Balaji Maruti Kamble vs The State Of Maharashtra
2014 Latest Caselaw 76 Bom

                                                      Cri. Appeal No. 167/13
                                       1




                                                                           
                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD




                                                   
                    CRIMINAL APPEAL NO. 167 OF 2013


     Balaji s/o. Maruti Kamble,
     Age 24 years, Occu. Driver,




                                                  
     R/o. Anjali Nagar, Latur,
     Tal. & District Latur.                ....Appellant.




                                      
           Versus

                      
     The State of Maharashtra
     Through Police Station Officer,
     Police Station, Gandhi Chowk,
                     
     Latur, Tal. & District Latur.         ....Respondent.


     Mr. S.S. Thombre, Advocate for appellant.
      

     Mr. S.B. Pulkundwar, APP for State.
     Mr. S.N. Patil, Advocate for assisting APP.
   



                                    CORAM : T.V. NALAWADE, J.
                                    DATED : 11th December, 2014.





     JUDGMENT :

1) The appeal is filed against judgment and order of

Sessions Case No. 119/2011, which was pending in the Court of

Additional Sessions Judge, Latur. The appellant is convicted and

sentenced for offences punishable under sections 363 and 376

of Indian Penal Code ('I.P.C.' for short). The sentence of rigorous

imprisonment for seven years is given to the appellant. The

parents of the accused and other relatives of accused were also

Cri. Appeal No. 167/13

chargesheeted for offences punishable under sections 363 and

366-A of I.P.C., but they are acquitted. Both the sides are heard.

2) The families of prosecutrix and the appellant/

accused were resident of Anjali Nagar, Latur. At the relevant

time, the prosecutrix was aged about 15 years and the accused

was aged about 24 years. The prosecutrix had studied up to 9th

standard. Accused was known to the prosecutrix as his house is

situated at some distance from the house of prosecutrix. He

used to work as a driver. He used to talk with the prosecutrix

when she used to proceed to school etc. The father of

prosecutrix was working at Vishakhapattanam and for most of

the time he used to remain out of Latur. The prosecutrix used to

live with her mother and brother in the house.

3) It is the case of prosecution that the accused

developed contact with the prosecutrix and he started saying

that he loved her. In December 2010, when mother of

prosecutrix was out of station and brother of prosecutrix had left

the house for college, the accused entered the house of

prosecutrix. He said to the prosecutrix that he loves her and

then he took sexual intercourse with her in her house. He told

the prosecutrix that by such act, no harm will be caused to her.

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In similar manner, on 2-3 occasions subsequent to the first

incident, the accused took sexual intercourse with the

prosecutrix. He then started saying that he wanted to marry with

her and if she marries with him, she would get all the comforts

and amenities which she was not getting in the house of her

parents.

4) On 30.1.2011 the accused said to prosecutrix that he

wanted to take her away and there, they would live together. He

asked the prosecutrix to bring money which was available in her

house. On 30.1.2011 the mother of prosecutrix was at home and

so, prosecutrix could not leave the house for going with the

accused. On 31.1.2011 accused again contacted prosecutrix and

asked her to come out of the house for going with him to Latur.

He again gave aforesaid promises to the prosecutrix.

5) On 1.2.2011 at about 12.30 p.m., the mother of

prosecutrix was not available and at that time, prosecutrix used

a veil, which she had collected from the friend of accused and

she left home. Prior to that, the accused had contacted the

prosecutrix on that day and had asked her to come to the

backside of the house where he was to wait for her in a four

wheeler. As per the instruction of the accused, the prosecutrix

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took bundles of currency notes from the cupboard of her house.

One girl, aged about 11 years, was working in the house of

prosecutrix as a maid servant, for cleaning the clothes and

utensils. The said girl said that she wanted to come with the

prosecutrix. Then the prosecutrix and the girl went towards the

backside of the house where the accused was waiting with a four

wheeler.

6)

The accused collected prosecutrix and aforesaid girl

and he took them first to Tuljapur. At Tuljapur, accused took

them to a lodge and there they took brief halt. The accused

wanted to take prosecutrix and the said girl to Mumbai, but the

driver of the car said no for taking them to Mumbai. The accused

then hired another car.

7) Accused took prosecutrix and aforesaid girl first to

Thane and then to Mumbai. In Mumbai, accused collected money

from the prosecutrix, which was around Rs. two lakh. Accused

then took her to the house of his married sister in Mumbai (from

Malad). The said sister advised accused to return to Latur with

prosecutrix. The said sister did not allow the accused to stay in

her house.

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8) In Mumbai, the aforesaid girl became frightened and

she started saying that she wanted to return to Latur. Accused

then took the girl to Solapur and at Solapur bus stand, accused

made the girl to board a bus for Latur. At Solapur bus stand

prosecutrix said to accused that she also wanted to return to

Latur. But the accused gave threats and used force and did not

allow prosecutrix to return Latur.

9)

The accused took the prosecutrix to Malad Mumbai

from Solapur. He again went to the house of sister, where his

father and younger brother were waiting for him. The father of

accused told to the accused that father of prosecutrix was

harassing them and they were searching for prosecutrix. He

advised the accused to stay away from Latur as he was afraid

that father of prosecutrix would do something against the

accused as father of prosecutrix is serving in military. He

promised to inform the developments from Latur and he

returned to Latur.

10) From Mumbai, accused took prosecutrix to Banglore

where they stayed for about four days. From Banglore, the

accused took the prosecutrix to Pune and there, he took a room

on rent basis. To the landlady Nilabai, the accused represented

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that prosecutrix was his wife. In this room also, the accused took

sexual intercourse with the prosecutrix.

11) When prosecutrix and accused were living in Pune, it

was informed to accused that police were after the accused. The

accused forced the prosecutrix to tell police that she had left the

house of her parents on her own and on phone, she told police

accordingly. The aforesaid girl disclosed about the aforesaid

incident to the relatives of the prosecutrix and the police.

Ultimately, on 6.3.2011 police traced the prosecutrix in a room

from Pune. At the relevant time, the accused had left the room

for repairs of mobile handset and so, he was not available. Police

searched for accused in Pune, but they could not trace him in

Pune.

12) In the report given by the mother of the prosecutrix,

she gave the age of the prosecutrix as 15 years. During the

course of investigation, the prosecutrix was referred for medical

examination and her statement came to be recorded. She also

gave her age as 15 years. The record of school like school

leaving certificate, copy of birth certificate are produced before

the Trial Court for proving the age of the prosecutrix. Nine

witnesses came to be examined for proving the aforesaid

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offences. The accused took the defence of total denial. He filed

written say and under section 313 of Cr.P.C. but he only

contended that the age of the prosecutrix was around 20 years

at the relevant time.

13) The trial Court has held that the date of birth of

prosecutrix is 8.3.1996 and she had not completed 16 years of

age on the date of sexual intercourse and on the date, when the

accused took her away from lawful guardianship of her mother.

The trial Court has believed the version of prosecutrix and

aforesaid girl and also the medical evidence and the accused is

convicted and sentenced for aforesaid offences.

14) It was mainly submitted by the learned counsel for

the appellant that the version as a whole of prosecutrix and the

circumstances show that the prosecutrix had left the house of

her parents on her own and accused had only given company to

her. He submitted that if there was any sexual intercourse, there

was consent for the same of the prosecutrix. He submitted that

the birth certificate, copy of which is given exhibit by the trial

Court, cannot be believed as the mother has given evidence that

prosecutrix was born at other place.

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15) The learned APP placed reliance on the observations

made by this Court in Criminal Appeal No. 31/2012

[between Bhaiyya Subhash Panpatil Vs. The State of

Maharashtra]. The relevant provisions of I.P.C. and the

Evidence Act are discussed by this Court. The position of law

with regard to the disputed fact of the age needs to be kept in

mind while appreciating the evidence in the case like present

one. The relevant observations of this Court in aforesaid criminal

appeal are at paragraph Nos. 8 and 9 and they are as under :-

"8. The appellant is convicted and sentenced for offences punishable under sections 363 and 376 of I.P.C. For both the offences, the

age of the prosecutrix is relevant factor. The evidence on age of prosecutrix needs to be

appreciated in the light of the law developed in that regard. In view of the definition of 'kidnapping', the prosecution is required to prove

that the age of the prosecutrix was below 18 years at the relevant time. For proving that, there was no question of giving of consent by prosecutrix for sexual intercourse, the prosecution is required to

prove that the age of the prosecutrix was below 16 years and that is in view of the definition of 'rape'.

9. In Criminal Appeal No. 499/2012 decided with Criminal Appeal No. 500/2012 on 11.9.2013 [Between Mahesh Tarachand

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Suryawanshi Vs. State of Maharashtra] by Aurangabad Bench of High Court of Bombay, this

Court had an opportunity to discuss the law developed on aforesaid point. The discussion is as follows :-

"13. 'Age' as ingredient of both the aforesaid offences is required to be proved beyond reasonable doubt. This 'proof' under section 3

of Evidence Act need to be like proof of any other fact in criminal case. Oral evidence as

to the age may always be available in such a case. Where a person gives evidence on oath,

the Court is expected to start with presumption that he has spoken the truth. Only because in a case like present one, when

there is oral evidence on age and it is given by the interested witnesses like mother or

father, the Court is expected to look for corroboration. Corroboration need not be only of expert evidence. Corroboration may be of

circumstances which may differ for each case.

The opinion of doctor on clinical or radiological examination cannot be accepted straight away as a legal proof. The margin of

error is of two years on either side even when the age is ascertained on the basis of radiological examination. [Reliance placed on AIR 1982 SUPREME COURT 1297 [Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and Ors.]. It is only

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medical opinion and other evidence including oral evidence cannot be discarded only

because the medical evidence is in conflict with the oral evidence. Further, the medical evidence cannot stand against entries made

in birth register, which are properly authenticated. Entry made in birth register has presumptive value in view of section 17

(2) of Birth and Death Registration Act, 1969 and this position of law needs to be kept in

mind, when there is conflict between medical evidence and the other evidence.

14. In view of section 35 of Evidence Act, the entry made in school register about

the date of birth also needs to be treated as relevant. Such register is kept in regular

discharge of duty by school and it is required to be kept as per the Rules made by the State Government. When such entry was made

before starting of dispute, many years prior to the commission of offence and when entry is proved by giving oral evidence of the concerned, due weight needs to be given to

such entry. Such entries need to be treated as relevant and admissible in evidence, though such entry cannot form sole clinching factor for determining the age. It has no presumptive value like in the case of entry made in birth register as already observed.

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15. On the definition of kidnapping,

there is the landmark case reported as AIR 1965 SC 942 [S. Varadrajan Vs. State of Madras]. In this case, the Apex Court has

discussed the difference between the terms like 'taking' and 'enticing' used in section 361 of I.P.C. The Apex Court has observed that if

the prosecutrix had reached the age of discretion, she had crossed the age of 16

years, though she is minor, it is necessary for the prosecution to show that the accused

made the prosecutrix to accompany him by administering any threat to her or by blandishment. It is observed that if the

prosecutrix had left the house of parents on her own and after that, the accused had given

her company, it cannot be said that the act of the accused amounts to kidnapping. In view of peculiar facts of that case, the Apex Court

held that the prosecutrix clearly knew what she was doing and what was good for her. In view of the facts of that case, the Apex Court held that the act of giving company of the

accused to the prosecutrix was not amounting to offence of kidnapping.

16. Section 361 of I.P.C. reads as under :-

       "361.      Kidnapping          from            lawful





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guardianship.- Whoever takes or entices any minor under [sixteen] years of age if a

male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such

minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful

guardianship.

ig Explanation.- The words guardian" in this section include any person "lawful

lawfully entrusted with the care or custody of such minor or other person.

Exception.- This section does not extend to the act of any person who in good faith

believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful

custody of such child, unless such act is committed for an immoral or unlawful purpose."

17. In view of observations made in Vardarajan's case cited supra, it can be said that if the minor prosecutrix had crossed the age of 16 years, it needs to be ascertained as to whether any active part was played by the accused due to which the prosecutrix left

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house of her guardian. In the case reported as AIR 1973 SUPREME COURT 2313

[Thakorlal D. Vadgama Vs. The State of Gujrat], the Apex Court again discussed the difference between the two terms like 'taking'

and 'enticing'. It is laid down that the word 'takes' does not connote use of 'force' and it means that 'to cause to go', 'to escort', or 'to

get into possession'. It further means 'physical possession'. On the other hand, it is

inducing a minor to go of her own accord to the kidnapper i.e. the state of mind of

willingness of minor is brought about in some way by the accused. This position of law needs to be kept in mind while appreciating

the evidence in such a case."

16) The learned APP for the State placed reliance on

another case reported as (2006) 1 Supreme Court Cases 283

[Vishnu alias Undrya Vs. State of Maharashtra]. In the

case, the Apex Court has laid down that in a case of difference in

record with regard to date of birth, the best evidence is that of

parents. It is further laid down that the medical opinion of

doctor, who conducted ossification test that the prosecutrix was

aged about 18-19 years is not binding on occular evidence. The

Apex Court has held that the age can be determined on the

basis of evidence of parents and entries made in birth register. It

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is further laid down that once it is proved that the age of the

prosecutrix was below 16 years, the consent of the prosecutrix is

immaterial under Clause 5thly of section 375 of I.P.C.

17) The learned counsel for appellant placed reliance on

the following reported cases :-

(i) AIR 2005 SC 203 [Deelip Singh @ Dilip Kumar Vs. State of Bihar],

(ii) 1984 (1) Bom.C.R. 453 [Nana Ramchandra Jadhav Vs. State of Maharashtra],

(iii) 2005 BCI (0) 93 [Gangadhar s/o. Gonduram Tadme Vs. Trimbak s/o. Govindrao Akingire and Ors.],

(iv) 2003 CRI.L.J. 1539 (1) [Uday Vs. State of

Karnataka],

(v) 1994 CRI.L.J. 3044 [Babasaheb Vs. The State of Maharashtra],

(vi) 2007 (1) Bom.C.R. (Cri.) 916 [Amit @ Bapu

Nanasaheb Bhandwalkar Vs. State of Maharashtra],

(vii) 1994 (2) Crimes 125 [Shamrao Vs. State of Maharashtra],

(viii) 1965 AIR (SC) 942 [S. Varadarajan Vs. State of Madras],

(ix) 2010 Cri.L.J. 1812 [State of Haryana Vs. Ramesh Kumar & Ors.]

(x) 2009 AIR (SC) 1109 [State of H.P. Vs. Suresh Kumar @ Chhotu], and

(xi) 1995 Cri.L.J. 3387 [Annakodi Vs. State].

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In the first case, cited by the counsel for the appellant, there was

no convincing evidence with the prosecution to prove that the

age of the prosecutrix was below 16 years. There was allegation

that accused had given promise of marriage and then there was

breach of promise. The accused had taken sexual intercourse

with the prosecutrix. The Court held that the evidence, which

was material to aforesaid disputed fact, was not considered by

the Courts below and so, the conviction and sentence was set

aside. In second case, in view of the facts of that case, lenient

view was taken and sentence was reduced. In the third case, it is

laid down that the certificate issued under the provisions of

Births, Deaths and Marriages Registration Act without

compliance of the mandatory requirement of section 22 (1) of

this Act cannot be considered as a certificate issued under the

provisions of this Act and it will not have presumptive value in

such a case under section 114 of Evidence Act. This case was

cited as copy of birth certificate which is given exhibit bears

signature of Sarpanch only and not of Gramsevak.

18) In the fourth case, cited by the learned counsel for

appellant, the facts were different and the question involved was

whether prosecutrix had given consent under misconception of

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fact. In the fifth case, there was only the convincing evidence of

medical opinion on age and so, the case was decided on the

basis of that evidence. In the sixth case, it is observed that entry

in school register is admissible, but not much having evidentiary

value for proof of age. It is further held that this record does not

meet requirement of section 35 of Evidence Act. In the seventh

case, age of the prosecutrix was 17 years and there was the

record to show that the prosecutrix and accused had intimacy

and so, the defence of consent taken by the accused was

accepted. Eighth case of Vardarajan is already discussed. In the

ninth case of Punjab and Haryana High Court, it was held that

there was no convincing evidence to prove that the age of the

two girls was below 18 years. In the tenth case, the Court found

that the documents about the date of birth were not relating to

the prosecutrix. It was held that the age of the prosecutrix was

above 16 years. In the last case, the age of the prosecutrix was

17 years and the father of the girl had given evidence that she

was major.

19) In the present case, there is evidence of prosecutrix

(PW 1) to the effect that she was born on 8.3.1996. Her evidence

was recorded on 14.8.2012 and on that day, she gave her age as

17 years. There is evidence that she was studied only up to 9th

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standard when the incident took place. Shaikh Shamim (PW 3),

the mother of prosecutrix, has given evidence that at the

relevant time, prosecutrix had not completed 15 years of age.

20) Much was argued by the counsel for appellant in

respect of admission given by the mother of prosecutrix (PW 3)

in cross examination. The mother of the prosecutrix has

admitted that the prosecutrix was born at Gadewadi, Tahsil

Ahmedpur, District Latur, but her birth was registered in the

record of Village Panchayat Bori. The mother has, however,

denied that false date of birth was given to school.

21) Zambre (PW 8), the Headmaster of Vivekanand

Prathmik Vidyamandir of Latur has given evidence that as per

the record, the prosecutrix was admitted in his school on

12.6.2001 and she left the school on 23.6.2004. This was the

first school of the prosecutrix. He has deposed that the entry in

the school register was taken on the basis of birth certificate

produced. The extract of the school register is produced at Exh.

77 and the copy of birth certificate, on the basis of which entry

was made is produced at Exh. 68. Copy of application given for

admitting the prosecutrix in school is also produced. This record

shows that the birth date of prosecutrix, which was informed was

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8.3.1996. This was the first school of the prosecutrix and the

entry was made well before the dispute and it was made on the

basis of birth certificate and so, necessary weight needs to be

given even to the entry made in the school record. The

submissions made by the learned counsel for the appellant that

there was no compliance of provision of Births Registration Act

as the certificate with regard to the date of birth is not signed by

Gramsevak, cannot be given much weight as it is only copy of

entry from the concerned register maintained under the Births

and Deaths Registration Act. If the defence had some doubt or

the Court had some doubt, the original record from the Village

Panchayat could have been called to ascertain as to whether

there was compliance of relevant provisions. Thus, from the birth

certificate and the school record, the date of birth of prosecutrix

is 8.3.1996. The position of law in this regard is already

discussed.

22) Dr. Jinturkar (PW 7), who examined the prosecutrix,

has given evidence on the record of medical examination, Exh.

65. The record shows that opinion was given by the doctor that

the age of the prosecutrix was 16-17 years. The prosecutrix was

pregnant of 7 weeks on the date of examination. In view of the

evidence of prosecutrix, mother and the record of birth

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certificate and school record, this Court holds that preference

needs to be given to the other evidence and not to the medical

opinion in this case. This Court holds that the prosecution has

proved that the age of the prosecutrix was below 16 years at the

relevant time, when the accused took the prosecutrix away from

lawful guardianship of her mother and also when he took sexual

intercourse with the prosecutrix.

23)

There is both direct and circumstantial evidence for

proving the offences. The prosecution has given evidence that

the accused used to intercept her on a way to school and he

used to search for opportunities to talk with her. He was virtually

enticing her by saying many good things to her. He used to say

that she was pretty looking and he would make her happy. She

has given evidence that on one day, the accused entered her

house when she was alone and even when she was opposing, he

took sexual intercourse with her. She has deposed that on that

occasion accused had told that nothing will happen to her due to

such act and she should not disclose such incident to anybody.

She has given evidence that in similar manner, on 2-3 more

occasions, when she was alone in the house, the accused

entered the house and took the sexual intercourse with her. She

has given evidence that when she had refused, the accused had

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given threats and he had also said that he would disclose his

relations with her to others.

24) The prosecutrix has given evidence that at the

relevant time, her father had sold some property from

Babulgaon and the sale proceeds were kept in her house and the

accused was knowing this fact. She has given evidence that

accused said to her that he would take her for outing and she

should come with him with the amount which was kept in the

house. She has given evidence that on that day, the accused

was waiting on the backside of her house and then she took the

money and went with the accused and she had taken the maid

servant also with her.

25) The prosecutrix has given evidence about the places

where she and the aforesaid girl were taken by the accused and

those places were Tuljapur, Mumbai etc. She has deposed that in

Mumbai, she was taken to the house of sister of accused, but the

sister had refused to give shelter to them. She has given

evidence that when the aforesaid girl started crying and started

saying that she wanted to return to her mother, the accused left

her at bus stand and then he took the prosecutrix forcibly to

Banglore.

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26) The prosecutrix has given evidence that from

Banglore, she was taken to Pune and she was again taken to

Mumbai also. She has given evidence against the father of

accused by saying that in the house of sister of accused, his

father was waiting and he created fear in her mind by saying

that the father of prosecutrix was waiting for her with sword.

27)

The prosecutrix has given evidence that in Pune she

was insisting to the accused that he should take her back to

Latur, but accused avoided by saying that her father would kill

her. She has given evidence that in Pune at Wagholi, room was

taken on rent basis where they lived for few days. She has given

evidence that in Pune, accused had represented that prosecutrix

was his wife and by making such representation, he had taken a

room on rent basis. She has given evidence that police had

contacted accused when they were living in Pune. But, he had

given false information to police and as per his instruction, she

had supplied information to police. She has given evidence that

in Wagholi also accused had taken sexual intercourse with her.

28) The evidence of prosecutrix shows that on the last

day, when the accused was out of the room, he had gone for the

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repairs of mobile handset, police and father of prosoecutrix

came there and they rescued her. She has given evidence that

she was referred to medical examination and her police

statement was recorded.

29) Some cross examination of the prosecutrix was made

to show that she had probably completed 18 years of age, but

nothing is brought on the record to create such probability. Most

of the cross examination was made to show that she had

probably left the house of her parents on her own. The

statement given before the Magistrate was confronted to her

during her cross examination. But, that statement cannot help

the accused, in any way, as it is consistent on material points

with the version of prosecutrix. She is cross examined to show

that she had talk with police when she was living in Pune, but

this admission also cannot help the defence in view of the nature

of evidence given by the prosecutrix. Some cross examination is

made to show that the accused used to visit the house of her

parents. She has admitted that suggestion, but that cannot

make a difference as it only shows that accused had developed

contact with the prosecutrix. Specific suggestion is given to her

during cross examination and answer to such suggestion is as

under :-

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"It is true to say that 8th March 1996 is my birth date as

per T.C."

She has admitted that her birth date is not referred in record of

Village Panchayat or Municipal Council, but this admission

cannot be used in favour of the accused when such record is in

existence. Some evidence is brought on the record by giving

following suggestion :-

"It is true that I came outside of the house by wearing veil

of Guddi. It is true that on that day, I did so for concealing

my identity."

30) The particulars of the amount are given by the

prosecutrix during her cross examination and she has described

currency notes. It is a fact that the girl, who was aged about 11

years, was also taken by the accused when he was taking the

prosecutrix with him and thus, there was no escape for the

accused from conviction for the offence punishable under

section 363 of I.P.C.

31) The evidence of the said girl (PW 2) is consistent

with the version of prosecutrix which is about the day on which

the prosecutrix left the parent's house. This girl has given

evidence that she was taken along with the prosecutrix to the

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house of sister of the accused and then she was allowed to

return to Latur and accused had made her to board to bus for

Latur. She has given evidence that in the bus, she came across

one Khaja, a person residing in a neighbourhood and he helped

to reach the house of her parents. Some cross examination is

there on the place where she boarded the bus to return to Latur.

She is illiterate girl and not much can be made out due to some

inconsistency in her evidence about such place. Her evidence

has given corroboration to the version of prosecutrix. Thus, the

accused not only took the prosecutrix, who had not crossed the

age of 16 years, but he had also taken other girl, who was about

11 years with him.

32) The evidence of Shaikh Shamim (PW 3), mother of

prosecutrix, shows that on the day of incident, after 12.30 p.m.

she realized that the prosecutrix was not at home. She has

deposed that she searched for prosecutrix and when she could

not trace her, she approached police. She has given evidence

that when she learnt that other girl (PW 2) had returned to Latur,

she met her and then she learnt that accused had taken

prosecutrix with him. Her evidence shows that the prosecutrix

also disclosed the incident to her. Some cross examination of

this witness is on the point of date of birth and also the place of

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birth to show some inconsistency. However, it is already

observed that such inconsistency cannot make much difference

as the record was created long back. There is evidence of Sayed

Khaja (PW 6) which is consistent with the evidence of PW 2.

33) In the cross examination of mother of prosecutrix, it

is brought on the record that she had given loan of Rs. one lakh

to accused No. 5 and that loan amount was not returned by that

accused. On the basis of this admission, much was argued by

the learned counsel for the appellant and he submitted that due

to dispute over returning of this amount, the accused is falsely

implicated. This submission is not at all acceptable. No parents

would involve their marriageable daughter in such incident by

making false allegations. Further, one more girl was involved in

the incident. Further, there is medical evidence which is

consistent with the version of prosecutrix. The prosecutrix was

carrying of seven weeks when she was examined after her

reference was made to doctor by police in this case. There is

evidence to the effect that the prosecutrix was traced and she

was collected from Pune by police. This Court has no hesitation

to hold that aforesaid evidence is sufficient to prove the offences

punishable under sections 363 and 376 of I.P.C. The Trial Court

has not committed any error in convicting the accused. Sentence

Cri. Appeal No. 167/13

given to the accused is minimum possible sentence and there is

no possibility of interference on the point of penalty also.

34) In the result, the appeal, stands dismissed. Copy of

this judgment is to be supplied free of cost to the accused.

[ T.V. NALAWADE, J. ]

ssc/