JUDGMENT
V.R. Kingaonkar, J.
1. Challenge in this appeal is to judgment rendered by learned Additional Sessions Judge, Latur, in Sessions Case No. 5/2006, whereby appellant came to be convicted for offences punishable under Section 363, 376 and 506 of the I.P.Code. For the offence punishable under Section 363 he is sentenced to suffer rigorous imprisonment of three (3) years and to pay fine of Rs. 3,000/ (Rupees three thousand), in default to suffer rigorous imprisonment of six (6) months. For offence punishable under Section 376, he is sentenced to suffer rigorous imprisonment of 7 (seven) years and to pay fine of Rs. 5,000/- (Rupees five thousand), in default to suffer rigorous imprisonment of two (2) years. For offence punishable under Section 506, he is sentenced to suffer rigorous imprisonment of one year and to pay fine of Rs. 1,000/- (Rupees one thousand), in default to suffer rigorous imprisonment for two (2) months.
2. Brief facts giving rise to the appeal are that prosecutrix (P.W.3) was aged about 16 years and was studying in XIth standard in a Junior College. Her father is a Police Head Constable. She used to reside with her parents, sister and two younger brothers in a Government quarter of her father, situated in Police Line at Latur. She had flair for music. She used to participate in singing of Bhajans (religious songs). The appellant is a musician and singer. He developed acquaintance with her due to her participation in Bhajan programmes alongwith him and because she was fond of music. He allured her that both of them would become famous artists if she would accompany him to Hyderabad for preparing audio cassettes of her Bhajans and songs. He painted rosy picture of making her a famous singer. Initially, she had declined the proposal but his persuasiveness prevailed. In the morning of 18th September 2005, her father left to attend his duty, her mother and sister had gone to Pune and there was none at her house when the appellant came there. Then she was about to leave to attend the College. He informed her that there was congregation of many artists at Hyderabad and she shall accompany him to get her audio cassettes prepared. He asked her to take money with her for required expenditure for preparing the number of audio cassettes. She informed him that she had no money in the house. He induced her to take ornaments if money was not available. She collected ornaments from the house and went with him. He took her to Hyderabad and therefrom to house of her relatives at Karnool. In the wee hours, he committed forcible sexual intercourse with her in the house of his relative. Though she attempted to resist, he warned that she was at a long distance from her native place and none would come to rescue her. She was ravished from time to time during the period of about one month and 20 days of their stay at Karnool (A.P.). She could seek help of anyone because his relatives and neighbours knew only Telgu language which she was not knowing. Her father had lodged a report at Gandhi Chowk Police Station, Latur, initially about her missing from the house and subsequently about his suspicion that she was kidnapped by one Umesh Tompe, who was suspected as her lover boy, his mother and the appellant. The appellant thereafter returned to Latur alongwith the prosecutrix. The Police took the prosecutrix in custody and sent her for clinical examination. The appellant was arrested. Consequent upon necessary investigation, he was charge-sheeted for the offences of kidnapping, rape and criminal intimidation.
3. To the charge (Exh.4), the appellant “pleaded not guilty”. He denied truth into the accusations. He submitted that a false case is framed against him. He denied to have allured the prosecutrix to go with him in the relevant morning. He also denied to have ravished her at residential house of his relative during their stay at Karnool. It is suggested by the defence that the prosecutrix was major at the relevant time and might have left with the appellant on her own volition.
4. At the trial, the prosecution examined in all 13 (thirteen) witnesses and produced certain documentary evidence in support of its case. On marshalling and appreciating the prosecution evidence, the learned Sessions Judge reached conclusion that the charge is duly proved against appellant/accused. Therefore, the impugned judgment of conviction and sentence has been rendered.
5. Mr. Sachin Deshmukh, learned advocate for the appellant, would submit that age of the prosecutrix was certainly above 17 years. She had attained age of discretion and was practically major. He would submit that the prosecutrix herself was very much interested in achieving the fame as popular singer. So, she wanted to get opportunity of entering the world of musicians through her audio cassettes. The learned advocate would submit that in all probability the prosecutrix might have left house of her parents, alongwith the ornaments, due to her passion for music. He pointed out that all the ornaments were seized by the Police when the prosecutrix returned to Latur. He contended that conduct of the prosecutrix makes it improbable to infer offence of kidnapping or rape. For, she did not ask any help throughout the journey to Hyderabad and to Karnool nor she attempted to go away from house of the relatives of the appellant during considerable period of one and half months. It is argued that the prosecution case is improbabilised due to the conduct of the prosecutrix. Hence, Mr. Sachin Deshmukh, urged to allow the appeal. Per contra, Mr. Umakant Patil, learned A.P.P. supports the impugned judgment.
6. Before I proceed to embark upon scrutiny of the prosecution evidence, certain undisputed facts may be stated. The prosecutrix was taking education in XIth standard in a Junior College, namely, Dayanand College, Babhalgaon is uncontroverted. She was fond of singing. She used to participate in the programmes of singing religious songs (Bhajans). The appellant is a musician and singer. He used to sing Bhajans in the programmes at Babhalgaon and Latur. Therefore, the prosecutrix (P.W.3) was acquainted with him.
7. The version of P.W.Tukaram reveals that the prosecutrix left his house in the morning of 20th September 2005 at about 8 a.m. after he went to attend his duty. The other members of the family were not at home when she left the house. He lodged missing report on next day (Exh.27). The report shows that gold ornaments worth Rs. 1,00,000/-were also found missing alongwith the prosecutrix. His version reveals that birth date of the prosecutrix is 20.5.1990. She was, therefore, aged 15 years and 4 months at the relevant time. His version shows that the prosecutrix (P.W.3) used to attend Bhajan programmes of the appellant. His inquiry revealed that one Umesh Tompe had previously contacted the prosecutrix on two occasions and, therefore, he lodged another report (Exh.28) on 13.10.2005, wherein he expressed suspicion that mother of said Umesh Tompe and the appellant in collusion with said Umesh Tompe might have induced the prosecutrix to go with them under allurement that she would be married to said Umesh. His version reveals that the appellant used to run music tuition class. His version reveals that the prosecutrix was fond of music and hence, was admitted in a music tuition class prior to about 3 years of the incident. He denied, however, that the appellant used to teach music to the prosecutrix by taking home tuition. He admits that he had shown date of birth of the prosecutrix in School record by approximation. He further admits that the appellant is a married person having three children and is inhabitant of Ausa.
8. Coming to the version of the prosecutrix (P.W.3), it is amply clear that she was acquainted with the appellant due to her participation in the Bhajan programmes arranged by him. She narrated as to how the appellant pestered her to go with him to Hyderabad under the pretext of preparing audio cassettes of her Bhajans and songs. Her version purports to show that the appellant painted a rosy picture that she would become a famous singer and both of them would earn huge money. Her version reveals that initially she declined but lateron her mind changed due to the inducement held out by him. She narrated as to how he induced her to go with him in the relevant morning. Her version reveals that she collected the gold ornaments from the house and went with him at about 8 a.m. in the relevant morning and they together went to Hyderabad. He had informed her that there was a congregation of musicians at Hyderabad and she would get opportunity to present herself in the gathering. They reached Hyderabad after midnight. He told her that on next day they would return to Hyderabad and for that night they shall go to the house of his relatives at Karnool. So, they together went to Karnool and stayed with his relatives. Her version purports to show that in the wee hours he ravished her in that house.
9. The prosecutrix (P.W.3) narrated ordeal in the house of the relatives of the appellant for a period of about one month and 20 days. Her version purports to show that he committed forcible sexual intercourse with her without her consent. She could not contact her relatives due to constant vigil of himself and his relatives. The relatives of the appellant did not understand Marathi language, which is her mother tongue, whereas she did not understand their language i.e. Telgu. Her version shows that when the appellant came to know that a Criminal complaint was lodged by her father then he brought her back to Latur. Her version further reveals that the appellant did not manage to get prepared the audio cassettes of Bhajans and songs as promised by him. She was sent to Civil Hospital at Latur for clinical examination. Her petticoat and nicker were seized by the Police. She admits that since childhood she was fond of music. She did not seek help of co-passengers when both of them travelled upto Karnool. This conduct of the prosecutrix cannot be regarded as her willingness to go with the appellant on her own accord. But for his holding inducement that she would become a famous singer, the prosecutrix would not have left house of her parents.
10. One cannot be oblivious of the mindset of adolescent girl. The prosecutrix was not a matured woman to understand stark realities of the world outside her parental house. The small praise by the appellant could be enough for her to entertain dream of becoming a famous singer. The appellant exploited her such mindset and allured her to go with him alongwith ornaments. It can not be overlooked that many a times youths at the threshold of sweet 16 are gullible to go astray in order to fulfill their dream goals. The prosecutrix was no exception.
11. The version of the prosecutrix (P.W.3) reveals that she was knowing Umesh Tompe. She denied however, that he used to visit her house and she had gone with him to attend annual fair (Yatra) at Siddeshwar temple. It is manifest that said Umesh Tompe had previously tried to develop acquaintance with her and, therefore, her father suspected that said Umesh Tompe, with the help of his mother and the appellant, might have kidnapped her with intention to marry with him. The conduct of her father appears to be natural. The testimony of P.W.4 Tejaswini also corroborates the case of prosecution regarding leaving of the parents house by the prosecutrix in the relevant morning.
12. The version of (P.W.6) Sainath reveals that the prosecutrix used to attend his tuition class for English subject. His version shows that on 25.10.2005, he received a miscall on his mobile. He, therefore, contacted the said number. He heard voices of a man and a woman who were speaking in Telgu language. He could not understand the same. This evidence is adduced to corroborate the version of the prosecutrix because she narrated that on one occasion she tried to contact P.W. Sainath on mobile phone but the mobile phone was snatched away from her hands. The version of P.W. 5 Vishwanath and P.W. 7 Rajendra are of formal nature. It is stated by P.W. Vishwanath that he recorded the missing report and complaint filed by father of the prosecutrix. He prepared spot panchanama (Exh.37) in presence of P.W. 7 Rajendra. The spot panchanama is corroborated by P.W. Rajendra.
13. The prosecution examined P.W. 8 Dr.Aruna in support of the medical certificate (Exh.43). Her version purports to show that prosecutrix was clinically examined on 10.11.2005. The Medical Officer found that hymen was ruptured and had old tear. The vagina could admit two fingers. The Medical Officer inferred that the prosecutrix was used to sexual intercourse. Her testimony corroborates findings in the report (Exh.43). She admits that as per her opinion, the age of the prosecutrix was between 17 to 25 years. She further admits that there would be an error of margin of two years on either side in respect of medical opinion regarding age of the person. She also admits that the prosecutrix was a fully grown up woman.
14. The evidence of P.W.12 Uttam reveals that as per the School record, the prosecutrix was admitted in Jawahar Primary School at Latur on 30.8.1995. He further deposed that birth date of the prosecutrix is 20.5.1990 as per the admission record and the birth certificate issued by Gram Panchayat. The copy of admission form (Exh.56) and copy of the Transfer Certificate (Exh.57) are duly corroborated by him. His version reveals that the birth date of the prosecutrix is recorded in the School record as per the certificate issued by Gram Panchayat. The version of P.W.11 Smt.Kumudini Venkatrao Panale also corroborates the School record regarding birth date of the prosecutrix. Nothing of much importance could be gathered from her cross-examination.
15. Much capital is made of the admission elicited from cross-examination of P.W. Tukaram regarding his giving of the date of birth of the prosecutrix, in the School record, approximately. The School record is, however, based on Gram Panchayat certificate which was produced by P.W. Tukaram at the time of admission of the prosecutrix in the Primary School. She was admitted in the Primary School in 1995 and normally, therefore, could not be more than 5/6 years old at that time. The admission of P.W. Dr.Aruna also cannot be of much significance. It appears that Dr.Aruna blurted out something without basis of any record. No ossification test was carried out. P.W. Dr.Aruna is not Radiologist. She is only gynaecologist. She gave her opinion merely because the secondary sexual characters of the prosecutrix were found to be well developed. The opinion of P.W.Dr.Aruna is not reflected from her medical certificate (Exh.43). She did not record such opinion when the first medical certificate was issued on 10.11.2005. However, she gave such opinion on 16.11.2005 when the medical certificate (Exh.44) was issued. She opined that as per the xray findings, the age of the prosecutrix was between 17 to 25 years. However, the xray report was not placed on record nor the Radiologist was examined. The defence did not call the Radiologist in order to prove the age of the prosecutrix as above 18 years. Consequently, such haphazard opinion of Dr.Aruna is of no much avail to the defence.
16. Mr. Sachin Deshmukh, learned advocate, seeks to rely on Abdul Wahed S/o Mohd. Abdullasaheb v. Abdul Saleem S/o Abdul Razak Bhojani . A Single Bench of this Court held in the given case that where, the girl attained age of discretion and had left house of her parents on her own accord, the accused was properly acquitted for offence under Section 363 and 366 of the I.P.C. That was a case which was considered in a Revisional jurisdiction against order of acquittal rendered by the learned Adhoc Additional Sessions Judge. He also seeks to rely on Prakash Sakharam Mandale v. State of Maharashtra and Ors. . The facts of the given case are on different footings. The conduct of the prosecutrix was found to be of a willing party. The said case is decided on appreciation of the peculiar facts obtained in the same. He also relied upon State of Karnataka v. Sureshbabu Pukraj Porral . It was finding in the given case that age of the prosecutrix was about 18 years. It was found that claim of the prosecutrix that she was aged about 16/17 years was doubtful. It was also found that the prosecutrix had accompanied the accused voluntarily to several places and both of them stayed in lodges. It was under the given circumstances that the accused was acquitted by the High Court and, therefore, the appeal preferred by the State was dismissed by the Apex Court. So also Mr. Deshmukh, relies on S.Varadarajan v. State of Madras . The Apex Court held that when the College going girl, who was on the verge of majority, telephoning accused, called him and went with him to the Office of Sub-Registrar for registration of marriage agreement, it was not a case of kidnapping of the minor girl.
17. There are cases and cases. In Yedla Srinivasarao v. State of A.P. , somewhat similar fact situation is considered by the Apex Court. The question of consent of the prosecutrix fell for consideration before Their Lordships in the said case. The accused had committed sexual intercourse with the prosecutrix on assurance that he would marry her and asked her not to cry. The Apex Court held that the consent was obtained by inducement. The relevant observations may be usefully quoted as follows
What is a voluntary consent and what is not a voluntary consent depends on the facts of each case. In order to appreciate the testimony, one has to see the factors like the age of the girl, her education and her status in the society and likewise the social status of the boy. If the attending circumstances lead to the conclusion that it was not only the accused but the prosecutrix was also equally been, then in that case the offence is condoned. But in case a poor girl placed in a peculiar circumstance where her father has died and she does not understand what consequences may result from indulging into such acts and when the accused promised to marry her but he never intended to marry her right from the beginning then the consent of the girl is of no consequence and falls in the second category as enumerated in Section 375 – without her consent. A consent obtained by misconception while playing a fraud is not a consent.
18. In Dildar Singh v. State of Punjab (2006) 10 S.C.C.531, the Apex Court held that where the medical examination was conducted after three (3) months, evidence of corroborative nature to infer forcible intercourse, cannot be expected. The Apex Court held that the rape committed by teacher on the minor student ought to be viewed seriously. It is well settled that corroboration to the testimony of the prosecutrix is not a sine qua non for conviction. The absence of her consent will have to be presumed. In Dinesh alias Buddha v. State of Rajasthan , the Apex Court held:
The Courts must hear the loud cry for justice by society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court.
Needless to say, the question as regards the consent of the prosecutrix is dependent upon facts of each case. In the present case, the appellant induced the prosecutrix to go with him. He allured her that she would become a famous singer if her songs are audio cassetted. He ravished her at a place where she could not have expected any help from members of the family of his relatives or neighbours. Moreover, she was under his obligation. But for his help she could not have thought of becoming a famous singer which dream, of-course, was hallow. Considering these aspects, I am in general agreement with the findings of the Sessions Judge as regards guilt of the appellant in respect of offences punishable under Section 363 and 376 of the I.P.C. However, there is no sufficient proof to uphold the conviction and sentence for offence under Section 506 of the I.P.C. The ingredients of Section 506 of the I.P.C. are not duly proved by the prosecution. 19. For the aforestated reasons, the appeal is partly allowed. The impugned order of conviction and sentence of the appellant for offence under Section 506 of the I.P.C. is set aside. The appeal is dismissed as regards conviction and sentence for the offences punishable under Section 363 and 376 of the I.P.C. The impugned order of conviction of and sentence awarded to the appellant for offences under Section 363 and 376 of the I.P.C. as recorded by the learned Sessions Judge, Latur is confirmed. The remaining part of the impugned judgment which deals with disposal of seized property items etc. is confirmed.