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IN THE HIGH COURT OF JUDICATURE AT BOMBA Y (AURANGABAD BENCH)
K. U. CHANDlWAL, J.
Somnath Bhanudas More – Appellant
Vs.
State of Maharashtra - Respondent
Criminal Appeal No.134 of 2008
Decided on : 29th September, 2008.
Indian Penal Code, 1860 - Sections 363 and 366-A - Kidnapping - Victim taken away by accused - Committed sexual intercourse with her - Not kidnapped victim to make her to suffer sexual intercourse with anybody else than himself - Accused liable to be convicted for offence under Section 363 or 366 of IPC - Not under Section 366-A of IPC.
Indian Penal Code, 1860 - Sections 363, 366-A, 34 and 376 - Code of Criminal Procedure, 1973, Sections 209 and 428 - Appeal against conviction - Held - Attainment of puberty three years before occurrence does not show that victim was more than 16 years of age - Kidnapping of victim not shown - Offence under Section 366-A will not be sustainable - Victim was under 18 years at time of incident - Victim had opportunities to came out of clutches of accused, she did not avail - Conviction under Section 366-A set aside. - Attaining puberty three years prior to the incident will have to be taken in right perspective and cannot be said that the victim had attained puberty when she was 15 years. The law on this point is clear. In Indian culture puberty to female is attained at the age of 12 to 13 years of age, depending on the cultural atmosphere, environment in which she is brought up and the set up of society in which she has been grown. In such eventuality attaining puberty three years prior to the incident will not indicate that she was more than 16 years on the date of incident.
From the entire version of prosecution case, nowhere it is spelt out that the accused/appellant had kidnapped the victim to make her to suffer and face sexual intercourse with anybody else than himself. Therefore, the conviction of the accused for the offence under Section 366-A of IPC, will not be sustainable.
Indian Penal Code, 1860 - Section 376 - Conviction under - Offence of rape - Prosecutrix, below 16 years of age at relevant time - Shown in her birth certificate issued by competent authority of Gram Panchayat - Her consent not material - Sexual intercourse by accused proved - Conviction of accused proper.
Indian Penal Code, 1860 - Section 376 - Rape - Proof of - Victim, a girl aged 16 years at relevant time - Alleging sexual assault by accused - Her testimony corroborated by medical evidence - Presence of wife of accused in that room where incident took place - No ground to extend benefit of doubt to accused - Mere are cases of multiple sex - No broad parameters can be applied as every individual has his own way of behaviour.
Registration of Births and Deaths Act, 1969 - Sections 11, 12 and 17 - Registration of births and deaths - Records of - Has a presumptive value - Unless established otherwise - Presumption surrounding such document prevails and persists.
2. The facts, in brief, essential for the present decision are: the victim having born on 26.7.1992 studying in 10th Std. is daughter of complainant - Balasaheb Laxman Kalapure (PW.l) Accused No.1, a married person, resides in the same village. He developed intimacy with the victim, eloped her on 11.09.2006, for which he had interactions of accused nos.2 and 3. The father was worried himself sick. It was the villagers, who communicated him having seen the accused no. 1 and moving with victim. The suspicion, which the complainant was nursing against the accused no. 1 was cemented and consequently, he approached Newasa Police Station and an offence under Sections 363,
366-A read with 34 of the Indian Penal Code was registered, vide C.R. No.164/2006, dated 13.09.2006.
3. The accused and victim were found in a room at MIDC, Ahmednagar, as informed to police by wife of accused. A spot panchanama was drawn. Both the accused and victim were brought to the police station. Statement of the victim was recorded. The apparels of the victim and accused were taken charge.
4. Charge-sheet against the accused came to be filed before the learned Judicial Magistrate First Class, who took cognizance under Section 209, Cr.P.C. and committed the case to the Additional Sessions Judge at Shrirampur. The charge below Exhibit-19 was explained to the accused. Plea of the accused is at Exh.20. The prosecution put in seven witnesses and closed the evidence. The defence of the accused is that of total denial, as disclosed in the statement under Section 313. Cr.P.C.
5. The father of the victim is P.W.I - Balasaheb; P.W.2 - Dipali Balasaheb Kalapure (hereinafter referred a, victim). P.W.3 - Annasaheb Darandale is the Head Master of the School, where the prosecutrix was taking education and he has produced the birth record at Exhibits-40, and 42 showing that the victim was born on 26.7.1992. The Certificate at Exhibit 42 came to be issued on 26.9.2006. P.WA is Suresh Narayan Shitole. He saw the accused and prosecutrix on 11.09.2006 and also was a witness to panchanama Exhibit-45 of the room where the victim and the accused were found together. P.W.5 - Navnath Annasaheb Pawar is the tailor residing in the same village. He knows the accused no. 1 and 3 as also the victim. They all are his customers. The accused nos. 1 and 3 approached him for collecting the apparels of the victim, which incidentally were in un stitched condition, and he handed over them to accused nos.1 and 3. This was to establish nexus between the accused, taking apparels of the victim while carrying her away on 11.09.2006. P.W.6- Dr. Ramesh Ramprasad Ghumre, examined the accused and the victim. P.W.7 is the Investigating Ofiicer - Babaji Buwaji Garje. He recorded F.I.R. and carried the investigation including seizure panchanama (Exh.44). The arrest panchanama of the accused (Exh.55), with forwarding letter to Medical Officer sent on 19.9.2006; seizure of apparels of the victim and the accused are at Exh.-45 and 46. Since the Medical Officer communicated to P.W.7 that on medical examination of the victim, he found that she suffered sexual assault, the offence under section 376 of IPC was applied. Seized property was produced before the Court.
6. The learned defence counsel stressed by reading the evidence that the manner in which the victim moved on fateful day with the accused and other persons from her village while in school uniform, then changed her apparels and accompanied with accused in motor vehicle and other persons with other passengers, and moved
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