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Rajudan Gemardan Charan vs The State Of Maharashtra on 19 July, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO.90 OF 2016

Rajudan Gemardan Charan,
Age: 26 years, Occ.:- Nil,
R/o. Mulia, Tq. Fattegarh,
District Jaisarmal (Rajasthan)
At present residing at Shikshak
Colony, Kaij, Tq. Kaij, Dist. Beed …APPELLANT

VERSUS

The State of Maharashtra
…RESPONDENT

Mr. N.S. Ghanekar, Advocate for the appellant
Mr. P.N. Kutti, APP for the respondent/State.

CORAM : S.M.GAVHANE,J.

RESERVED ON : 18.04.2019
PRONOUNCED ON : 19.07.2019

J U D G M E N T :-

. This appeal is directed against the judgment

and order dated 13-01-2016 passed by the Additional

Sessions Judge I/c District Judge-2 and Special

Judge, Ambajogai in Special (POCSO) Case No.18/2014

thereby convicting and sentencing the appellant

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(hereinafter referred to as ‘accused) for the

following different offences under the Indian Penal

Code (for short IPC), Protection of Children from

Sexual Offences Act (for short ‘POCSO Act) and under

the Scheduled Castes and Scheduled Tribes (Prevention

of Atrocities) Act (for short Atrocities Act).

(a) He was sentenced to suffer rigorous

imprisonment for ten years and to pay a fine of

Rs.2,000/- (Rs. Two Thousand), in default to suffer

rigorous imprisonment for fifteen days for the

offence punishable under Section 376(2)(i) of the

IPC.

(b) He was sentenced to suffer rigorous

imprisonment for ten years and to pay a fine of

Rs.2,000/- (Rs. Two Thousand), in default to suffer

rigorous imprisonment for fifteen days for the

offence punishable under Section 376(2)(n) of the

IPC.

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(c) He was sentenced to suffer rigorous

imprisonment for one year and to pay a fine of

Rs.1,000/- (Rs. One Thousand), in default to suffer

rigorous imprisonment for seven days for the offence

punishable under Section 506 of the IPC.

(d) He was sentenced to suffer rigorous

imprisonment for seven years and to pay a fine of

Rs.1,000/- (Rs. One Thousand), in default to suffer

rigorous imprisonment for seven days for the offence

punishable under Section 4 of the POCSO Act.

(e) He was sentenced to suffer rigorous

imprisonment for six months and to pay a fine of

Rs.1,000/- (Rs. One Thousand), in default to suffer

rigorous imprisonment for seven days for the offence

punishable under Section 3(1)(w)(i) of the Atrocities

Act.

(f) He was sentenced to suffer rigorous

imprisonment for one year and to pay a fine of

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Rs.1,000/- (Rs. One Thousand), in default to suffer

rigorous imprisonment for seven days for the offence

punishable under Section 3(2)(va) of the Atrocities

Act.

The substantive sentences were directed to

run concurrently. Accused was given set off for the

period undergone by him i.e. from 27-04-2014. On

depositing fine amount of Rs.8,000/- by the accused,

an amount of Rs.5,000/- was directed to be paid to

the victim girl (PW-6) (hereinafter referred to as

victim) as a compensation under Section 357(3) of the

Code of Criminal Procedure.

2. Facts of the prosecution case giving rise to

this appeal are as under:

(A) At the material time of the incident Limbaji

Yadav Vetal who is cobbler, was residing at Kaij,

Taluka Kaij, District Beed in a hut alongwith his son

Krushna and daughter the victim (PW-6). Accused is

friend of said Krushna and he used to visit house of

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the victim. The mother of the victim expired during

the childhood of the victim.

(B) It is alleged that in January, 2014 at about

9.00 p.m. the victim went behind Panchyat Samiti

office, Kaij to attend nature’s call lonely. At that

time the accused went behind her and pressed her

mouth with the handkerchief and caught hold her hand.

Accused asked her to remove her clothes. As the

victim refused, the accused torn her clothes and

committed sexual assault on her and had given threat

to her that he would kill her and her family if she

discloses the same to anybody and he left the spot.

The victim wore torn clothes and returned to home.

The victim did not narrate the incident to anybody

out of fear.

(C) It is further case of the prosecution that

thereafter the accused committed sexual assault on

the victim again after two days and after eight days

after the first incidence at the same spot against

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the will of the victim and he had given threat to her

that he would set her hut on fire on her discloser of

incidence to anybody. Therefore, the victim kept mum.

(D) It is further case of the prosecution that

on 24-04-2014 when the victim went in the shop of one

Vinod in the Kalamb square one Ratnamala Munde

reporter came there and said the victim how her

stomach was inflated. Therefore, the victim narrated

incidence as above to said Ratnamala Munde and

further told her that she had no menstruation since

last four months. Said Ratnamala had taken the victim

to the victim’s father. Thereafter, the victim’s

father had taken the victim in the hospital of

Dr.Chate who told that the victim was pregnant and

said doctor told them to take the victim in the

Government Hospital. Thereafter, the victim was taken

in the Government Hospital at Kaij. On 27-04-2014 the

victim lodged complaint (Exh.55) in Police Station,

Kaij. The Crime No.67 of 2014 was registered against

the accused for the different offences under the IPC,

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POCSO Act and Atrocities Act stated earlier and the

investigation was commenced.

(E) During the investigation the victim was

referred in the Government Hospital at Kaij. Dr.

Yogita Kadam (PW-3) examined the victim and issued

report Exh.36. She recorded history as given by the

patient/ victim that accused committed rape on her

and that she is pregnant of four months. Accused was

arrested on 27-04-2014 and since then he is in jail.

Both accused and the victim were taken to hospital at

Ambajogai and their blood samples as well as sample

of blood of Limbaji Yadav Vetal, brother of the

victim were taken for DNA test. The investigating

officer prepared panchanama of spot of incident Exh.

19. He also recorded the statements of witnesses.

After completion of the investigation he submitted

charge-sheet in the Court of JMFC, Kaij for the

aforesaid offences against the accused. The learned

Magistrate committed the case to the Additional

Sessions Judge, Ambajogai as the offences alleged

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against the accused were triable by the Sessions

Court.

(F) Charge was framed against the accused for

the offences punishable under Sections 376(2)(i),

376(2)(n) and 506 of the IPC, under Section 4 of the

POCSO Act and under Sections 3(2)w(i) and 3(2)(va) of

the Atrocities Act. Accused pleaded not guilty to the

charge and claimed to be tried.

(G) To prove charge against the accused the

prosecution has examined following nine witnesses:

(1) PW-1 – Digambar Nagorao Dangat

(2) PW-2 – Sau. Ratnamala Shivdas Munde

(3) PW-3- Dr. Yogita Devidasrao Kadam

(4) PW-4 – Dr. Mohd. Sultan Hussain Mohd. Abbas

(5) PW-5 – Ravindra Maruti Sangale

(6) PW-6 – Sushma Limbaji Vetal

(7) PW-7- Anandrao Apparao Ningdale

(8) PW-8- Raghunath Ramrao Dongare

(9) PW-9 – Abhay Mulchand Dongre

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Besides the above witnesses the prosecution

has relied upon the medical examination report of the

victim, DNA report, record of the school regarding

birth date of the victim and panchanama of spot of

incident.

(H) Statement of accused under Section 313 of

the Criminal Procedure Code was recorded. He denied

to have committed the alleged offences. According to

him he has been falsely implicated. He has not

examined any defence witness. He has relied upon Exh.

93 complaint dated 02-08-2007 of the victim, Exh.94

deposition of the victim in Special Sessions Case No.

4 of 2008 and Exh.95 deposition of father of the

victim in the said case.

(I) On considering the evidence adduced by the

prosecution and defence of the accused the learned

Special Judge held that the prosecution has proved

offences under Sections 376(2)(i), 376(2)(n), 506 of

the IPC, under Section 4 of the POCSO Act and under

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Sections 3(1)(w)(i) and 3(2)(va) of the Atrocities

Act and accordingly convicted and sentenced the

accused for the said offences by the impugned

judgment and order, as referred earlier in detail in

the opening paragraph of this judgment. Therefore,

this appeal by the accused challenging the said

conviction and sentence recorded against him.

3. I have heard Mr.Ghanekar, learned counsel

for the accused and Mr.Kutti, learned APP for the

respondent/State and with their assistance I have

perused the evidence adduced by the prosecution and

the impugned judgment and order.

4. Mr. Ghanekar, learned counsel for the

accused submitted that considering the conviction of

the accused for the offences punishable under

Sections 376(2)(i), 376(2)(n) of the the IPC and

under Section 4 of the POCSO Act, the age of the

victim at the time of incident which took place as

per the prosecution case during January, 2014 to

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24-04-2014, is material to sustain conviction of the

accused for the said offences. It is submitted that

as per prosecution case date of birth of the victim

(PW-6) is 02-02-2001. To prove the fact that victim

was below 16 and 18 years of age at the time of

incident to attract the aforesaid offences. The

prosecution has relied upon the evidence of PW-8

teacher of Kanya Secondary School, Zilla Parishad

Beed in which the victim was admitted in the 1st

standard and the copy Exh.73 of extract of admission

register of the said school. Mr. Ghanekar, learned

counsel submitted that PW-8 is not Head Master of the

school who generally takes entries in the admission

register of the school of the students admitted in

the school. Admittedly the prosecution has not

examined Head Master of the school to prove the truth

of contents of extract Exh.73. Therefore, it cannot

be said that the prosecution has proved truth of the

contents of extract Exh.73. It is further submitted

that PW-8 teacher has admitted in the cross

examination that he has personally not taken entries

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in the admission register of the school and he cannot

tell the source or base of contents of entries in the

original admission register. This admission shows

that PW-8 has not personally taken entry Exh.73 in

the admission register of the school and so also he

can not tell the source or base of said entry. His

evidence thus shows that he can not tell on what

basis said entry Exh.73 was taken in the original

admission register. Mr. Ghanekar, learned counsel

inviting my attention to Exh.73 submitted that as per

this extract entry No.4013 regarding admission of the

victim was taken in the admission register of the

school and as per said entry victim was admitted on

16-06-2008 in the said school and her birth date is

02-02-2001. She was admitted in the 1st standard in

the said school. It is submitted that when PW-8 has

not stated that who had given birth date of victim

as 02-02-2001 to mention in the admission register of

the school, when the prosecution has not examined

father of the victim to bring on record that date of

birth of the victim is 02-02-2001 and produced birth

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extract of the victim showing that her birth date is

02-02-2001 and when it is not the case at all of the

prosecution that ossification test of the victim was

conducted to determine age of the victim the evidence

of PW-8 and extract Exh.73 of admission register of

the school, though extract Exh.73 is admissible in

evidence under Section 35 of the Evidence Act, are

not sufficient to state definitely that the age of

the victim at the time of incident was below 18

years. To support his aforesaid submissions that the

learned counsel has relied upon the following

decisions:

(a) In the case of Alamelu and another
Vs. State, Represented by Inspector of
Police and with two others, AIR 2011,
Supreme Court 715, the appellants in
Criminal Appeal No.1053 of 2009 were
convicted for offences punishable under
Sections 366 and 376 read with Section
109 of the IPC, the appellant No.1 in
Criminal Appeal No.1063 of 2009 was
convicted under Section 366 and 376 of
IPC and appellant No.2 in
the said appeal was convicted under
Sections 366 and 376 read with
Section 109 of IPC and both the
appellants in Criminal Appeal No.1062
of 2019 were convicted under
Sections 366 and 376 read with Section

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109 of IPC and were sentenced
accordingly. The conviction recorded
against the appellants as above by the
trial Court was maintained by the High
Court. In the appeals against the said
conviction and sentence the Apex Court
while considering the age of the
prosecutrix on the basis of transfer
certificate issued by a Government
School duly signed by the Headmaster
observed that said certificate would be
admissible in evidence under Section 35
of the Evidence Act. However, the
admissibility of such a document would
be of not much evidentiary value to
prove the age of the girl in the
absence of the material on the basis of
which the age was recorded. The date of
birth mentioned in the transfer
certificate would have no evidentiary
value unless the person, who made the
entry or who gave the date of birth is
examined. It was held that in absence
of examination of Headmaster of school
who made entry in transfer certificate,
transfer certificate is not reliable to
definitely fix age of girl. It was held
that it would not be possible to give a
opinion that girl was definitely below
18 years of age. The expert evidence
does not rule out the possibility of
the girl being major and it was held
that prosecution has failed to prove
that girl was a minor on the relevant
date. Ultimately, it was held that
prosecution has failed to beyond
reasonable doubt any of the offence
with which the appellants had been
charged and that the entire prosecution
story has been concoted for reasons
based known to the prosecution.

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Accordingly, appellants were held

entitled to benefit of doubt and the
appeals were allowed and all the
appellants were acquitted.

(b) In the case of Prakash Jaganath
Pawar Vs. State of Maharashtra, 2015
All MR (Cri) 3898, the
appellant/accused was convicted for the
offence punishable under sections 376,
451 and 506 of the IPC by the trial
Court. It was case of the prosecution
that the appellant allegedly committed
forcible sexual intercourse with
prosecutrix one year prior to filing of
complaint on 07-03-2011. Subsequently
also he came to her house on several
occasions when she was alone and had
forcible sexual intercourse with her.
Regarding age of victim the School
Leaving Certificate was relied upon by
the prosecution. Said certificate was
not proved. As per evidence of
prosecutrix, she was above age of 16
years at the time of incident. Various
admissions given by prosecutrix which
were held to be sufficient to rule out
possibility of forcible sexual
intercourse, but spell out the
possibility of consensual sex. After
prosecutrix became pregnant several
meetings were held in the village to
convince the appellant to accept
prosecutrix and as he refused the
complaint was lodged. It was held that
School Leaving Certificate is
admissible in evidence under Section 35
of the Evidence Act. However the
evidentiary value of the contents
therein will always depend on the

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material on the basis of which the
entires were recorded therein. Unless
the person who made the entry or the
person who gave the information about
the date of birth is examined the
School Leaving Certificate cannot have
much evidential value. The medical
evidence shows prosecutrix’s bony age
as 17 to 18 years. It was observed that
even assuming that the alleged incident
of forcible sexual intercourse had
taken place one year prior to the FIR
and examination of prosecutrix by
doctor, even at the time of incident,
prosecutrix age has to be held as 16 to
17 years. It was observed that when the
age ascertained on the basis of
ossification test, the benefit of
marginal error of one or two years
always has to be extended to the
accused. It was held that even on the
basis of this report, the age of
prosecutrix at the time of the incident
was above 16 years and she cannot be
treated as minor. Thus, the criminal
appeal was allowed. The conviction and
sentence of the appellant was set aside
and he was acquitted of the offences
for which he was convicted. The
incident in the said case has taken
place prior to amendment in Section 375
of the IPC on 03-02-2013 and prior to
the coming in to force of the POCSO
Act, 2012.

(c) In the case of Mani Kumarswamy
Mudliyar Vs. State of Maharashtra, 2000
All MR (Cri)315, in the appeal against
conviction of the appellant for the
offence punishable under Section 376 of
the IPC there was entry in school

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register of the prosecutrix not based
on birth certificate. It was held that
said entry cannot be accepted. There
was medical evidence giving age of of
girl between 14 1/2 or 16 1/2 years.
There was no evidence to show that
accused had taken prosecutrix in the
hotel room, no evidence of her offering
resistance. There was evidence of the
prosecutrix that she went to accused
house of subsequent occasions and was
repeatedly raped. Prosecutrix not
complaining about them to her grand
mother or police. It was held that
prosecution had failed to prove that
prosecutrix was minor and had sexual
intercourse without her consent.

(d) In the case of Birad Mal Singhvi
Vs. Anand Purohit, AIR 1988 Supreme
Court 1796, it was held that, if the
entry in the scholar’s register
regarding date of birth is made on the
basis of information given by parents,
the entry would have evidentiary value
but if it is given by a stranger or by
someone else who had no special means
of knowledge of the date of birth, such
an entry will have no evidentiary
value. Merely because the documents
such as extract of school register,
mark list or certificate of Education
Board etc. are proved, it does not mean
that the contents of documents are also
proved. Mere proof of such documents
would not tantamount to proof of all
the contents or the correctness of date
of birth stated in the document.

                  (e) In       the     case of Dipak Ambadas
Gaikwad Vs. State of Maharashtra,

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2013(3) Mah.L.J.(Cri)645, the

complainant victim girl stated that she
was 11 years old at the time of
incident whereas according to the
school leaving certificate she was 14
1/2 years old at the time of the
incident. There was no evidence to show
as to how this date of birth was
recorded in the school record. Proof of
entry in the admission register will
prove that a particular date of birth
was recorded. However, the correctness
of the same cannot be established mere
by proof of the entry. There no
evidence to prove the correctness of
date of birth recorded in the admission
register. It was held that prosecution
has failed to prove the age of
complainant. There was the medical
officer was unable to give any exact
opinion about penetration or
intercourse. The evidence of
complainant not found reliable and her
evidence was found to be highly
doubtful. Conviction and sentence of
the appellant/accused for offence under
Section 366A and 376 of the IPC was set
aside.

(f) In the case of Balu Baburao Kadam
Vs. State of Maharashtra and another,
2016(10) LJSOFT 13, in the appeal
against the conviction for the offence
punishable under Section 376 of the IPC
exact age of the victim has not been
established by the prosecution except
the school leaving certificate which
had no basis. There was report of
ossification test. There was no
evidence to show as to whether the
victim was a minor and was incapable of

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giving consent. Order of conviction and
sentence set aside. The incident in the
said case had taken place in 1992 i.e.
prior to amendment in Section 375 of
the IPC on 03-02-2013 and prior to
coming in to force of the POCSO Act,
2012.

(g) In the case of Sandeep Janaji
Konde Vs. State of Maharashtra, 2016(3)
Mah.L.J.(Cri)766, the incident of rape
had taken place about five to six
months, prior to 18.01.2008. The
appellant was convicted for offence
punishable under Section 376 of the IPC
by the trial Court. Date of birth was
not given by parents of victim. Date of
birth was given by the victim herself.
There was no justification for not
doing the ossification test. Father of
the victim says that victim was 16
years and the police report also refers
that victim was 16 years of age at the
material time. The relations between
victim and the accused came to light
only because the victim had become
pregnant. It was held that entry
relating to date of birth made in a
school register would be relevant and
admissible but such entry would not
have much evidentiary value to prove
the age of the person in the absence of
material on which the age was recorded.

                       The   appellant   was    acquitted    and
conviction was set aside.

5. Mr. Ghanekar, learned counsel for the

accused further submitted that in the above

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circumstances even evidence of the victim regarding

her age is not sufficient to state that she was below

18 years at the time of incident. Referring to her

evidence it is submitted by the learned counsel that

as per her evidence she was sexually assaulted for

three times by the accused prior to one and half year

of her evidence which was recorded on 14-07-2015 and

only after she was pregnant of five months she

disclosed incident and lodged complaint Exh.55 on

27-04-2014 in the police station, which shows that

she was consenting party to the sexual intercourse

and therefore her evidence is not at all sufficient

to attract the offences for which accused has been

convicted. The learned counsel has further submitted

that the victim has admitted that her father had

filed complaint against one Sandip as there was

quarrel between them and in the said case she had

given evidence. She also admitted that in the said

case there was allegations against Sandip that he

outraged modesty of other girl who was with her and

therefore according to learned counsel evidence of

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the victim cannot be believed. Mr. Ghanekar, learned

counsel for the accused referring to certain

omissions in the statement before police of the

victim as recorded in paragraph Nos.10,16,18 and 19

of her deposition submitted that the evidence of

victim that the accused had sexual intercourse with

her repeatedly is not trustworthy. It is submitted

that the accused is in jail since date of his arrest.

Thus, according to learned counsel prosecution has

failed to prove offences alleged against the accused.

Therefore, conviction and sentence recorded against

the accused by the impugned judgment and order is not

sustainable and the same may be set aside by allowing

the appeal.

6. Mr. Kutti, learned APP, on the other hand

submitted that it is clear from the evidence of

victim (PW-6) which was recorded on 14-07-2015 that

incident had taken place one and half year prior to

said date and when her evidence was recorded

according to her her age was 17 years. Therefore,

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according to learned APP at the material time of

incident in January to April 2014 age of the

prosecutrix was 15 years and as such prosecution has

proved that she was child being below 18 years of age

at the time of incident as per Section 2(d) of POCSO

Act. It is submitted that incident took place in 2014

after amendment in Section 375 of the IPC on

03.02.2013. As per clause Sixthly under Section 375

of the IPC the act alleged against the accused even

with or without consent of woman who is under

eighteen years age amounts to rape and therefore

submission made on behalf of the accused that there

was possibility of consent of the victim to the

sexual intercourse is not acceptable and even if

there is consent of the victim it is immaterial. It

is submitted that the trial Court has rightly

considered the evidence of the prosecution and

rightly convicted the accused for the offences said

earlier by the impugned judgment and order. According

to learned APP there is no merit in the appeal and

thus he has prayed to dismiss the same.

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7. To support his submissions that entry in

school register of the victim as per Exh.73 is

admissible and sufficient to prove age of the victim

the learned APP has relied upon the decision in the

case of Motiram Govindrao Kamdi Vs. State of

Maharashtra, 2006 ALL MR (Cri) 1002). To support his

submissions that the evidence of victim regarding her

age is sufficient to conclude that the victim was

below 18 years of the age at the time of incident the

learned APP has relied upon the decision in the case

of Kundan s/o. Nanaji Pendor Vs. The State of

Maharashtra 2017 ALL MR (Cri) 1137. In the case of

Kundan Nanaji (Supra) prosecutrix had stated on oath

that her date of birth was 5th January, 1997 when

accused committed sexual intercourse with her. There

was no cross-examination, whatsoever, to such

specific assertion made by the prosecutrix in her

examination-in-chief. It was held that said statement

of prosecutrix being remained unchallenged, is

required to be accepted. In the case of Rajesh

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Namdeo Mhatre Vs. State of Maharashtra, 2003 ALL

MR(Cri) 298, of gang rape it was held that the

character and reputation of the victim has no bearing

or relevance in the matter of adjudging guilt of

accused for imposing punishment under Section 376.

8. To hold that the accused has committed

offence under Section 376(2)(i) of the IPC the

prosecution has to establish that the accused has

committed rape on a victim when she was under 16

years of age and further to hold that the accused has

committed offence under Section 376(2)(n) the

prosecution has to establish that the accused

committed rape repeatedly on the victim. As regards

definition of rape under Section 375 of the IPC as

per clause Sixthly, a man is said to commit rape if

he (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 and clause

Sixthly under the said Section 375 of the IPC says

that with or without her consent, when she is under

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eighteen years of age. For proving offence under

Section 4 of the POCSO Act the prosecution has to

establish that the accused has committed penetrative

sexual assault on the victim who is child being below

the age of eighteen years as per definition of child

under Section 2(d) of the POCSO Act. As per Section 3

of the POCSO Act a person is said to commit

penetrative sexual assault if he penetrates his

penis, to any extent, into the vagina, mouth, urethra

or anus of a child or makes the child to do so with

him or any other person. Thus, considering the

ingredients of offences under Sections 376 (2)(i),

376(2)(n) of the IPC and under Section 4 of the POCSO

Act the age of the victim at the material time of

incident in January, 2014 to 24-04-2014 is material.

To prove age of the victim the prosecution has relied

upon the evidence of Raghunath Ramrao Dongare (PW-8)

teacher of the school, Exh.73 extract of admission

register of victim maintained in the school, the

evidence of Dr. Yogita Kadam (PW-3) and victim

(PW-6).

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9. The evidence of Raghunath Ramrao Dongare

(PW-8) who was teacher in Kanya Secondary School,

Zilla Parishad at Beed is that Head Master of said

school had given him authority letter Exh.72. He

deposed that in the original admission ledger book of

the school which is from 2003 there is entry No.4013

regarding admitting the victim in the school on

16-06-2008 in the 1st standard and as per said record

date of birth of the victim is 02-02-2001. The

extract of aforesaid entry regarding admission of the

victim in the school produced by this witness which

is tallied with the original entry in the admission

register is Exh. 73. In the cross-examination on

behalf of the accused PW-8 has stated that personally

he had not taken entries in the admission register of

the said school. So also, he stated that he could not

tell the source or base of contents of entries in the

original admission register. Thus, it is obvious from

his evidence that he has not taken entries in the

admission register regarding admitting the victim in

the school and her birth date. So also, it is clear

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from his evidence that he had no knowledge of source

or base of contents of entry in the original

admission register regarding birth date of victim. In

such circumstances the prosecution was required to

examine either Head Master of the school or the staff

member/clerk who had taken entry in the admission

register about the birth date of the victim to prove

that entry regarding birth date of the victim in the

register is correct. Admittedly prosecution has not

examined Headmaster or staff member/clerk. The

prosecution has not examined father of the victim. In

fact, the prosecution should have examined him to

bring on record the fact that he had admitted the

victim in the school and that he had told the date of

birth as above of the victim to the school

authorities. Father of the victim could have told

about the exact date of birth of the victim. So also

he could have told as to whether afore mentioned

birth date of the victim which is recorded in the

school was mentioned on the basis of birth extract of

the victim issued by Grampanchayat or otherwise. For

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these reasons the evidence of PW-8 is not sufficient

to infer that date of birth of the victim is

02-02-2001.

10. Exh.73 extract of school admission register

shows that the victim was admitted in Kanya Secondary

School, Zilla Parishad, Beed on 16-06-2008 and her

birth date is 02-02-2001. This extract further shows

that the name of victim was cancelled as she was

continuously absent and her name was cancelled on

30-04-2010. As observed above this extract of

original school admission register is produced by

PW-8 and PW-8 had no knowledge about the entries in

the school admission register including the entries

of date of admission of the victim and date of birth

of the victim as he had personally not taken the said

entries. So also, he has no knowledge about the

source of date of birth of victim mentioned in the

original school admission register. Therefore, even

if entries in the school record are admissible under

Section 35 of the Evidence Act entry regarding birth

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date of the victim mentioned in extract Exh.73 cannot

be said to be reliable entry to state that birth date

of the victim is 02-02-2001. Therefore, applying the

ratio laid down in the decisions in the case of

Alamelu and another (Supra), Prakash Jaganath Pawar

(Supra), Mani Kumarswamy Mudliyar (Supra), Birad Mal

Singhvi (Supra), Dipak Ambadas Gaikwad (Supra),

Balu Baburao Kadam (Supra) and Sandeep Janaji Konde

(Supra) relied upon by the learned counsel for the

accused the evidence of PW-8 and Exh.73 extract of

admission register of school are not sufficient to

prove the exact age of the victim at the time of

incident.

11. Exh.83 residence certificate issued by

Sarpanch of Grampanchayat of the victim shows her

birth date as 18-02-1998. It appears that said

certificate has been produced by PW-9 the

investigating officer. Author of the said certificate

is also not examined by the prosecution. Therefore,

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it cannot be said that prosecution has proved truth

of contents of this certificate regarding birth date

of the victim. This certificate is also of no help to

the prosecution to state the exact age of the victim

at the time of incident.

12. The evidence of Dr. Yogita Kadam (PW-3) who

had examined the victim on 28-04-2014 is that the

history was stated by the patient and she recorded

the same. As per the say of patient her age was 15

years. In the cross-examination said evidence is not

challenged. Thus, on the basis of evidence of doctor

it can be said that when the victim was examined on

28-04-2014 she was 15 years old.

13. Now coming to the evidence of the victim

(PW-6), whose examination-in-chief and some cross-

examination was recorded on 14-07-2015, she has

stated that the incident took place prior to one and

half year at 9.00 p.m. At the time of recording said

evidence she stated that her age is 17 years. The

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evidence of victim that her age was 17 years when her

evidence was recorded and that the incident took

place one and half year prior to recording of her

evidence has gone unchallenged in the course of her

cross-examination on behalf of the accused. So also,

she has denied that she filed complaint, made

statement and gave evidence against the accused due

to pressure of her father. Considering the evidence

of victim regarding her age i.e. 17 years on the date

of recording her evidence on 14-07-2015 and that the

incident took place one and half year prior to the

said date it can be inferred that at the time of

incident her age was fifteen and half years and as

such she was below 16 years of age at the time of

incident which took place between January, 2014 to

24-04-2014. The above referred evidence of the victim

is sufficient to prove age of the victim since it has

gone unchallenged by the accused in view of the

decision in the case of Kundan s/o. Nanaji Pendor

(Supra).

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14. For the reasons discussed above, I hold that

the prosecution has proved that at the time of

incident between January, 2014 to 24-04-2014 age of

the victim was below 16 years. As her age was

below 18 years she can be said to be child within the

meaning of Section 2(d) of the POCSO Act.

15. Case of the prosecution is that the accused

committed rape on the victim during January, 2014 to

24-04-2014 and therefore the victim girl was pregnant

and as such the accused has committed offences under

Sections 376(2)(i), 376(2)(n) of the IPC and under

Section 4 of the POCSO Act. For proving this fact the

prosecution has relied upon the evidence of victim,

Dr. Yogita Kadam (PW-3), medical examination report

(Exh.36) of victim and DNA report (Exh.26).

16. The evidence of victim (PW-6) as regards the

incident is that as referred earlier she has stated

that the incident took place one and half year prior

to recording her evidence. She further stated that on

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that day at 09.00 p.m. except her there was nobody in

their hut. When she went to attend nature's call to

the back side of Panchayat Samiti the accused was

present there. He asked her to remove her cloths.

Then he removed her clothes. He pressed her mouth and

tied her hands and legs. He sat on her person. He

climbed over her. He did on her urinal place. He

inserted his penis in her vagina. He left her on the

spot and went away. Then she returned to her hut. She

was waiting for her father. Her father came to home

at about 01.00 a.m. She did not narrate the incident

to her father as the accused had given her threat of

killing. The victim has further stated that after

fifteen days from the first incident, when her father

went to village, second time incident took place. On

that day, it was 08.00 p.m. and she was standing near

Babul tree and was waiting for her father. Accused

came there and caught her hand, pressed her mouth and

took her to back side of Panchayat Samiti at Kaij. He

asked her to remove the clothes and as she refused,

he tied up her mouth and removed her clothes and

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again inserted his penis in her vagina. He threatened

to kill her and to set her hut on fire, if she tells

the said incident to anybody. She further stated that

the same kind of incident with her at the hands of

accused took place after a gap of about 20 to 25 days

from second incident. Thus, according to victim for

three times referred to above the accused committed

sexual intercourse with her. She further stated that

she was pregnant of five months and she disclosed to

one Mundekaku, the worker of Shivsena and mother of

Vinod who runs grocery shop that she had no

menstruation since last five months and narrated

incident to them. She stated that thereafter she

disclosed incident to her father who had taken her to

Dr.Chate for medical treatment who told that she was

pregnant of five months and thereafter she lodged

complaint (Exh.55) in Kaij Police station. She has

further stated that she had given birth to a male

child in the Civil Hospital, Jalna.

17. In the cross-examination the evidence of

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victim that the accused had sexual intercourse with

her for three times as deposed by her has gone

unchallenged. She has admitted that Tahsil office is

situated towards eastern side of Police Quarter and

southern side of road. Panchayat Samiti office is

situated towards one side of the Court. As she had

not made inquiry about other offices situated in

Panchayat Samiti office she cannot tell about other

offices. She stated that all the incidents took place

on the same spot i.e. site behind Panchayat Samiti.

There was bleeding from her private part after the

incident. She did not visit any dispensary in spite

of bleeding. She did not feel to tell all the

incidents to anybody. She denied that her father

stated the contents of complaint (Exh.55) to the

police. Referring to above evidence of the victim

learned counsel for the accused submitted that the

spot of incident is behind Panchayat Samiti, Kaij and

it was accessible to public and there were different

offices around the spot of incident and therefore it

was possible for the victim to make shout but she did

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not make shout. So also, the victim admitted that she

did not disclose incident to anybody and she did not

go to dispensary in spite of bleeding. According to

learned counsel all above conduct of the victim

shows that she was quite matured girl and therefore

possibility of her consent for sexual intercourse

cannot be ruled out and therefore it cannot be said

that the accused committed rape on her.

As mentioned earlier the victim was below 16 years

of age when the incident took place. Thus

she being minor her consent for sexual

intercourse is immaterial. It is observed

that accused threatened to kill her. Therefore,

argument as above advanced by the learned counsel for

the accused about consent of victim is not

acceptable.

18. The victim in the cross-examination on

behalf of the accused in paragraph 16 of her

deposition stated that, she stated before police who

had recorded her statement that the accused tied her

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hands and legs, then after he sat on her body, he

climbed over her, he did on her urinal place, he

inserted his penis in her vagina. So also, she stated

that she stated before police that after fifteen

days, the second incident took place. Moreover she

stated that on that day she was standing under Babul

tree, the accused came there, caught her hand and

pressed her mouth and took her to the back side of

Panchayat Samiti and committed rape. She has also

stated that she stated before police that accused

asked her to remove her cloths and as she refused, he

tied up her mouth and removed her clothes and again

inserted his penis in her vagina and he threatened to

kill her and to set her hut on fire, if she discloses

the incident to anybody. Moreover, she stated that

she stated before police that third incident took

place after gap of about 20 to 25 days from second

incident. She could not assign reason of absence of

all above facts in her statement before police and

thus all these omissions in her statement before

police are proved. When in the complaint (Exh.55)

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lodged by the victim she made aforesaid allegations

against the accused the above referred omissions in

her statement before police are not sufficient to

reject her evidence, particularly when she has denied

suggestion on behalf of the accused that the physical

relationship with the accused took place due to her

consent. Thus, there is no reason to disbelieve the

evidence of the victim and on the basis of her

evidence an inference can be drawn that accused had

sexual intercourse with her repeatedly when she was

below 16 years of age.

19. The evidence of Dr. Yogita Kadam (PW-3) who

had examined the victim on 28-04-2014 and issued

medical examination report (Exh.36) is that the

victim had stated history of sexual assault by the

accused. So also, doctor has stated that the victim

had told that the accused committed rape on her in

open space and that she is pregnant of four months

and accordingly she issued medical examination report

(Exh.36). According to doctor no any injury marks

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over body of the victim were noticed. Exh.36 medical

examination report also shows that the victim had

given history to the doctor as deposed by the doctor

regarding committing rape on her by the accused and

that she was pregnant of four months. Thus, the

evidence of doctor and medical examination report

have corroborated the evidence of victim that the

accused committed rape on her and that she was

pregnant.

20. The prosecution has relied upon DNA report

(Exh.26) dated 11-10-2014. This report shows that the

accused and the victim are the biological parents of

male baby of the victim. As mentioned earlier it

was suggested on behalf of the accused that the

victim was consenting party to the sexual intercourse

with the accused and as such the accused does not

dispute the fact that he had sexual intercourse with

the victim. Considering said aspect and the DNA

report (Exh.26) that the accused and the victim

are the biological parents of male baby of the

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victim, who was delivered in the Civil Hospital,

Jalna it can be said that the victim was pregnant due

to rape committed by the accused on the victim and as

such she delivered male child. Thus, DNA report

corroborates the evidence of victim that the accused

committed rape on her.

21. For all the reasons discussed above, on the

basis of evidence of the victim, Dr.Yogita Kadam

(PW-3), medical examination report (Exh.36) issued by

her and DNA report (Exh.26), I hold that the

prosecution has proved that the accused has committed

rape on the victim below 16 years, he committed rape

repeatedly on the victim and that he committed

penetrative sexual assault on victim the child below

18 years of age and as such committed offences

punishable under Sections 376(2)(i) and (n) of the

IPC and under Section 4 of the POCSO Act. The trial

Court has rightly held that the prosecution has

proved these offences against the accused.

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22. As regards the offence under Section 3 of

the POCSO Act it is pertinent to note that there is a

presumption under Section 29 of the POCSO Act as to

certain offences. Said provision says that where a

person is prosecuted for committing or abetting or

attempting to commit any offence under sections 3,5,7

and section 9 of this Act, the Special Court shall

presume, that such person has committed or abetted or

attempted to commit the offence, as the case may be

unless the contrary is proved. In the present case

accused is charged for the offence punishable under

Section 4 of the POCSO Act and he has been convicted

for the said offence by the impugned judgment. The

offence under Section 3 i.e. penetrative sexual

assault is punishable under Section 4 of the POCSO

Act. Thus, presumption can be raised under Section 29

of the POCSO Act that the accused has committed

offence under Section 3 of the POCSO Act which is

punishable under Section 4 of the said Act. Defence

of the accused that he has been falsely implicated at

the instance of father of the victim is not

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acceptable as the victim has denied suggestions in

the light of defence of the accused as observed

earlier. Thus, the accused has not proved that he has

not committed offence punishable under section 4 of

the POCSO Act. Thus, he has not rebutted the

presumption under Section 29 of the POCSO Act.

23. As regards the offence under Section 506 of

the IPC as referred earlier the victim has stated

that when the accused had sexual intercourse with her

he threatened to kill her and set her hut on fire in

case she discloses incident to anybody and so also

she stated that she did not narrate the incident to

her father as the accused had threatened to kill her.

In her report/complaint (Exh.55) also the victim has

stated that the accused had threatened to kill her

and her family members and therefore she did not

disclose incident to her father and further it is

stated that the accused used to threaten her and

therefore she did not disclose to her father. Thus,

on the basis of above evidence it can be said that

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the accused had threatened the victim and committed

the offence of criminal intimidation punishable under

Section 506 of the IPC the trial Court has rightly

held that the prosecution has proved said offence

against the accused.

24. As regards the offences under Sections 3(1)

(w)(i) and 3(2)(va) of the Atrocities Act the

prosecution has to establish that the accused not

being a member of Scheduled Caste or Shouldered Tribe

intentionally touched the victim knowing that she

belongs to a Scheduled Caste or a Scheduled Tribe,

when such act of touching is of a sexual nature and

is without the recipient's consent to attract offence

under Section 3(1)(w)(i) of the Atrocities Act and

the prosecution has to prove that the accused not

being a member of Scheduled Caste or a Scheduled

Tribe committed any offence specified in the

Schedule, against a person or property, knowing that

such person is member of Scheduled Caste or Scheduled

Tribe to attract offence under Section 3(2)(va) of

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the Atrocities Act. The victim in her evidence stated

that she belongs to cobbler (Chambhar) community and

that the accused was residing in teacher's colony.

Said evidence of the victim is not specifically

challenged in the cross-examination on behalf of the

accused. Exh. 73 extract of admission register of

school shows that caste of victim is Hindu Chambhar.

Thus, on the basis of above evidence it can be said

that the victim belongs to Scheduled Caste. The

victim as well the investigating officer have not

specifically stated about caste of the accused and

they have not specifically stated that accused is not

a member of Scheduled Caste or Scheduled Tribe. It

has come in the evidence of the investigating officer

Dy.S.P. Dongare (PW-9) that he had sent letters Exh.

78 and 80 to Gramsevak, Mulia, Rajasthan to get

details of caste and residence of accused. He has

stated that he received letter of Gramsevak, Adbala

(Exh.82) dated 21-04-2014 disclosing caste and

residence of the accused. Said evidence of the

investigating officer has not been challenged on

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behalf of the accused in his cross examination. Said

letter (Exh.82) shows that the accused belongs to

Other Backward Class. Thus, it is clear from this

letter that the accused does not belong to Scheduled

Caste or Scheduled Tribe and as such he is not a

member of Scheduled Caste or Scheduled Tribe within

the meaning of Section 3 of the Atrocities Act. As

observed earlier it has come in the evidence of the

victim that the accused has sexually assaulted her on

three times. So also, it is held that the prosecution

has proved offences under Sections 376(2)(i) and

376(2)(n) of the IPC and under Section 4 of the POCSO

Act. Therefore, it can be said that the accused not

being a member of Scheduled Caste or Scheduled Tribe

intentionally touched the victim knowing that she

belongs to Scheduled Caste and said touching was of a

sexual nature and without the consent of the victim

and further it can be said that the accused committed

offence specified in the schedule against the victim

and thus committed offences under Sections 3(1)(w)(i)

and 3(2)(va) of the Atrocities Act. Thus, I hold that

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the prosecution has proved said offences against the

accused. The trial Court has rightly held so.

25. For all the reasons discussed above, I hold

that the prosecution has proved offences under

Sections 376(2)(i), 376(2)(n) and 506 of the IPC as

well as under Section 4 of the POCSO Act and offences

under Sections 3(1)(w)(i) and 3(2)(va) of the

Atrocities Act against the accused. The trial Court

has rightly convicted accused for said offences.

Considering the punishments provided for the offences

under Sections 376(2)(i), 376(2)(n) and 506 of the

IPC and offences under Sections 3(1)(w)(i) and 3(2)

(va) of the Atrocities Act the trial Court has

properly sentenced the accused for the said offences

and there is no ground to interfere with the

conviction and sentence for said offences.

26. The trial Court has sentenced accused

rigorous imprisonment for ten years and to pay a fine

of Rs.2,000/-, in default to suffer rigorous

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imprisonment for fifteen days each for the offences

punishable under Sections 376(2)(i) and 376(2)(n) of

the IPC. The punishment provided for the said

offences is rigorous imprisonment for a term which

shall not be less than 10 years, but which may extend

to imprisonment for life, which shall mean

imprisonment for the remainder of that person's

natural life, and shall also be liable to fine. The

trial court sentenced the accused to suffer rigorous

imprisonment for seven years and to pay a fine of

Rs.1,000/-, in default to suffer rigorous

imprisonment for seven days for the offence

punishable under Section 4 of the POCSO Act. The

punishment provided for the offence punishable under

Section 4 of the POCSO Act is imprisonment of either

description for a term which shall not be less than

seven years but which may extend to imprisonment for

life, and shall also be liable to fine. Thus, it is

clear from the above sentences that for the same

offence i.e. one under Section 376 of the IPC and

another under Section 4 of the POCSO Act, the accused

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has been punished twice once for the offence

punishable under Section 376 of the IPC and another

for the similar offence punishable under Section 4 of

the POCSO Act. As per provision of Section 42 of the

POCSO Act, where an act or omission constitutes an

offence punishable under the POCSO Act as well as

under Section 376 of the IPC, then, notwithstanding

anything contained in any law for the time being in

force, the offender/accused found guilty of such

offence is liable for punishment under the POCSO Act

or under the IPC, as provided for punishment which is

greater in degree. Considering this provision under

Section 42 of the POCSO Act regarding alternate

punishment and punishment provided for the offences

under Sections 376(2)(i) and 376(2)(n) of the IPC as

referred earlier which is greater in degree, I am of

the view that conviction and sentence recorded

against the accused for the offences under Sections

376(2)(i) and 376(2)(n) as well as conviction of the

accused for the offence punishable under Section 4 of

the POCSO Act is to be maintained. However, there

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cannot be separate sentence for the offence

punishable under Section 4 of the POCSO Act which is

equivalent to offence under Section 376 of the IPC

and therefore sentence recorded against the

appellant/accused for the offence under Section 4 of

the POCSO Act needs to be quashed and set aside

maintaining the conviction for the said offence.

Therefore, appeal needs to be partly allowed only to

the extent of setting aside sentence recorded against

the appellant/accused for the offence punishable

under Section 4 of the POCSO Act. Therefore,

following order is passed.

ORDER

(i) Appeal is partly allowed.

(ii) The impugned conviction and sentence of the

appellant/accused for the offences punishable under

Sections 376(2)(i), 376(2)(n) and 506 of the IPC and

under Sections 3(1)(w)(i) and 3(2)(va) of the

Atrocities Act is maintained.

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(iii) Conviction of the appellant/accused for the

offence punishable under Section 4 of the POCSO Act

is also maintained. However, sentence imposed on the

accused for the offence punishable under Section 4 of

the POCSO Act i.e. rigorous imprisonment of seven

years as well as directions to pay fine of Rs.1,000/-

(Rupees One thousand), in default to suffer rigorous

imprisonment for seven days is quashed and set aside.

Fine, if paid in respect of said offence shall be

refunded to the accused.

(iv) Rest part of the impugned judgment regarding

set off and directions to pay compensation to the

victim etc. is also maintained.

(v) Record and proceeding in Special (POCSO)

Case No.18/2014 be sent to the trial Court for

compliance.

[S.M.GAVHANE,J.]

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We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

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