Bombay High Court
Bandu Alias Charandas Dighade vs State Of Maharashtra on 15 January, 2003
Equivalent citations: 2003 (2) ALD Cri 50, 2003 CriLJ 1990
Author: R Mohite
Bench: R Mohite
JUDGMENT
R.S. Mohite, J.
1. This is an appeal filed by the appellant seeking to set aside a judgment and order dated 24-11-1999 passed by the 2nd Additional Sessions Judge, Yavatmal in Sessions Trial No. 208 of 1992, whereby the present appellant has been convicted for the offence punishable under Section 376 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 2,000/- and in default of payment of fine to suffer further rigorous imprisonment for six months.
2. The brief facts of the prosecution case are as under :
(A) That, the appellant is real cousin brother of the prosecutrix Ku. Alka. It is alleged that some time in February, 1992 at about 10.00 or 11.00 a.m., the mother of prosecutrix Alka had gone to the river to wash clothes and her father had gone to the field for agricultural work. Therefore, the complainant Ku. Alka was alone at home and she was cooking food. It is alleged that at that time, the accused entered the house, threatened to kill her, pressed her mouth and committed the rape on her without her will or consent. After the act, the accused threatened her that in case she narrated the incident to anybody else he will kill her.
(B) The mother of the prosecutrix by name Sulochana returned from the river at about 11.00 a.m. and when she reached her house, she saw the present appellant emerging from her house. When she went home, the prosecutrix Alka did not disclose about the incident to her or even to her father after he returned.
(C) As a result of incident, Alka became pregnant. Her mother enquired her as to why she has no menstruation to her and it was told by Alka that the accused used to come to her house and used to sleep with her, and therefore, she became pregnant. Ku. Alka is supposed to have disclosed to her mother that she was pregnant from the appellant.
(D) On 12-2-1992 Alka was brought by her father to the dispensary of one Dr. Tundalwar at Kalamb as he thought that there was some ailment. The doctor told the father of the prosecutrix that his daughter was not having any ailment but she was having pregnancy of 8 to 9 months. It is alleged that at that time, Ku. Alka told to her father that accused had committed rape on her.
(E) It appears that thereafter an attempt was made by the parents of Alka to get the appellant to marry Alka, but the said efforts did not succeed.
(F) On 26-10-1992, the present complaint of rape came to the filed by Ku. Alka and the crime was registered. After due investigation a charge-sheet came to be filed and the matter was committed to the Court of Sessions for trial.
(G) During the pendency of the trial, Ku. Alka got married with one Mr. Kadam. Ultimately, after hearing both the sides, the trial Court passed the order which has been impugned in this appeal.
3. I have perused the impugned judgment. At the very outset, it appears that this is a case where a possibility of consent cannot be ruled out. The complaint has been filed by Alka almost 9 months after the incident. It was only when the pregnancy was discovered in the 9th month and that she was alleged to have told to her father that rape was committed on her. At the time of incident Alka was about 14 years and 6 months of age. Naturally, since she was below 16 years of age, the question of consent does not have any relevance insofar as the question of guilt of the accused is concerned. It, however may have value while considering the question of quantum of sentence.
4. The learned counsel for the appellant argued that the School Leaving Certificate which contained the date of birth, cannot be said to be a conclusive evidence. He pointed out that ossification test indicate that prosecutrix was between 15 to 17 years of age. I am in agreement with the finding of the trial Court that the Birth date of Alka, which is shown to be 23-7-1977, in the School Leaving Certificate can be taken to be proof of her age. It cannot be lost sight that this is a certificate obtained from the proper authority and proved through the Headmaster of the school concerned. There was no reason as to why the date of birth would have been wrongly shown in such a certificate. Once it is held that the complainant was minor, then the question of consent, for the purpose of determination of guilt is of no consequence and no further discussion is required on this count. The conviction based upon the evidence of the prosecutrix will have to be upheld even if the act is said to be by consent.
5. In my opinion, the possibility of the act being by consent, in the facts of this case cannot be ruled out. The version of Alka that she did not disclose the act of forcible intercourse for several months, merely on account of threat to her and to her father's life cannot be believed. Sulochanabai, the mother of the prosecutrix returned from the river immediately after the incident. It is not her version that Alka was weeping. In normal course, it would have been expected that Alka would have told her mother about the incident on the same day that she was raped. Ku. Alka disclosed about the rape to her father only after 9 months and that too when the pregnancy was discovered. The story given by the prosecution that the parents did not know about the pregnancy for nine months cannot be easily swallowed. It is to be noted that even according to the prosecution, attempts have been made to get the appellant married with the prosecutrix and the complaint was filed when he refused. In this regard, it is important to note the version of Alka was that even after the incident of rape, the accused used to come daily to her house for 3 to 4 days and used to have intercourse. This version of the prosecutrix is one more fact indicative that all these activities were be consent.
6. In my opinion, once it is held that possibility of consent cannot be ruled out, this aspect of the matter may have some bearing on the quantum of sentence. The accused is admittedly a married person with children. He has undergone more than three years of sentence. The prosecutrix is also now a married lady.
7. In the overall facts of this case, for the special reasons recorded herein above, I am of the opinion that the ends of justice will be met if the sentence is reduced from 7 years to 4 years.
8. The impugned judgment and order is modified to the aforesaid extent and the sentence is reduced from the substantive sentence of 7 (seven) years rigorous imprisonment to 4 (four) years rigorous imprisonment. The other part of the sentence pertaining to payment of fine of Rs. 2,000/- (rupees two thousand only) and in default of payment of fine, further rigorous imprisonment for six months is retained.
