2011 ALL MR (Cri) 411
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

V.R. KINGAONKAR, J.

Maltya Michara Gavit Vs. State Of Maharashtra & Anr.

Criminal Application No.160 of 1998

10th December, 2010

Petitioner Counsel: Mr. C. R. DESHPANDE
Respondent Counsel: .Mr. N. H. BORADE

(A) Penal Code (1860), S.376-C - Rape case - Consent of woman - Custodial charge of female inmate - Due to the custodial charge of such female inmate, and in view of the influence of the Manager or inducement made by him, the act of consent of the female inmate is of no avail by way of defence - Age of prosecutrix also immaterial.

So far as amended Section 376-C of the I.P. Code is concerned, the necessary ingredients are mostly similar to the earlier provision. The material difference, however, is that where such a Superintendent or Manager of the Institution takes advantage of his official position and induces or seduces any of the female inmate of the Institution to have sexual intercourse with him though such sexual intercourse is with the consent of the female inmate, it shall amount to an offence. In other words, due to the custodial charge of such female inmate, and in view of the influence of the Manager or inducement made by him, the act of consent of the female inmate is of no avail by way of defence. [Para 9]

Question of age of the prosecutrix and her consent to the sexual intercourse would become immaterial if it is proved that the appellant induced or seduced her to have sexual intercourse with him, during the period she was inmate of the hostel of the Ashram School. Considering totality of the circumstances and the evidence placed on record, it will have to be said that all the ingredients of the charge for offence punishable under section 376-C of the I.P. Code are duly established in the present case. [Para 19]

(B) Criminal P.C. (1973), Ss.227, 228 - Framing of charge - Effect of defective charge - A mere omission to state the offence or the particulars required to be stated in the charge does not vitiate the trial unless it is demonstrated that the accused is misled due to any erroneous statement in the charge. Penal Code (1860), S.376C.

The legal position regarding effect of defective charge may be now appreciated. The charge is in the shape of a notice to the accused of what the prosecution intends to prove against him. The object of charge is to inform the accused of the case which he is required to defend. The errors in the charge can be regarded as immaterial if the accused is not prejudiced in his defence. A mere omission to state the offence or the particulars required to be stated in the charge does not vitiate the trial unless it is demonstrated that the accused is misled due to any erroneous statement in the charge. AIR 1962 SC 1821 & AIR 1963 SC 666 - Rel. on. [Para 10,19]

(C) Criminal P.C. (1973), S.386 - Powers of Appellate Court - Powers are practically co-extensive with that of the trial Court - In addition, the Appellate Court has power to alter the finding maintaining the sentence.

The powers of the Appellate Court under section 386 of the Criminal Procedure Code are practically co-extensive with that of the trial Court. In addition, the Appellate Court has power to alter the finding maintaining the sentence in view of the wording used in Section 386(b)(ii) of the Criminal Procedure Code. So, where the sentence can be maintained, the Appellate Court may alter the finding and there is no need to direct retrial. The expression "alter the finding" is, of course, used in the context of the conviction and not the finding of acquittal. The Appellate Court, therefore, may change nature of the conviction without causing change in the nature of sentence. The appellant, in the context of present case, is not acquitted for the offence punishable under section 376-C of the I.P. Code. Though he was charged for the offence punishable under section 376-C of the I.P. Code, yet, erroneously, he has been convicted for the offence punishable under section 376(2)(c) of the I.P. Code by the learned Sessions Judge. This factual error can be rectified in the exercise of the appellate jurisdiction in view of clear provision of Section 386 (b) (ii) of the Criminal Procedure Code. [Para 20]

Cases Cited:
R. K. Dalmia Vs. Delhi Administration, AIR 1962 SC 1821 [Para 10]
Omprakash Vs. State, AIR 1960 SC 409 [Para 10]
Tulsi Vs. State, AIR 1963 SC 666 [Para 10]


JUDGMENT

JUDGMENT :- Challenge in this appeal is to judgment rendered by learned Additional Sessions Judge, Nandurbar, in Sessions Case No.40/1996 whereby the appellant is convicted for the offence punishable under section 376(c) of the I.P. Code and sentenced to suffer rigorous imprisonment for period of five (5) years and to pay fine of Rs.25,000/-, in default to suffer rigorous imprisonment for one (1) year.

2. It is undisputed that the appellant was employed in a Basic Ashram School situated at village Bil-Manjre (Tq. Nawapur). Nawapur Taluka is in tribal belt of Nandurbar district. The Basic Ashram School was meant for benefit of tribals (adiwasis). It is an admitted fact that the prosecutrix (PW15) was the student of the Basic Ashram School. At the relevant time, during the educational year of 1996, she was studying in 5th standard. It is also an admitted fact that she was admitted in the school in or about 1991. She used to reside in a room in the hostel run by the Ashram School. The appellant was employed as a teacher-cum-rector. He used to reside separately in a house with his wife and children. His residential house is situated in the proximity of the hostel and the premises of the school. There is no dispute about the fact that the prosecutrix hails from tribal community. Her family belongs to lower strata of the society.

3. The prosecution case, briefly stated, is that the prosecutrix was below 16 years of age at the relevant time. The appellant had called her to attend domestic work in his house during period of Christmas holidays in the last week of December, 1995. She could not go to her parents' house during the said vacation. The appellant had asked her to attend the domestic work at his residential house. His house needed smearing with cow-dung water. The thatched walls of the house also required plastering by means of wet earth mixed with cow-dung. As per his command, the prosecutrix attended the domestic work. On 21st December, 1995, the wife of the appellant had gone out of the house for collection of cow-dung. His children were sleeping at some distance. The prosecutrix was in his house at that time. He caught hold of her and took her to a wooden cot (¢ejheF_). Though she urged him not to do any indecent act, yet, he silenced her by telling her that nothing was going to happen. He forcibly removed underwear and thereafter, committed sexual intercourse with her. The prosecutrix lateron put back the underwear and assisted the wife of the appellant to give dung-wash to the flooring of the house and also for plastering of the thatched walls of the house.

4. The prosecution further alleges that due to family planning operation, the wife of the appellant was admitted in Government Hospital at Nawapur on 1st January, 1996. The appellant had called the prosecutrix to his house to cook the food for himself and the children. As directed by him, the prosecutrix used to attend the school during day-time and used to halt at house of the appellant during the nighttime. He used to commit sexual intercourse with her during the nighttime. In the relevant period, on four (4) occasions, he committed sexual intercourse with her. His wife returned home on 7th January, 1996 after the family planning operation. The prosecutrix noticed that she could not get the menses at the fag end of January, 1996 though it was expected much earlier in that month. She then approached the appellant and narrated to him that she was scared due to absence of the monthly period. He assured her that he would take care of everything. There was exchange of chitthis between them. The appellant directed her not to disclose about their affairs to anyone and further threatened that if she will disclose about their affair, then she will not pass in the examination. Her educational career will be damaged due to his flunking her. He planned her to visit the house of her parents. As per his directions, she visited house of her parents and therefrom, went to Nawapur on 26th February, 1996. The appellant met her at Nawapur as told by him and took her to Ucchal and from there, to Songad (Gujarat). He admitted her in a private hospital where she was got aborted. He thereafter reached her to her parents' house at Sagipada in the same evening. On next day, she and her father approached Station Duty Officer at Nawapur Police Station. She lodged FIR (Exh-62). The police registered crime No.22/1996 for the offences punishable under sections 376, 313 and 506 of the I.P. Code. The police recovered chitthis (letters) written by the appellant to the prosecutrix from a wooden box kept in her hostel room. The police also recovered some of the letters written by the prosecutrix to the appellant from his personal file under a panchanama. The police recorded statements of witnesses. The prosecutrix was subjected to clinical examination. The copies of her birth extracts were collected from the record of school and the Village Panchayat. The appellant was charge-sheeted on basis of the material gathered during course of the investigation.

5. The learned Sessions Judge framed charge below Exhibit-2 and explained it to the appellant. The appellant pleaded not guilty to the charge. The appellant asserted that he was framed up in the sessions case. He further asserted that the prosecutrix was more than 19 years of age at the relevant time. He did not, however, raise any particular defence.

6. At the trial, the prosecution examined as many as 21 witnesses in support of its case. The learned Sessions Judge came to the conclusion that the prosecutrix was not below age of 16 years at the relevant time. The learned Sessions Judge held that the appellant committed sexual intercourse with the prosecutrix against her will, by taking undue advantage of his official position as Manager (Rector) of the hostel of the Ashram School and thereby committed the offence punishable under section 376 (c) of the I.P. Code. The appellant was accordingly convicted and sentenced as stated in the opening paragraph.

7. Mr. C. R. Deshpande would submit that the learned Sessions Judge committed basic error by holding the appellant guilty for the offence punishable under section 376(c) of the I.P. Code notwithstanding the fact that the charge (Exh-2) was framed for the offence punishable under section 376-C of the I.P. Code. It is argued that the conviction for different kind of offence could not have been awarded without clear and proper charge for offence punishable under section 376(c) of the I.P. Code. It is argued that the exchange of chitthis (letters) between the appellant and the prosecutrix would corroborate the theory of her conscious sexual intercourse. It is argued that the testimony of the father of the prosecutrix is contradictory to her version and, therefore, her version could not have been relied upon by the learned Sessions Judge. It is vehemently argued that the appreciation of evidence by the Sessions Court is quite erroneous and improper. The learned advocate submits that the prosecutrix, in all probability, willingly offered her services at residential house of the appellant and was a consenting party to the sexual intercourse. It is urged, therefore, to allow the appeal and acquit the appellant. Per contra, the learned APP submits that the poor adiwasi (tribal) girl (PW15) was sexually exploited by the appellant and the charge is duly proved. He would submit that mere technical error in appropriately wording of the charge will not be a sufficient ground to acquit the appellant.

8. Before I proceed to scrutinize the evidence tendered by the prosecution, it is worthwhile to mention here that while framing of the charge (Exh-2), the learned Sessions Judge indicated that the prosecutrix was raped by the appellant by taking advantage of his official position as a Manager (Rector) of the hostel of the Ashram School. Though the charge (Exh-2) reveals that it was framed for the offence punishable under section 376-C of the I.P. Code, yet, the contents of the charge would show that it was framed for the offence punishable under section 376(2)(c) of the I.P. Code. Section 376(2)(c) may be reproduced as below :

"376. Punishment for rape.-

(1) ****

(2) Whoever,-

(a) ****

(b) ****

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force, or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place of institution; or"

The purport of Section 376(2)(c) is to segregate category of those accused persons who are on the management or on the staff of a jail, remand home or other place of custody or of a woman's or children's institution and would take advantage of such position while committing the rape on any of the inmates of such jail, remand home, place or institution. The Manager of Ashram School, if would take advantage of his official position and commits rape on any inmate of the Institution, the provision would be attracted.

9. So far as amended Section 376-C of the I.P. Code is concerned, the necessary ingredients are mostly similar to the earlier provision. The material difference, however, is that where such a Superintendent or Manager of the Institution takes advantage of his official position and induces or seduces any of the female inmate of the Institution to have sexual intercourse with him though such sexual intercourse is with the consent of the female inmate, it shall amount to an offence. In other words, due to the custodial charge of such female inmate, and in view of the influence of the Manager or inducement made by him, the act of consent of the female inmate is of no avail by way of defence.

10. The legal position regarding effect of defective charge may be now appreciated. The charge is in the shape of a notice to the accused of what the prosecution intends to prove against him. The object of charge is to inform the accused of the case which he is required to defend. The errors in the charge can be regarded as immaterial if the accused is not prejudiced in his defence. A mere omission to state the offence or the particulars required to be stated in the charge does not vitiate the trial unless it is demonstrated that the accused is misled due to any erroneous statement in the charge. In "R. K. Dalmia Vs. Delhi Administration" (AIR 1962 SC 1821), the Apex Court held that vagueness of charge will not make the trial illegal when no prejudice is caused to the accused. In "Omprakash Vs. State" (AIR 1960 SC 409) and "Tulsi Vs. State" (AIR 1963 SC 666), the Apex Court held that where the accused had not raised objection regarding defect in charge at an earlier stage but raises it at a belated stage, the plea of prejudice also cannot be entertained. In the present case, the charge is clearly stated to be an act of rape for which the appellant was called upon to face the trial. It has also been stated in the charge that he had misused the official position as Manager (Rector) of the Ashram School by calling the prosecutrix at his residence on 1st January, 1996 till 26th February, 1996. The appellant, therefore, had sufficient notice about the contemplated nature of the trial. It is important to further notice that the entire appeal memo is silent as regards so called prejudice caused to the appellant, which is attempted to be demonstrated as defect in the charge, on account of improper wording of the charge. In fact, the appeal memo does not show any ground taken by the appellant to seek vitiation of the trial on account of any defective charge. In this view of the matter, the contention of learned advocate Mr. Deshpande will have to be rejected.

11. Coming to the version of the prosecutrix (PW-15), it may be gathered that she was inmate of the Ashram School during the relevant period. Her evidence purports to show that the appellant had called her to his residence during the Christmas vacation. He did not allow her to go to the paternal house. She, therefore, resided in his house which was occupied by his family members including the wife and children. Her evidence purports to show that in one morning, the wife of the appellant had gone to collect cow-dung and his children were sleeping a little away. The appellant then awoke her and laid her on a wooden cot (¢ejheF_). He got removed her undergarments and committed sexual intercourse with her though she offered resistance by verbally saying not to do such act. He told her that nothing was going to happen and he was there to help her. Her evidence further purports to show that during course of an inspection of the Ashram School, she was called, alongwith another young girl student, to house of the appellant to attend members of the inspecting party. He had arranged a dinner party at his residence. She was asked to do the domestic work at the house of the appellant. Her evidence further reveals that wife of the appellant was then employed as a cook in the Ashram School. She narrated as to how she was called to attend the cooking work at his house during absence of his wife, who had gone to Nawapur for undergoing family planning operation. She further narrated that under his instructions, she used to visit his house in the nighttime too and he used to commit sexual intercourse with her during period of about one (1) week while his wife was absent from the house. Her version purports to show that due to such sexual intercourse committed by the appellant, her monthly period was stopped and as such, she wrote a chitthi (letter) to the appellant. Her evidence purports to show that as per the directions of the appellant, she went to house of her parents and therefrom, went to Nawapur where the appellant met her. He took her to Songad at a hospital. He told her to inform the parents that he was going to purchase clothes for her and as such, she was required to visit Nawapur. He threatened her that if she would disclose about the absence of the monthly period to her parents or others, then he will fail her in the ensuing examination. She did not disclose such a fact to the parents or anybody else due to such a threat. She narrated as to how the pregnancy was medically terminated in the private hospital at Songad. She corroborated recitals of the FIR (Exh-62). Her version purports to show that she was taken to hostel of the Ashram School and panchanamas (Exh-33 and Exh-34) were drawn. She identified the handwriting of the letter (Exh-63) written by her to the appellant and the letter (Exh-64) written by him to her. There is sufficient evidence to prove the exchange of letters between them. The letter correspondence would, unmistakably, show that the appellant exerted influence on the prosecutrix to suppress the information about her sexual relations with him. He also instructed her to get aborted. It was as per his instructions and the planning that they went to Songad at a private hospital and got the pregnancy terminated. Nothing of much importance could be gathered from her cross-examination. She admits that the police seized the letters written by the appellant and by herself from the house of the appellant. Her cross-examination reveals that there might be 60 to 90 girls then studying in the Ashram School. It appears that lodging and boarding facility was attached to the Ashram School. For, it was a residential school run in the tribal belt with financial assistance of the Government. Her evidence shows that sometimes, the Head Master used to call the students in his chamber in order to inquire whether they had any grievances. The prosecutrix was just on the threshold of entering the age of discretion. Her evidence reveals that the Head Master had directed girl students not to go to house of any of the teaching staff members after the period of inspection. She denied that she had affairs with one Balu Chagan which resulted into the stoppage of monthly period.

12. On close scrutiny of the testimony of the prosecutrix, it is explicit that the appellant had called her at his residence under the guise of attending the domestic work during the period of Christmas vacation in 1995. It is explicit further that it was under his influence that she resided at his house during the said vacation period. So also, for about one (1) week, she resided at his house when his wife was required to undergo family planning operation. It is manifestly clear that he exploited the situation and committed sexual intercourse with her while she was under the spell of his official position as a Manager (Rector) of the hostel of the Ashram School. His influence over the students and the staff members is writ large from the record. He was making the necessary arrangements for the inspecting party, including the dinner and stay of the members of the said party. It is obvious that he was in an influential position and was having fiduciary relationship with the prosecutrix. This fact is further corroborated by PW-7 Ramesh. PW Ramesh was Head Master of the Ashram School during the relevant period. His testimony purports to show that the appellant arranged the dinner of the inspection staff members at his house. He deposed that two (2) lady-teachers and five (5) girl students were deputed to the house of the appellant to help in the cooking and other work during the relevant period of inspection.

13. The version of the Head Master (PW Ramesh) goes to show that the appellant was found behaving indecently with the prosecutrix. He had admonished the prosecutrix for her flirting with the appellant and had asked her not to go to the house of the residence of anyone. He had asked her not to leave the hostel and premises of the Ashram School. His version purports to show that he had deputed PW Dattu and another teacher by name Govind Gavit to go to house of the appellant in the first week of February, 1996 because the teachers had come to know that the appellant was having sexual relations with the prosecutrix. His version purports to show that both the teachers went to house of the appellant in the relevant night. They subsequently reported to him that the appellant was found committing sexual intercourse with the prosecutrix in that night.

14. The version of PW-5 Dattu lends corroboration to the testimony of the Head Master (PW Ramesh) in the context of the sexual relations between the appellant and the prosecutrix. His version purports to show that their sexual relationship had come to the notice of the staff members of the school and therefore, it was decided to ascertain what was the real fact or whether it was only a baseless gossip. His version purports to show that since the wife of the appellant was admitted in a hospital at Nawapur on 1st February, 1996 for family planning operation, the appellant had called the prosecutrix to his residence for attending the domestic work and to look after the children. The prosecutrix was residing at his house during the nighttime in the relevant period. His version purports to show that the Head Master had deputed him and another employee by name Govind Gavit to visit house of the appellant and to verify the information about the sexual relationship between the appellant and the prosecutrix. His version purports to show that on 5th February, 1996, he and Govind Gavit visited house of the appellant at about 11 p.m. They peeped inside the house through slits of the thatched walls of the house. They saw that appellant and the prosecutrix were in compromising position. So, both of them went back and lateron, reported about the eye-witness account to the Head Master. His version purports to show that such relations were admitted by the prosecutrix and the appellant on 6th February, 1996 in presence of the Head Master and other staff members. She was reprimanded by the Head Master. The Head Master reported the incident to the Secretary of the Institution vide a letter dated 6th February, 1996 (Article 24). His version purports to show that on 12th February, 1996, the appellant submitted a letter to the Head Master of the school and apologized while admitting the affair with the girl student. The apology letter (Exh-25) is duly corroborated by him. His version purports to show that the police had seized the letter. Nothing of much significance was gathered during course of his cross-examination.

15. The school teacher and the Head Master of the Ashram School had no substantial reason to speak lie. They had no enmity with the appellant. Their versions are not actuated by any malice. They are the independent witnesses. They are concerned with the administration of the Ashram School. It is but natural that the Head Master desired to know whether or not the appellant had developed extramarital relations with the prosecutrix. I was essential for maintaining proper discipline in the campus of the Ashram School. The Head Master took appropriate steps immediately after confirming the fact that the appellant and the prosecutrix were found in compromising position in the night of 5th February, 1996. The written representation (Exh-37) submitted to the Secretary of the Educational Institution (Ashram School) lends corroboration to the fact that the appellant indulged in the sexual intercourse with the prosecutrix during the relevant night and in the early morning.

16. The testimony of PW-12 Dr. Mafatbhai purports to show that the appellant had taken the prosecutrix to the private hospital on 26th February, 1996 for her abortion. He represented himself as brother of the prosecutrix. The evidence of the Medical Practitioner purports to show that the prosecutrix was having fetus of 6/8 weeks. He conducted the medical termination of the pregnancy, at the instance of the appellant. The appellant incurred the expenditure of the medical termination of the pregnancy. The Medical Practitioner corroborates the recitals of the medical case-paper (Exh-54), consent letters (Exh-55 and Exh-56) as well as the letter issued by the hospital vide Exh-57.

17. On overall consideration of the evidence on record, it is duly proved that the appellant induced the prosecutrix to come to his house during the period of Christmas vacation of 1995 and during the period of hospitalization of his wife at Government Hospital, Nawapur, for the purpose of his family planning operation. It is duly proved that he enchanted or influenced or induced the prosecutrix to have sexual intercourse with him. The evidence on the record, particularly the eye-witness account tendered by the prosecutrix and the letter correspondence between her and the appellant, would sufficiently establish the fact that he had exerted influence on her to keep sexual relations with him. He, in fact, threatened her to flunk her in the examination if she would disclose about their relationship.

18. The consent of the prosecutrix was manipulated by the appellant due to his influential position vis-à-vis her. In this view of the matter, the appellant ought to have been convicted for the offence punishable under section 376-C of the I.P. Code instead of section 376(2)(c) of the I.P. Code.

19. As stated before, the irregularity committed by the learned Sessions Judge while framing of the charge will not make any serious impact on the merits of the case. It is duly proved by exerting his influence over the prosecutrix and by misusing his official position as a Rector (Manager) of the Girls hostel, the appellant sexually exploited the prosecutrix. Therefore, her consent obtained under such influence is of no avail in view of the required ingredients to be proved for the purpose of offence punishable under section 376-C of the I.P. Code. The essential ingredients to be proved to bring home guilt for the offence punishable under section 376-C of the I.P. Code are as follows :

(i) that, the accused was Superintendent or Manager of a Jail, or a women's or children's institution;

(ii) that, the accused took advantage of his official position;

(iii) that, the accused induced or seduced any female inmate of such place given in clause (i) (a), (b) or (c);

(iv) that, the accused did so to have sexual intercourse with such female; and

(v) that, such sexual intercourse did not amount to the offence of rape, as given under section 375 of the I.P. Code.

It is needless to say, therefore, that question of age of the prosecutrix and her consent to the sexual intercourse would become immaterial if it is proved that the appellant induced or seduced her to have sexual intercourse with him, during the period she was inmate of the hostel of the Ashram School. Considering totality of the circumstances and the evidence placed on record, it will have to be said that all the ingredients of the charge for offence punishable under section 376-C of the I.P. Code are duly established in the present case.

20. This takes me to yet another important aspect. The question is whether the finding regarding conviction of the appellant for the offence punishable under Section 376(2)(c) of the I.P. Code may be altered in the exercise of the appellate jurisdiction. The powers of the Appellate Court under section 386 of the Criminal Procedure Code are practically co-extensive with that of the trial Court. In addition, the Appellate Court has power to alter the finding maintaining the sentence in view of the wording used in Section 386(b)(ii) of the Criminal Procedure Code. So, where the sentence can be maintained, the Appellate Court may alter the finding and there is no need to direct retrial. The expression "alter the finding" is, ofcourse, used in the context of the conviction and not the finding of acquittal. The Appellate Court, therefore, may change nature of the conviction without causing change in the nature of sentence. The appellant, in the context of present case, is not acquitted for the offence punishable under section 376-C of the I.P. Code. Though he was charged for the offence punishable under section 376-C of the I.P. Code, yet, erroneously, he has been convicted for the offence punishable under section 376(2)(c) of the I.P. Code by the learned Sessions Judge. This factual error can be rectified in the exercise of the appellate jurisdiction in view of clear provision of Section 386 (b) (ii) of the Criminal Procedure Code.

21. Taking overall view of the matter, I do not find any substance in the appeal. The finding will have to be, however, altered, and instead of the conviction for the offence punishable under section 376(2)(c) of the I.P. Code, the appellant stands convicted for the offence punishable under section 376-C of the I.P. Code and the sentence awarded to him is maintained. The remaining part of the final order rendered by the learned Sessions Judge is maintained and the appeal is accordingly disposed of. The appellant shall immediately surrender to the bail and if he will not surrender within a week, the learned Sessions Judge shall issue arrest warrant against him without any delay and shall forward him to the jail for undergoing the remaining part of the substantive sentence and also shall recover the remaining amount of the fine. The compliance shall be reported to this Court within four (4) weeks.

Appeal dismissed.