Sheelabai Bhaurao Walde And Anr. vs State Of Maharashtra
2003 Latest Caselaw 610 Bom

JUDGMENT

R.S. Mohite, J.

1. Heard Shri Bhangde, learned Advocate for the appellants and Smt. Dangre, learned Additional Public Prosecutor for the respondent-State.

2. In the present appeals, the appellants impugned the judgment and order dated 1-3-2002 passed by the Additional Sessions Judge, Bhandara in Sessions Trial No. 6 of 1995, convicting the appellants for the offences punishable under sections 363, 366, 366A read with section 34 of Indian Penal Code. By the impugned judgment and order, both the appellants have been sentenced to suffer R.I. for three years and to pay a fine of Rs. 500/- each, in default of payment of fine, suffer R.I. for three months each, for the offence punishable under section 363 read with section 34 of I.P.C. and for the offences under sections 366 and 366A read with section 34 of I.P.C. to suffer R.I. for four years and to pay a fine of Rs. 500/- on each count, in default of payment of fine to suffer R.I. for three months each.

3. The brief facts of the prosecution case are as follows:

(a) That Kum. Rahula Bhikaji Dongre was residing with her father Bhikaji and her mother at Kaulewada, Tahsild Deori, District Bhandara. The evidence of P.W. 8 indicates that she was born on 10-8-1978. The accused Bhaurao and Sheela were residing near her house and Rahula and her family members were in visiting terms with the accused. That on 10-5-1994, the accused No. 2 Sheela called Rahula to accompany her to Nagpur on account of marriage ceremony of the daughter of her maternal-aunt. At that time, the parents of Rahula had gone out of the house. Her mother had gone to the field and her father had gone to village Palasgaon to bring medicines. That two accused further told Rahula that they would return back home within 4 to 5 days to the village. Though Rahula was reluctant to go with them, both the accused insisted that Rahula should accompany them. Rahula had then accompanied the accused in a private jeep which reached them up to village Deori. From village Deori, accused No. 2 told the two ladies accompanying him that they would proceed to Nagpur in a truck. The two accused and Rahula then left Deori at about 8 p.m. for Nagpur and boarded a truck. It is the prosecution case that while the truck was proceeding by road, accused No. 1 Bhaurao said something to the truck driver as a result of which the truck driver handed over the truck to the conductor for driving and the truck driver started molesting Rahula and thereafter committed rape on her in the cabin of the truck. After the truck reached Nagpur, the accused and Rahula got down. Accused No. 1 Bhaurao obtained some amount from the truck driver and when Rahula protested, he threatened to kill her.

(b) A little later, accused No. 1 Bhaurao stopped another truck going towards Bhandara. In this truck once again accused No. 1 told the truck driver that he could have intercourse with Rahula and the truck driver, therefore, committed rape on Rahula. After the offence was committed, the two accused and Rahula alighted and accused No. 1 Bhaurao demanded and collected some money from the truck driver. That thereafter the accused took Rahula to a house of relative in an adjoining village called Bag-Nadi where they stayed for two days. Two days thereafter at about 7.00 p.m. accused brought Rahula near the bridge of Bag-Nadi and halted a truck going towards Nagpur. Rahula was made to board the truck under threat of being killed. It is her case that truck driver and conductor were present in the truck. When the truck reached near the village Masurkesa, the truck was stopped and truck driver committed rape on her and conductor committed rape on accused No. 2 Sheela and then the truck was driven down to Bhandara where accused No. 1 collected some amount from the truck driver. Later, the two accused and Rahula boarded another truck and reached Nagpur and stayed with the relation of accused No. 1 for about 5 to 6 days.

(c) That 5 to 6 days later, the two accused took Rahula and boarded in a truck at Nagpur for going to village Kaulewada. The driver and conductor of the truck were present. After about one hour, the truck was halted beside the road and driver and conductor raped Rahula one after another in the cabin of the truck while the two accused had alighted from the truck. Once again accused No. 1 accepted some amount form the truck driver as consideration for allowing the commission of rape. Thereafter, the accused and Rahula got down from the truck and boarded another truck proceeding towards Raipur. A driver and cleaner were present in the cabin. After covering some distance, the driver of this truck also halted the truck besides the road and accused No. 1 Bhaurao asked Rahula to accompany the driver of the truck beside the road in a jungle where the truck driver committed rape on Rahula. For this also, accused No. 1 Bhaurao obtained some consideration from the truck driver. Even after this, for about one month, accused Nos. 1 & 2 forced Rahula to have sex with truck drivers and conductors and she was raped on many occasions during this period.

(d) In the meanwhile, the father of Rahula Bhikaji Dongre, who had gone to village Palasgaon returned to the village. He was told by his wife that her daughter had gone with Bhaurao and Sheela. This was confirmed by some villagers. For one or two days, Bhikaji searched for his daughter and ultimately after about one month and two days, he lodged a report with the Chichgadh Police Station on 12-6-1994.

(e) On 13-6-1994, Rahula returned back to village Kaulewada. After returning to her home, she went along with her parents to Chichgadh Police Station and Police recorded her statement, conducted the investigation and ultimately filed the charge-sheet.

4. In due course, the matter was committed to the Court of Sessions. In the course of the trial, the prosecution examined in all nine witnesses. After recording of 313 statement, the trial was closed and ultimately on the basis of the material on record, the Additional Sessions Judge, Bhandara, passed the impugned judgment and order, convicting and sentencing the two accused as aforesaid.

5. There is no serious dispute in this case about the age of Rahula. Though in her own evidence she says that she does not know her exact age but during the deposition she has given her age 20 years which would make her 14 years on the date of incident. The prosecution, however, has examined one Rajkumar Ugale, who is the Gram Sevak of Parsodi Gram Panchayat. Tahsildar Deori, who produced birth/death register from which it became clear that the birth of Rahula was recorded in the record as having occurred on 10-8-1978. The date according to the prosecution when Rahula was taken from the keeping of her parents was 10-5-1994 that would make her about 15 years and 9 months old as on the date of the incident. She was, therefore, clearly a minor within the meaning of section 361 of the Indian Penal Code.

6. In her substantial evidence before the Court, the sole eye-witness of the crime i.e. Rahula was examined as P.W. 1 and talked about her rape on five different occasions and also stated that she was raped on several occasions by unknown truck drivers at the instigation of the accused.

7. I have perused the evidence. While in her examination-in-chief there was reference to five specific incidents of having been raped, one of five incidents has been shown to be an improvement in the course of cross-examination. As far as other four incidents are concerned, the omissions which have been brought on record are not regarding the actual factum of rape having committed upon her but pertain to the details which are peripheral to the act of commission of rape. For example, omission has been brought on record as regards whether the truck was actually running on the road when the rape was committed or as regards the fact as to whether the Bhaurao had taken money from the truck drivers.

8. I have perused the judgment and order of the trial Court. The Court has come to the conclusion that the omissions are minor in nature and that the evidence of Rahula cannot be totally discarded on the basis of the omissions made. In my view, the reasoning given by the trial Court is not erroneous. The evidence of the doctor who had examined Rahula has corroborated her version because her hymen were found torn and in fact doctor found a local infection in the vagina.

9. The Advocate for the appellants argued that the F.I.R. in the present case was delayed by a period of 32 years. He relied upon the judgment of the Apex Court in the case of Thulia Kali v. State of Tamil Nadu, reported in 1972 Cri.L.J. 1296 wherein the Apex Court has laid down and observed that the first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version. In my view, this ruling is not applicable to the facts of the present case because the first information report was lodged by father of Rahula, who was not aware as to what happened to Rahula. A plain reading of it indicates that it was speculative and he was not aware whether Rahula was taken away by some inducement. In the present case, only Rahula herself knows as to actually what happened and when she returned back on 13-6-1994 and her statement was immediately recorded at the Police Station on the same date.

10. The Advocate for the appellants has also relied upon the ruling of the Kerala High Court in the case of State of Kerala v. Rajayyan, reported in 1996 Cri.L.J. 145, in which the Single Judge of the Kerala High Court came to the finding that there was no material showing that accused either persuaded or induced victim to accompany them and upon this basis the Court had held that the provisions of section 361 or section 366A were not attracted. In my view, the facts of the present case are different. There is evidence of Rahula to show that the accused Nos. 1 and 2 had taken certain action and had performed certain acts for calling her away from her keeping by her lawful guardians. She was told by accused No. 2 Sheela that they would be going for marriage and told by both the accused that they would return within 4 to 5 days. It is now well settled that there is an essential distinction between "taking" and "enticing". The mental attitude of the minor is not important for taking while in the case of enticing there must be certain degree of inducement. It is also well settled that consent of the minor is completely immaterial and what is material is the consent of the parents or guardians which admittedly was not taken in the present case.

11. I find that the judgment of the trial Court is based on cogent and proper reasons. The reasons which are given on record are endorsed and as a result, the appeals are dismissed.