Bombay High Court
Baban Pandurang Gaikwad vs The State Of Maharashtra on 22 November, 2016
Bench: A.M. Badar
Vikrant Elgire 1/31 201-apeal-341-2015.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 341 OF 2015
Baban Pandurang Gaikwad
Age : 23 years,
R/at Palshi, Vankuta, Taluka Parner,
District Ahmednagar.
(At present serving the sentence of
Rigorous Imprisonment at Nashik Jail) ... Appellant
(Ori. Accused)
Vs.
The State of Maharashtra
Through Mankhurd Police Station,
District Mumbai. ... Respondent
......
Ms. Savita M. Yadav, Advocate for the Appellant.
Ms. V. S. Mhaispurkar, APP for the Respondent-State.
......
CORAM : A. M. BADAR, J.
DATE : 22nd November 2016
ORAL JUDGMENT :
1. By this Appeal, the appellant/accused is challenging the
judgment and order dated 26.03.2014 passed by the learned
Additional Sessions Judge, City Civil & Sessions Court, Greater
Mumbai in Sessions Case bearing No.80/2013 thereby convicting
the appellant/accused for the offences punishable under Sections
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363, 366 and 376 of the Indian Penal Code. The appellant/accused
is sentenced to suffer R.I. for a period of five years and to pay fine
of Rs.2,000/-, in default to further undergo R.I. for a period of one
year for the offence punishable under Section 363 of the Indian
Penal Code. For the offence punishable under Section 366 of the
Indian Penal Code, the appellant/accused is sentenced to undergo
R.I. for a period of 5 years and to pay fine of Rs.2,000/-, in default
to further undergo R.I. for a period of one year. For the offence
punishable under Section 376 of the Indian Penal Code, the
appellant/accused is sentenced to suffer R.I. for a period of 7 years
and to pay fine of Rs.2,000/-, in default to further undergo R.I. for
a period of one year.
2. It is the case of the prosecution that the minor female victim
of the crime in question is the original resident of Village Vankute
in Parner Taluka of Ahmednagar District. From the year 2010 she
started residing at the house of her uncle/informant Bashir
Shirfuddin Shaikh at Mankhurd, Mumbai. She was assisting wife of
her uncle Bashir in household chores and was looking after his
children. In May 2012, because of vacation to the schools,
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informant Bashir, his wife, their children and the minor female
victim had been to their native place village Vankute. On
commencement of academic session, his wife and children returned
back to Mumbai. The minor female victim returned to the house of
the informant Bashir on 05.08.2012.
3. According to the prosecution case, on 13.08.2012, the minor
female victim of the crime in question went missing from the house
of informant Bashir Shaikh. He therefore lodged a missing
complaint bearing complaint No.55 of 2012. It was found that
there were several missed calls on the cell phone of the wife of the
informant Bashir. Upon inquiry, it was found that those missed calls
were from the cell phone number belonging to the
appellant/accused. He was also found to be missing from his house
at village Vankute. Pursuant to the inquiry of missing complaint,
during search by the Police, the minor female victim of the crime in
question was found in company of the appellant/accused at
Shrirampur on 18.08.2012. The couple was brought back to the
Police Station at Mankhurd. Informant Bashir Shaikh made inquiry
with the minor female victim and found that she was enticed by
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the appellant/accused by promising to marry her and then rape
was committed on her. Therefore, the informant Bashir Shaikh
lodged a report to the Police Station Officer, Mankhurd Police
Station, Mumbai on 19.08.2012. This report has resulted in
registration of crime bearing CR No.237 of 2013 under Sections
363, 366 and 376 of the Indian Penal Code against the
appellant/accused. After investigation, charge sheet came to be
filed, and on committal, trial was held, which ultimately ended in
conviction of the appellant/accused and imposition of sentence on
him as indicated in the opening paragraph of this judgment.
4. Heard the learned counsel appearing for the
appellant/accused. By taking me through the statement of PW-2 i.e.
the minor female victim of the crime in question, the learned
counsel for the appellant/accused argued that evidence of the
minor female victim shows that in company of the
appellant/accused she went to Kolhapur, where they married in a
temple. By drawing my attention to the evidence of the minor
female victim of the crime in question, the learned counsel for the
appellant/accused further argued that as per the version of the
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minor female victim of the crime in question, sexual intercourse by
the appellant/accused with her was after performing marriage with
her. History stated by the minor female victim to the medical
officer is also pressed in service. By relying of the evidence of PW-6
Sanjay Harishchandra Rathod, it is argued that date of birth of the
minor female victim, according to the prosecution case, is
28.10.1996 and therefore, on the date of the alleged rape i.e. on
14.08.2012, the minor female victim of the crime in question was
about 15 years 9 months and 18 days old. Therefore, in submission
of the learned counsel for the appellant/accused, the case falls
under Exception 2 to Section 375 of the Indian Penal Code as the
alleged sexual intercourse by the appellant/accused was with his
own wife i.e. PW-2/minor female victim and as at the time of
commission of the alleged offence, the PW-2/minor female victim
was more than 15 years of age, the alleged act cannot be termed as
rape. Therefore, the appellant/accused deserves acquittal.
5. The learned counsel for the appellant/accused further argues
that there is no sufficient evidence to conclude that the minor
female victim of the crime in question was below the consenting
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age. The evidence on record indicates that she might be more than
16 years of age, and therefore, as the alleged act of sexual
intercourse was a consensual act, the offence of rape is not made
out by the prosecution. To buttress this submission, the learned
counsel pointed out that the PW-2/minor female victim in her
evidence has disclosed her date of birth as 29.10.1996 whereas the
informant/PW-1 Bashir Shaikh has disclosed her date of birth as
18.10.1996. The learned counsel argued that in such a situation,
margin of error of two years needs to be considered and benefit of
doubt needs to be granted to the appellant/accused.
6. The learned counsel for the appellant/accused further argued
that the spot panchanama was recorded on the basis of voluntary
disclosure statement of the appellant/accused and the spot
panchanama also supports the case of the defence that the alleged
minor female victim is legally married wife of the
appellant/accused. By relying on the evidence of PW-3
Shabbir/father of the minor female victim, it is argued that birth of
the minor female victim was recorded at Karjat Municipal Council,
whereas, evidence of PW-6 Sanjay Rathod shows that her birth was
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recorded at village Vankute. Therefore, according to the learned
counsel for the appellant/accused, benefit of doubt needs to be
granted to the appellant/accused and he deserves acquittal from
the charges leveled against him.
7. I have heard Ms. Mhaispurkar, learned APP appearing for the
State. She conceded to the arguments advanced by the learned
counsel for the appellant/accused that the appellant/accused
married the minor female victim who was more than 15 years of
age at the time of the alleged act and therefore the case falls in the
exception to the definition of the term 'rape'. However, the learned
APP stated that this fact of marriage was denied by the
appellant/accused in his statement under Section 313 of the Code
of Criminal Procedure.
8. I have carefully considered the rival submissions and perused
the record and proceedings. The offence allegedly took place on
13.08.2012. The charges leveled against the appellant/accused are
for the offences punishable under Sections 363, 366 and 376 of the
Indian Penal Code. Therefore, for proper appreciation of the
evidence adduced by the prosecution, it is apposite to put on
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record the relevant provision of Sections 361, 363, 366 and 375 of
the Indian Penal Code as they stood prior to substitution by Section
9 of the Criminal law (Amendment) Act, 2013.
"361. Kidnapping from lawful 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.
Explanation.-The words "lawful guardian" in this section
include any person 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.
363. Punishment for kidnapping.- Whoever kidnaps
any person from [India] or from lawful guardianship,
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shall be punished with imprisonment of either description
for a term which may extend to seven years, and shall
also be liable to fine.
366. Kidnapping, abducting or inducing woman to
compel her marriage, etc.- Whoever kidnaps or abducts
any woman with intent that she may be compelled, or
knowing it to be likely that she will be compelled, to
marry any person against her will, or in order that she
may be forced or seduced to illicit intercourse, or
knowing it to be likely that she will be forced or seduced
to illicit intercourse, shall be punished with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine; [and
whoever, by means of criminal intimidation as defined in
this Code or of abuse of authority or any other method of
compulsion, induces any woman to go from any place
with intent that she may be, or knowing that it is likely
that she will be, forced or seduced to illicit intercourse
with another person shall also be punishable as
aforesaid.]
375. Rape.- A man is said to commit "rape" if he-
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(a) penetrates his penis, to any extent, into the vagina,
mouth urethra or anus of a woman or makes her to do
so with him or any other person; or
(b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or
anus of a woman or makes her to do so with him or any
other person; or
(c) manipulates any part of the body of a woman so as
to cause penetration into the vagina, urethra, anus or
any part of body of such woman or makes her to do so
with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other
person, under the circumstances falling under any of the
following seven descriptions:-
First- Against her will.
Secondly.- Without her consent.
Thirdly.- With her consent when her consent has been
obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.
Fourthly.- With her consent, when the man knows that
he is not her husband and that her consent is given
because she believes that he is another man to whom she
is or believes herself to be lawfully married.
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Fifthly.- With her consent when, at the time of giving
such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or
through another of any stupefying or unwholesome
substance, she is unable to understand the nature and
consequences of that to which she gives consent.
Sixthly.- With or without her consent, when she is under
eighteen years of age.
Seventhly.- When she is unable to communicate consent.
Explanation 1.- For the purposes of this section, "vagina"
shall also include labia majora.
Explanation 2.- Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any
form of verbal or non-verbal communication,
communicates willingness to participate in the specific
sexual act;
Provided that a woman who does not physically resist to
the act of penetration shall not by the reason only of that
fact, be regarded as consenting to the sexual activity.
Exception 1.- A medical procedure or intervention shall
not constitute rape.
Exception 2.- Sexual intercourse or sexual acts by a
man with his own wife, the wife not being under
fifteen years of age, is not rape."
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9. According to the prosecution case, the appellant/accused
enticed the minor female victim to leave company of her lawful
guardian and took her to Kolhapur with him. For making out the
offence defined under Section 361 of the Indian Penal Code, the
prosecution will have to show that the minor female victim (PW-2)
was under 18 years of age at the time of the alleged offence.
Similarly, for making out the offence as defined under Section 375
of the Indian Penal Code, the prosecution is enjoined to show that
the minor female victim (PW-2) was below 16 years of age at the
time of alleged rape on her by the appellant/accused. This is so
because according to the prosecution case there was enticing of the
minor female victim by assurance of marriage and then there was
sexual intercourse with her. Before adverting to the aspect whether
commission of offences of kidnapping from lawful guardianship
and consequential rape are committed by the appellant/accused,
one will have to examine whether the minor female victim is
proved to be below 18 years of age for the offence punishable
under Section 363 of the Indian Penal Code and below 16 years of
age for the offence punishable under Section 376 of the Indian
Penal Code.
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10. The evidence on record shows that PW-1 Bashir is the uncle
of PW-2/minor female victim and PW-3 Shabbir is her father. PW-1
Bashir is in employment of the BEST as a Driver, whereas, PW-3
Shabbir is running a chicken shop in village Vankute, Taluka Parner,
District Ahmednagar. The PW-2/alleged minor female victim of the
crime in question appears to have studied up to 8 th standard and
then she left village Vankute to join the company of her uncle and
aunt at Mumbai for helping her aunt. This material borne from the
other evidence shows the background of the prosecuting party.
They appear to be rustic and uneducated persons from rural
background. PW-3 Shabbir, who is the father of the minor female
victim, is not even knowing whether the minor female victim (PW-
2) was born at the house or in the hospital. He was not even in a
position to disclose the date of birth of his daughter PW-2/alleged
minor female victim. The PW-2/minor female victim of the crime
in question has disclosed her date of birth as 29.10.2016, whereas
her uncle/PW-1 Bashir stated that his niece PW-2/minor female
victim was born on 18.10.1996. This is the oral evidence regarding
the age of the alleged minor female victim. It is well settled that
oral evidence is hardly sufficient for determining the age of a
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person.
11. In order to prove the age of PW-2, the prosecution has
examined one Sanjay Harishchandra Rathod, Village Development
Officer, village Vankute as PW-6. He is the authority to register
births and deaths which take place at Taluka Parner, and as such,
the custodian of the record. Section 8 of the Registration of Births
and Deaths Act, 1969 casts duty on citizens to inform any birth or
death in a house. The head of the house or the nearest relative of
the head of the house present in the house or the oldest adult
member present in the house is required to report birth in the
family as per the provisions of this Act. PW-6 Sanjay Rathod
appears to be the Registrar for the local area inclusive of village
Vankute for recording births and deaths. His evidence shows that as
per the record maintained by his office, on 02.11.1996 one
Sharfuddin Jamal Shaikh had reported birth of the PW-2 occurring
in the family on 28.10.1996. The birth certificate issued by PW-6
Sanjay Rathod is at Exhibit 31. PW-6 Sanjay Rathod had brought
with him the original register of births maintained as per the
provisions of the Registration of Births and Deaths Act, 1969. A
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photocopy of the relevant extract of the said register is at Exhibit
32-A. The birth certificate at Exhibit 31 is in consonance with the
entries made in the birth register at Exhibit 32-A. Both these
documents show that the date of birth of the minor female victim
(PW-2) is 28.10.1996. There is no iota of evidence on record to
disbelieve either version of the PW-6 Sanjay Rathod or to infer that
the birth certificate at Exhibit 31 is not that of the minor female
victim (PW-2) but may be of some other person with identical
name. Even there are no suggestions to that effect to the witnesses
examined by the prosecution. Rather, the evidence on record
coming from the mouth of the minor female victim (PW-2) as well
as her father PW-3 Shabbir goes to show that she is the eldest
daughter of PW-3 Shabbir.
12. At this juncture, the provisions of Section 35 of the Evidence
Act become relevant. The extract of the birth register at Exhibit
32-A shows entry of birth of the PW-2/minor female victim and her
date of birth recorded in the said register is 28.10.1996. This entry
can be taken as positive proof of the date of birth of PW-2/minor
female victim, in respect of whose birth this Court is required to
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give findings. The Registrar, who acts or purports to act in
pursuance of the provisions of the Registration of Births and Deaths
Act, 1969, is deemed to be a public servant within the meaning of
Section 21 of the Indian Penal Code. The certificate of date of birth
Exhibit 31 recording birth of the PW-2/minor female victim issued
by him is admissible under Section 35 of the Evidence Act because
that entry is made in the public record, stating the fact in issue and
it was made by a public servant in discharge of his official duty.
Therefore, it needs to be held that the date of birth of PW-2/minor
female victim is 28.10.1996. The incident of her alleged
kidnapping took place on 13.8.2012 and it is alleged that she was
subjected to rape by the appellant/accused in the night intervening
13th and 14th August 2012. As such, it needs to be held that at the
time of the alleged offence, the minor female victim was about 15
years 9 months and 18 days old. Therefore, the prosecution has
proved that at the time of the alleged offence, the minor female
victim i.e. the PW-2 was below 16 years of age.
13. Now let us examine whether PW-2/minor female victim was
kidnapped by the appellant/accused from her lawful guardian for
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the purpose of forcing or seducing her to have illicit intercourse
with him and then whether the appellant/accused had committed
rape on her. Considering the nature of the averments made by the
prosecution, the evidence of PW-2/minor female victim of the
crime in question assumes great importance in this matter. Her
uncle PW-1 Bashir's evidence is relevant only to conclude that
when he woke up in the morning hours of 13.08.2012, he found
his niece i.e. PW-2 missing from the house, and therefore, he
lodged a missing report on 13.08.2012 itself. He further disclosed
that as the cell phone of his wife was showing several missed calls,
he made inquiry about the cell number from which the said missed
calls were received and came to know that those were from the
appellant/accused. PW-3 Shabbir, who is the father of the minor
female victim, stated that his daughter/PW-2 was residing with his
brother PW-1 Bashir at Mumbai and he was informed by his
brother in the month of August 2012 that his daughter had went
missing. How the minor female victim of the crime in question
went missing and what happened with her can be seen from her
evidence.
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14. PW-2/ minor female victim of the crime in question is
examined and her evidence is at Exhibit 14. Her evidence discloses
the following facts:-
The appellant/accused used to work as a labourer on a
tempo owned by her family. The minor female victim (PW-2) was
residing with her uncle PW-1 Bashir at Mumbai since last about
two years from the incident. Just prior to the incident, the minor
female victim (PW-2) had been to her native place i.e. village
Vankute, where the appellant/accused used to reside. During her
stay at village Vankute, she used to meet the appellant/accused
frequently. Even during her stay at Mumbai, she used to call the
appellant/accused frequently from the cell phone of her aunt. She
was receiving phone calls from the appellant/accused and the
appellant/accused used to request her to return back to her native
place i.e. village Vankute. The appellant/accused used to tell the
minor female victim that he wants to marry her.
This is the evidence regarding relationship of the minor
female victim with the appellant/accused which undoubtedly
indicates that the couple was in love. Now, let us see what she
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states about the alleged offences.
15. It is in the evidence of PW-2/ minor female victim that the
appellant/accused telephonically contacted her and told her to
come to Pune station. In her cross-examination, she admitted the
fact that she had telephonically contacted the appellant/accused
from the cell phone of her aunt and told him that she is coming to
Pune railway station and that he should meet her. She further
deposed that she left the house without disclosing this fact to her
uncle and went to Pune by a jeep. From there, she accompanied
the appellant/accused and they went to Kolhapur. As per the
version of the minor female victim, there they went to a temple
and performed marriage. The minor female victim (PW-2) further
deposed that then the appellant/accused took her to his friend's
house where they stayed for one night. In that night, according to
the minor female victim, the appellant/accused had committed
forcible sex with her and then she was taken to Shrirampur where
also she was subjected to forcible sexual intercourse by the
appellant/accused. Three days thereafter, the Police came and took
her as well as the appellant/accused to Mankhurd Police Station.
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16. During the course of investigation, the minor female victim
(PW-2) was subjected to the medical examination and at that time
also, she has disclosed the attending medical officer that she eloped
with the appellant/accused to Kolhapur, married him on in a
temple on 14.08.2012 and then went to Shrirampur. She disclosed
to the medical officer that she had sexual intercourse with the
appellant/accused willingly on 13.08.2012, 17.08.2012 and
18.08.2012. The medical case paper reflecting the history disclosed
by the PW-2/minor female victim is at Exhibit 22.
17. During the course of investigation, PW-4 Amit Rohidas Maner,
the Investigating Officer has recorded confessional statement of the
appellant/accused and according to the prosecution case, the
appellant/accused has disclosed the spot of his marriage with the
PW-2 i.e the temple where he married the PW-2. The spot
panchanama was accordingly recorded and the same is at
Exhibit 17.
18. The question which needs to be answered is whether such
marriage makes the appellant/accused husband and the PW-2 as
his wife so as to exclude sexual relations between them from the
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purview of definition of the term 'rape' as found in Section 375 of
the Indian Penal Code. It will have to be seen whether the case is
falling in exception to Section 375 of the Indian Penal Code, as the
minor female victim (PW-2) was more than 15 years of the age at
the relevant time. For giving finding on this aspect, how the
appellant/accused had taken the minor female victim shall have to
be examined first. Undisputedly, the PW-2 was less than 18 years of
age at the time of commission of the alleged offence. She was just
about 15 years 9 months and 18 days old. She was under the
lawful guardianship of her uncle PW-1 Bashir Shaikh. Evidence of
the PW-2 that the appellant/accused used to allure her by assuring
marriage with her is not shattered in the cross-examination. On the
contrary, there were suggestions to her that her parents learnt
about her affair with the appellant/accused. The evidence of PW-2
shows that there was some communication between her and the
appellant/accused prior to she leaving the house of her uncle PW-1
Bashir Shaikh. It is thus seen from the evidence of the PW-2 that on
assurance of marriage given to her by the appellant/accused, she
left the house of her lawful guardian uncle PW-1 Bashir. Taking or
enticing away a minor out of the keeping of a lawful guardian is an
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essential ingredient of the offence of kidnapping. The object of
Section 361 of the Indian Penal Code is to protect minor children
from being seduced for improper purposes and to protect the right
and privilege of a guardian having lawful charge or custody of
minor ward. The words "takes or entices any minor........out of the
keeping of the lawful guardian of such minor" found in Section 361
of the Indian Penal Code are significant. Persuasion by a person
which creates willingness on the part of a minor to be taken out of
the keeping of the lawful guardian of such minor would be
sufficient to attract the penal provisions of Section 363 of the
Indian Penal Code. In this case, assurance of marriage by the
appellant/accused to the teen aged minor female prompted her to
leave the company of her uncle PW-1 Bashir. The word 'entices'
used in Section 361 of the Indian Penal Code is in the context of
inducement or allurement by giving rise to hope or desire to the
victim. In the case in hand, as seen from the evidence of the PW-
2/minor female victim, hope of marriage resulted in enticing her by
the appellant/accused, compelling her to leave company of her
lawful guardian. As such, from the evidence on record, the
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prosecution has certainly proved the offence punishable under
Section 363 of the Indian Penal Code. The appellant/accused had
certainly enticed the PW-2/minor female victim out of the keeping
of her lawful guardian and then by going to Kolhapur, he allegedly
performed marriage with her in a temple.
19. Now, let us examine whether by such marriage, the
appellant/accused can become husband of the PW-2. At this
juncture, the provisions of The Prohibition of Child Marriage Act,
2006 (for the sake of brevity, referred to as "the Act of 2006")
become relevant. Section 2(a) of this Act of 2006 defines 'child' to
mean a person who, if a male, has not completed twenty-one years
of age, and if a female, has not completed eighteen years of age.
Contracting party in relation of a marriage, as per the provisions of
Section 2(c) of this Act of 2006 means either of the parties whose
marriage is or is about to be thereby solemnised. Section 3 of this
Act of 2006 provides that a child marriage is voidable at the option
of the contracting party being a child. A petition challenging such
marriage can be filed by the child within two years of attaining
majority. This makes it clear that the child marriage is not void ab
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initio, rather it is voidable at the option of the child. However, for
our purpose, what is relevant is Section 12 of this Act of 2006. It
reads thus:
"12. Marriage of a minor child to be void in certain
circumstances.- Where a child, being a minor-
(a) is taken or enticed out of the keeping of the lawful
guardian; or
(b) by force compelled, or by any deceitful means induced
to go from any place; or
(c) is sold for the purpose of marriage; and made to go
through a form of marriage or if the minor is married
after which the minor is sold or trafficked or used for
immoral purposes,
such marriage shall be null and void."
Bare perusal of Section 12 of this Act of 2006 makes it clear that
where a child, being a minor, is taken or enticed out of the keeping
of a lawful guardian, then such marriage shall be null and void. In
the case in hand, the PW-2/minor female victim of the crime in
question is proved to have been enticed out of the keeping of the
lawful guardianship of PW-2 Bashir Shaikh and as such, the
marriage allegedly performed between the appellant/accused
Baban Pandurang Gaikwad and the PW-2/minor female victim
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cannot be said to be a legal marriage making the appellant/accused
as husband of PW-2/minor female victim. Hence, by no stretch of
imagination, it can be said that as the appellant/accused had
performed marriage with the minor female victim and then
committed sexual intercourse with her, his case falls under the
Exception 2 to Section 375 of the Indian Penal Code as the minor
female victim was more than 15 years of age at the time of the
alleged sexual intercourse and as the appellant/accused was her
husband. Exception 2 to Section 375 provides that sexual
intercourse by a man with his wife, the wife not being under 15
years of age, is not rape. This exception is certainly applicable
when the marriage is legal and not a void marriage. The reason for
this is that on marriage, which is a legal marriage, the wife
consents to the husband exercising the marital right of intercourse
during such time as the ordinary relations created by marriage
subsists between them. The marital right of the husband in such a
situation exists by virtue of the consent given by the wife at the
time of the marriage and as the child marriage is not void ab initio
by virtue of provision of Section 3 of the Act of 2006. However, in
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the case in hand, the alleged marriage of the appellant/accused
with the minor female victim (PW-2) by enticing her is void ab
initio, and therefore, the case of the appellant/accused does not fall
within the Exception 2 to Section 375 of the Indian Penal Code. In
this view of the matter, the sexual intercourse committed by the
appellant/accused on the PW-2, who was not of consenting age,
amounts to rape. Hence, the prosecution has successfully brought
home the guilt of the accused for the offence punishable under
Section 376 of the Indian Penal Code. Similarly, the evidence of the
minor female victim shows that she was taken away by enticing her
with an intention as well as knowledge by the appellant/accused
that she will be seduced by him to have illicit sexual intercourse
with him and as such, the offence punishable under Section 366 of
the Indian Penal Code committed by the appellant/accused, is also
proved by the prosecution. In this view of the matter, no infirmity
can be found with the finding of conviction of the
appellant/accused for the offences punishable under Sections 363,
366 and 376 of the Indian Penal Code recorded by the learned trial
Court.
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20. The last question that remains to be answered is the quantum
of sentence. The sentences imposed on the appellant/accused as
indicated in the opening para of this judgment are directed to run
concurrently except the sentences imposed in default of payment of
fine amount. It is seen from the evidence of the PW-2/minor female
victim that with passage of time, she has already married another
person. The appellant/accused is seen to be an under-trial prisoner
since beginning and he was arrested on 18.08.2012. The evidence
of the minor female victim, as discussed supra, goes to show that
she was having love affair with the appellant/accused, who, as
seen from the charge sheet, was 23 years of age. He seems to be an
unmarried person. The PW-2/minor female victim, as discussed in
the foregoing paragraphs, was 15 years, 9 months and 18 days old
at the time of the incident. She was below 16 years just by few
months and as her consent was meaningless because she had not
attained the consenting age, which was at that time 16 years, the
appellant/accused is convicted. However, the fact remains that the
evidence of the PW-2/minor female victim goes to show that she as
well as the appellant/accused went to Kolhapur from Pune and
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from Kolhapur they went to Shrirampur and the couple stayed
together up to detection by the Police on 18.08.2012. Since then,
the appellant/accused is behind the bars. Thus, the
appellant/accused is behind the bars for about 4 years and 3
months. In such a situation, age of the appellant/accused, which is
stated to be 23 years in the charge sheet, becomes relevant.
Similarly, the conduct of the minor female victim in joining the
company of the appellant/accused and then continuing his
company with no protest by roaming with him at different places
also becomes relevant. In a pre-planed manner, the minor female
victim eloped from the house of her lawful guardian and joined the
company of the appellant/accused. It is also apparent that while
undergoing sentence for about 4 years and 3 months, the
appellant/accused must have earned some remissions. It is also
clear from the evidence of the PW-2/minor female victim that the
appellant/accused was working as a labourer on a tempo owned by
her family. Section 376(1) of the Indian Penal Code deals with
punishment for the offence of rape. Prior to amendment to the said
Section by virtue of Section 9 of the Criminal Law (Amendment)
Act, 2013, the offence of rape was punishable with imprisonment
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of either description for a term which shall not be less than seven
years but which may be for life or for a term which may extend to
10 years apart from imposition of fine. It also provides that, for
adequate and special reasons to be mentioned in the judgment, the
Court is empowered to impose sentence of imprisonment for a term
less than 7 years. In somewhat same situation, in the matter of
Mohammed Nisar Riyaz Khan vs. The State of Maharashtra,
reported in 2007 Cri.L.J. 562, this Court, by maintaining the
conviction, had reduced the quantum of sentence to the period of
sentence already undergone by the accused for the offence
punishable under Section 376. The appellant/accused in the case in
hand also deserves the same treatment in the light of the fact that
the appellant/accused was also unmarried young person at the
time of commission of offence and that the PW-2/minor female
victim had joined his company by eloping from her lawful guardian
because of the subsisting love affair between them. He was a
labourer on the tempo owned by family of the minor female victim.
His economic condition is reflected from the job he was doing. In
this view of the matter, the following order is passed by modifying
the sentence imposed on the appellant/accused:-
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ORDER
I. The appeal is partly allowed.
II. The impugned judgment and order recording finding of
guilt of the appellant/accused for the offences punishable
under Sections 363, 366 and 376 of the Indian Penal
Code is confirmed.
III. It is ordered that for the offence punishable under Section
363 of the Indian Penal Code, the appellant/accused
should undergo R.I. for a period of three years and to pay
fine of Rs.200/-, and in default to further undergo R.I. for
a period of one month.
IV. The appellant/accused is directed to undergo R.I. for a
period of three years and to pay fine of Rs.200/-, in
default to further undergo R.I. for period of one month
for the offence punishable under Section 366 of the
Indian Penal Code.
V. The appellant/accused is sentenced to suffer R.I. for a
period of four years and six months for the offence
punishable under Section 376 of the Indian Penal Code
and he is also directed to pay fine of Rs.200/-, and in
default to further undergo R.I. for period of one month.
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VI. The substantive sentences of imprisonment imposed on
the appellant/accused to run concurrently and he is
entitled for set off for the period of imprisonment already
undergone.
VII. The fine amount recovered, if any, shall be paid to the
victim PW-2 as a compensation.
VII. The Appeal is disposed of accordingly.
(A. M. BADAR, J.)
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