Bombay High Court
Dharmuji Mukund Meshram (In Jail) vs State Of Maharashtra, Through ... on 24 June, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 406 OF 2014
Dharmuji Mukund Meshram
aged about 22 yrs., Occp. Labour,
r/o Dhanora Jog, Tq. Nandgaon Khandeshwar,
Distt. Amravati. :: APPELLANT
.. Versus
..
State of Maharashtra,
through Police Station Officer,
Police Station, Loni,
Distt. Amravati. :: RESPONDENT
...................................................................................................................................
Shri N. H. Samundre, Advocate for the appellant.
A. K. Bangadkar, A.P.P. for the State.
...................................................................................................................................
CORAM : S. B. SHUKRE, J.
DATED : 24th JUNE, 2016.
O R A L J U D G M E N T
O R A L J U D G M E N T
This is an appeal preferred against the judgment and
order dated 9/12/2013 rendered in Sessions Trial No. 150 of
2011 thereby convicting the appellant of the offence punishable
under Section 376 of the Indian Penal Code and sentencing him
to suffer rigorous imprisonment for ten years and also to pay fine
of Rs.10,000/ together with default sentence of simple
imprisonment for six months.
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2. I have heard learned Counsel for the appellant and the
learned A.P.P. for the State-respondent I have carefully gone
through the record of the case including the impugned judgment
and order.
3. It is seen from the evidence of the prosecutrix that the
appellant took advantage of absence of the parents and siblings of
the prosecutrix at home for a period of 8 to 9 months prior to
12/4/2011 and indulged in sexual intercourse with her. As a
result of such carnal contact, it is further seen, the prosecutrix got
pregnant and even conceived a daughter. The complaint,
however, was lodged on 12/4/2011 after the pregnancy of the
prosecutrix was detected. There is nothing in the entire evidence
of the prosecutrix to enable me to discard her evidence. There is
no reason why the prosecutrix should make such an allegation
against the appellant. In her examination-in-chief, the prosecutrix
has deposed about every details about the manner in which the
appellant used to commit the acts of sexual intercourse with her.
4. According to the learned Counsel for the appellant,
such story of the prosecutrix cannot be believed as she has
admitted in her cross-examination that it was her maternal uncle,
who had narrated the incident to the police and that she was not
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aware exactly as to what was written in the complaint. He
submits that the maternal uncle of the prosecutrix is Sarpanch of
the village and, therefore, he could use his influence in getting a
false report filed in this case. He also submits that there is a land
dispute going on between the party of the complainant and the
party of the appellant. He further submits that the appellant has
referred to this background of the case in the answers given by
him at the time of recording of his statement under Section 313 of
the Criminal Procedure Code.
5. I am not inclined to accept the above argument for the
simple reason that no foundation regarding previous enmity has
been led in the evidence. No such suggestions as are consistent
with said defence have been given to the prosecutrix. Then, the
prosecutrix, as seen from the evidence of P.W.-3 Dr. Sushma
Shendre as well as P.W.-6 Dr. Amol Gulhane, is suffering from
mild mental retardation. This fact is also noted by the learned
Sessions Judge while recording of evidence of the prosecutrix.
The learned Sessions Judge has observed the demeanour of the
prosecutrix in the words, "whenever question is asked to witness,
she used to give laugh and then giving answers". P.W.-6 Dr. Amol
Gulhane has also issued a certificate vide Exh.51, which has been
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issued after receipt of the report of the psychologist, and it shows
that the prosecutrix is the victim of mild mental retardation. This
would explain as to why the incident had to be intimated to police
by the maternal uncle. Then, in the examination-in-chief, as
stated earlier, the prosecutrix has also specifically stated as to how
the appellant used to come to her house in the absence of her
parents and siblings, and indulge in sexual intercourse with her
from time to time.
6. So far as the facts stated by the prosecutrix in her
examination-in-chief are concerned, I have already observed that
no such circumstances have appeared in her cross-examination as
to enable me to express any doubt about those facts. It is true
that she has admitted in her cross-examination that she is not able
to read and write. But, that does not mean that testimony of
School Headmaster, P.W.-4 Rajendra Thembhre is false. He has
categorically stated that the prosecutrix was studying in his
School and at the time of her admission to the School a Birth
Certificate issued by the Corporation was produced. The
prosecutrix, in her cross-examination, has admitted that she was
in Badnera Hostel for the purpose of taking education. So, just on
one stray admission, the evidence of the prosecutrix or PW 4
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cannot be rejected and has been rightly accepted by the learned
Additional Sessions Judge as inspiring confidence of the Court.
7. Now, the question is, whether or not the prosecutrix
was below 18 years of age. The evidence of P.W.-4 Rajendra
Thembhre is relevant in this regard and it establishes beyond any
manner of doubt that the prosecutrix was, during the relevant
period of time, i.e. about 8 to 9 months prior to 12/4/2011, under
18 years of age. Her date of birth, as seen from the Birth
Certificate (Exh.40), proved by the prosecution through the
evidence of P.W.-4 Rajendra Thembhre, is 11/9/1995. That
would mean that at the relevant time the prosecutrix was between
the age of 15 and 16 years.
8. Learned Counsel for the appellant has invited my
attention to the ossification report at Exh.59, which discloses that
radiological age of the prosecutrix on 13/4/2011 was about 17
years with an error of 1 year on either side. The primary evidence
regarding the age of the prosecutrix in this case is her Municipal
Birth Certificate issued under the provisions of Registration of
Births and Deaths Act, 1969, vide Exh.40. It clearly shows that
her date of birth is 11/9/1995 and the date of registration of her
birth is 19/10/1995. In these circumstances, no doubt can be
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expressed about the genuineness of the entry made in the said
certificate of birth. The cross-examination of P.W.-4 Rajendra
Thembhre also shows that the appellant has not disputed the
correctness of the said birth entry. Therefore, the radiological age
in this case would not be material. Even if it is considered as
relevant, still, one can say that the prosecutrix was below 18 years
of age at the time when the incident occurred. After all, the
incident has been spread over the period of 8 to 9 months prior to
12/4/2011 and is not restricted to just one or two days. This
entire period would be relevant and when it is considered, one
would be convinced that even radiological age, as per the
certificate vide Exh.40, of the prosecutrix was below 18 years
when the first incident of rape occurred.
9. The above referred evidence would clearly show that
this case falls within 6th definition of the term "rape" provided
under Section 375 of the Indian Penal Code. It says that a man is
said to commit "rape" with or without the consent of the girl
when the girl is under 18 years of age and commits various acts as
are described in clauses (a) to (d) of Section 375 I.P.C. In the
instant case, the particular act committed by the appellant is one
of penetration as provided under clause (a). Therefore, the
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learned Sessions Judge has rightly concluded that the consent of
the prosecutrix in this case is immaterial.
10. Even otherwise, the medical evidence, as discussed
earlier, shows that the prosecutrix was suffering from disorder of
mild metal retardation and if that is the case, then one has to say
that the prosecutrix was also incapable of giving any consent,
thereby taking the crime committed by the appellant within the
ambit of Section 376 (2) (j) of the Indian Penal Code. The
learned Additional Sessions Judge has, therefore, rightly rejected
the plea of the appellant for leniency and imposed minimum
prescribed punishment of 10 years of rigorous imprisonment. As
a matter of fact, I would say, by choosing to impose minimum
prescribed punishment upon the appellant, the learned Additional
Sessions Judge has already shown the leniency and this is not a fit
case for showing further leniency. The appeal deserves to be
dismissed.
Appeal is dismissed.
JUDGE
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