Criminal Appeal No.181 of 2000

13th December, 2002

Petitioner Counsel: Shri. J.M. GANDHI
Respondent Counsel: Shri. Thakare

Cases Cited:
Balasaheb Vs. The State of Maharashtra, 1994 Cr.L.J. 3044 [Para 23]
Harpalsingh Vs. State of Himchal Pradesh, (1981)1 SCC 560 [Para 25]
State of Rajasthan Vs. N.K. The Accused, (2000)5 SCC 30 [Para 38]
Bhagat alias Rikhman Mahabal Maurya Vs. The State of Maharashtra, 1986(2) Bom.C.R. 175 [Para 39]
Raghunath s/o Bondraji Beldar Vs. State of Maharashtra, 1987(3) Bom.C.R. 106 [Para 39]

JUDGMENT

JUDGMENT :- This appeal is directed against the Judgment and order of conviction dated 2nd June, 2000 passed by the learned 2nd Additional Sessions Judge, in Session Trial No.3 of 1997, whereby the appellant has been convicted of the offence punishable under Section 376 of Indian Penal Code, and sentenced to undergo rigorous imprisonment for eight years and to pay fine of Rs.5000/- (Rs. Five Thousand only) and to undergo further rigorous imprisonment for six months in case of non payment of fine, with further direction that if the amount of fine is deposited Rs.3000/- will be paid to the prosecutrix on account of compensation.

2. Briefly stated the prosecution case is as under :-

The appellant is a teacher employed in Zilla Parishad, High School at village Sukdi (Dakram). The Prosecutrix Pushpa P.W.1 was student of said school taking education in 9th standard. The incident is said to have occurred on 18.9.1996 at about 2.00 p.m. during the recess of the school. It is alleged that the prosecutrix went to her house and took lunch and cleaned the utensils and while she was keeping utensils, that time all of a sudden the appellant had come, he had closed front as well as back door of the house, caught hold of her, flung her on the ground and committed rape on her. Immediately after the incident, the prosecutrix narrated the same to P.W.2 Panchfulabai Shende, who was her neighbour. At about 6.00 to 6.30 p.m. the father of prosecutrix had returned to home. The entire incident was narrated by her to him. Then she accompanied with her father had gone to the Police Patil and disclosed the incident to him also. Police Patil had scribed the report as per the information supplied to him by the prosecutrix and her father P.W.3 Tejram. The said report was carried by the prosecutrix and her father to Police Station, Tirora in the same night and lodged it at about 1.00 a.m. of 19.9.1996. On the basis of that oral report and the First Information Report, the offence was registered against appellant under section 376 of Indian Penal Code. The prosecutrix was sent to the Medical Officer-P.W.4 Prashant Waindeshkar, Rural hospital, Tirora, for medical examination. P.W.8 A.P.I. Ramesh Tayade took up the investigation of this crime, he drew spot panchanama, seized the clothes of the prosecutrix and recorded the statements of witnesses.

3. It is alleged that on 26.9.1996 the accused was arrested by the Investigating Officer and he was also forwarded to the Medical Officer for medical examination and his clothes comprising of Fullpant, Baniyan etc., were seized. On 1st October, 1996 all the muddemal articles seized by the Investigating Officer were forwarded to the Chemical Analyst, Nagpur, for the purpose of Chemical analysis and after completion of investigation, chargesheet was filed in the Court of Judicial Magistrate First Class, who committed the case to the Court of Sessions to stand his trial according to law.

4. The learned Additional Sessions Judge framed Charge, which was read over and explained to the accused, to which he pleaded not guilty and therefore, trial proceeded with.

5. The prosecution has examined as many as 11 witnesses i.e. P.W.1 Pushpa is prosecutrix, P.W.2 Panchafulabai is neighbor of the prosecutrix, P.W.3 Tejram is the father of the prosecutrix, P.W.4 Dr. Waindeshkar is Medical Officer, Rural hospital, Tirora, P.W.9 Shiocharan Borkar is police patil, P.W.10 Wasudeo Rewatkar was working as a Teacher in the school, from whom extract of school register is said to have been proved, P.W.11 Keshav Donode was incharge Gramsewak of Dakram Sukdi through whom the entry recorded in the Grampanchayat register regarding the date of birth of the prosecutrix is said to have been proved. The prosecution has also examined the panch witnesses P.W.5 Shrikrishna Patle and P.W.6 Vijay Dudhpachare, who were panch witnesses in respect of the spot panchanama, seizure of clothes etc., P.W.7 A.P.I. Ramesh Tayade had conducted the investigation in this crime.

6. The defence of the accused is that of total denial. It is contended by him that on the date of incident at about 2.00 p.m. during the recess he along with Gajbhiye Guruji went to his room and at about 2.15 p.m. along with Gajbhiye Guruji he came to school and took the classes up to 5.00 p.m. The appellant further submitted that he had advanced some amount to Tejram, the father of the prosecutrix as a handloan and gave his bucket for repairs. Thereafter on one day he went to the house of Tejram and demanded his bucket and amount of handloan. Tejram did not return the bucket nor paid the amount and picked up quarrel with him. It is alleged that the prosecutrix has implicated the accused falsely in this case due to inimical relations.

7. The learned Additional Sessions Judge, on considering the evidence adduced by the prosecution and on hearing the arguments of the learned counsel of both sides had recorded the findings that the prosecution has succeeded in proving the offence punishable under Section 376 of Indian Penal Code and consistent with these findings, he convicted the appellant and sentenced him, as stated above. It is this judgment and order of conviction that has been challenged in the present appeal.

8. Mr. Gandhi, the learned counsel for the appellant contended that the entire story of the prosecution is shaky and the neighbourers, who had an opportunity to stop the accused have not been examined. He contended that the prosecution did not adduce any positive evidence to show that the age of the prosecutrix was below 16 years and according to him the testimony of prosecutrix and her father Tejram is not consistent with the entries recorded in the School register as well as in the Grampanchayat register in respect of the date of birth of the prosecutrix. He contended that the prosecutrix did not utter a single word as to whether the force was used at the time of incident. He pointed out that Panchafulabai has been examined but Dhakanabai has not been examined by the prosecution to show that prosecutrix narrated the incident to P.W.2 Panchfulabai. He further contended that the conduct of P.W.2 was not natural as she did not react in a natural manner. She in all probability would have stopped the accused from entering into the house of prosecutrix and also would have prevented him from molesting her when she saw that the appellant had already entered into her house and closed the front door and thereafter he came out of the house and left towards school.

9. He contended that the testimony of the prosecutrix is not corroborated in material particulars by evidence of P.W.2 Panchafulabai or her father P.W.3 Tejram. There was delay in lodging the first information report at the Police Station, which was lodged at about 3.00 a.m. in the night intervening between 18.9.1996 and 19.9.1996. Whereas the incident occurred on 18.9.1996 in the noon time between 2.00 p.m. to 2.30 p.m. He further contended that the police patil P.W.9 Shiocharan though says that the incident was disclosed by the prosecutrix and her father, he did not send said information to the police and his conduct is very much adverse to the prosecution. He further contended that the unexplained delay of about twelve hours in lodging first information report at Police Station is fatal to the prosecution.

10. He further contended that the testimony of the prosecutrix has not been corroborated by the medical evidence. P.W.4 Dr. Prashant clearly opined that no definite opinion can be given as to whether the sexual intercourse has been done or not. There were no external injuries appearing on the person of the prosecutrix. Similarly, no external injuries were noticed on the person of the accused. Thus, according to the learned counsel for the appellant, absence of injuries on the prosecutrix and the accused would show that the entire case has been false and concocted. He further contended that the medical evidence shows that the prosecutrix was habituated for the sexual intercourse and in such circumstances, in absence of any evidence on record, it cannot be said that the appellant had committed sexual intercourse with the prosecutrix on the relevant date and time, much less rape.

11. He further contended that finding of human blood stains on the clothes of prosecutrix comprising of inner garments like Jangya and body frock is of no consequence as the prosecutrix did not whisper in her testimony that at the time of incident of rape, there was bleeding from her private parts.

12. He further contended that P.W.10 Wasudeo Rewatkar has been examined by the prosecution to prove that the date of birth of the prosecutrix was 29th December, 1980 but he did not bring the original register in the Trial Court and he is not a person, who made entry in the admission register of the school regarding the date of birth of Pushpa. The learned counsel for the appellant further contended that through this witness, the defence of alibi has been proved, which would rule out the happening of any incident as stated by the prosecutrix. The learned counsel further contended that P.W.11 Keshav Donode, who was in charge Gramsewak has been examined through whom the entry recorded in the birth register maintained at Gram Panchayat is said to have been proved. But the copy of extract of entry recorded in the Gram Panchayat register was not supplied to the accused by the prosecution and moreover his name does not appear as a witness in the chargesheet. Thus, according to the learned counsel for the appellant, no reliance could be placed on his evidence to show that the date of birth of the prosecutrix was 29th December, 1980.

13. He further contended that the extra-judicial confession said to have been made by the accused to P.W.2 Panchafulabai cannot be relied on since her reaction on the scene of the offence was not natural and there are large amounts of omissions and contradictions in the evidence of prosecutrix P.W.1 and P.W.2 Panchafulabai, no reliance can be placed on their testimony. The learned counsel for the appellant contended that the finding of conviction recorded by the Additional Sessions Judge, is unsustainable in law.

14. The learned counsel for the appellant relied on some of the decisions of the High Courts and Supreme Court to which, I shall make reference in the subsequent part of this judgment.

15. The learned Additional Public Prosecutor fully supported the impugned judgment and order of conviction passed by the learned Additional Sessions Judge. He contended that there is ample evidence on record to prove that the age of the prosecutrix was below 16 years on the date of the incident and this fact has been duly established through documentary evidence brought on record and proved through the testimony of P.W.10 Wasudeo Rewatakar and P.W.11 Keshav Donode. He further contended that the evidence of the prosecutrix has been corroborated in material particulars by the testimony of P.W.2 Panchafulabai and P.W.3 Tejram to whom there was immediate disclosure of the incident. He further contended that absence of injuries on the person of prosecutrix and accused do not lead to the conclusion that the appellant did not ravish her on the relevant date and time. The learned A.P.P. further contended that there was no delay in lodging the first information report as could be seen from the evidence of the prosecution witnesses. He contended that the incident took place at village Sukdi, which is 13 kms. away from Police Station, and though P.W.9. police patil Shiocharan Borkar did not personally go to the police station, the prosecutrix and her father had gone to the police station in the same night and lodged the first information report. The learned Additional Public Prosecutor further contended that the story as related in the first information report also corroborates the version of the prosecutrix in material particulars and her testimony inspires confidence and appears to be trustworthy.

16. He further contended that the appellant had made extra-judicial confession to P.W.2 Panchafulabai when he had come out of the house of the prosecutrix and this extra-judicial confession is consistent with the guilt of the accused. He further contended that inner garments of prosecutrix were found stained with blood and appellant did not furnish any explanation when he was asked about it at time of recording his statement under Section 313 of Code of Criminal Procedure.

17. He further contended that though the medical evidence shows that the prosecutrix was habituated to the sexual intercourse, finding of stains of blood on her clothes would go to show that the incident has taken place and thus the prosecution has proved that the appellant did commit rape on the prosecutrix and the finding of conviction recorded by the learned Additional Sessions Judge is sustainable in law.

18. I have heard the learned counsel at length. They took me through the depositions of material prosecution witnesses. It is settled law that in such cases the prosecution must prove that (i) that the accused had sexual intercourse with the woman in question, (ii) the act was done and it must be done under the circumstances falling under any of the six Clauses mentioned in Section 375 of the Indian Penal Code, (iii) the said woman was not his wife and was not under 12 years of age, and (iv) there was penetration. On thoughtful consideration of respectful contentions canvassed by both the learned counsel, I think it proper to observe that for the offence of rape as defined in Section 375 of Indian Penal Code, the sexual intercourse should have been against the will of the woman or without her consent. Consent is immaterial in certain circumstances covered by clauses thirdly to sixthly, the last one being when the woman is under 16 years of age. If she be of 16 years of age or above, her consent cannot be presumed; an inference as to consent can be drawn if only based on evidence or probabilities of the case.

19. The testimony of prosecutrix would reveal that in the deposition in the title she has given her age as 26 years and she has categorically stated that she does not remember her date of birth and at the time of incident, she was 16 years of age. In the cross-examination she has stated that at the time of incident her age was at about 17 to 18 years. Whereas the testimony of P.W.3 Tejram would reveal that the date of birth of his daughter Pushpa is 29th December, 1980. In cross-examination he says that he does not know the date of birth of other daughters by name Pinky and Pravina. He further says in the cross-examination that entry regarding date of birth of prosecutrix was recorded by him in the diary but that was not produced by him in the Court. He denied the suggestion that he has furnished imaginary date of birth of prosecutrix.

20. The testimony of P.W.4 Dr. Prashant Waindeshkar would reveal that he had noted down the age of the prosecutrix as 15 years and in the cross-examination, he says that he mentioned the age of girl approximately as 15 years. The testimony of P.W.10 Wasudeo Rewatkar would indicate that he was serving as a teacher in Zilla Parishad High School, Dakram Sukdi from the year 1979. From June 1996 he was incharge Head Master of that school. In the year 1994 Ku. Pushpa d/o Tejram Meshram r/o Sukdi Dakram took admission in the school in 7th Standard. As per the record of the school, date of birth of Ku. Pushpa Tejram Meshram is 29th December, 1980. The contents in the certificate (Ex.52) issued by school are in his handwriting and they are correct as per the record maintained in the school. His testimony in the cross-examination further reveals that prosecutrix Pushpa did not take primary education in that school and prior to that she was taking education in Monohar High School at Bhandara. On the basis of school leaving certificate admission was given to her in his school but he cannot say who had recorded the entry about the admission of the prosecutrix in the school register.

21. The testimony of P.W.11 Keshao Narayan Donode reveals that from 8th February, 2000, he was holding additional charge of Gram-sewak, Sukdi Dakaram Grampanchayat. He had produced Birth Entrollment register of Sukdi Dakram Gram Panchayat maintained for the years 1978 to 1981. He further testified that as per the entry recorded on 31.1.1981 at Sr. No.5 the date of birth of prosecutrix (Ku. Pushpa Tejram Meshram) is written as 29th December, 1980. He has produced xerox copy of the relevant entry with his signature. In the cross-examination, it has been elucidated that there is no mention in the register as to who gave information about the birth of Pushpa to Gram Panchayat. This witness admits that the name of "Pushpa" appearing in the entry at Sr. No.5 of the register is written in different handwriting and he cannot say as to when the name of "Pushpa" was written. A boy named Damodhar whose name was written in entry no.4 was born on 1.1.1981. In September 1996 Mr. A.A. Uike was working as V.D.O. at Gram Panchayat, Sukdi Dakaram.

22. On careful consideration of the evidence of these witnesses, it would clearly reveal that the date of birth of the prosecutrix is 29th December, 1980 recorded in the Birth Register maintained at the Gram Panchayat as well as the same date of birth of the prosecutrix has been recorded in the entry appearing in the admission register of the Zilla Parishad School, where the prosecutrix was taking education in the 9th Standard. It is true that the prosecutrix has stated that her age was 26 years in the title of her deposition and she was unable to give her date of birth and categorically stated that at the time of incident she was of 16 years of age. But her father Tejram was very much specific that the date of birth of the prosecutrix was 29th December, 1980 though he was not able to give the date of birth of his other daughters. It is also true that the Medical Officer P.W.4 Prashant Waindeshkar did not conduct any ossification test to find out as to what was her exact age on the date of incident but then the medical evidence is an Expert's opinion evidence and cannot be said to be inconsistent with the evidence adduced by the prosecution.

23. Evidence of P.W.10 Wasudeo Adku Rewatkar would reveal that he was unable to say as to who made entry about admission of Pushpa in the school register and the testimony of P.W.11 Keshav Donode also would reveal that he is unable to tell, who gave information about birth of prosecutrix to the Gram Panchayat and he also admits that the name of "Pushpa" in entry no.5 of the register is written in different handwriting and he is unable to say as to who had written those words. Because of this admission of the aforesaid witnesses, the learned counsel for the appellant vehemently argued that the Clerks, Officer, who had recorded the entries in the respective registers have not been examined by the prosecution and therefore, no implicit reliance could be placed on those entries. He has also made criticism on the testimony of these witnesses and stated that the copy of the entry recorded in the Gram Panchayat register was not supplied to the appellant-accused and hence the aforesaid evidence is not sufficient to hold that the date of birth of prosecutrix is 29th December, 1980. In support of these submissions, he relied on decision of this Court in Balasaheb Vs. The State of Maharashtra reported in 1994 Cri.L.J. Page 3044, wherein it has been observed in para 25 as under :-

"We may repeat that had she been below years of age, she could not have been admitted in school on 15.6.1981. The learned advocate for the appellant in this behalf has drawn our attention to the evidence of Dr. Khot at Exh.24. According to Dr. Khot, the age of Nanda, on the date of her examination, might be between 14 to 16 years. We may indicate that monarchy was noticed since 15 June 1990. Now according the Modi's Medical Jurisprudence and Toxicology (21st Edition), it is observed that the error in case of age based on ossification test may be 13 years. In this case, we find that even Dr. Khot has stated that the age of Nanda could be 16 years. Adding one year to the same, it can be safely held that the age of Nanda could be even 17 years. The appellant is therefore entitled to advantage of this marginal error based on the ossification test. Now under Section, 375(6), it is laid down by way of inference that if a person is having a sexual intercourse with a female with her consent when she is not under 16 years of age, the sexual intercourse shall not tantamount to rape punishable under Section 376 of Indian Penal Code."

24. Obviously, these observations are not of any assistance to the defence in the present case in as much as in this case no ossification test has been carried out by the Doctor and there is absolutely nothing on record to show that a doubt has been created that the prosecutrix could be of age between 16 to 17 years.

25. It is pertinent to note that in the present case, even the medical evidence of P.W.4 Dr. Prashant Waindeshkar shows that when he had examined the prosecutrix, her age was about 15 years though this age has been mentioned by him on approximation. This medical opinion is not inconsistent with the entries recorded in the school admission register and register maintained at the Gram Panchayat and entries appear to have been proved through the evidence of P.W.10 Wasudeo and P.W.11 Keshao. The entries recorded in these registers would be admissible in evidence under Section 35 of Evidence Act. I am fortified in my view on this point by the decision of Apex Court in case of Harpalsingh and others Vs. State of Himchal Pradesh (1981)1 Supreme Court Cases Page 560 wherein it has been observed that the entry in admission register of school in which she was a student and certified copy of entry in Birth Register showing that she was 15 years of age at the time of occurrance and there is yet another document i.e. certified copy of the relevant entry in the Birth Register, the same is admissible under Section 35 of Evidence Act even in absence of evidence of officer, who recorded it. These observations of the Apex Court clearly answers the criticism of the learned counsel for the appellant. It is quite obvious that in order to prove the entries recorded in the school admission register and birth register maintained at the Gram Panchayat, examination of the persons, who have actually recorded those entries in the register is not necessary. The entries are admissible under Section 35 of Evidence Act. I think it proper to reproduce Section 35, which reads as under :-

"Section 35"- "Relevancy of entry in public record, made in performance of duty :- An entry in any public or other official book, register, or (record or an electronic record), stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country in which such book, register, or (record or an electronic record) is kept, is itself a relevant fact."

26. A bare reading of this provision, would reveal that if the entries are recorded in the discharge of the official duties, those entries become relevant and admissible in evidence and therefore, in the instant case when it is not shown as to what kind of prejudice has been caused to the accused by not supplying the copy of the entry recorded in the Birth Register maintained at the Gram Panchayat, it did not follow that the evidence of P.W.11 Keshav cannot be relied on.

27. The evidence of P.W.11 Keshav is totally consistent with the evidence of P.W.10 so far as this documentary evidence in relation to the date of birth of the prosecutrix is concerned. Thus, there is no room for doubt that age of the prosecutrix on the date of offence was below 16 years.

28. The testimony of prosecutrix P.W.1 Pushpa would reveal that the incident took place on 18.9.1996 and on the date of incident she had gone to school at about 10.00 a.m. During the recess time at about 2.00 p.m. she had come to her house for taking lunch. She took her lunch and then after cleaning the utensils in the bathroom which is situated in the back side of the house, she came in the house. At that time, appellant Mahure Guruji had come in her house. He closed front door of her house. He had removed all her clothes and had sexual intercourse with her. Then he had put on his clothes on his person and went out of the house. She had put on her clothes and came in the courtyard from the house. Accused-appellant proceeded towards his house, P.W.2 Shendebai and Dakhanebai came in her courtyard and then they asked her as to who had come to her house. She replied that appellant Mahure Guruji had come in her house and she narrated the incident to them. At about 6.00 to 6.30 p.m. when her father came to home she narrated the incident to him. Her father went to the house of police patil, who wrote a report as per his say. At about 1.00 to 1.30 a.m. she went to Police Station along with her father and her father had submitted a written report (Ex.18). After lodging the report, police sent her to Government hospital for medical examination. Doctor had examined her, and Police recorded her statement. Police had seized from her inner garments i.e. nicker and one white colour body-frock, which she was wearing at the time of incident. Article No.1 Nicker and Article No.2 body-frock are the same.

29. The evidence of prosecutrix has been assailed on the ground that her evidence is not corroborated by medical evidence or any other evidence and liable to be rejected. It is true that the prosecutrix in the cross-examination was contradicted with her statement recorded by the police and she has testified to the effect that while recording her statement she did not state before the police that she asked Mahure Guruji as to how he came in her house on that he replied that he came for work with her father. This omissions and improvements by the prosecutrix in the cross-examination in my view is not material in nature and does not affect her veracity.

30. The testimony of prosecutrix has been corroborated in material particulars by the contents mentioned in the first information report, which has been lodged at police station at 1.00 a.m. of 19.9.1996. Considering the fact that Police Station is 13 kms. away from village Sukdi and that it was a night time and last bus was available at 9.00 p.m., it cannot be said that there was any delay in lodging the first information report. As to what constitutes delay in lodging first information report is a question of fact depending upon the peculiar facts and circumstances of each case, no hard and fast rule can be laid down to determine as to which information is prompt and which report is delayed. Distance between police station and scene of occurrance is not only factor to be considered in determining the question. There are variety of circumstances, which Court has to keep in mind in order to decide on the question of promptness or otherwise as to lodging of first information report viz., the distance between police station and place of occurance, means of communication, ignorance on account of rustic simplicity etc.

31. It is settled law that in prosecution for the offence of rape, a mere delay in lodging first information report cannot be a ground by itself for throwing the entire prosecution case over-board. The Court cannot overlook the facts that in sexual offences delay in lodging F.I.R. can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and honour of her family. It is only after giving it a cool thought of that complaint of sexual offence is generally lodged. In the present case, considering the fact that the father of the prosecutrix was away from the house and that he had arrived only at about 7.30 p.m. on that day, the prosecutrix disclosed the incident to him, her conduct in disclosing this incident to her father is most natural in the circumstances. She and her father had gone to the police patil P.W.9 Shiocharan, who scribed the report and then handed over the same to her father for lodging it at police station. Thus, some time must have been consumed for preparation of first information report and it was scribed at 8.00 p.m. and it is a fact that the last bus available for Tirora was at 9.00 p.m. Then the prosecutrix and her father went to police station, Tirora which was 13 kms. away and lodged first information report at 3.20 a.m. In such circumstances, by no stretch of imagination it could be said that there was any delay in lodging first information report in backdrop of the aforesaid facts and circumstances.

32. The evidence of P.W.2 Panchfula would reveal that incident took place on 18.9.1996 at about 2.30 p.m. and at that time her sister-in-law Manabai Dakhane was rolling bidies in the varandah of her house and she was sitting near her. On that day there was raining. At that time accused came by holding an umbrella and he entered in the house of Pushpa Meshram and he closed the front door of her house. She called her neighbor Kisanabai Shingade to her house and gave a call to Pushpa. She asked where her father had gone and whether a bucket was repaired. Pushpa said that her father had gone outside and she asked to Pushpa as to who is present in her house and at that time she was scared. After some time Mahure Guruji had come out from the house and she asked Pushpa as to what he did to her and she disclosed that Mahure Guruji had removed her clothes from her person and he did commit rape on her. When Mahure Guruji had come out of the house, Panchafulabai asked him as to whether it was proper on his part. On that he replied that it was a mistake on his part and he should be excused.

33. The testimony of P.W.3 Tejram would reveal that the incident took place on 18.9.1996 and on that the incident time he went to Churdi for Tervi programme. At about 7.00 p.m. he returned back to his house at Sukadi. At that time his daughter Pushpa told him that in between 2.00 to 2.30 p.m. while she was arranging utensils in the house after taking the lunch at that time Mahure teacher came in the house and he committed rape on her. P.W.3 Tejram took his daughter to the house of police patil Shivcharan Borkar and on information supplied Shivcharan wrote a report, which was lodged at police station.

34. The evidence of these two witnesses P.W.2 Panchafulabai and P.W.3 Tejram would clearly indicate that there was immediate disclosure by the prosecutrix regarding the incident that occurred to these witnesses. The statement of the father of the prosecutrix as well as the statement of P.W.2 Panchafulabai is admissible in evidence and relevant under Section 157, as their former statement corroborating their testimony as also under Section 8 of Evidence Act as evidence of her conduct. In the cross-examination of P.W.2 Panchafulabai some minor contradictions have been brought on record, which are said to have been duly proved through the investigating officer. She has testified in cross-examination that she had stated to the police that she gave call to Pushpa and had asked where her father the gone and whether her bucket has been repaired and she also stated to police that Mahure Guruji had come to her house and at that time she asked him as to whether it is proper on his part. These are the minor omissions and do not shake her basic version so far as material particulars of prosecution case is concerned.

35. It is well settled that omissions and contradictions in the evidence of prosecution witnesses, which do not go to the root of the matter and shake the basic version of the witnesses cannot be axed with undue importance. In this case, the testimony of both these witnesses P.W.2 Panchafulabai and P.W.3 Tejram categorically indicate that there was immediate disclosure of the incident to them and therefore, there is no scope for imagination that they have implicated the accused falsely especially when it is admitted position that both the witnesses have no axe to grind against appellant.

36. It is true that in the cross-examination of Tejram it was suggested that the quarrel ensued between him and the accused on account of repairing charges of bucket. This suggestion has been denied by him. It is well settled that the suggestion denied in the cross-examination cannot take the place of proof and moreover the father of the prosecutrix would not go to the extent of involving the appellant in the false case, for the serious offence of rape. The prosecutrix a teenage girl was living in the village with her father and it is quite natural that she would narrate the incident to him after his arrival. The father of the prosecutrix would not ordinarily subscribe to false story of rape on his daughter and thereby invite ignominy. On careful scrutiny of evidence of both these witnesses, I am of the view that their evidence corroborates the testimony of prosecutrix in material particulars and there is absolutely no reason to discard their evidence.

37. It is true that prosecutrix did not put in resistance at the time of incident as is clear from cross-examination in para 10 where she has stated that the appellant had come in her house from the front door and while he was closing front door of the house at that time she did not make any attempt to go out of the house from back door. This material would only suggest that she did not put in resistance and try to run away from the house from the back door. It would also reveal from the medical evidence that no injuries were found on the person of the prosecutrix as well as the accused. Both of them were subjected to medical examination. The evidence of P.W.4 Dr. Prashant Waindeshkar would reveal that he has examined the prosecutrix on 19.9.1996 at 1.15 a.m. and found that hymen was absent, no injury or tear or abrasion. No definite opinion whether the intercourse had been done or not could be given. It appears from his evidence that the prosecutrix was habituated to sexual intercourse and in absence of resistance it is but natural that no injuries would appear on her person and on the person of appellant but from this fact one cannot jump to conclusion that since she was consenting party to the sexual intercourse, no rape has been committed by Appellant on her. The consent of a girl below the age of 16 years would be immaterial.

38. Reference may be made to the decision of Apex Court in State of Rajasthan Vs. N.K. The Accused (2000)5 Supreme Court Cases Page 30, wherein it has been observed in para no.19 that for the offence of rape as defined under section 375 of Indian Penal Code, the sexual intercourse should have been against the will of the woman or without her consent. Consent is immaterial in certain circumstances covered by Clauses thirdly and sixthly, the last one being when the woman is under 16 years of age. Based on these provisions, an argument is usually advanced on behalf of the accused charged with rape that absence of proof of want of consent where the prosecutrix is not under 16 years of age takes the assault out of purview of 375 of Indian Penal Code. Certainly consent is no defence if the victim has been proved to be under the age of 16 years of age. If she be of 16 years of age or above her consent cannot be presumed, an inference as to the consent can be drawn if only based on the evidence or probabilities of the case. The victim of rape stating on oath that she was forcibly subjected to sexual intercourse or that the act was done without her consent, has to be believed and accepted like any other testimony unless there is material available to draw an inference as to her consent or else the testimony of prosecutrix is such as would be inherently improbable. In the present case, the absence of visible mark of injuries on the person of prosecutrix by itself is not sufficient to draw an inference of consent. The prosecutrix in this case is below the age of 16 years of age and therefore, the consent is totally immaterial in the circumstances and the case is squarely covered by Clause 6 of Section 375 of Indian Penal Code.

39. The learned counsel for appellant relied on the decision of our High Court in the case of Bhagat alias Rikhman Mahabal Maurya Vs. The State of Maharashtra reported in 1996(2) Bom.C.R. Page 175 and another decision of Single Bench of this Court in Raghunath s/o Bondraji Beldar Vs. State of Maharashtra reported in 1987(3) Bom.C.R. 106, contended that there is no medical evidence to show that the age of prosecutrix was below 16 years and hence since she was consenting party, the finding of conviction recorded by the learned Additional Sessions is not sustainable in law. On careful consideration of the evidence on record, I am of the considered view that there is no merit in this argument and these decisions, relied on, are not applicable to the facts and circumstances of the present case.

40. It would clearly reveal that the prosecutrix has stated on oath that she was forcefully subjected to sexual intercourse and that the act was done without her consent, has to be believed and accepted like any other testimony, unless there is material available to draw an inference that whatever she has stated before the Court is nothing but outcome of falsehood. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of allegations and an evidence of consent on her part.

41. The evidence on record would clearly indicate that the inner garments of prosecutrix i.e. Jangya and body-frock were seized by the Investigating Officer and these clothes were forwarded to the Chemical Analyzer. The Chemical Analyzer recorded the finding in the report that both these clothes were soiled with blood. There is nothing on record from which it could be said that the prosecutrix was in her menses at that time nor it has been suggested in her cross-examination in that context. The statement of the accused was recorded under Section 313 of Code of Criminal Procedure and opportunity was given to him to explain the circumstances appearing against him in the evidence but while answering to question No.44 he simply pleads ignorance and thus, the presence of stains of human blood on the inner garments of the prosecutrix would be additional circumstance against the appellant.

42. The learned counsel for the appellant pointed out that the prosecutrix and her father were on inimical terms with the appellant. But then from the cross-examination of the prosecutrix, it would only reveal that her father is engaged in profession of repairing work of an umbrella and bucket and prior to incident the appellant Mahure Guruji had given bucket for repairing to him. Tejram has denied the suggestion in the cross-examination that there was a quarrel in between him and the appellant about the payment of repairing charges of bucket. There must have been some exchange of words between Tejram and appellant on payment of repairing charges of Bucket, but it did not follow that for such trivial reason her father would involve the appellant falsely at the cost of reputation and honour of his teenage daughter and family.

43. The learned counsel for the appellant also pointed out that the evidence of prosecution witnesses is doubtful specially when they have admitted that the appellant had attended his school and conducted classes since 11.00 to 2.00 p.m. and 2.30 p.m. to 5.00 p.m. and in the recess period, he was accompained with Gajbhiye Guruji had gone to his house. Thus, it appears that the appellant wanted to take defence of alibi but then there is hardly any evidence to show that the appellant was present some where else than the spot of incident on that day. Where an accused person sets up the plea of alibi, he has to substantiate it because an omission on his part to produce all important evidence in support of it which could easily have been produced raises the presumption under clause (g) to Section 114, Evidence Act, that it would, if produced have been unfavorable to him. In the present case, the defence of alibi is taken without examining Gajbhiye Guruji with whom the appellant is alleged to have been keeping himself through out the day. The incident of rape is said to have been committed between 2.00 to 2.30 p.m. during the recess period. Hardly 5 to 10 minutes would have been sufficient for the purpose of satisfaction of lust by the appellant and in such circumstances, it is not possible to accept that on that day appellant did not go to the house of prosecutrix at all between 2.00 to 2.30 p.m.

44. The appellant was a teacher and it was his pious duty to educate the pupils and to imbibe in their minds the Indian culture and make them good human beings and citizens ready for shouldering the responsibility of the nation but this is a case wherein the appellant-teacher himself has ravished his own student i.e. prosecutrix, who was in her teens, making her almost a person living dead and committing breach of confidence reposed by her in him. In such circumstances, the learned Additional Sessions Judge was perfectly justified in awarding the conviction and imposing the sentence on him. There is absolutely no reason for this Court to interfere in his findings, who has scrutinized the evidence of prosecution witnesses with utmost care and caution and the findings recorded by him deserve to be upheld.

45. At this stage, the learned counsel for the appellant contended that the appellant has almost undergone the sentence of imprisonment for a period of six years and thus leniency be shown and the sentence may be reduced to already undergone. On comprehensive scrutiny of the facts and the circumstances brought on record, this submission of the learned counsel for the appellant is rejected. In the result, the appeal stands dismissed.

Appeal dismissed.