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Rafiq Mohammed Shaikh vs The State Of Maharashtra on 18 April, 2018

209-APPEAL-134-2015.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.134 OF 2015

RAFIQ MOHAMMED SHAIKH )…APPELLANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Mr.Umesh V. Mohite, Advocate for the Appellant.

Ms.Anamika Malhotra, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 18th APRIL 2018

ORAL JUDGMENT :

1 By this appeal, the appellant/accused is challenging

the judgment and order dated 8th July 2014 passed by the learned

Additional Sessions Judge, Greater Bombay, Mumbai, in Sessions

Case No.189 of 2013, thereby convicting the appellant/accused of

offences punishable under Sections 376, 506-II and 417 of the

Indian Penal Code. For the offence punishable under Section 376

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of the Indian Penal Code, the appellant/accused is sentenced to

suffer rigorous imprisonment for 10 years apart from payment of

fine of Rs.1,000/- and default sentence rigorous imprisonment for

2 months. For the offence punishable under Section 506-II of the

Indian Penal Code, he has been sentenced to suffer rigorous

imprisonment for 6 months apart from payment of fine of

Rs.200/- and default sentence of rigorous imprisonment for 15

days. For the offence punishable under Section 417 of the Indian

Penal Code, the appellant/accused is sentenced to suffer rigorous

imprisonment for 1 year apart from payment of fine of Rs.500/-

and in default to undergo further rigorous imprisonment for 1

month.

2 Facts leading to the prosecution of the

appellant/accused are thus :

(a) The prosecutrix/PW1, at the relevant time, was a minor

female of about 14 years of age. She was residing with her

aunt namely Kalavati Kale. The appellant/accused is

neighbour of her parents, who used to reside at Gaikwad

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Chawl, Jai Bhim Nagar, Ductline Road, Bhandup. The

prosecutrix/PW1 became acquainted with the

appellant/accused Rafiq Shaikh as he used to visit her

parental house. Her friend Rani had given cell phone

number of the prosecutrix/PW1 to the appellant/accused.

Long acquaintance of the prosecutrix/PW1 with the

appellant/accused Rafiq Shaikh ultimately culminated into

love affair between them.

(b) According to the prosecution case, on 18th September 2012,

the appellant/accused called the prosecutrix/PW1 near Sai

Baba Temple, Bhandup. He made her to sit in the tempo

parked near the temple. After some intimate talks with her,

according to the prosecutrix/PW1, the appellant/accused

had committed forcible sexual intercourse with her by

telling her that he will marry her.

(c) According to the prosecution case, the prosecutrix/PW1 was

again called by the appellant/accused on 19 th September

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2012. She was threatened that if she failed to come, she

would be killed. Then, the appellant/accused took the

prosecutrix/PW1 to Gaikwad Chawl at about 11.30 p.m.

She was made to sit in the rickshaw of Baban parked at

Ductline Road. Again by alluring her with a promise to

marry, the appellant/accused committed forcible sexual

intercourse with her. It is, further averred that, on 21 st

September 2012, the appellant/accused again called the

prosecutrix/PW1 to meet him at 10.30 p.m. near Sai Baba

temple of Bhandup. She was then made to sit in the parked

tempo belonging to a person named Bhau, where the

appellant/accused committed rape on her.

(d) According to the prosecution, the prosecutrix/PW1 was

again raped by the appellant/accused on 27 th September

2012 by calling her in the night hours in the rickshaw of

Baban, parked at Gaikwad chawl of Bhandup. It is averred

that when they both were alighting from that rickshaw, at

about 11.00 p.m. of 27th September 2012, PW3 Baban

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Sonawane had seen them. Then, mother of the

prosecutrix/PW1 also came on the spot. The

appellant/accused ran away. Mother of the prosecutrix/PW1

namely PW2 Indu questioned the prosecutrix/PW1, where

upon the prosecutrix/PW1 disclosed to her that she has love

relation with the appellant/accused. PW2 Indu then called

the appellant/accused from the cell phone, but appellant/

accused Rafiq refused to accept the fact that he has love

relation with the prosecutrix/PW1.

(e) According to the prosecution case, thereafter the

appellant/accused refused to marry the prosecutrix/PW1

and therefore, she disclosed this fact to her mother on

12th October 2012. Then the report (Exhibit 15) against the

appellant/accused came to be lodged at Mulund Police

Station by the prosecutrix and it came to be recorded

by PW7 Anil Jaikar, Police Sub-Inspector. It was then

sent to Bhandup Police Station where PW8 Manohar

Vichare, Police Inspector, registered Crime No.459 of 2012

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for offences punishable under Sections 376 and 506(II) of

the Indian Penal Code against the appellant/accused.

(f) The prosecutrix/PW1 was then sent for medical

examination. She came to be examined by PW6 Dr.Baban

Shinde at Nagpada Hospital. She was also subjected to

Ossification test. The appellant/accused came to be

arrested. Statement of witnesses came to be recorded.

Certificate of date of birth of the prosecutrix/PW1 was

collected. Clothes of the prosecutrix/PW1 were also seized.

Seized articles were sent for chemical analysis and on

completion of investigation, the appellant/accused came to

be charge-sheeted.

(g) The learned trial court framed Charge for offences

punishable under Sections 376, 506(II) as well as under

Section 417 read with 420 of the Indian Penal Code against

the appellant/accused. He abjured guilt and claimed trial. In

order to bring home the guilt to the appellant/accused, the

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prosecution has examined in all eight witnesses. The

prosecutrix is examined as PW1. The report lodged by her is

at Exhibit 15. Her mother Indu is examined as PW2. Baban

Sonawane and Santosh Kale, who are residents of Gaikwad

chawl of Bhandup and who had seen the couple together in

the autorickshaw are examined respectively as PW3 and

PW4. The Sub-Registrar under Registration of Births and

Deaths Act, 1969, namely Dr.Rucheera Dey is examined as

PW5. Exhibit 26 is the Certificate of Birth of the

prosecutrix/PW1 whereas Exhibit 27 is the extract of Birth

Register. Dr.Baban Shinde, Medical Officer of Nagpada

Hospital is examined as PW6. Exhibit 29 is the report of

medical examination of the prosecutrix/PW1 as well as that

of her ossification test. Anil Jaikar, Police Sub-Inspector of

Mulund Police Station, is examined as PW7 whereas

Investigating Officer Manohar Vichare, Police Inspector, is

examined as PW8.

(h) Defence of the appellant/accused was that of total denial.

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However, he did not enter in defence. Upon hearing the

parties, by the impugned judgment and order, the learned

trial court was pleased to convict the appellant/accused and

sentenced him as indicated in the opening paragraph of this

judgment.

3 I have heard the learned advocate for the appellant/

accused at sufficient length of time. He argued that evidence of

the prosecution is inherently improbable and unacceptable as

allegations are to the effect that the prosecutrix/PW1 was raped in

the busy locality of Mumbai in a parked vehicle. That is not

possible. The prosecutrix/PW1 has not raised any hue and cry.

The learned advocate further argued that the medical evidence so

also the forensic evidence is not supporting the case of the

prosecution. It is further argued that the prosecutrix/PW1, so also

her mother, are habitual in lodging similar reports of sexual

offence against various persons. The learned advocate submitted

that soon after conviction of the appellant/accused in the instant

case, the prosecutrix/PW1 had lodged a report against a person

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named Dr.Jayesh Katira and alleged that the said doctor had

committed forcible sexual intercourse with her on 5th September

2014 in the car by threatening her that he would upload her nude

photographs on social networking sites. The learned advocate for

the appellant/accused drew my attention to the order dated 10 th

December 2014 passed by the Designated court under Protection

of Children from Sexual Offences Act, 2012, in Sessions Case

No.481 of 2014 to buttress this contention and submitted that

vide this order, said Dr.Jayesh Katira came to be released on bail

and that the said order contained reference to the case against the

present appellant/accused.

4 The learned APP supported the impugned judgment

and order of conviction as well as resultant sentence, by

contending that evidence of the prosecutrix/PW1, who at the

relevant time was proved to be below 16 years of age, is

believable and it demonstrates commission of rape by the

appellant/accused on her.

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5 I have carefully considered the rival submissions and

also perused the Record and Proceedings including the oral as

well as documentary evidence. The First Information report

(FIR)in this case came to be lodged on 13th October 2012 by the

prosecutrix/PW1, though according to the prosecution case,

mother of the prosecutrix/PW1 namely PW2 Indu had seen the

prosecutrix/PW1 in the company of the appellant/accused on 27th

September 2012 in night hours. The delay in lodging the FIR,

according to the learned advocate for the appellant/accused, is

fatal to the case of the prosecution. In the matter of State of

Himachal Pradesh vs. Shree Kant Shekari 1 it is held thus in

paragraph 18 :

“18 The unusual circumstances satisfactorily
explained the delay in lodging of the first
information report. Ion any event, delay per se is not
a mitigating circumstance for the accused when
accusations of rape are involved. Delay in lodging
first information report cannot be used as a
ritualistic formula for discarding prosecution case
and doubting its authenticity. It only puts the Court
on guard to search for and consider if any
1 2004 ALL MR (Cri) 3145 (S.C.)

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explanation has been offered for the delay. Once it is
offered, the Court is to only see whether it is
satisfactory or not. In a case if the prosecution fails
to satisfactorily explain the delay and there is
possibility of embellishment or exaggeration in the
prosecution version on account of such delay, it is a
relevant factor. On the other hand satisfactory
explanation of the delay is weighty enough to reject
the plea of false implication or vulnerability of
prosecution case. As the factual scenario shows, the
victim was totally unaware of the catastrophe which
had befallen to her. That being so, the mere delay in
lodging of first information report does not in any
way render prosecution version brittle. These
aspects were highlighted in Tulshidas Kanolkar v.
State of Goa [2003 (8) SCC 590].”

6 Similarly, in the matter of State of Maharashtra vs.

Chandraprakash Kewalchand Jain2, the Honourable Apex Court

has held thus :

“A prosecutrix of a sex-offence cannot be put on part
with an accomplice. She is in fact a victim of the
crime. The Evidence Act nowhere says that her
evidence cannot be accepted unless it is
2 1990 SCC 5501

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corroborated in material particulars. She is
undoubtedly a competent witness under Section 118
and her evidence must receive the same weight as is
attached to an injured in cases of physical violence.

The same degree of care and caution must attach in
the evaluation of her evidence as in the case of an
injured complainant or witness and no more. What
is necessary is that the Court must be alive to and
conscious of the fact that it is dealing with the
evidence of a person who is interested in the
outcome of the charge leveled by her. If the court
keeps this in mind and feels satisfied that it can act
on the evidence of the prosecutrix, there is no rule
of law or practice incorporated in the Evidence Act
similar to illustration (b) to Section 114 which
requires it to look for corroboration. If for some
reason the court is hesitant to place implicit reliance
on the testimony of the prosecutrix it may look for
evidence which may lend assurance to her
testimony short of corroboration required in the
case of an accomplice. The nature of evidence
required to lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts
and circumstances of each case. But if a prosecutrix
is an adult and of full understanding the court is

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entitled to base a conviction on her evidence unless
the same is shown to be infirm and not trustworthy.
If the totality of the circumstances appearing on the
record of the case disclose that the prosecutrix does
not have a strong motive to falsely involve the
person charged the court should ordinarily have no
hesitation in accepting her evidence.”

7 At this juncture, it is apposite to quote observations of

the Honourable Apex Court found in paragraph 10 of the

judgment in the matter of Bharwada Bhoginbhai Hirjibhai vs
.

State of Gujarat3 which demonstrates that are several reasons for

approaching the law and enforcement agencies belatedly in the

cases of sexual offence. It reads thus :

“Without the fear of making too wide a statement or
of overstating the case, it can be said that rarely will
a girl or a woman in India make false allegations of
sexual assault on account of any such factor as has
been just enlisted. The statement is generally true
in the context of the urban as also rural society. It is
also by and large true in the context of the
sophisticated not so sophisticated, and
unsophisticated society. Only very rarely can one

3 AIR 1983 SUPREME COURT 753(1)

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conceivably come across an exception or two and
that too possibly from amongst the urban elites.
Because :-

(1) A girl or a woman in the tradition bound non-
permissive society of India would be extremely
reluctant even to admit that any incident which is
likely to reflect on her chastity had ever occurred.

(2) She would be conscious of the danger of being
ostracized by the Society or being looked down by
the society including by her own family members,
relatives, friends, and neighbours.

(3) She would have to brave the whole world.

(4) She would face the risk of losing the love and
respect of her own husband and near relatives, and
of her matrimonial home and happiness being
shattered.

(5) If she is unmarried, she would apprehend that it
would be difficult to secure an alliance with a
suitable match from a respectable or an acceptable
family.

(6) It would almost inevitably and almost invariably
result in mental torture and suffering to herself.

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(7) The fear of being taunted by others will always
haunt her.

(8) She would feel extremely embarrassed in
relating the incident to others being overpowered by
a feeling of shame on account of the upbringing in a
tradition bound society where by and large sex is
taboo.

(9) The natural inclination would be to avoid giving
publicity to the incident lest the family name and
family honour is brought in to controversy.

(10) The parents of an unmarried girl as also the
husband and members of the husband’s family of a
married woman, would also more often than not,
want to avoid publicity on account of the fear of
social stigma on the family name and family honour.

(11) The fear of the victim herself being considered
to be promiscuous or in some way responsible for
the incident regardless of her innocent.

(12) The reluctance to face interrogation by the
investigating agency, to face the Court, to face the
cross-examination by counsel for the culprit, and the
risk of being disbelieved, act as a deterrent.”

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8 It is, thus, clear that, mere delay in lodging the report

in sexual offences cannot be used as a ritualistic formula to

jettison the case of the prosecution. It is duty of the court to

examine the evidence adduced by the prosecution in broader

probabilities and by ascertaining whether there are circumstances

on record which justify the delay in lodging the report.

9 One may argue that in the case in hand, evidence of

the prosecutrix/PW1 is uncorroborated and therefore, for want of

corroborative pieces of evidence, the prosecution case must fail.

At this juncture, therefore, it is relevant to quote observations of

the Honourable Apex Court in the matter of Radhu Vs. State of

M. P . 4 wherein in paragraph 5 it is held thus :

"5 It is now well settled that a finding of guilt in a
case of rape, can be based on the uncorroborated
evidence of the prosecutrix. The very nature of
offence makes it difficult to get direct corroborating
evidence. The evidence of the prosecutrix should not
be rejected on the basis of minor discrepancies and

4 2007 CRI.L.J. 4704

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contradictions. If the victim of rape states on oath
that she was forcibly subjected to sexual intercourse,
her statement will normally be accepted, even if it is
uncorroborated, unless the material on record
requires drawing of an inference that there was
consent or that the entire incident was improbable
or imaginary. Even if there is consent, the act will
still be a 'rape' if the girl is under 16 years of age. It
is also well settled that absence of injuries on the
private parts of the victim will not by itself falsify
the case of rape, nor construed as evidence of
consent. Similarly, the opinion of a doctor that there
was no evidence of any sexual intercourse or rape,
may not be sufficient to disbelieve the accusation of
rape by the victim. Bruises, abrasions and scratches
on the victim especially on the forearms, wrist, face,
breast, thighs and back are indicative of struggle
and will support the allegation of sexual assault. The
courts should, at the same time, bear in mind that
false charges of rape are not uncommon. There have
also been rare instances where a parent has
persuaded a gullible or obedient daughter to make a
false charge of a rape either to take revenge or
extort money or to get rid of financial liability.

Whether there was rape or not would depend

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ultimately on the facts and circumstances of each
case."

10 Keeping in mind this law regarding appreciation of

evidence of the prosecution in cases of sexual offences, let us

examine the evidence adduced by the prosecution in order to

ascertain whether she is a witness of truth. While appreciating her

version, one will have to keep in mind the fact that in such cases,

the witness may go on adding embellishments to her version,

perhaps with the fear that her testimony may be rejected by the

court. The court, however, is not expected to disbelieve evidence

of such witness altogether, if such witness is otherwise found to be

trustworthy.

11 It is in evidence of the prosecutrix/PW1 that on 12 th

September 2012, she met the appellant/accused for the first time

and then her friend Rani gave her cell phone number to the

appellant/accused. The prosecutrix/PW1 deposed that thereafter,

on 18th September 2012, at about 8.30 p.m., she met the

appellant/accused at Ductline Road and they both sat in a tempo

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parked near the temple. Thereafter, the appellant/accused, as per

version of the prosecutrix/PW1, stated that he would marry her

and committed sexual intercourse with her. She was with the

appellant/accused till 5.00 a.m. The next incident of sexual

intercourse by the appellant/accused with her is deposed by the

prosecutrix/PW1 by stating that on 19 th September 2012, she was

taken to Gaikwad chawl area by the appellant/accused and then

he committed sexual intercourse with her in the rickshaw of

Baban. As per her version, on 21st September 2012, the

appellant/accused committed sexual intercourse with her in the

parked tempo and thereafter, on 27 th September 2012, similar

such incident took place in the rickshaw of Baban. The

prosecutrix/PW1 further deposed that thereafter, Baban saw both

of them and her mother also came on the spot and questioned her.

Her mother, then, telephonically contacted the appellant/accused

but he refused to endorse the fact that he loves the

prosecutrix/PW1. The prosecutrix/PW1 then stated that she

disclosed about her sexual relations with the appellant/accused to

her mother. Her mother, thereafter, disclosed the incident to

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father of the prosecutrix/PW1 and thereafter, she lodged report

Exhibit 15 on 13th October 2012.

12 The tone and tenor of evidence of the prosecutrix/

PW1 regarding the incidents of sexual intercourse with the

appellant/accused demonstrates consensual sex by her with the

appellant/accused. She stated that she had submitted herself to

the appellant/accused as he assured to marry her. In entire cross-

examination of the prosecutrix/PW1, this evidence of the

prosecutrix/PW1 in respect of sexual intercourse between the

couple is not shattered at all. It is attempted to demonstrate from

the cross-examination that many people and vehicles move

around in the area where such incidents took place. However, it is

seen that, such incidents which the prosecutrix/PW1 had

described, took place inside the parked vehicle and that too, at

night hours, and merely because there was movement of people

and vehicles in that area, one cannot disbelieve the version of the

prosecutrix/PW1 regarding sexual intercourse with her by the

appellant/accused. The prosecutrix/PW1 has not claimed that

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what was going on with her was against her wish and that she

was protesting such incident by making hue and cry and by

seeking help of the passersby. On the contrary, her evidence

shows that she was accepting what was coming in her way, and

therefore, there was no likelihood that such an encounter invited

attention of the residents of the locality. Hence, I see no merit in

contention of the learned advocate for the appellant/accused that

evidence of the prosecutrix/PW1 is inherently improbable. The

cross-examination of the prosecutrix/PW1 is not indicating any

reason for the prosecutrix/PW1 to implicate the appellant/accused

falsely in the crime in question and she had no axe to grind

against the appellant/accused by his false implication in the crime

in question. On the contrary, it is seen from evidence of the

prosecution that she was having love affair with the

appellant/accused, which had ultimately resulted in sexual

relationship between both of them.

13 Evidence of PW2 Indu, who is mother of the

prosecutrix/PW1 makes it clear that the prosecutrix/PW1 was

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residing with her sister at Mulund, whereas, she herself was

residing in Jai Bhim Nagar, Ductline Road, Bhandup, Mumbai.

PW2 Indu has stated that on 27th September 2012, she had seen

the prosecutrix/PW1 in the rickshaw of Baban and she

telephonically contacted the appellant/accused. Her version

reveals that her daughter i.e. the prosecutrix/PW1 has disclosed

that on the pretext of marrying her, the appellant/accused had

committed sexual intercourse with her. Evidence of PW2 Indu

makes it clear that, ultimately, on 12 th October 2012, it was

revealed that the appellant/accused though promised, was not

marrying the prosecutrix/PW1, and hence, the report Exhibit 15

came to be lodged on 13th October 2012. This explains the delay

in lodging the FIR despite the fact that mother of the

prosecutrix/PW1 came to know about the fact on 27 th September

2012. The reason for delay is genuine in Indian setting and

therefore, the delay of about 16 days is not fatal to the

prosecution case.

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14 PW3 Baban Sonawane and PW4 Santosh Kale had

claimed to have seen the prosecutrix/PW1 in company of the

appellant/accused in the vehicle in night hours but they have

failed to support the case of the prosecution.

15 The prosecutrix/PW1 came to be medically examined

on 15th October 2012 by PW6 Dr.Baban Shinde and evidence of

this witness, which is supported by contemporaneous medical

report Exhibit 29 shows that during the course of medical

examination of the prosecutrix/PW1, it was found that her hymen

was having tears at 3, 6 and 9 O'Clock positions. This indicates

that the prosecutrix/PW1 had indulged in sexual intercourse as

stated by her during the course of her evidence, and therefore,

this medical evidence corroborates the version of the

prosecutrix/PW1. Evidence of PW6 Dr.Baban Shinde, so also

Medical Report at Exhibit 29 prepared by him at the time of

examination of the prosecutrix/PW1, proves former statement of

the prosecutrix/PW1 that the appellant/accused had indulged in

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sexual intercourse with her on promise to marry her. This

evidence is, therefore, admissible under Section 157 of the

Evidence Act and corroborates the version of the prosecutrix/PW1.

Similarly, even PW2 Indu has deposed about former statement of

the prosecutrix/PW1 regarding sexual intercourse by the

appellant/accused with her and same is also reliable.

16 In the light of foregoing discussion, it needs to be held

that the appellant/accused had committed sexual intercourse with

the prosecutrix/PW1 for the period from 18 th September 2012 to

27th September 2012.

17 The question which falls for consideration is whether

the sexual intercourse between the appellant/accused and the

prosecutrix/PW1 amounts to rape, so also whether such sexual

intercourse amounts to cheating the prosecutrix/PW1 on false

promise to marry her. The learned trial court has held that both

these offences stand proved in the light of evidence of the

prosecutrix/PW1. Section 415 of the Indian Penal Code defines

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the offence of cheating. To hold a person guilty of cheating, it is

necessary to show that he had fraudulent or dishonest intention at

the time of making the promise. The prosecutrix/PW1 in her FIR

has clearly stated that she was having love relation with the

appellant/accused from 13th September 2012. Perusal of her

evidence shows that the first sexual intercourse between the

couple took place on 18th September 2012. The prosecutrix/PW1

has stated that, at that time, the appellant/accused reiterated his

love towards her and said that he would marry her and then the

couple had sexual intercourse. Charge under Section 417 of the

Indian Penal Code rests upon representation which is false. For

proving this charge of cheating, it is not sufficient to prove that a

false representation had been made but it is further necessary to

prove that such representation was false to the knowledge of the

accused when it was made. If both parties agree to a particular

course of action and one of them thereafter changes the course, it

does not amount to cheating. In the case in hand, there is no

evidence to demonstrate that the representation made by the

appellant/accused was false to his knowledge when it was made

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by him. Therefore, the Charge under Section 417 of the Indian

Penal Code must fail.

18 Now let us examine whether the appellant/accused

had committed rape on the prosecutrix/PW1. The offence took

place from 18th September 2012 to 27th September 2012, and

therefore, the definition of the offence of rape under Section 375

of the Indian Penal Code as it stood prior to substitution by the

Criminal Law (Amendment) Act, 2013, will have to be taken into

consideration. Clause Sixthly of Section 375 of the Indian Penal

Code makes it clear that sexual intercourse with a woman with or

without her consent when she is under 16 years of age amounts to

rape. In the case in hand, the prosecutrix/PW1 has deposed that

her date of birth is 6th February 1998. However, oral evidence is

hardly sufficient to prove age of a person. Therefore, the

prosecution in this case has examined the Sub-Registrar under the

Registration of Births and Deaths Act, 1969. It is in evidence of

PW5 Dr.Rucheera Dey, Sub-Registrar under the said Act that she

issued Birth Certificate of the prosecutrix/PW1 (Exhibit 26) as per

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the record maintained by the Office and as per that record, date of

birth of the prosecutrix/PW1 is 6th February 1998. This witness

proved the certificate Exhibit 26 issued by her in the capacity of

the Sub-Registrar under Sections 12 and 17 of the Registration of

Births and Deaths Act, 1969, as well as under Rules 8 and 13 of

the Maharashtra Registration of Births and Deaths Rules, 2000.

PW5 Dr.Rucheera Dey had also produced the Birth Register

maintained under the Registration of Births and Deaths Act, 1969,

and had placed on record the verified copy of the relevant page of

that Register which is marked at Exhibit 27. Thus, the Birth

Register maintained under the said Act also demonstrates that the

date of birth of the prosecutrix/PW1 is 6th February 1998.

19 Section 7 of the Registration of Births and Deaths Act,

1969, deals with appointment of Registrar in each local area. It is

duty of the Registrar to register every birth and every death which

takes place in its jurisdiction. The Act mandates that the Registrar

should discharge his duties carefully. Section 8 of the

Registration of Births and Deaths Act, 1969, casts duty on the

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hospital as well as head of the family to report birth to the

Registrar. Section 16 of the Registration of Births and Deaths Act,

1969, requires maintenance of Register in the prescribed form and

Section 17 deals with search of Births and Death Register. Sub-

section (2) of this Section provides that the extract given under

this Section shall be certified by the Registrar and shall be

admissible in evidence for the purpose of proving the birth or

death to which the entry in the relevant Register relates. In the

case in hand, the entry in the Birth Register maintained in the

official course of business by the Registering Authority under the

provisions of Registration of Births and Deaths Act, 1969, shows

that the prosecutrix/PW1 was born on 6 th February 1998, and as

such, at the time of the incidents of sexual intercourse with her,

she was 14 years and few days old. She was, therefore, below 16

years of age when the incidents of sexual intercourse with her by

the appellant/accused took place. hence, the offence of rape

punishable under Section 376 of the Indian Penal Code is made

out by the prosecution.

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20 The appellant/accused is also convicted for the offence

punishable under Section 506(II) of the Indian Penal Code by the

learned trial court. Section 506 deals with punishment for

criminal intimidation. Section 503 of the Indian Penal Code

defines the offence of criminal intimidation. Threatening another

with injury to her person, reputation or property with intention to

cause alarm to that person or to cause that person to do any act

which he is not legally bound to do or omit to do such act which

he is legally entitled to do, amounts to criminal intimidation.

Evidence on record does not indicate that by threatening to the

prosecutrix/PW1, she was made to submit her chastity to the

appellant/accused. On the contrary, even according to the

prosecution case projected from the FIR, the sexual intercourse

was consensual in nature falling out of love relations between the

parties. Hence, the prosecution has failed to make out the offence

punishable under Section 506 of the Indian Penal Code.

21 For the offence punishable under Section 376 of the

Indian Penal Code which is held to be proved against the

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appellant/accused, the learned trial court has imposed

punishment of rigorous imprisonment for 10 years apart from

payment of fine of Rs.1,000/- and default sentence of rigorous

imprisonment for 2 months. The question is whether the quantum

of sentence so imposed is justified.

22 Let us now examine whether the consequent sentence

is proper. It is well settled that it is the duty of every court to

award proper sentence having regard to the nature of the offence

and the manner in which it was committed. The sentencing court

are expected to consider all relevant facts and circumstances

bearing on the question of sentence and proceed to impose a

sentence commensurate with the gravity of the offence. The

sentence is required to be adequate, just and proportionate with

the gravity and nature of the crime. At the same time,

circumstances of the accused are also required to be kept in mind

while imposing the sentence, as one of the objects of the criminal

justice system is to rehabilitate the transgressors and the

criminals.

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23 Prior to substitution by the Criminal Law

(Amendment) Act, 2013, the offence of rape was punishable with

imprisonment of either description for a term which shall not be

less than 7 years but which may be for life or a term which may

extend to 10 years apart from fine. Sub-section (2) of Section

376 of the Indian Penal Code, however, was prescribing the

punishment of rigorous imprisonment for a term which shall not

be less than 10 years but which may be for life, apart from

imposition of fine. The case in hand is not falling in sub-section

(2) of Section 376 of the Indian Penal Code, as it stood prior to

amendment in the year 2013.

24 Case of the prosecutrix/PW1 projected from the FIR

shows that the prosecutrix/PW1 was in love with the

appellant/accused. The record shows that the appellant/accused

was also a young person of 22 years of age. He was not proved to

have threatened the prosecutrix/PW1 in any manner or had

applied force on her for indulging in sexual relations with her.

Such relations were undoubtedly consensual in nature but

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punishable because the prosecutrix/PW1 at the relevant time was

more than 14 years of age but less than 16 years of age.

25 In the matter of State of Himachal Pradesh vs.

Mange Ram5 the evidence on record was showing that the

prosecutrix was below 16 years of age. It is held thus in paragraph

16 by the Honourable Apex Court while sentencing the accused in

that case :

"16 In view of the foregoing conclusions, we
reverse the findings of the learned Sessions Judge
which was confirmed by learned Single Judge and
find that the accused is guilty of the offence
punishable under Section 376 I.P.C. As regards the
sentence, we take a lenient view for the reason that
the prosecutrix and accused are related. They were
both teenagers with an age difference of about 2-3
years. Both were immature and young. Evidence
indicates no marks of violence at all on any part of
the body of the prosecutrix. The incident happened
in 1993. After the acquittal by passage of time, the
members of the two families must have buried their
hatchet if any arisen on account of this incident. The

5 2000 CRI.L.J. 4027

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learned Counsel for the respondent argued that a
further order for custodial sentence at this distance
of time may cause rapture to social harmony in the
village life and may only help to rekindle the flames
of anger which have been smouldering for so long
between near relatives. Having regard to all these
matters, we hold that sentence already undergone
by the accused would be sufficient to meet the ends
of justice, and we do accordingly."

26 In the matter of Zindar Ali SK vs. State of West

Bengal and Another6 there was no love affair between the

prosecutrix and the accused but the accused was after the

prosecutrix requesting her to marry him and ultimately committed

forcible sexual intercourse with the prosecutrix. While dealing

with quantum of sentence, following are the observations of the

Honourable Apex Court in paragraph 15 of the judgment :

"15 This takes us to the last argument about the
quantum of sentence. The Courts below have
awarded 10 years of imprisonment and a fine of
Rs.5,000. In our opinion, considering the fact that
the incident took place about 6 years back and the

6 2009 CRI.L.J. 1324

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fact that the accused is behind the bars for last about
5 years, as also poverty on the part of the accused,
we feel that the sentence already suffered would be
sufficient. The sentence of fine is however,
confirmed. Fine, if recovered shall be paid to the
Prosecutrix. She shall be intimated by sending notice
to her. We, accordingly, modify the sentence. The
appeal is disposed of with this modification."

27 In the matter of Phul Singh vs. State of Haryana7, the

accused was aged about 22 years and was not a habitual offender.

He was found guilty of the offence punishable under Section 376

of the Indian Penal Code. While dealing with quantum of

sentence, following are the observations of the Honourable Apex

Court found in paragraphs 7 and 8 of the judgment :

"7 He is a youth barely 22 with no criminal
antecedents save this offence. He has a young wife
and a farm to look after. Given correctional courses
through meditational therapy and other measures,
his erotic aberration may wither away. A man like
the appellant has a reasonable prospect of shaping
into a balanced person, given propitious social
environs, curative and congenial work and
7 1980 CRI.L.J. 8

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techniques of internal stress release or of
reformatory self expression."

"8 In this background, we regard a four year term
of rigorous imprisonment more hardening than
habilitative, even though we deplore the sex
violence the young appellant has inflicted on his
cousin's wife snatching a tricky opportunity. Even so,
the incriminating company of lifers and others for
long may be counter-productive, and in this
perspective, we blend deterrence with correction
and reduce the sentence to rigorous imprisonment
for two years. We wish to emphasise that the special
circumstances of this case constrain us to relent a
little on principle because the restorative approach
to sentencing has been jettisoned by the courts
below."

28 Lastly, in the matter of State of Rajasthan vs. N.K.

(Accused)8 the Honourable Apex Court has observed thus while

deciding the quantum of sentence for the offence punishable

under Section 376 of the Indian Penal Code.

"19 Now remains the question of sentence. The
incident is of the year 1993. The accused was taken
8 2000 CRI.L.J.2205

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into custody by the police on 3.11.1993. He was not
allowed bail. During the trial as also during the
hearing of the appeal by the High Court he remained
in jail. It is only on 11.10.1995 when the High Court
acquitted him of the charge that he was released
from jail. Thus he had remained in jail for a little
less than two years. Taking into consideration the
period of remission for which he would have been
entitled and the time which has elapsed from the
date of commission of the offence, we are of the
opinion that the accused-respondent need not now
be sent to jail. It would meet the end of justice if he
is sentenced to undergo imprisonment for the period
already undergone by him and to a fine of Rs.2000/-
with further simple imprisonment of one year and
nine months in default of payment of fine as passed
by the Triial Court. The appellant is allowed time till
1st May, 2000 for payment of fine. The accused-
respondent is on bail. The bail bonds shall stand
discharged on payment of fine as directed. Ordered
accordingly."

29 In the case in hand also the appellant/accused was 22

years of age when the incidents took place and there is nothing on

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record to show that he is a habitual offender or criminal. The

incidents of sexual intercourse between the prosecutrix/PW1 and

the appellant/accused are held to be consensual in nature. The

appellant/accused was arrested on 7 th November 2012 and since

then he is undergoing the jail sentence imposed on him after

convicting him. Therefore, in the light of the observations in the

foregoing paragraphs, I am of the considered opinion that

imposition of sentence of 7 years of rigorous imprisonment with

some fine will meet the interest of justice. Hence, the following

order :

ORDER

i) The appeal is partly allowed.

ii) Conviction as well as resultant sentence imposed on the

appellant/accused for the offence punishable under Section

506(II) and 417 of the Indian Penal Code is quashed and set

aside. The appellant/accused is acquitted of offences

punishable under Sections 506(II) and 417 of the Indian

Penal Code.

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iii) Conviction of the appellant/accused for the offence

punishable under Section 376 of the Indian Penal Code is

maintained. However, sentence imposed on this count is

altered to rigorous imprisonment for 7 years apart from fine

of Rs.1,000/- and default sentence of rigorous imprisonment

of 2 months in absence of payment of fine.

iv) The appeal stands disposed of accordingly.

(A. M. BADAR, J.)

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