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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205-APPEALS-380-2014-381-2014.doc3 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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205-APPEALS-380-2014-381-2014.docSection 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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205-APPEALS-380-2014-381-2014.docbirth 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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205-APPEALS-380-2014-381-2014.docaccused 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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205-APPEALS-380-2014-381-2014.docfemale 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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205-APPEALS-380-2014-381-2014.doc2012 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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205-APPEALS-380-2014-381-2014.docagain 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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205-APPEALS-380-2014-381-2014.dochuman 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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205-APPEALS-380-2014-381-2014.docat 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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205-APPEALS-380-2014-381-2014.docappellant/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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205-APPEALS-380-2014-381-2014.docno.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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205-APPEALS-380-2014-381-2014.docthe 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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205-APPEALS-380-2014-381-2014.doc13 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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205-APPEALS-380-2014-381-2014.docdischarge 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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205-APPEALS-380-2014-381-2014.docfemale 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
avk 26/40
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205-APPEALS-380-2014-381-2014.docDr.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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205-APPEALS-380-2014-381-2014.doc16 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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205-APPEALS-380-2014-381-2014.docif 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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205-APPEALS-380-2014-381-2014.docof 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.
avk 30/40
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205-APPEALS-380-2014-381-2014.docHowever, 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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205-APPEALS-380-2014-381-2014.docsentence, 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. 4027avk 32/40
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205-APPEALS-380-2014-381-2014.docthat 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."avk 33/40::: Uploaded on - 16/10/2018 17/10/2018 00:33:10 :::
205-APPEALS-380-2014-381-2014.doc21 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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205-APPEALS-380-2014-381-2014.doc22 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. Even3 1980 CRI.L.J. 8
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205-APPEALS-380-2014-381-2014.docso, 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 the4 2000 CRI.L.J.2205
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205-APPEALS-380-2014-381-2014.docperiod 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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205-APPEALS-380-2014-381-2014.doccharge-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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205-APPEALS-380-2014-381-2014.docsame 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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205-APPEALS-380-2014-381-2014.docORDER 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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