State Of Maharashtra vs Gopinath Tanaji Jadhav
2001 Latest Caselaw 2 Bom

JUDGMENT

Pratibha Upasani, J.

1. Both these Criminal Appeals are directed against the judgment and order dated 4/5-1-1984 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No. 138 of 1982 and can be disposed of by this common judgment and order.

2. Criminal Appeal No. 719 of 1985 is filed by the appellant/State of Maharashtra for enhancement of sentence of the respondent/original accused Gopinath Tanaji Jadhav, who was convicted for offence punishable under section 376 of Indian Penal Code but was awarded only one year R.I. Criminal Appeal No. 720 of 1985 is filed by the State of Maharashtra being aggrieved by the order of acquittal of the said accused Gopinath Tanaji Jadav vide the impugned judgment and order for offence punishable under section 366 of I.P.C.

3. Few facts which are required to be stated are as follows:

The prosecution case is that the respondent/accused Gopinath Tanaji Jadhav was residing at 216/8459, Kannamwar Nagar No. 1, Vikhroli (East), Mumbai- 400 083. Kumari Nanda, a minor girl of 15 years of age, was residing in the same locality in building No. 117/6133, Kannamwar Nagar No. II, Vikhroli (East), Mumbai- 400 083. The accused and the said Nanda were knowing each other as the accused used to visit his aunt Mrs. More, who was residing on the third floor of the building where Nanda was residing. Nanda was residing alongwith her brother Balkrishna. Gopinath used to visit Balkrishna's place also.

As per the prosecution story, on 19-2-1981, Gopinath came to the residence of Nanda at about 10.00 a.m. when she was alone in the house. He asked her to leave the house and accompany him. When she refused, the accused gave her threats that he would assault her brother Balkrishna, in case she did not accompany him. He also insisted that she should write a note in Marathi that she was leaving the house on her own accord and that she would be getting married with Gopinath. Accordingly, Nanda was constrained to write a note in Marathi and leave the said note at her residence while she left alongwith the accused Gopinath.

The prosecution story further is that the accused then took Nanda to Ghatkopar in a hut belonging to one Danis Sabastine Saldanna, an acquaintance of Gopinath. Wife of Danis by name Vimal (P.W. 3) and her small child were there at that time. The accused and Nanda then stayed there. The accused committed rape on Nanda during that night. Nanda continued to stay in the same hut on the next day also and on the night of 20-2-1981 also, the accused committed rape on Nanda. On 21st also, the accused and Nanda were in the said hut till 2.00 p.m. Then the accused took Nanda to the place of maternal uncle of the accused, who told him that Nanda's brother had already lodged complaint against the accused with the police. The accused then took Nanda to Dadar and had a photo of both of them together taken at the studio of one Bhatia. At that time, Nanda had worn a saree belonging to Vimal (P.W. 3). On the same day, in the evening, the accused brought Nanda back to her residence at Kannamwar Nagar and left her there. Thereafter, on 23-2-1981, at about 11 a.m., Nanda lodged a complaint with the police which came to be recorded as the First Information Report. Thereafter, police started investigating the matter. The accused came to be arrested. Nanda and the accused both were sent for medical examination. The police also attached the clothes of Nanda and the accused under panchanama. Panchanama of the place (hut) of Danis Saldanna was drawn. Thus, after completion of routine investigation, chargesheet came to be filed in the 14th Court of Metropolitan Magistrate, Vikhroli, Mumbai against the accused on 11-11-1981. The accused was committed to the Court of Sessions on 15-3-1982. Charge came to be framed against the accused under sections 366 and 376 of Indian Penal Code and under section 57 of the Bombay Children Act. The accused pleaded not guilty and claimed to be tried. The defence of the accused was that of the total denial.

The prosecution, to prove its case, examined eight witnesses. P.W. 1 was one Mr. Dattatreya Tukaram Abhang, who was the headmaster of N.M. Joshi Marg Municipal Secondary School in which the victim girl Nanda was studying upto 8th standard. He produced the school Leaving Certificate (Exhibit 8) which showed the date of birth of Nanda as 10-9-1965. P.W. 2 was the victim girl Nanda herself. P.W. 3 was Mrs. Vimal Danis Saldana, in whose hut, Nanda and the accused were allegedly staying after Nanda left her brother's place on 19-2-1981. P.W. 4 was Mr. Balkrishna Raghu Jamsutkar, who was the brother of Nanda. P.W. 5 was Mr. Sadanand Suraj Bharti, who was one of the panch-witnesses in whose presence clothes of Nanda came to be seized. P.W. 6 was the photographer Mr. Bhatia, who produced the negative and photograph of Nanda and the accused taken together. P.W. 7 Mr. Bhimrao Brahmne was a Doctor, who examined Nanda on 23-3-1981 after the alleged incident of rape and so also Gopinath, on 5-3-1981. P.W. 8 Subhedhar was P.S.I., attached to Vikhroli Police Station at the relevant time, who conducted investigation of this case and filed chargesheet in the Metropolitan Magistrate's 14th Court, Vikhroli.

The learned Additional Sessions Judge, after recording the evidence of the prosecution witnesses and after hearing both the sides, came to the conclusion that the prosecution had succeeded in establishing beyond reasonable doubt that the accused was guilty of offence punishable under section 376 of I.P.C. He accordingly sentenced the accused to one year's rigorous imprisonment. He also convicted the accused for offence punishable under section 57 of the Bombay Children Act, 1948 and sentenced him to suffer R.I. for one year. Both the sentences were ordered to be run concurrently. The learned Additional Sessions Judge, however, acquitted the accused Gopinath of the offence punishable under section 366 of the I.P.C. The State felt aggrieved by inadequacy of sentence as far as the offence under section 376 I.P.C. was concerned. It also felt aggrieved because of the order of acquittal passed by the learned Sessions Judge as far as offence under section 366 of I.P.C. was concerned. Hence, these appeals.

4. The learned A.P.P. Mr. Thakur appearing for the State submitted that the trial Court has erred in awarding an inadequate sentence of one year though it has found the accused guilty of grave offence under section 376 of I.P.C. Mr. Thakur submitted that since the victim girl was a minor below the age of 16 years, the minimum sentence of 7 years ought to have been awarded. He submitted that there was no special reason to award lessor punishment for a grave offence like rape on a minor girl. He also submitted that the trial Court erred in acquitting the accused for the offence punishable under section 366 of I.P.C. when in fact it came to the conclusion that the victim girl Nanda was a minor girl of less than 16 years of age. He assailed the impugned judgment of the trial Court on both these counts. He prayed that both the appeals be allowed and the sentence passed by the Additional Sessions Judge, as far as the conviction under section 376 of I.P.C. is concerned, be enhanced and as far as his acquittal under section 366 of I.P.C. is concerned, the said order of acquittal be set aside and the accused be convicted in accordance with law.

5. We have gone through the impugned judgment and order of the trial Court. We have also gone through the entire evidence recorded by the trial Court and we find that the judgment of the trial Court is a well-written judgment, which requires no interference from this Court.

6. The admitted facts in this case are that the accused, so also the victim girl Nanda were residing in the same locality and were actually neighbours. It is also an admitted position that the accused was always visiting his aunt Mrs. More's place, who was residing in the same building where Nanda was residing. Not only this, but the accused frequently used to visit Nanda's place also. It is thus evident that Nanda and Gopinath were knowing each other very well. This is revealed from the deposition of Nanda herself, so also from the deposition of Balkrishna, who is the brother of Nanda.

7. The defence of the accused, as revealed from the cross-examination of the prosecution witnesses, so also from the statement of the accused recorded under section 313 of the Code of Criminal Procedure, 1973 is that Nanda, of her own accord came to the place of Gopinath on the day of the incident and that it was not Gopinath came to her place and forced her to leave her residence. From the behaviour of Nanda also, it appears that she was a consenting party and accompanied Gopinath of her own accord. If one goes through her evidence, one thing which strikes the mind is that if she really wanted to raise alarm, while she was being taken by Gopinath to Ghatkopar (as the prosecution story goes), she had ample opportunity to do so. The fact that she did not avail of this opportunity is a telling circumstance which goes against the prosecution story. Even if one examines Nanda's behaviour at Vimal Saldana's place at Ghatkopar where Nanda stayed for two days along with the accused, it becomes clear that she was living there by her choice and it was certainly not the case that she was forced to stay there. She had opportunity to run away from that place but she did not do so, and continued to stay there for two days. Even going to the photographer for taking out their photos together, going to the place of matrimonial uncle of the accused, wearing saree of Mrs. Vimal Saldanha (P.W. 3) for that occasion, .......... all these facts point to only one circumstance and the circumstance is that Nanda was not a victim, as is made out by the prosecution but that she was a consenting party to the entire episode, that it was not a case of kidnapping but a case of elopement, that it was not a case of rape, but of a willing sexual intercourse.

8. After considering the medical evidence, as far the age of Nanda is concerned, the trial Court has come to a conclusion that the girl was below 16 years of age, and that her age was most probably 15 years and about 6 to 7 months. Hence, the trial Court has rightly held that as far as sexual intercourse by the accused with Nanda was concerned, her consent, she being a minor, was immaterial and has rightly convicted the accused under section 376 of I.P.C.

9. Since the prosecution has failed to prove that any threats were given by the accused to Nanda for having sexual intercourse with him, the trial Judge was of the opinion that ends of justice would be met if a sentence of one year's R.I. was awarded to the accused. As far as the offence under section 366 of I.P.C. was concerned, he followed the decision of the Supreme Court S. Varadarajan v. State of Madras. In that case, a college going girl on the verge of majority, telephoned the accused, met him and thereafter went alongwith him to Sub-Registrar's office for registering marriage. No threat on the part of the accused was proved. On the contrary, the evidence showed that it was the girl, who was insisting on marrying him and that she left her house on her own accord. The Supreme Court therefore, held as follows:

"The fact of her accompanying the accused all along is quite consistent that her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him."

10. The learned Addl. Sessions Judge, in the present case has followed Varadarajan's case (supra) and has acquitted the accused Gopinath of the offence under section 366 of I.P.C. and in our opinion, rightly so.

11. As far as the appellant state's prayer for enhancement of the sentence for offence of rape is concerned, it is to be said that a question of sentence is a matter of discretion. We may, with advantage, refer to the decision of the Supreme Court reported in Bed Raj v. State of Uttar Pradesh, where the Supreme Court has observed as follows:

" .......... It is well settled that when discretion has been properly exercised along accepted judicial lines, an Appellate Court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment ...... In a matter of enhancement there should not be interference when the sentence passed imposes substantial arrangement. Interference is only called for when it is manifestly inadequate."

12. In the present case at hand, we do not find, after going through the evidence on record and after considering the totality of circumstances, especially the fact that Nanda was a willing and consenting party to the entire scenario, that the sentence is 'manifestly inadequate'. Since Nanda was found to be a minor girl, the accused has been rightly convicted for offence under section 376 of I.P.C. The contention of the learned A.P.P. that in view of the amendment to section 376 of I.P.C. minimum sentence of 7 years ought to have been awarded is not correct in as much as sections 375 and 376 were amended by Criminal Law Amendment Act, 1983 (43 of 1983) and the incident is of the year 1981. Hence, there is no question of applicability of the said amending Act retrospectively to the incident which took place in the year 1981, much before the said amendment came into force. We, therefore, reject this contention of the learned A.P.P.

13. As already observed, we do not think that the sentence awarded is that manifestly inadequate so as to warrant interference by this Court. Hence, the following order:

ORDER "Criminal Appeals No. 719 of 1985 and 720 of 1985 are both dismissed."