrix was below 15 years age. So far as age of the prosecutrix is concerned, PW-1 Rajendra Kurade has deposed that, at the time of the occurrence, prosecutrix was 14 years old. His version is not challenged in cross-examination. Prosecutrix Vaijanta has also specifically testified that, she is 15 years old. It is very material to note that prosecutrix’s mother PW-4 Ratnaprabha has testified that date of birth of the prosecutrix is 7.9.1982. One more important witness examined by the prosecution is PW-7 Babasaheb Waghe. The witness has specifically testified that, he is serving as Gramsevak in Grampanchayat village Kolewadi, Tal.Junnar, Dist. Pune. He has brought register of date of birth maintained by Grampanchayat in the year 1982. In the register, on 9.9.82 a entry is taken on page No.10 of the register specifically mentioning that prosecutrix Vaijanta born on 7.9.82. In the register name of the mother of the prosecutrix, her grandmother Shantabai and name of the woman who made delivery (Seetabai Gadhve) is specifically mentioned. The extract of the register of the date of birth is at Exh.76. In certificate Exh.85 medical officer has expressed opinion to the effect that prosecutrix is 15 years old. So far as age of the prosecutrix is concerned, advocate of the accused has straneously argued that in the evidence of PW-4 : 14 : Ratnaprabha Pawar, it has appeared that, at the time of her marriage, Vaijanta was Sadnyan. Witness Ratnaprabha has further admitted that prosecutrix got married in the month of February, 1997. The prosecutrix got married in the month of February, 1997. The prosecutrix is having one son and her son is 4 years old. These admissions given by the witness Ratnaprabha indicate that, at the time of the occurrence prosecutrix was major i.e. 18 years old. However, it is material to note that a general question as to the understanding or coming of age was asked to the witness. Therefore the witness has stated that, at the time of her marriage Vaijanta was Sadnyan. Admittedly, after the occurrence, immediately marriage of the prosecutrix was performed. The incident has taken place in the year 1996. Witness Ratnaprabha has referred to the puberty of the prosecutrix while saying that, the prosecutrix was Sadnyan. Consequently, in view of the vague question was asked to the prosecutrix and chronology, it cannot be said that, in the year 1997, prosecutrix was 18 years old. It is pertinent to note that, Gramsevak of Grampanchayat of village Kolewadi has taken entry as to the date of the birth of the prosecutrix in the register in the year 1982. In the year 1982, Gramsevak named Waikar was working in the Grampanchayat as Gramsevak. Gramsevak Shri Waikar is transferred from the Grampanchayat, Kolewadi, long back. therefore, it is quite clear that, Gramsevak serving in the Grampanchayat in the year 1982 has taken entry as to the date of birth of the prosecutrix in due course of business in the year 1982. Witness Babasaheb Waghe or the witnesses or the police were not having control over the maintenance of the register of the date of birth in the year 1982. Admittedly the entry as to the date of birth is taken by the then Gramsevak. It : 15 : is quite clear that the entry is not altered or corrected during last so many years. It is also material to note that, all the details of the parents of the prosecutrix are given in the entry. The entry shows that the prosecutrix born on 7.9.1982. Thus, this is the best and the correct evidence as to the date of birth of the prosecutrix. 53. Advocate of the accused has submitted that, witness Babasaheb Waghe has not prepared the extract Exh.76 in his own hand-writing. However, it is material to note that, in the year 1997, another Gramsevak was serving in Grampanchayat and he has prepared extract of the register. Therefore, this submission of the advocate of the accused cannot be accepted. the Ld.Advocate of the accused has submitted that Medical Officer Dr.Sunita Nangolkar has mentioned in the certificate Exh.85 that, prosecutrix is about 15 to 17 years old. The Ld.Advocate of the accused has further submitted that in view of the settled law and according to medical Jurisprudence, there could be margin of two years either way and the prosecutrix may be above 18 years old. However, the extract of register of date of birth Exh.76 is reliable document and it clearly indicate that prosecutrix born on 7.9.82. It is also settled law that where the birth register shows the age of the prosecutrix to be less than 16 years at the relevant time and the medical opinion put it to between 15 to 16 years, birth register should be preferred. Hence, in view of the reliable evidence in the shape of extract of the register of the birth, in my opinion, the argument advanced by the Ld.Advocate of the accused regarding the age of the prosecutrix cannot be accepted. 54. The Ld.Advocate has further submitted that, if the extract Exh.76 is perused, : 16 : there is overwriting on the name of the father of the prosecutrix. Moreover, P.S.I. Shri Chavan himself did not go to village Kolewadi to collect the certificate. However, it is material to note that the register is maintained and the entry is written in the year 1982. For the prosecution, there is no scope to alter or change it. In the year 1982, prosecution did not know that in the further register would be required for the sake of the proof of the age of the prosecutrix. Hence the discrepancies pointed out by the advocate of the accused cannot be accepted. 55. In view of the oral evidence and the witnesses and the register of the date of birth maintained by Kolewadi Grampanchayat, in my opinion, the prosecution has abundantly made it clear that, the prosecutrix born on 7.9.82. Thus, it is quite clear that, at the time of occurrence, the prosecutrix was 14 years and 2 months old. 58. ............................ But in the instant case, in the shape of register of date of birth, there is strong evidence to conclusively prove that prosecutrix was only 14 years and 2 months old. Present case is not based only on the evidence of the Ossification test. ..........." (emphasis supplied) 6. The arguments which were raised before the Trial Court as noted in the impugned Judgment referred to above, those very contentions were reiterated before this Court. In my opinion, however, the view taken by the Trial Court on : 17 : analysing the evidence on record, as reproduced in the earlier part of this Judgment, is not only a possible view but correct approach adopted by the Trial Court. I have, therefore, no hesitation in upholding the finding of fact recorded by the Trial Court that the age of the prosecutrix at the relevant time was below 16 years. Once this finding of fact is accepted, it necessarily follows that any other argument of the Appellant/accused that the prosecutrix was a consenting party at every stage, including for the intercourse, will be of no avail in view of the mandate of Section 375-Sixthly read with Section 376 of the IPC. As the prosecutrix was under 16 years of age, the fact that she had consented or sexual intercourse was committed with her consent will make no difference. The fact that the prosecutrix was subjected to sexual intercourse, has been established from the evidence of the prosecutrix as well as corroborated by the medical report (Exhibit 85) and the evidence of (PW 10) Dr.Sunita Arun Nahgolkar. 7. As is mentioned earlier, no serious attempt was made to question the finding of fact : 18 : that the prosecutrix was subjected to sexual intercourse by the Appellant. It is seen that the Scheme of the cross-examination of the accused/Appellant clearly proceeds on the premiss that he had subjected prosecutrix to sexual intercourse, to which, she was the consenting party. However, consent of the prosecutrix will be of no avail to the Appellant, having failed to vanquish the prosecution case regarding the factum of age of prosecutrix being less than 16 years at the relevant time. It necessarily follows that the finding of guilt recorded by the Trial Court against the Appellant/accused No.1 for offence punishable under Section 376 of the IPC is unquestionable and will have to be upheld. 8. Counsel for the Appellant would then contend that in any case, the finding of guilt recorded against the Appellant/accused for offence under Section 363 and 366 of the IPC cannot be sustained. According to him, from the evidence which has come on record, it is obvious that the prosecutrix did not accompany the Appellant/accused : 19 : on account of any enticement or for that matter, a case of taking her away from the lawful guardianship. This argument is canvassed relying on the decision of the Division Bench of our High Court reported in 1999 (1) Mh.L.J. 22 in the case 1999 (1) Mh.L.J. 22 in the case 1999 (1) Mh.L.J. 22 in the case of State of Maharashtra vs. Surendra Kumar Mevalal of State of Maharashtra vs. Surendra Kumar Mevalal of State of Maharashtra vs. Surendra Kumar Mevalal Mehesh Mehesh Mehesh. This Judgment follows the dictum of the Apex Court in the case of S.Varadarajan vs. State S.Varadarajan vs. State S.Varadarajan vs. State of Madras reported in 1965 SC 942 of Madras reported in 1965 SC 942 of Madras reported in 1965 SC 942. Relying on these decisions, learned Counsel contends that in the fact situation of the present case, conviction recorded in respect of offence under Sections 363 and 366 of the IPC cannot be sustained. Indeed, the Appellant/accused had relied on the decision of our High Court in the case of State of Maharashtra State of Maharashtra State of Maharashtra vs. Surindra Kumar Mevalal Mehesh (supra) vs. Surindra Kumar Mevalal Mehesh (supra) vs. Surindra Kumar Mevalal Mehesh (supra) even before the Trial Court. The Trial Court, however, has distinguished that Judgment by holding that the legal