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2014 Supreme(Bom) 2108
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
T.V. NALAWADE, J.
Balaji - Appellant
Vs.
The State of Maharashtra - Respondent
Criminal Appeal No. 167 of 2013
Decided on: 11th December, 2014
Advocate Appeared:
Mr. S.S. THOMBRE, Adv. for Appellant.
Mr. S.B. PULKUNDWAR, APP for State.
Mr. S.N. PATIL, asst. APP.
Headnote:[INDIAN] PENAL CODE, 1860 - Section 376 Conviction for kidnapping and rape. Since testimony of prosecutrix, aged about 15 years, is cogent and credible and also corroborated by medical evidence hence conviction of accused proper. In the cross-examination of mother of prosecutrix, it is brought on the record that she had given loan of Rs. one lakh to accused No. 5 and that loan amount was not returned by that accused. On the basis of this admission, much was argued by the counsel for the appellant and he submitted that due to dispute over returning of this amount, the accused is falsely implicated. This submission is not at all acceptable. No parents would involve their marriageable daughter in such incident by making false allegations. Further, one more girl was involved in the incident. Further, there is medical evidence which is consistent with the version of prosecutrix. The prosecutrix was carrying of seven weeks when she was examined after her reference was made to doctor by police in this case. There is evidence to the effect that the prosecutrix was traced and she was collected from Pune by police. The Court has no hesitation to hold that aforesaid evidence is sufficient to prove the offences punishable under Sections 363 and 376 of IPC. The trial Court has not committed any error in convicting the accused. Sentence given to the accused is minimum possible sentence and there is no possibility of interference on the point of penalty also.
The appeal is filed against judgment and order of Sessions Case No. 119/2011, which was pending in the Court of Additional Sessions Judge, Latur. The appellant is convicted and sentenced for offences punishable under sections 363 and 376 of Indian Penal Code ('I.P.C.' for short). The sentence of rigorous imprisonment for seven years is given to the appellant. The parents of the accused and other relatives of accused were also chargesheeted for offences punishable under sections 363 and 366-A of I.P.C., but they are acquitted. Both the sides are heard.
2. The families of prosecutrix and the appellant/accused were resident of Anjali Nagar, Latur. At the relevant time, the prosecutrix was aged about 15 years and the accused was aged about 24 years. The prosecutrix had studied up to 9th standard. Accused was known to the prosecutrix as his house is situated at some distance from the house of prosecutrix. He used to work as a driver. He used to talk with the prosecutrix when she used to proceed to school etc. The father of prosecutrix was working at Vishakhapattanam and for most of the time he used to remain out of Latur. The prosecutrix used to live with her mother and brother in the house.
3. It is the case of prosecution that the accused developed contact with the prosecutrix and he started saying that he loved her. In December 2010, when mother of prosecutrix was out of station and brother of prosecutrix had left the house for college, the accused entered the house of prosecutrix. He said to the prosecutrix that he loves her and then he took sexual intercourse with her in her house. He told the prosecutrix that by such act, no harm will be caused to her. In similar manner, on 2-3 occasions subsequent to the first incident, the accused took sexual intercourse with the prosecutrix. He then started saying that he wanted to marry with her and if she marries with him, she would get all the comforts and amenities which she was not getting in the house of her parents.
4. On 30.1.2011 the accused said to prosecutrix that he wanted to take her away and there, they would live together. He asked the prosecutrix to bring money which was available in her house. On 30.1.2011 the mother of prosecutrix was at home and so, prosecutrix could not leave the house for going with the accused. On 31.1.2011 accused again contacted prosecutrix and asked her to come out of the house for going with him to Latur. He again gave aforesaid promises to the prosecutrix.
5. On 1.2.2011 at about 12.30 p.m., the mother of prosecutrix was not available and at that time, prosecutrix used a veil, which she had collected from the friend of accused and she left home. Prior to that, the accused had contacted the prosecutrix on that day and had asked her to come to the backside of the house where he was to wait for her in a four wheeler. As per the instruction of the accused, the prosecutrix took bundles of currency notes from the cupboard of her house. One girl, aged about 11 years, was working in the house of prosecutrix as a maid servant, for cleaning the clothes and utensils. The said girl said that she wanted to come with the prosecutrix. Then the prosecutrix and the girl went towards the backside of the house where the accused was waiting with a four wheeler.
6. The accused collected prosecutrix and aforesaid girl and he took them first to Tuljapur. At Tuljapur, accused took them to a lodge and there they took brief halt. The accused wanted to take prosecutrix and the said girl to Mumbai, but the driver of the car said no for taking them to Mumbai. The accused then hired another car.
7. Accused took prosecutrix and aforesaid girl first to Thane and then to Mumbai. In Mumbai, accused collected money from the prosecutrix, which was around Rs. two lakh. Accused then took her to the house of his married sister in Mumbai (from Malad). The said sister advised accused to return to Latur with prosecutrix. The said sister did not allow the accused to stay in her house.
8.
