JUDGMENT
Y.B. Bhatt, J.
1. The respondent accused was charged for offences under Sections 363, 366 and 376 of Indian Penal Code (I.P.C.). The learned Additional Sessions Judge, Ahmedabad (Rural), by his judgment and order dated 5th September, 1983, acquitted the accused of offence under Sections 363 and 366 of I.P.C., but so far as offence under Section 376 of I.P.C. is concerned, he held that he had no territorial jurisdiction to try the accused in respect of this charge and that it would be open to the prosecution to try him before a Court having such jurisdiction. It is judgment and order of acquittal which has been challenged by the. State, in this appeal.
2. The Learned Counsel for the State has taken us through the record and proceedings of the case as also oral and documentary evidence on record, on the basis of which he has vehemently urged that the judgment and order of acquittal so far as offence under Sections 363 and 366 of I.P.C. is concerned, are not sustainable. We do not propose to enter into greater detail in respect of these submissions in view of the settled legal position pertaining to the approach to be adopted by the appellate Court in respect of appeals from acquittal orders.
3. Before dealing with the present appeal on merits, it is necessary to in mind the well established principle of law that the appellate Court should be slow and reluctant to interfere with the judgment and order of acquittal, unless the same is or amounts to a perversity in law or is eminently opposed to the evidence on record. The appellate Court would not be justified in interfering with the acquittal order merely because on a re-appreciation of the evidence, another view may perhaps be possible.
4. We are also required to bear in mind the principle laid down by the Supreme Court and reiterated in the case of State of Karnataka v. Hemareddy reported at , at para 8 thereof to the effect that when the appellate Court concurs with the logic and reasoning of the trial Court and confirms the same, it is not required to give a detailed and lengthy reasoning in support of the same, nor is the appellate Court required to re-narrate the entire evidence on record.
5. However, we are in agreement with the findings recorded by the trial Court including the findings of fact to the effect that it was the prosecutrix who left the house of her parents when they were “not at home. It was the prosecutrix who acceded to the suggestion of her neighbour by the name of Shantaben to the effect that if she went with the accused it would save considerable expenses to her father. This was in the context of what the said neighbour Shantaben had told the prosecutrix on the previous day. However, said Shantaben has not been examined by the prosecution. No doubt, it appears from the evidence, that the prosecutrix had moved with the accused at Vadodara, Malav and Rabod (where the sister and brother-in-law of the accused reside). However, a total consideration of the evidence can lead to only one conclusion as held by the trial Court that it was the prosecutrix who voluntarily moved with the accused from place to place inasmuch as she was in love with him and also probably because the prosecutrix and the accused intended to get married sooner or later. Therefore, the trial Court was correct in coming to the conclusion that the prosecutrix had left her parental abode voluntarily, and moreover, it was the prosecutrix who had persuaded the accused to leave their village.
6. There is another substantial evidence on record which has been rightly found by the trial Court to be credible and acceptable, to the effect that the prosecutrix, though of a tender age, was used to sexual intercourse and that the rupture of her hymen was old. There were no marks or injuries on her body nor any blood or semen was found on the clothes of the prosecutrix or on the clothes of the accused. The trial Court was, therefore, in our opinion, entirely correct and justified in coming to the conclusion that it was the prosecutrix who had initiated the move and persuaded the accused to move away from the village of their respective parents, ultimately with a view to get married since they were in love with each other. The trial Court was, therefore, amply justified in recording the finding that the charges against the accused in respect of offences under Sections 363 and 366 are not proved. We are, therefore, inclined to uphold the acquittal of the accused in respect of these two charges. The present appeal, therefore, is dismissed so far as the challenge to the acquittal of the accused in respect of charges under Sections 363 and 366 of I.P.C. is concerned.
7. This takes us to the consideration of charge under Section 376 of I.P.C. On this aspect of the case the trial Court has both recorded and considered in great detail the medical evidence on the record of the case. This evidence includes the school leaving certificate, the medical certificate as regards the physical examination of the prosecutrix and also radiological and orthopaedic evidence by the appropriate Doctor. On a totality of such medical evidence the trial Court has come to the conclusion that the prosecutrix was definitely below the age of 16 years. This finding of fact cannot be faulted. We accordingly accept this finding. This takes us to the consideration as to whether the prosecutrix had sexual intercourse with the accused voluntarily, or whether the accused had intercourse with the prosecutrix without her consent or against her will.
8. Without repeating the other evidence on the basis of which we have confirmed the acquittal of the accused in respect of charges under Sections 363 and 366 of I.P.C., it would suffice to reiterate that the prosecutrix and the accused appeared to be in love with each other, and it was the prosecutrix who initiated the move to move out of her parents’ house and persuaded the accused to go to the village where his sister and brother-in-law resided. When this aspect is considered with the medical evidence that her physical examination showed that she was used to sexual intercourse and that the rupture of her hymen was an old one, it would be difficult to come to a conclusion that it was the accused who forced her into sexual intercourse or that he indulged in sexual intercourse with the prosecutrix against her will or without her consent.
9. However, we cannot overlook the fact that since the prosecutrix is below the age of 16 years, even if she was a consenting party, technically the offence under Section 376 of I.P.C. would be established.
10. We find that the evidence on record is ample and sufficient to decide the issue. However, on the facts of the case the trial Court has neither acquitted the accused in respect of the charge under Section 376 of I.P.C. nor has it discharged the accused. The trial Court has merely arrived at a conclusion or a finding that it doss not have territorial jurisdiction to try the accused in respect of this charge. We are, therefore, required to consider as to whether this aspect of the matter can be dealt with by us, particularly since the present appeal is an appeal under Section 376 of the Criminal Procedure Code, specifically challenging only the judgment and order of acquittal so far as it pertains to offence under Sections 363 and 366 of I.P.C.
11. We are not impressed with the logic and reasoning of the trial Court particularly when it relied upon the decision of the Bombay High Court in the case of Emperor v. Mohanlal Aditram reported at AIR 1928 Bombay 475. It is obvious that the said decision considers in isolation only Section 177 of the Criminal Procedure Code, which is of a general nature. The said decision does not take into consideration other relevant and applicable provisions of the Criminal Procedure Code. The said decision of the Bombay High Court has not been followed by the Rajasthan High Court in its decision in the case of Rampratap v. State reported at and, in our opinion rightly so.
12. The trial Court, while considering the aforesaid judgment of the Rajasthan High Court (equivalent being 1970 Cri.LJ 1159) has dealt with the same casually by merely observing that the judgment of the Bombay High Court is binding upon it.
13. The Learned Counsel for the State has sought to place reliance upon a decision of This Court in the case of Lilade Sitade v. State reported at . After having perused the said decision carefully, we find that the ratio thereof pertains to the scope, interpretation and application of Section 184(b) of the Criminal Procedure Code, which clearly does not have any direct application looking to the facts of the present case. However, this decision certainly deals with the provisions analogous to the situation with which we are concerned in the present case. Section 184 of the Criminal Procedure Code reads as under:
184. Place of trial for offences triable together: Where-
(a) the offences committed by any person are such that he may be charged with, and tried at one trial for, each such offence by virtue of the provisions of Section 219, Section 220 or Section 221, or
(b) the offence or offences committed by several persons are such that they may be charged with and tried together by virtue of the provisions of Section 223, the offences may be inquired into or tried by any Court competent to inquire into or try any of the offences.
On a plain reading of this Section it is clear that Clause (b) thereof pertains to offence or offences committed by several persons who may be tried together by virtue of the provisions of Section 223. On the other hand, we are concerned with a number of offences committed by the very same person who may be charged with and tried at one trial, by virtue of the provisions of Section 220 of the Criminal Procedure Code.
On a plain reading of Section 220 of the Criminal Procedure Code and particularly Sub-section (1) thereof we find that the same applies to the facts as found to be proved on the record of the case. Thus, it is the Section 184(a) which has a direct bearing on the facts of the case. Moreover, Section 178(d) of the Criminal Procedure Code also has a direct bearing on the facts of the case. Section 178(d) also contemplates that where several acts have been done in different local areas, it may be inquired into or tried by Court having jurisdiction over any of such local areas. Thus, on a plain reading of Section 178(d) and Section 184(a) of the Criminal Procedure Code, we have no doubt, in our opinion, that the trial Court had jurisdiction to try the accused on the facts of the case, in respect of the offence punishable under Section 376 of I.P.C.
14. That takes us to the consideration of the course of action which we ought to take in the matter, having arrived at a conclusion that the accused was guilty of the offence under Section 376 of I.P.C., at least technically, in view of the age of the prosecutrix having been found to be less than 16 years of age.
One course open to us would be to remand the case to the trial Court and direct the accused to be tried and sentenced by the Court, after recording our finding that it has jurisdiction to try the accused even in respect of this offence. However, the offence has been committed more than 10 years ago and we find that it would be a futile exercise to remand the matter after a lapse of over a period of 10 years. Moreover, we find that the trial Court has extensively discussed the evidence on record and no further evidence is required to be led in order to come to a conclusion that the accused was guilty of offence under Section 376 of I.P.C. at least in the technical sense. Under the circumstances we feel that this is a fit case for exercising our power under Section 386 of the Criminal Procedure Code and particularly Clauses (a), (b) and (e) thereof.
15. In the present appeal, though it is an appeal challenging merely the acquittal of the accused in respect of charges under Sections 363 and 366 of I.P.C. the entire question pertaining to all the three charges, as also the entire evidence pertaining to all the three charges, is open before us. There is, therefore, no reason why we cannot appreciate the evidence and record the finding as to the conviction of the accused even in respect of the charge under Section 376 of I.P.C.
16. We accordingly set aside the observations and finding of the trial Court to the effect that it had no jurisdiction to try the accused for the offence under Section 376 of I.P.C., and in view of the evidence on record, record a conviction by this judgment. Accordingly we hold the accused guilty of having committed an offence under Section 376 of I.P.C.
17. This takes us to the question of sentence. On this aspect we have heard both the Learned Counsel for the State and Learned Counsel for the accused. The accused has remained present in the Court during the course of hearing of the matter. The Learned Counsel for the respondent accused has made a vehement entreaty for a lenient sentence in view of the particular facts and circumstances of the case. He has also filed an affidavit of the respondent-accused pointing out the special circumstances for taking a lenient view as regards the sentence.
18. The affidavit states that the accused belongs to a backward class, mat he was of the young age of 20 or 21 years at the time of the offence and he is barely literate. This position we can understand and appreciate, because he has also casually mentioned that he is innocent. Naturally this aspect we must ignore in view of the finding recorded by us hereinabove. However, what is material is mat the relations between the two families appear to have improved considerably since the days of the incident. The prosecutrix is happily married since quite some time, to someone else and moreover she has three children. The incident has been forgotten by the husband and the in-laws of the prosecutrix. Even the accused is now married. However, what is significant is that the accused chose to remain unmarried until the prosecutrix was married first.
19. In view of this particular facts and also in view of the fact that the offence is merely a technical one, we are of the opinion that special circumstances exist for taking a lenient view in respect of the sentence to be imposed. We are informed that the accused has remained as an undertrial prisoner for a period of 18 days. Under the circumstances the interest of justice would be served if the accused is sentenced to a term of imprisonment for the period he has undergone as an undertrial prisoner. We direct accordingly. We further impose a fine of Rs. 100/- in addition to the aforesaid sentence of imprisonment, in default to undergo further SI for five days.
20. Accordingly this appeal is partially allowed.