Suresh S/O Ramesh Warkhede ( In ... vs State Of Maharashtra Thr. P.S.O
2016 Latest Caselaw 1909 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      




                                                             
                               NAGPUR BENCH, NAGPUR.


     CRIMINAL APPEAL NO.155 OF 2013




                                                            
     Suresh s/o Ramesh Warkhede,
     Aged about 24 years, 
     Occupation - Labour, 




                                               
     R/o Bihalgondi, Tahsil - Katol, 
     Nagpur.                  ig                                      ....       APPELLANT


                         VERSUS
                            
     State of Maharashtra, 
     through PSO, PS Kondhali, 
     vide Crime No.157/2011.                                          .... 
      

                                                                               RESPONDENT
   



     ______________________________________________________________
           Shri D.A. Sonwane, Advocate appointed for the appellant, 
          Shri S.S. Doifode, Addl. Public Prosecutor for the respondent. 





      ______________________________________________________________

                                   CORAM : Z.A. HAQ, J.

DATED : 27 APRIL, 2016.

th

ORAL JUDGMENT :

1. Heard Shri D.A. Sonwane, learned Advocate for the

appellant and Shri S.S. Doifode, learned Additional Public Prosecutor

for the respondent.

2. The appellant has challenged the judgment passed by the

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learned Additional Sessions Judge convicting him for the offence

punishable under Section 376 of the Indian Penal Code and sentencing

him 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 period of three months.

3.

The case of the prosecution is :

The complainant-Ku. Shalini (aged about 14 years 11

months 9 days at the time of incident) filed report with the police

station stating that she was having love affair with the accused No.1

(appellant) and the accused No.1 assured her that he will marry her

and had sexual intercourse with her forcibly. The complainant alleged

that accused No.2-Sunil had embraced her on road and outraged her

modesty.

On the complaint made by the complainant, the

investigation was undertaken and charge-sheet was filed before the

Judicial Magistrate First Class who committed the case to the Court of

Sessions as the offence is triable by the Court of Sessions. The Sessions

Court framed the charge and explained it in vernacular to the accused.

Both the accused did not accept the guilt and claimed to be tried. The

trial is conducted and by the impugned judgment the accused No.1

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(appellant) is convicted for the offence punishable under Section 376

of the Indian Penal Code and the accused No.2-Sunil Kisanji Shrirame

is convicted for the offences punishable under Sections 354 and 506 of

the Indian Penal Code.

4. Shri D.A. Sonwane, learned Advocate for the appellant has

submitted that considering the averments made in the complaint and

the evidence of the prosecutrix (P.W.1), it is clear that there was a love

affair between the appellant and the prosecutrix and the sexual

intercourse was with the consent of the prosecutrix and therefore, the

appellant cannot be held guilty for the offence punishable under

Section 376 of the Indian Penal Code.

The submission cannot be accepted as undisputedly age of

the prosecutrix was below sixteen years. Even if it is considered that

the intercourse was with consent of prosecutrix, in view of the fact that

at the time of incident the prosecutrix had not completed sixteen years

of age, in view of the sixth description below Section 375 of the Indian

Penal Code, as it stood at the time of incident, it has to be held that the

appellant is guilty of offence punishable under Section 376 of the

Indian Penal Code. The findings recorded by the learned Additional

Sessions Judge on this point are proper.

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5. The learned Advocate for the appellant has submitted that

even if it is held that the appellant is guilty of commission of offence

under Section 375 of the Indian Penal Code punishable under Section

376 of the Indian Penal Code, considering the fact that the intercourse

was with consent of the prosecutrix, the sentence imposed by the

learned Additional Sessions Judge is required to be modified and lesser

sentence should be imposed on the appellant. The learned Advocate

for the appellant has submitted that the fact that prosecutrix was

minor at the time of incident would be relevant for the purposes of

holding the appellant guilty of the offence, but it will not be relevant

for considering the quantum of sentence to be imposed on the

appellant. In support of the submission, the learned Advocate has

relied on the judgment given in the case of Bandu alias Charandas

Dighade vs. State of Maharashtra reported in 2003 Cri.L.J. 1990. It

is submitted that the appellant was aged about twenty-four years at the

relevant time and was working as labour and considering that the

intercourse was with the consent of the prosecutrix, it would be

appropriate that the appellant be sentenced for the period for which he

had been in Jail. It is submitted that the appellant is in Jail since

24-12-2011 i.e. for more than four years and four months and this

period be treated as the period of sentence to be imposed on the

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appellant.

6. The learned Additional Public Prosecutor has submitted

that the learned Additional Sessions Judge has rightly imposed the

sentence of seven years on the appellant as per Section 376 of the

Indian Penal Code, as it stood at the relevant time. It is submitted that

if the sentence has to be below seven years then there have to be

special reasons as laid down in the judgment given in the case of State

of M.P. vs. Makhmal Khan and others reported in 2005 Cri.L.J.

4363. It is submitted that, in the present case, there are no special

reasons for imposing sentence less than seven years on the appellant.

It is prayed that the appeal be dismissed.

7. Though the prosecution has alleged that the appellant

committed forcible intercourse, it has not been established. The

medical examination report does not support the allegations of forcible

sexual intercourse. It is not explained by the prosecution as to why the

doctor who examined the prosecutrix has not been produced as

witness. In these facts, it cannot be said that the prosecution has

established that the appellant committed sexual intercourse on the

prosecutrix forcibly.

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8. The submission made on behalf of the appellant that

considering the evidence on record which establishes that the

intercourse was not forcible, the sentence lesser than seven years be

imposed on the appellant, requires consideration. Considering the

proposition laid down in the judgment given in the case of Bandu

alias Charandas Dighade(cited supra), it has to be held that the fact

that the prosecutrix was minor at the time of the incident would not be

relevant for considering the quantum of sentence to be imposed on the

appellant.

Considering the fact that the appellant was aged about

twenty-four years at the time of incident and was working as labour to

earn his livelihood and was not involved in any other crime and the

evidence on record does not establish that the appellant committed the

sexual intercourse forcibly, in my view, the following order would sub-

serve the ends of justice :

i) The conviction of the appellant for the offence punishable

under Section 376 of the Indian Penal Code in maintained.

ii) The imposition of fine of Rs.2,000/- on the appellant and

the directions that in default of payment of fine the

appellant shall undergo rigorous imprisonment for three

months are maintained.

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              iii)     The order passed by the learned Additional Sessions Judge




                                                             

sentencing the appellant to undergo rigorous

imprisonment for seven years is modified.

It is directed that the appellant shall undergo rigorous

imprisonment for the period for which he had been in Jail.

iv) If the custody of the appellant is not required in any other

case, he be released.

v) The fees of Shri D.A. Sonwane, learned Advocate

appointed to represent the appellant is quantified at

Rs.5,000/-.

vi) The appeal is partly allowed in the above terms.

JUDGE

pma