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1997 Supreme(Bom) 412
IN THE HIGH COURT OF BOMBAY
V.P. Tipnis A.B. Palkar, JJ.
Suresh Balkrishna Nakhava ..... Appellant.
Versus
State of Maharashtra .... Respondent.
Criminal Appeal No. 230 of 1997, decided on 6-8-1997.
Advocates appeared :
A.P. Mundargi with S.V. Marwadi, for appellant.
D.S. Mhaispukar A.P.P., for State.
Nitin Pradhan with Ms. Bhavana Jadhav, for applicant victim.
Consent of a minor does not negate the offence of rape under section 376 of I.P.C. if the minor is below the age of consent.
Headnote:
Consent - Rape - Sections 376, 342 of I.P.C. - 376, 342
Fact of the Case:
The case involved an appeal against the conviction and sentence of the accused for offences under sections 376 and 342 of I.P.C. The victim, a minor, alleged that the accused had raped her multiple times, resulting in her pregnancy.
Finding of the Court:
The court found that the victim had consented to the sexual intercourse, but due to her age, the act constituted an offence under section 376 of I.P.C. The court set aside the conviction for the offence under section 342 of I.P.C. and reduced the sentence for the offence under section 376 of I.P.C.
Issues: The key issues included the victim's consent, her age, and the appropriate sentencing for the accused.
Ratio Decidendi: The court held that despite the victim's consent, the accused's actions constituted an offence under section 376 of I.P.C. due to the victim's age. The court also considered the settlement between the parties and the welfare of the victim in reaching its decision.
Final Decision: The court partially allowed the appeal, setting aside the conviction for the offence under section 342 of I.P.C. and reducing the sentence for the offence under section 376 of I.P.C. The court also ordered the deposit of a substantial amount for the victim's future maintenance.
By consent of parties heard forthwith.
This is an appeal challenging the judgment and order of conviction and sentence passed against the accused by the Ld. 3rd Addl. Sessions Judge, Raigad, on 3-4-1997, for offences punishable under sections 376, and 342 of I.P.C. The appellant has been sentenced for offence punishable under section 376 I.P.C. to suffer R.I. for 7 years and to pay a fine of Rs. 500/- and in default to suffer R.I. for 3 months and for offence punishable under section 342 of I.P.C. he is sentenced to suffer R.I. for 6 months and to pay a fine of Rs. 500/- and in default to suffer R.I. for 3 months. After directing that the substantive sentences to run concurrently, the Ld. Addl. Sessions Judge, acquitted the accused for offence punishable under section 506 of I.P.C. It is reported that the fine has been deposited by the accused.
2.This appeal came up for admission. There is also a prayer for bail. The matter was placed for admission on 7-7-1997, and 14-7-1997. The father of the prosecutrix Ramchandra Masan filed an application as intervenor which is registered as Criminal Application No. 1847 of 1997, and there was some talk of settlement between the advocate for the intervenor and the advocate for the accused during the course of which the father of the victim was also present. The wife of the accused also appeared in Court. Although the trauma that the victim has suffered cannot be totally made good by any amount of monetary compensation, such a settlement would atleast help the victim to resettle in her life. Affidavits have been filed by the intervenor as also by the wife of the accused. Both affidavits are taken on record.
3.The complaint in this case was lodged on 29-11-1994 by Kum. Punam Ramchandra Masan resident of Navpada Karanja, Tal. Uran, Dist. Raigad contending inter alia therein that she was aged about 14 years. Her mother died long back when she had not even reached the age of understanding. Thereafter her father Ramchandra entered into the second marriage and presently the prosecutrix is living with her father and step mother.
4.About 7 to 8 months prior to the filing of the complaint the appellant accused who was residing in close vicinity of the house of the prosecutrix and her father and was also a distant relative of the victim and as such well known to her, called her towards a shack on the pretext of supplying her fire wood. The shack is near the sea shore. The appellant called her inside shack and thereafter committed rape on her and threatened her not to disclose this incident to anybody. On the 2nd occasion the appellant came to her house in the absence of other family members and there again he had sexual intercourse against her will and by force and this act was repeated at least 10 to 12 times sometime in the shack and some time in the house of the victim. After about 6 months of the first incident, Punam the victim became pregnant and she had pain in her abdomen. Thereupon she complained this to her grandmother and through her the matter was informed to her father. After this a complaint came to be filed and after due investigation into the allegations the appellant accused was charge-sheeted for offence punishable under sections 376 and 342 as also 506 of I.P.C. and in the course of time the case was committed to the Court of Sessions presided over by the 3rd Addl. Sessions Judge, Raigad.
5.The learned Counsel for the accused Shri Mundargi stated before us that he is not challenging the conviction of the appellant accused for offence under section 376 because although it appears to be clear case of the prosecutrix being a consenting party to the act of sexual intercourse, since very begining, the evidence on record also clearly established that she was born on 1-3-1980 and as such her consent is immaterial and in the eye of law it amounts to offence under section 376 of I.P.C. He further contended that if the very first act was as a result of the co
