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Rahul Shankar Jadhav vs The State Of Maharashtra on 12 October, 2018

205-APPEALS-380-2014-381-2014.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.380 OF 2014

RAHUL SHANKAR JADHAV )
Age – 20 years, Occupation – Agriculture )
Resident of Jaloli, Taluka – Pandharpur )
District – Solapur. )
At present in Yerwada Central Prison,Pune )…APPELLANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

WITH

CRIMINAL APPEAL NO.381 OF 2014

1) SHANKAR RAMCHANDRA YADAV )
Age 60 years, Occupation – Agriculture )
)
2) URMILA @ SUJATA TANAJI LANDE )
Age 30 years, Occupation – Household )
)
3) ANAND SHANKAR JADHAV )
Age – 20 years, Occupation – Agriculture )
)
4) DHANAJI SHAMRAO JADHAV )
Age – 36 years, Occupation – Agriculture)
)
5) MANGAL SHANKAR JADHAV )
Age – 50 years, Occupation – Household )

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)
All Residents of Jaloli, Taluka – Pandharpur)
District – Solapur. )…APPELLANTS

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Mr.Vikas Singh, Advocate for the Appellants.

Mr.S.V.Gavand, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 12th OCTOBER 2018

ORAL JUDGMENT :

1 Criminal Appeal No.380 of 2014 is filed by accused

no.1 Rahul Jadhav whereas Criminal Appeal bearing no.381 of

2014 is filed by accused nos.2 to 6, who happen to be his father,

cousin sister, brother, cousin brother and mother. They are

challenging the judgment and order dated 27 th February 2014

passed by learned Additional Sessions Judge, Pandharpur, in

Sessions Case No.28 of 2012. Appellant/accused no.1 Rahul

Jadhav, by this judgment and order is convicted of offences

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punishable under Sections 363, 366A, 376 and 506 read with 34

of the Indian Penal Code. For the offence punishable under

Section 363 of the Indian Penal Code, he is sentenced to suffer

rigorous imprisonment for 5 years apart from imposition of fine of

Rs.5,000/- and default sentence of rigorous imprisonment for 6

months. For the offence punishable under Section 366A of the

Indian Penal Code, he is sentenced to suffer rigorous

imprisonment for 7 years apart from imposition of fine of

Rs.5,000/- and default sentence of rigorous imprisonment for 6

months. For the offence punishable under Section 376 of the

Indian Penal Code, appellant/accused no.1 Rahul Jadhav is

sentenced to suffer rigorous imprisonment for 10 years apart from

imposition of fine of Rs.20,000/- and default sentence of rigorous

imprisonment for 1 year. For the offence punishable under

Section 506 read with 34 of the Indian Penal Code, he is

sentenced to suffer rigorous imprisonment for 2 years apart from

imposition of fine of Rs.5,000/- and default sentence of rigorous

imprisonment for 6 months. Appellants/accused nos.2 to 6 are

convicted of offences punishable under Section 368 read with 34

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of the Indian Penal Code and under Section 363 and 366A read

with Section 109 of the Indian Penal Code. On the first count,

they are sentenced to suffer rigorous imprisonment for 2 years

apart from imposition of fine of Rs.5000/- and default sentence of

6 months rigorous imprisonment. On the second count, they are

sentenced to suffer rigorous imprisonment for 2 years apart from

imposition of fine of Rs.5,000/- and default sentence of rigorous

imprisonment for 6 months. Apart from this, appellant/accused

no.2 Shankar Jadhav is also convicted of the offence punishable

under Section 506 read with 34 of the Indian Penal Code and is

sentenced to suffer rigorous imprisonment for 2 years apart from

imposition of fine of Rs.5,000/- and default sentence of rigorous

imprisonment for 6 months.

2 Facts leading to the prosecution of appellants/accused

can be summarized thus :

(a) PW3 is the alleged victim of the crime in question. Her

parents were residing at Village Khairav whereas she, at the

relevant time, was staying in the house of her maternal

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uncles Samadhan and Dhanaji Narsale at Village Jaloli in

Pandharpur Taluka of Solapur District. The PW3/victim

female child was taking education in 10 th Standard at

Wamanrao School and Junior College, Jaloli. Manisha

Narsale is the wife of her maternal uncle Dhanaji Narsale.

Appellant/accused no.1 Rahul is brother of Manisha Narsale

– maternal aunt of the PW3/victim female child.

Appellant/accused no.2 Shankar Jadhav and

appellant/accused no.6 Mangal are father and mother of

Manisha Narsale. Appellant/accused no.4 is another brother

of maternal aunt of the PW3/victim female child.

Appellant /accused no.3 Urmila and appellant/accused no.5

Dhanaji are cousins of Manisha Narsale – maternal aunt of

the PW3/victim female child. They all are residents of

Village Jaloli in Pandharpur Taluka of Solapur District.

(b) According to the prosecution case, at about 10.00 a.m. of

17th January 2012, the PW3/victim female child left her

house for attending the school. When she was going

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towards the school from the footway in the field of Vishnu

Narsale, appellant/accused no.1 Rahul came from behind,

pressed his hand on her mouth and dragged her in the

sugarcane field which was 600 feet away. He then sat

beside her and threatened her to kill her. That is how, the

PW3/victim female child stayed in company of

appellant/accused no.1 Rahul up to 10 p.m. of 17 th January

2012. Then, appellant/accused no.1 Rahul asked her to

accompany him to his own sugarcane field. She went with

him to that field. At about 2.30 a.m. of 18th January 2012,

appellant/accused no.1 Rahul again pressed mouth of the

PW3/victim female child and took her to yet another

sugarcane field. Then, in the night intervening 18 th January

2012 and 19th January 2012, appellant/accused no.1 Rahul

committed rape on her three times. At about 5.30 a.m. of

19th January 2012, he took her out of the field and made her

to sit on the bandh of the field.

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(c) It is case of the prosecution that during stay of the

PW3/victim female child with appellant/accused no.1 Rahul

in the sugarcane fields in the night intervening 17 th January

2012 and 18th January 2012, appellant/accused no.4 Anand

Jadhav and appellant/accused no.5 Dhanaji Jadhav, who

are brother and cousin brother of appellant/accused no.1

Rahul, came in the field, gave water and went away. At

about 2.30 a.m. of the night intervening 17 th January 2012

and 18th January 2012 they both came again and

appellant/accused no.1 Rahul asked them to show the place.

Then, appellant/accused no.1 Rahul again pressed mouth of

the PW3/victim female child and took her to another

sugarcane field by following appellant/accused no.4 Anand

Jadhav and appellant/accused no.5 Dhanaji Jadhav. At

about 1.30 p.m. of 18th January 2012, appellant/accused

no.6 Mangal (mother of appellant/accused no.1 Rahul)

came in that sugarcane field and provided lunch. She then

went away. At about 8.00 p.m. of 18th January 2012,

appellant/accused no.3 Urmila and appellant/accused no.4

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Anand came in the field. Appellant/accused no.4 Anand

informed appellant/accused no.1 Rahul that police would be

coming in the morning. Appellant/accused no.3 Urmila told

appellant/accused no.1 Rahul to transfer his agricultural

land in the name of the PW3/victim female child and to do

his work. At about 4.00 a.m. of 19th January 2012,

appellant/accused no.2 Shankar Jadhav came in the field

and threatened the PW3/victim female child not to tell

anything to anyone.

(d) According to prosecution case, in the morning hours of 19 th

January 2012, Samadhan – maternal uncle of the

PW3/victim female child came to the Police Station

Karkamb and informed PW5 Ashok Jadhav, Police Head

Constable, about the fact of missing of the PW3/victim

female child. He further informed that she was seen in the

field of appellants/accused persons. PW5 Ashok Jadhav,

Police Head Constable, then sent PW7 Satish Yelpalle, Police

Constable, with another Police Constable by a government

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jeep to the agricultural field. That is how, appellant/accused

no.1 Rahul and the PW3/victim female child were brought

to Police Station Karkamb. Then the PW3/victim female

child lodged report Exhibit 28 against the accused persons

which resulted in registration of Crime No.3 of 2012 for

offences punishable under Sections 376, 363, 366A, 109 and

506 of the Indian Penal Code against accused persons.

(e) Routine investigation followed. The PW3/victim female

child was sent for medical examination. She was examined

by PW11 Dr.Supriya Hambire, Medical Officer of the Civil

Hospital, Solapur. Accused persons were arrested. They

were medically examined. Clothes of the PW3/victim

female child as well as that of appellant/accused no.1 Rahul

came to be seized. The spot was inspected and Spot

panchnama was drawn. Seized articles were sent for

chemical analysis. On completion of routine investigation,

appellants/accused persons were charge-sheeted.

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(f) The learned trial court framed Charge against

appellants/accused persons. They abjured their guilt and

claimed trial.

(g) In support of their case, the prosecution has examined in all

thirteen witnesses. PW1 Shahaji Narsale is a panch witness

to the Spot panchnama Exhibit 22 recorded on 19 th January

2012. PW2 Rajesh Konge is a panch witness to seizure of

clothes of appellant/accused no.1 Rahul. The Seizure

panchnama is at Exhibit 26. The victim female child is

examined as PW3. Her mother Jayashree is examined as

PW4. Police Head Constable Ashok Jadhav is examined as

PW5. Vitthal Birajdar, Police Constable, who carried seized

articles to the Forensic Science Laboratory, is examined as

PW6. Police Constable Satish Yelpalle is examined as PW7.

Dr.Mandar Sonawane, who examined the accused persons,

is examined as PW8. Record keeper of the Municipal

Council, Pandharpur, namely Sulbha Mahimkar is examined

as PW9. Ashok Athre, Head Master of Zilla Parishad School

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at Jaloli is examined as PW10. Dr.Supriya Hambire, the

Medical Officer of the Civil Hospital, Solapur, is examined as

PW11. Dr.Rahul Mhaskar is examined as PW12. He had

answered the queries raised by the Investigating Officer.

Investigating Officer Rajendra Takne is examined as PW13.

(h) The defence of appellants/accused persons was that of total

denial. However, they did not enter in the defence.

(i) After hearing the parties, by the impugned judgment and

order, the learned trial court was pleased to convict

appellants/accused and sentenced them as indicated in the

opening paragraph of this judgment.

(j) The learned trial court while convicting appellants/ accused

nos.2 to 6 was pleased to hold that they were well aware

about kidnapping of the PW3/victim female child but none

of them relieved her. They all had abetted

appellant/accused no.1 Rahul to commit the offence.

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3 I have heard Shri Vikas Singh, the learned counsel

appointed to represent appellants/accused persons at the costs of

the State. He vehemently argued that the Spot panchnama

indicates that the PW3/victim female child had tons of

opportunities to save herself. Spots where the PW3/victim female

child was allegedly kept was surrounded by agricultural fields of

other persons as well as by road. The PW3/victim female child

could have very well ran away to rescue herself. She claimed that

she was in company of only appellant /accused no.1 Rahul.

However, instead of making any attempt to run away, she

continued to be in company of appellant/accused no.1 Rahul for

full two days, and that too, in the open agricultural field. This,

according to the learned counsel, indicates consent on the part of

the PW3/victim female child. He further argued that even if the

case of prosecution is accepted, then also, appellant/accused no.1

Rahul cannot be convicted for the offence punishable under

Section 366A of the Indian Penal Code. It is further argued that

the alleged offence took place in January 2012 and viewed from

this angle, sentence of 10 years for the offence punishable under

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Section 376 of the Indian Penal Code is too harsh.

Appellant/accused no.1 Rahul is a close relative of the

PW3/victim female child and he, at the time of the alleged

offence, was just 20 years old. Evidence on record indicates that

they were in love with each other and that is how the incident in

question took place. The learned counsel for the appellants

further argued that so far as other accused persons are concerned,

they all deserve acquittal, as evidence on record does not

demonstrate commission of any offence by any of them. Even if it

is accepted that appellants/accused nos.2 to 6 were visiting the

couple in the field, then also it cannot be said that they all

committed any offence, which is held to be proved against them

by the learned trial court. The PW3/victim female child was

closely related to them also. The entire case of the prosecution is

inherently improbable.

4 The learned APP supported the impugned judgment

and order of conviction and resultant sentence. He argued that the

PW3/victim female child was below 16 years of age. Her date of

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birth was 12th April 1999. The prosecution has proved age of the

PW3/victim female child by producing birth certificate issued

under the Registration of Births and Deaths Act, 1969, so also by

examining PW9 Sulbha Mahimkar - Record keeper of the

Municipal Council, Pandharpur and PW10 Ashok Athre - Head

Master. According to the learned APP, the medical evidence is

corroborating the version of the PW3/victim female child.

According to the learned APP, other accused persons by visiting

the couple from time to time had abetted the commission of

offences punishable under Sections 363, 366A as well as 368 read

with Section 34 of the Indian Penal Code.

5 I have carefully considered the rival submissions and

also perused the record and proceedings including the oral as well

as documentary evidence adduced by the prosecution. According

to the prosecution case, by active assistance, incitement and

provocation of rest of the accused persons, appellant/accused no.1

Rahul had kidnapped the PW3/victim female child from lawful

custody of her guardians on 17th January 2012 and rest of the

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accused persons thereby abetted procuring of the PW3/victim

female child with intent that she will be forced or seduced for

sexual intercourse with appellant/accused no.1 Rahul. They had

wrongfully confined and concealed the PW3/victim female child.

It is further alleged that appellant/accused no.1 Rahul and his

father appellant/accused no.2 Shankar Jadhav indulged in

criminal intimidation of the PW3/victim female child.

Considering these averments, fate of the prosecution case to a

large extent hinges on testimony of the PW3, who happens to be

the victim of the crime in question. At the relevant time,

undisputedly, she was residing with her maternal uncles namely

Samadhan and Dhanaji Narsale, as seen from the testimony of her

mother PW4 Jayashree. In the opening paragraph of this

judgment, I have also narrated relationship between the

prosecuting party and the appellants/accused persons. Suffice to

state that accused persons are closely related to Manisha, who

happens to be the wife of Dhanaji Narsale - maternal uncle of the

PW3/victim female child. Her evidence will have to be

appreciated by keeping in mind the fact that the PW3/victim

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female child is, as such, closely related to the appellants/accused

persons, who are parents, brothers and cousins of her maternal

aunt. Undisputedly, the PW3/victim female child was residing

with her maternal uncles at Village Jaloli for the purpose of

education since long and her parents were residing at Village

Khairav where facility of school education was not available. The

PW3/victim female child, as per her evidence, was taking

education in 10th Standard at the relevant time.

6 Evidence of the PW3/victim female child shows the

manner in which she was kidnapped at about 10.00 a.m. of 17 th

January 2012. As deposed by her, appellant/accused no.1 Rahul

came from her back side when she was proceeding from the field

of Vishnu Narsale, pressed his palm on her mouth, took her to the

adjoining field situated at 600 feet away, made her to sit and he

also sat near her. The PW3/victim female child deposed that

appellant/accused no.1 Rahul, who happens to be real brother of

her maternal aunt, threatened her not to shout. In this way, she

claims to have stayed with him up to 10.00 p.m. of 17th January

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2012 in an open agricultural field where sugarcanes were grown.

Her evidence does not show that she made any hue or cry to get

herself freed from custody of appellant/accused no.1 Rahul. Her

evidence does not show that he was keeping surveillance on her

throughout this period of twelve hours. It is not the claim of the

PW3/victim female child that she was kept tied by

appellant/accused no.1 Rahul in that open field.

7 Evidence of the PW3/victim female child further

shows that after 10.00 p.m. of 17th January 2012, as

appellant/accused no.1 Rahul told her to follow him silently, she

obliged and followed him to another sugarcane field where she

stayed in his company throughout the night intervening 17 th

January 2012 and 18th January 2012. She claimed that in that

night appellant/accused no.4 Anand and appellant/accused no.5

Dhanaji, who happen to be brother and cousin of

appellant/accused no.1 Rahul, came and gave water to them.

They, then, went away. The PW3/victim female child is not

attributing any overt act to both of them. She claimed that then

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again at about 2.30 a.m., they both came in that agricultural field.

She and appellant/accused no.1 Rahul then followed both of them

to another agricultural field where sugarcane was grown. The

PW3/victim female child claimed that on this occasion also

appellant/accused no.1 Rahul pressed her mouth while

undertaking journey to the other field.

8 As per version of the PW3/victim female child, at 1.30

p.m. of 18th January 2012, appellant/accused no.6 Mangal came

to the agricultural field, provided lunch to them and then went

away. Here also, the PW3/victim female child is not attributing

any overt act to appellant/accused no.6 Mangal. She claimed to

have continued to be in company of appellant/accused no.1 Rahul

thereafter. She never claimed that she protested her confinement

in the open agricultural field by appellant/accused no.1 Rahul to

his mother, his brother or to his cousin, though she is closely

related to all of them. This aspect assumes importance

considering the fact that the PW3/victim female child is not

attributing any overt act to all of them. Natural conduct of a

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human being in such situation is to make grievance regarding her

sufferings to her close relatives, who, as per her claim, were

visiting her in the open agricultural field, from time to time.

9 The PW3/victim female child testified that at 8.00

p.m. of 18th January 2012, appellant/accused no.3 Urmila and

appellant/ accused no.4 Anand came to the field.

Appellant/accused no.4 Anand told that in the morning police

would come to the spot. Appellant/accused no.3 Urmila told

appellant/accused no.1 Rahul to transfer his agricultural land in

the name of the PW3/victim female child and to do his work. This

evidence also does not reflect any overt act on the part of

appellant/accused no.3 Urmila and appellant/accused no.4

Anand.

10 The PW3/victim female child further stated that in the

night intervening 18th January 2012 and 19th January 2012, in

that sugarcane field, appellant/accused no.1 Rahul committed

forcible sexual intercourse with her thrice. In the morning hours,

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at about 4.00 a.m. of 19th January 2012, she claimed that

appellant/accused no.2 Shankar Jadhav, who happens to be father

of her maternal aunt Manisha, came in the field and threatened

her not to disclose the incident to anybody. Thereafter, as per

version of the PW3/victim female child, appellant/accused no.1

Rahul took her to the bandh of the agricultural field and they both

sat on that bandh. Subsequently, police came and took them to

the police station. Her cross-examination reveals that during her

entire stay of about two full days with appellant/accused no.1

Rahul, she never attempted to flee from his custody. She candidly

admitted that on 19th January 2012, she sat on the bandh of the

agricultural field with appellant/accused no.1 Rahul for a period

of half an hour, till arrival of the police on the spot.

11 The PW3/victim female child was taking education in

10th Standard at the time of the incident in question. The Spot

panchnama shows that she stayed with appellant/accused no.1

Rahul in the sugarcane field for those two days. At a distance of

about 60 feet from the place where she was in the company of

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appellant/accused no.1 Rahul, there was a cart-way. For those

two days, she had ample opportunity to extricate herself from the

so called clutches of appellant/accused no.1 Rahul, who was

brother of her maternal aunt, in whose house she was staying.

She never claimed that she was under constant surveillance by

appellant/accused no.1 Rahul. She was not kept tied in that open

agricultural field. She never claimed to have protested about act

of appellant/accused no.1 Rahul to his mother, father, brother or

cousin, who are arraigned as accused, particularly when no overt

act is attributed to all of them, except father of appellant/accused

no.1 Rahul. In this view of the matter, it is hard to believe the

version of the PW3/victim female child in respect of the incident

in question, as it is not in tune with the probability factor.

Evidence of the PW3/victim female child indicates that she was in

company of appellant/accused no.1 Rahul on her own volition.

Her evidence indicates that she was a consenting party to what

was happening with her from 17th January 2012 to morning hours

of 19th January 2012. It cannot be said that the PW3/victim

female child was under the spell of threat of appellant/accused

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no.1 Rahul, who is her near relative. She has not described what

were the threats extended by him and how she felt that such

threats would materialize, if she attempted to get herself freed

from company of appellant/ accused no.1 Rahul. Omnibus

statement is made by her in her evidence that even

appellant/accused no.2 Shankar Jadhav had threatened her not to

tell the incident to anyone. What was the threat is not specified by

her in order to enable this court to assess the effect of such threat

on her. To crown this all, as per own version of the PW3/victim

female child, she sat with appellant/accused no.1 Rahul on the

bandh in the morning hours of 19 th January 2012 for half an hour.

At that time also, she did not attempt to rescue herself.

12 How the couple was apprehended by police has come

on record through evidence of PW5 Ashok Jadhav, Police Head

Constable, and PW7 Satish Yelpalle, Police Constable, of Kurkamb

Police station. Evidence of PW5 Ashok Jadhav, Police Head

Constable, shows that at about 4.00 a.m. of 19 th January 2012,

maternal uncle of the PW3/victim female child, namely Samadhan

Narsale, came to the police station and disclosed whereabouts of

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the PW3/victim female child. Therefore, he sent two constables

with Samadhan by jeep to bring her to the police station. PW7

Satish Yelpalle, Police Constable, is one amongst those two Police

constables. Version of PW7 Satish Yelpalle, Police Constable,

shows that along with Samadhan, he went to the spot to find

appellant/accused no.1 Rahul and the PW3/victim female child

sitting closely to each other on bandh of the agricultural field.

That is how they were brought to the police station. This conduct

of the PW3/victim female child seen by PW7 Satish Yelpalle,

Police Constable, speaks volumes. It indicates that the

PW3/victim female child was in company of appellant/accused

no.1 Rahul of her own will rather than being there under the spell

of terror or threat of accused persons. The evidence on record, as

such, indicates that the couple may be in love with each other and

appellant/accused no.1 Rahul, taking advantage of this fact, had

enticed the PW3/victim female child, and that is how she was

kidnapped from the custody of her lawful guardians. It is not seen

that there was any element of forcefulness (or taking) in

kidnapping of the PW3/victim female child.

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13 The prosecution has proved date of birth of the

PW3/victim female child by placing on record her Birth certificate

issued under the Registration of Births and Deaths Act, 1969, by

the Registrar. The said certificate is at Exhibit 48. The

prosecution has also examined Record keeper of the Municipal

Council, Pandharpur, namely Sulbha Mahimkar as PW9. This

witness has also proved entry at Serial no.851 in Births Register

kept by the registering authority under the Registration of Births

and Deaths Act, 1969. The Birth certificate as well as the Births

Register shows that the PW3/victim female child was born on 12 th

April 1999. As per provisions of Rule 9 of the Maharashtra

Registration of Births and Deaths Rules, 1976, the Certificate is

issued by the Sub-Registrar acting under the provisions of the

Registration of Births and Deaths Act, 1969. Section 7 thereof

deals with appointment of Registrars for each local area

comprising the area within the jurisdiction of the municipality,

panchayat or other local authority. It is the duty of the Registrar to

register every birth and every death which takes place in his

jurisdiction. This Act mandates that the Registrar should

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discharge his duties carefully. Section 8 of this Act mandates each

head of the house to report birth in the family to the Registrar.

The Act provides for maintenance of register for recording birth

and death within the local area. That is how, Certificate at Exhibit

48 came to be issued by the Sub-Registrar as per provisions of

Sections 12 and 17 of the said Act. The certificate at Exhibit 48, as

such, is issued by the Public Officer and it is a document forming

the record of the acts of the Public Officer and therefore the same

is a public document within the meaning of the said term as per

provisions of Section 74 of the Indian Evidence Act, 1872. The

same is admissible in evidence by mere production thereof in view

of provisions of Section 77 of the Evidence Act. Section 17 of the

Registration of Births and Deaths Act, 1969, provides for search of

Birth Register and supply of extract thereof by certifying the same

by the Registrar or other authorized Officer. Section 17 of the

said Act provides that such extract shall be admissible in evidence

for the purpose of proving birth or death to which the entry

relates. The Birth Certificate Exhibit 48 is, infact, the extract of

Birth Register in respect of entry of birth of the PW3/victim

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female child, and as such, admissible in evidence. Section 35 of

the Evidence Act, 1872, makes it clear that if entry is made by

public servant in the official book in discharge of his official duty,

then such entry becomes the relevant fact and admissible in

evidence.

14 With this evidence, the prosecution has proved that

the PW3/victim female child, on the date of the offence, was

below 16 years of age. As such, even though the act of joining the

company of appellant/accused no.1 Rahul by the PW3/victim

female child and subsequent indulgence in sexual intercourse

appears to be consensual, still, it cannot be said that the

prosecution has failed to prove the offence punishable under

Sections 363 and 376 of the Indian Penal Code, committed by

appellant/accused no.1 Rahul. The PW3/victim female child was

enticed by him to join his company and then he had committed

rape on her. Version of the PW3/victim female child, in respect of

the incidents of sexual intercourse with her by appellant/accused

no.1 Rahul, is gaining corroboration from evidence of PW11

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Dr.Supriya Hambire, Medical Officer, who had examined her soon

after the incident. This Medical Officer found hymen of the

PW3/victim female child torn at 5 O'clock and 6 O'clock position.

Those tears were found to be fresh with minimal bleeding.

15 Evidence of PW13 Rajendra Takne, Assistant Police

Inspector, who conducted the investigation, shows that during

course of investigation he had seized clothes of the PW3/victim

female child vide Seizure panchnama Exhibit 85. Sample of blood

of appellant/ accused no.1 Rahul was also collected. The clothes

of the PW3/victim female child were subjected to chemical

analysis. Chemical Analyzer's Report at Exhibit 71 shows that

blood of appellant/accused no.1 Rahul is of "B" group. Salwar

and knicker of the PW3/victim female child were found to be

stained with semen of "B" group. This evidence corroborates the

version of the PW3/victim female child regarding commission of

rape on her by appellant/accused no.1 Rahul.

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16 Now let us examine what offence, if any, is proved to

have been committed by appellants/accused nos.2 to 6, who

happen to be relatives of appellant/accused no.1 Rahul. As stated

in foregoing paragraphs, appreciation of evidence of the

PW3/victim female child does not show that these accused

persons or any of them have abetted, instigated, provoked or

incited appellant/accused no.1 Rahul to kidnap the PW3/victim

female child from custody of her lawful guardians. It is not seen

from the evidence of the PW3/victim female child that these

accused persons or any of them, by any means, induced her to

leave company of her maternal uncles, with intent that she will be

seduced or forced to sexual intercourse with appellant /accused

no.1 Rahul. So far as appellant/accused no.1 Rahul is concerned,

he is also not liable for conviction and resultant sentence for the

offence punishable under Section 366A of the Indian Penal Code,

as that penal provision deals with procuring a minor girl with

intent that she will be forced or seduced to sexual intercourse with

some other person. Version of the PW3/victim female child, even

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if accepted, only reflects that other accused persons had visited

the agricultural field, where she was in company of

appellant/accused no.1 Rahul, for supplying water or meals. This

evidence cannot be construed to mean that these accused persons

had wrongfully concealed or confined the PW3/victim female

child after her kidnapping by appellant/accused no.1 Rahul. So

far as offence of criminal intimidation is concerned, which is held

to be proved against appellant/accused no.1 Rahul Jadhav and his

father appellant/accused no.2 Shankar Jadhav, by the learned

trial court, I am of the considered opinion that there is no

sufficient evidence to come to the conclusion that both these

accused persons are guilty of criminal intimidation of the

PW3/victim female child. Her omnibus statement that these two

accused persons threatened her is not of sufficient gravity to

convict them on this count. This evidence is lacking details, and

therefore, it is not possible to conclude that the threatening was of

such a magnitude to create alarm in the mind of the PW3/victim

female child. Thus, it cannot be said that the prosecution has

established the offence punishable under Section 506 read with 34

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of the Indian Penal Code against appellants/accused nos.1 and 2,

namely, Rahul Jadhav and Shankar Jadhav. In other words, it is

not proved by the prosecution that appellant/accused nos.2 to 6

have abetted appellant/accused no.1 Rahul in kidnapping and

procuring the PW3/victim female child and then confining her or

concealing her. The learned trial court erred in holding the

offence, alleged against these accused persons, proved, with a

reasoning that they were well aware of the kidnapping of the

PW3/victim female child but none of them had relieved her.

17 In the result, I hold that the prosecution has failed to

prove any offence against appellant/accused nos.2 to 6, deserving

their acquittal of the offence held to be proved against them. So

far as appellant/accused no.1 Rahul is concerned, offence of

kidnapping the PW3/victim female child, so also, the offence of

committing rape on her, is required to be held as proved, in the

wake of cogent and trustworthy evidence in support of this

Charge, which includes evidence regarding the age of the

PW3/victim female child, forensic evidence and medical evidence.

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However, appellant/accused no.1 Rahul is entitled for acquittal of

the offence punishable under Section 366A of the Indian Penal

Code as well as Section 506 read with 34 of the Indian Penal

Code.

18 So far as quantum of sentence is concerned, for the

offence punishable under Section 376 of the Indian Penal Code,

appellant/accused no.1 Rahul is sentenced to suffer rigorous

imprisonment for 10 years apart from payment of fine of

Rs.20,000/- and in default, to undergo rigorous imprisonment for

1 year. 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 is

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

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sentence, as one of the objects of the criminal justice system is to

rehabilitate the transgressors and the criminals.

19 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.

20 In the matter of State of Himachal Pradesh vs.

Mange Ram1 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
1 2000 CRI.L.J. 4027

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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
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."

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

Bengal and Another2 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
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."

2 2009 CRI.L.J. 1324

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22 In the matter of Phul Singh vs. State of Haryana3, 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
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

3 1980 CRI.L.J. 8

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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."

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

(Accused)4 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
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

4 2000 CRI.L.J.2205

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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 Trial 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."

24 In the case in hand, because of penury

appellant/accused no.1 Rahul was required to be provided with

legal aid to prosecute his appeal before this court. The offence

took place in January 2012. At the relevant time, the sentence

procedure for the offence punishable under Section 376 of the

Indian Penal Code was ranging from 7 years to imprisonment for

life. In the case in hand, appellant/accused no.1 Rahul at the time

of commission of offence was barely 20 years old, as seen from the

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charge-sheet itself. Evidence on record unerringly points out that

the PW3/victim female child was residing at the maternal house

of his sister Manisha. She was niece of Manisha - sister of

appellant/accused no.1 Rahul. Evidence of the PW3/victim

female child shows that the couple was in love with each other

and that is how, she was found in company of appellant/accused

no.1 Rahul, who enticed her and committed rape on her.

Considering age of appellant/accused no.1 Rahul as well as the

inter-se relations between the parties and the fact that

appellant/accused no.1 Rahul had no criminal antecedents,

sentenced imposed on him by the learned trial court appears to be

too harsh. It needs to be scaled down to rigorous imprisonment

for 7 years for the offence punishable under Section 376 of the

Indian Penal Code. Similarly, the default sentence imposed on

appellant/accused no.1 Rahul of 1 year for the offence punishable

under Section 376 of the Indian Penal Code is excessive and the

same is also scaled down to six months. So far as the sentence of

imprisonment as well as fine imposed for the offence punishable

under Section 363 of the Indian Penal Code is concerned, the

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same is maintained. In the result, the following order :

ORDER IN CRIMINAL APPEAL NO.380 OF 2014

i) Criminal Appeal No.380 of 2014 is partly allowed.

ii) Conviction and resultant sentence of appellant/accused no.1

Rahul Jadhav for the offence punishable under Section 366A

and 506 read with 34 of the Indian Penal Code is quashed

and set aside.

iii) Conviction and resultant sentence of appellant/accused no.1

Rahul Jadhav for the offence punishable under Section 363

of the Indian Penal Code is maintained.

iv) Conviction of appellant/accused no.1 Rahul Jadhav for the

offence punishable under Section 376 of the Indian Penal

Code is maintained. However, his sentence on this count is

modified, and for this offence, he is directed to undergo

rigorous imprisonment for 7 years and in default of payment

of fine of Rs.20,000/-, he is directed to undergo rigorous

imprisonment for 6 months.

v) Criminal Appeal No.380 of 2014 stand disposed off in

accordance with this order.

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ORDER IN CRIMINAL APPEAL NO.381 OF 2014

i) Criminal Appeal No.381of 2014 is allowed.

ii) Judgment and order dated 27th February 2014 passed by the

learned Additional Sessions Judge, Pandharpur, in Sessions

Case No.28 of 2012, so far as it relates to conviction and

resultant sentence imposed on appellant/accused nos.2 to 6

is quashed and set aside.

iii) Appellant/accused nos.2 to 6 stand acquitted of offences

with which they are charged and held to be proved by the

learned trial court.

 iv)      Their bail bonds stand cancelled.

v) Criminal Appeal No.381 of 2014 stands disposed off

accordingly.

(A. M. BADAR, J.)

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