SHORT NOTE
BOMBAY HIGH COURT
U.D. Salvi and A.M. Joshi, JJ.
Raghunath Ramnath Zolekar
and Ors. —Appellant
versus
State of Maharashtra —Respondent
Criminal Appeal No. 388 of 2010; 426 of 2010 413 of 2010 and 623/2011, 431/2010, 306/2010, 412/2010, 416/2010, 415/2010, 397/2010, 394/2010, 429/2010, 430/2010 and 432/2010
Decided on 5/6.11.2012 and 4.2.2013

IMPORTANT POINT
The testimony of prosecutrix deserves acceptance as statement of whole truth, she being below 16 years of age, where her consent had become insignificant being incompetent in law, her submission to the sexual act by itself is sufficient to answer the description of rape.

Headnote:(i) Indian Penal Code, 1860—Sections 366A, 376, 376(2)(g) r/ws 109, 114 and 34—Immoral Traffic (Prevention) Act, 1956—Sections 3, 4, 5 and 7—Registration of Births and Death Act, 1969—Section 26—Kidnapping a minor girl for procuring and using her for prostitution and committing on her gang rape—Prosecutrix lodged complaint against 28 accused alleging that A1, A 20 and absconding accused induced her by killing her that she would get lot of money if she would do the work of sleeping with other persons and doing sexual intercourse with them and accordingly, compelled her to have sexual intercourse with several persons—In the beginning, she refused but ultimately she succumbed to inducement and pressure and later on, she was compelled to do such acts repeatedly at different places by threatening her that in the event of her refusal, her photographs will be published in the newspapers and she would be defamed—According to the prosecutrix, she was required to have sexual intercourse with A2, A4 to A19, A21, A22—Prosecution has proved that date of birth of prosecutrix on the date of each incident was below 16 years—Prosecution has proved that accused Nos 2 to 19 , 21 and 22 had sexual intercourse with the prosecutrix at different places and different times—Sexual intercourse by the accused with the prosecutrix was under coercion and allurement and as such the consent was not a free and valid consent—Testimony of prosecutrix was wholly worthy of trust—Accused No1 absconding accused and accused 20 had conspired to undertake the activity of procuring the prosecutrix for prostitution—A20 held guilty under Sections 120B, 109 and 114 IPC alongwith Sections 3, 4 5(1)(d) and Section 7 of PITA—Acts of accused of having sexual relations with prosecutrix being individual, do not spelt out a case of gang rape.

       Insofar as the act of the accused persons in having sexual relations with the prosecutrix at various places is concerned, the version of the prosecutrix is criticised as extremely scanty and that it does not contain detailed narration.

       We have to be mindful of the fact, as judicially noticed as well, that narration of what happened to a woman, and even assuming with consent with the child victim, is a thing of shame. A witness who is very well grown up, cannot be expected to give narration of sexual wrongs done to her which are per-se traumatic, with minutest details or particulars. It shall suffice if she utters the words physical/sexual relationship or rape. Touching body is certainly not contact of sexual organs. It may connote something more rather complete sex with penetration. The ambiguity, if any in that regard, could be magnified by competent cross-examination and thereby probabilizing the defence.

        In present case, probably accused were happy with plea saying that prosecutrix was a sex worker and, therefore, whatever was done was just a “transaction” than a rape.

       We have no hesitation to believe prosecutrix as to the manner in which she, a child, was dragged into the activity of prostitution with coercion and inducement. It was not a case where she was simply coerced by physical force. It is shown that prosecutrix was submitting to the prostitution and consequent sexual wrong as a result of threat/inducement and being driven in it frequently so as to habituate her to those acts.

        In the case, where her consent had become insignificant being incompetent in law, her submission to the sexual act, by itself is sufficient to answer the description of rape, it being act of sexual intercourse done with a girl below 16 years. The description of sexual act involving the accused as given by the prosecutrix, in the present case, though extremely brief, constitutes adequate description of the acts of accused persons particularly with aid of Section 114A of the Indian Evidence Act.

       We, therefore, find that the testimony of the prosecutrix to be wholly worthy of trust.

       In the result, the testimony of prosecutrix deserves acceptance as statement of whole truth. What else could occur with a child groomed in absence of mother and lured to do an act which she believes to be improper but then coerced to do under the fear which could very easily influence her. It is an age luring temptation admixed with fear which dragged her to what she became used to and lived in. This initial dragging and later continued indulgence does not formalize into consensual act either. Thus, the facts as crystalized constrain us to believe that the version of prosecutrix gives truth worth trusting. The blemish which she has suffered or as per the version of accused availed or enjoyed, does not malign the trustworthiness of facts as to what had occurred to her.

       Considering the fact that age of the prosecutrix is proved to be below 16 years, the act of the accused running the brothel, becomes punishable under proviso (1) to Section 5(1)(b) of PITA. Considering the minor age of the prosecutrix and that she was moved from one place to the other, though the fact that except Sheelabai’s place and the house of accused No. 22, the places where the prosecutrix was taken for prostitution, culpability under Section 6 of PITA is attracted. All accused named in second category are, therefore, held to be guilty of offence punishable under Sections 3, 5 and 7 of the PITA.

        Insofar as the offence under Section 4 is concerned, from the evidence that has come on record, accused No.1 Sheela, absconding accused Ram Salve and accused No.20 Vilas Karale are the persons who are proved to be falling in the mischief contemplated by Section 4 i.e. earning their living on the business of prostitution. As in the present case, since Sheelabai is no more and Ram Salve is absconding, the charge for offence punishable under Section 4 of the PITA is proved insofar as accused No.20 Vilas Balasaheb Karale @ Vilas Chagan Vani are concerned.

        Insofar as aspect of abetment of criminal conspiracy is concerned, it is to be kept in mind that the act by the accused persons named in second group in foregoing para No. 71 are liable to be punished under Section 4 of the PITA for their act committed at different times. Their actions are not likely to be matter of knowledge of the strangers. One amongst the strangers who came before the Court and is criticised is PW23 Sanjay Thanekar.

        In the case of present nature, primarily from the testimony of prosecutrix, totality of conduct of these accused persons will have to be inferred from what they have done. It would have never happened that these persons never met, never agreed or never worked out the modalities and yet secured the result of procuring the prosecutrix for prostitution, making her a prostitute, and furnished her services as prostitute at different places at different times.

       It is proved that the prosecutrix moved at different places at different times, was escorted on every occasion by one or the other amongst these accused. These facts lead to solitary inference and conclusion that these persons Sheela Bargal, Vilas Karale and Ram Salve had a meeting of mind for the act of involving the prosecutrix in the act of prostitution and using her as a prostitute.

       The act of abetment and conspiracy, therefore, will have to be concluded as an inevitable It is duly proved from the evidence consequence. discussed in foregoing para that, accused No.1 Sheela Bargal, absconding accused Ram Salve, and accused No.20 Vilas Karale, had conspired to undertake the activity of procuring the prosecutrix for prostitution. The accused No. 20 Vilas Karale is, therefore, liable to be convicted for offence punishable under Sections 120B, 109 and 114 of the Indian Penal Code along with Sections 3, 4, 5(1)(d) and Section 7 of PITA.

       In the offence of present nature, the age would not really weigh in the mind of the Court, but for the fact that jail alone is the place recognized by law to lodge anyone to punish more than to chastise and improve.

       We, consider that the case of:

        (1) Accused No.2 Hardeek Lakhamichand Jaggad;

        (2) Accused No.4 Aakash Subhash Rathi,

        (3) Accused No.17 Aatmaram Ramrao Dengale and

        (4) Accused No.16 Ramakant Ramrao Dengale, stands on slightly different plane.

       All these five accused were between 22 to 25 years of age on the date of commission of offence. By virtue of the fact that they are in the stream of bay flouring between adolescence and maturity. Therefore, they may stand slightly on a different footing than those who have been convicted for the same offence like all other accused.

       We, therefore, modify the sentence for these five accused named in foregoing para and direct that they shall undergo the sentence of rigorous imprisonment for eight years. The imposition of fine amount by the Sessions Court and the default sentence in payment of fine are maintained.

        (1) Accused No. 6 Balkishan Premraj Goel;

        (2) Accused No.8 Ajay Sudhakar Kate;

        (3) Accused No.10 Aaba @ Dnyandev Bhagchand Gondkar;

        (4) Accused No.12 Abdul Haq Fakir Mohammad Kureshi;

        (5) Accused No.14 Rajendra Shivajirao Thorat;

        (6) Accused No.15 Ravindra Shivajirao Thorat;

        (7) Accused No.21 Raghunath Ramnath Zolekar; and

        (8) Accused No.22 Vasant Mangu Pawara were men of fully grown up age having maturity and having family and their dereliction to fall in the illicit relations cannot be conceded to be an act of fallibility due to accident or adolescence. Even they cannot be considered to be totally oblivious to the tender age of the prosecutrix. The culpability of their act undoubtedly falls on graver pedestal.

       Therefore, all the accused named in foregoing sub-para do not deserve any latitude. All these accused shall undergo rigorous imprisonment for ten years. The imposition of fine amount by the Sessions Court and the default sentence in payment of fine are maintained.

       We confirm the sentences as ordered by the Sessions Court on all other accused namely:

        (1) Accused No.5 Tukaram Gena Misal;

        (2) Accused No.7 Ramesh @ Ramakant Rajaram Barkase;

        (3) Accused No.9 Harjeetsingh Jodhsingh Rajpal;

        (4) Accused No.11 Ramrav Mohaniraj Dengale;

        (5) accused No.18 Ashok Babasaheb Kasari and

        (6) Accused No.20 Vilas Balasaheb Karale @ Vilas Chagan Vani for the offences charged for.

        We also confirm the sentence to accused No. 20 Vilas Balasaheb Karale @ Vilas Chagan Vani for offences under Sections 120B, 109, 114, 376, 363 of the Indian Penal Code and Sections 3, 4, 5 (1) (d) and 7 of the PITA.

        (ii) Indian Penal Code, 1860—Section 376—Proviso—Rape—Sentence—Marriage of prosecutrix with accused coupled with conveyance of immovable properties namely, residential premises—Accused was duly married to prosecutrix as per Hindu rites in presence of family members, close relatives and friends—A gift deed transferring shop and plot of land in favour of prosecutrix was executed by family of accused—Whether all that is done by appellant/accused would earn him the benefit of proviso to Section 376 IPC—(Yes) —Sentence imposed on appellant/ accused reduced to eight years imprisonment with fine.

       A question would, therefore, arise whether all that is done by the appellant/ accused Chetan would earn him the benefit of proviso to Section 376 of the Indian Penal Code, which permits the Court to impose a sentence of imprisonment for a term less than minimum prescribed by law for adequate and special reasons. Reading of the words of law and its interpretation as revealed through the judgments cited by the rival parties does reveal that the law permits imposition of a sentence in the case of rape for a term less than minimum prescribed only when there are adequate and special reasons available through the facts of the case to do so.

        Needless to state that each criminal case has a unique factual matrix and interpretation and application of law for dispensation of justice in every criminal case is .vis-a-vis such factual matrix and, therefore, there cannot be any straitjacket formula for imposing sentence in the crimes affecting human bodies particularly affecting women. However, it can be seen that law takes stern view in the crimes concerning rape not only for the reason of the physical harm that it causes to a woman but also for she being left destitute to suffer life long mental trauma. From wider perspective, rape is an offence which affects a social fabric by playing affront to human dignity and also at times encouraging criminality. Keeping in mind such consequences on personal and social life the rape has, it is necessary to answer the question raised in the present controversy.

       The evidence points out that the genesis of the culpability of the accused No. 13 Chetan Popatlal Bhalgat did not spring from the insanity of lover, but was a plain lust supported by pecuniary ability namely he could pay for what he had craved for. Whatever has happened after the pronouncement of the guilt of the accused No.13 Chetan Bhalgat by the trial Court appears to be born out of the compulsions of circumstances, both for the accused No.13 Chetan Bhalgat and a preferred option than to opt for misery to be chosen by the prosecutrix, the victim of the crime. This can only force us to think more or arouse some sympathies. At the same time, due care needs to be taken to avoid such sympathies being misinterpreted as a ticket for freedom purchased with economic might. Now, the provision for sustenance and consequent rehabilitation of the victim of the crime has been made and it is also her test to remain faithful to the matrimonial obligations while her husband continues to remain in jail for some more time to undergo the sentence for wrong he did to the society at large.

       The plea for the appellant/ accused No.13 Chetan Popatlal Bhalgat on the lenience in sentence undergone does not carry same weight of facts as was in existence as to the facts of the cases revealed in the precedents cited in that regard. In criminal cases, each case has its own face, posture and portray. None could be a clone of other. However, as a token of having done something restitutive to her for material life to the prosecutrix, the sentence imposed on accused No.13 Chetan Popatlal Bhalgat may be reduced a little.

       We accordingly reduce the sentence of accused No. 13 Chetan Popatlal Bhalgat to eight years rigorous imprisonment with fine amount and in default sentence remaining the same.

       (iii) Indian Penal Code, 1860—Section 376—Registration of Births and Death Act, 1969—Section 26—Rape—Age of prosecutrix—Determination of—Medical experts based on ossification test—Margin of two years from either side—Birth Register maintained by public officer—Whether the opinion/evidence of medical experts could override the worth of evidence of the nature shall presence category which is brought on record and is duly proved.

        In view of foregoing discussion, we are of the considered view that on the basis of law before us that the age of any person could ordinarily be proved by following sequence of worth and value of evidence.

        (1) Primary evidence.

        (2) Documentary evidence.

        (3) Expert opinion.

        In the present case, the primary evidence in the form of statement of parents could have been available.

       Any such testimony has not been brought on record. Thus, the possibility of getting proof of age of the prosecutrix by primary evidence is ruled out.

       Next best evidence of date of birth is by production of record or record maintained by public officer in due course. This record would have presumptive value due to collective effect of the provisions of Registration of Births and Deaths Act, 1969 and the scheme of Registration of Births and Deaths Act as indicated in foregoing paras read with Section 114 of Evidence Act.

       This documentary evidence is supported by the testimony of the prosecutrix who claims to be 14 years of age at the time of incident.

       Now the question is whether the opinion/evidence of medical experts could override the worth of evidence of the nature “shall presume” category which is brought on record and is duly proved.

       The opinion of expert is for all purposes an opinion and is a relevant fact. In our considered view, it being an opinion, will stand far below in pedestal than primary evidence and proof of facts brought forth by public record carrying presumptive value. Therefore, in our view, an opinion as to age will not be competent to override the worth of evidence and probability as would emerge as a fact from the public record. Evidentiary value of such public record would stand on higher pedestal, value and worth of its being factual.

       The collective effect would be that the prosecution has succeeded in proving the date of birth of the prosecutrix to be 29.5.1991 and we hold accordingly.

       Based on acceptance of such date of birth, the prosecutrix is proved to be below 16 years of age on all material occasions.

        The aspect of consent of the prosecutrix will become totally insignificant after having held that she was below 16 years of age on the date of last amongst incident whichever.