2007 ALL MR (Cri) 2335
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

C.L. PANGARKAR, J.

Dnyaneshwar Sudama Bhagat Vs. State Of Maharashtra

Criminal Appeal No.81 of 2006

2nd July, 2007

Petitioner Counsel: Smt. SMITA P. DESHPANDE
Respondent Counsel: Shri. A. S. PARIHAR

(A) Penal Code (1860), Ss.363, 366-A - Conviction - Accused taking away prosecutrix of less than 18 years of age without consent of her father, the natural guardian - Conviction of accused under S.366-A, most improper - In order to bring home the charge under S.366-A, what is necessary to be proved is that the girl must be forced or seduced to illicit intercourse with another person - Accused convicted under S.363 instead of under S.366-A of I.P.C..

In the present case, the accused took the prosecutrix without the consent of her parents under the false pretext that her father was ill. There is, therefore, enough of evidence to hold that the prosecutrix who was less than 18 years of age at the time of incident was taken away by the accused without the consent of her father - the natural guardian. The accused is convicted under Section 366-A of Indian Penal Code by the Sessions Judge. The question is whether the accused could have been convicted under Section 366-A. A bare reading of Section would show that the case could not fall under Section 366-A of Indian Penal Code. In order to bring home the charge under Section 366-A, what is necessary to be proved is that the girl must be forced or seduced to illicit intercourse with another person. It means that the girl must be forced to have sexual intercourse with person other than the one who procured her or removed her from the custody of the parents by inducement. Here, there is no allegation that the accused forced or seduced her with a view that she could be forced to have intercourse with another person. In view of this, the conviction of the accused under Section 366-A of Indian Penal Code was most improper. Since charge was framed and lower court has held accused to be guilty under section 363, the accused was convicted under Section 363 instead of under Section 366-A of Indian Penal Code. [Para 6,7]

(B) Penal Code (1860), S.376 - Rape case - Intercourse - It is not necessary that injury must occur - Even if there is no injury, it cannot be said that no intercourse was committed - Hymen of prosecutrix found torn due to sexual intercourse - Her age much less than 16 years - Accused guilty of offence under S.376 - Conviction and sentence of accused u/s.376, confirmed. (Paras 8, 9)

JUDGMENT

JUDGMENT :- This is an appeal by accused who was convicted under Sections 366-A and 363 of the Indian Penal Code and sentenced to suffer imprisonment of five years on both counts.

2. The facts giving rise to the prosecution are as under - Prosecutrix Ashwini Solanke at the relevant time was living with her father Haribhau. On 31/7/2004 Haribhau had gone out for work while his wife had gone out to bring her son from the school. She found her daughter missing who was alone at home. She thought that she must have gone somewhere and come back home. Since she did not come back, a report was lodged by Haribhau on 1/8/2004. Again on 5/8/2004 he lodged a report informing the police that he has found a chit written by his daughter in the name of one Vishal and from that he gathered that it was accused Dnyaneshwar who had kidnapped her. On this report, the police registered the offence. In the meanwhile, appellant/accused and Ashwini came back to Akola and both of them presented themselves before the Police. The Police arrested the appellant. At the relevant time Ashwini - the prosecutrix - was only 15 years old. After completion of the investigation the Police filed a charge-sheet.

3. The Judicial Magistrate (F.C.) committed the case to the court of Sessions. The Court of Sessions framed the charge against the accused under Sections 363, 366-A, 376 of Indian Penal Code. The Sessions Judge, upon consideration of the evidence found the accused guilty under Sections 366-A and 376 of Indian Penal Code and sentenced him as stated above. Being aggrieved by that conviction and sentence, this appeal has been preferred.

4. I have heard Smt. Smita Deshpande, Advocate for the appellant and Shri. A. S. Parihar, Additional Public Prosecutor for the State and have perused the record.

5. The learned Sessions Judge has framed charges under Sections 363, 366-A and 376 of Indian Penal Code. It appears from the judgment that the learned Sessions Judge raised only two points for his determination. For each charge there ought to have been a separate point for determination. It also appears that the learned judge observes that since offence under Section 366-A is aggravated form of Section 363, no separate conviction is awarded and no separate sentence is passed. Charge is of kidnapping i.e. under Section 363 of Indian Penal Code. The accused has been held guilty of offence under Section 363 of I.P. Code by the learned Sessions Judge but he did not separately convict and sentence him. The first ingredient that needs to be proved by the prosecution is that the girl was minor i.e. under the age of 18. It is stated by PW 1 Haribhau - the father of the girl- that at the time of incident the age of Ashwini was 15 years. Even PW 2 Ashwini tells that her age to be 15 years. On this point, there is absolutely no cross-examination to either witness. The Certificate from the School (Exh.36) shows that date of birth of Ashwini is 21/1/1990. The incident is dated 31/7/2004. Thus the prosecutrix, in fact, was only 14 years of age. In any case, the evidence clearly shows that she was much less than 18.

6. It is stated by PW 2 Ashwini that on the date of incident, the accused came to her house when both her parents were not at home. She states that accused told her that her father was admitted in hospital. He even told her that her mother was also in the hospital. She goes on to depose that accused asked her to accompany her and she did. She also stated that the accused hired a Auto Rickshaw and by the by-pass road took her to Akot-Fail area. She also states that she questioned the accused as to where she was being taken, the accused gave her threat. She also further has stated that the accused took her to Akot-Fail area and kept her there for two days and later took her to village Dastapur at the house of his maternal uncle. If the cross-examination is seen, it is clear that the accused, in fact, does not dispute that he has taken the prosecutrix to Akot-Fail area and then to Dastapur. It is elicited in cross-examination how they travelled. It is also elicited whether at Dastapur she had been out of house to answer call of nature. These suggestions and cross-examination, in fact, goes to show that the accused does not challenge that he had taken the prosecutrix with him to Dastapur. There is also virtually no cross-examination on the point that accused came to the house of the prosecutrix and told her that her father was in hospital and took her in Auto Rickshaw. In view of this, it is clear that the accused took the prosecutrix without the consent of her parents under the false pretext that her father was ill. There is, therefore, enough of evidence to hold that the prosecutrix who was less than 18 years of age at the time of incident was taken away by the accused without the consent of her father - the natural guardian.

7. We have seen that the accused is convicted under Section 366-A of Indian Penal Code by the Sessions Judge. The question is whether the accused could have been convicted under Section 366-A. A bare reading of Section would show that the case could not fall under Section 366-A of Indian Penal Code. In order to bring home the charge under Section 366-A, what is necessary to be proved is that the girl must be forced or seduced to illicit intercourse with another person. It means that the girl must be forced to have sexual intercourse with person other than the one who procured her or removed her from the custody of the parents by inducement. Here, there is no allegation that the accused forced or seduced her with a view that she could be forced to have intercourse with another person. In view of this, the conviction of the accused under Section 366-A of Indian Penal Code was most improper. Since charge was framed and lower court has held accused to be guilty under section 363, I see no difficulty in convicting the accused under Section 363 instead of under Section 366-A of Indian Penal Code.

8. This takes me to consider the charge under Section 376 of Indian Penal Code. We have already seen that the prosecutrix was even less than 15 years of age when the incident took place. As a result, whether she has given consent or not for sexual intercourse is immaterial. It is deposed by PW 2 Ashwini that accused forcibly committed sexual intercourse with her at Dastapur. She says that due to the act she suffered pain. It is also in cross-examination of PW 2 that she suffered injury to her private part and there was bleeding. It is further in the cross-examination that it was the first occasion that she had intercourse. Thus, the cross-examination reveals that instead of discrediting the witness it makes the case against the accused more concrete. All incriminating things seem to have been elicited in the cross-examination. The report of the Medical Officer (Exh.20) shows that hymen was found ruptured. This corroborates her version that she had suffered pain and bleeding. It was contended that there was no injury anywhere on the private part or body. The evidence of the Medical Officer (PW 4) shows that only if force is used for 3-4 days any injury could occur. Obviously, it is not necessary that injury must occur. Thus, even if there is no injury it cannot be said that no intercourse was committed. It was also submitted that neither spermatozoa nor blood was found anywhere on the clothes of prosecutrix as can be seen from the C.A.report (Exh.26). The vaginal swab was collected on 6/8/2004 and the clothes were seized on 7/8/2004. Obviously, this was done two days after the prosecutrix returned home. It is in the evidence that she had returned home on 5/8/2004. Hence, it is quite probable she was not wearing the same clothes and she may have taken the bath. Hence, absence of blood and spermatozoa is of no consequence. The evidence itself of PW 2 clearly goes to show that the accused had sexual intercourse with her. Her hymen was found torn due to sexual intercourse. Her age is much less than 16 years. Thus, the evidence is enough to hold the accused guilty. The learned Sessions Judge did not commit any error holding the accused guilty of the offence under Section 376 of Indian Penal Code. Hence, the following order.

9. The appeal is partly allowed.

The sentence and conviction of the accused under Section 376 of Indian Penal Code is confirmed. The conviction of the accused under Section 366-A of Indian Penal Code is set aside. Instead the accused is convicted under Section 363 of Indian Penal Code. He is sentenced to imprisonment for a period of five years and fine of Rs.1,000/-. In default of payment of fine the accused shall suffer further R.I. for six months. This sentence shall run concurrently with the sentence under Section 376 of Indian Penal Code.

Appeal partly allowed.