Crl. A. No. 141 of 1992, D/- 18 -3 -1994. Case: Balasaheb Vs The State of Maharashtra. High Court of Bombay (India)
| Case Number | Crl. A. No. 141 of 1992, D/- 18 -3 -1994 |
| Counsel | For Appellant: Vijay Sharma, for S. N. Loya, Advs. and For Respondents: R. B. Chaudhari, APP, Advs. |
| Judges | B. N. Deshmukh, J. and A. A. Halbe, J. |
| Issue | Indian Penal Code (45 of 1860) - Sections 366, 376 |
| Citation | 1994 CriLJ 3044 |
| Judgement Date | March 21, 1994 |
| Court | High Court of Bombay (India) |
Judgment:
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Being aggrieved by the judgment of conviction for offences under Ss. 363, 366-A, 376 and 506, I.P.C. and sentence of R.I. for three years and fine of Rs. 1000/- under first count; R.I. for five years and fine of Rs. 1500/- under second count R. I. for six years and fine of Rs. 2,000/- under the third count and R. I. for one year and fine of Rs. 500/- under the fourth count, recorded by the 4th Addl. Sessions Judge, Ahmednagar in Sessions Case No. 178 of 1991, the appellant-accused has preferred this appeal inter alia contending that the entire evidence led on behalf of prosecution clearly establishes the consent on the part of the victim Nanda d/o Mohan Darade and that the medical evidence is also to the effect that her age is 16 years or more and in that light of the matter, the learned Trial Judge felled in serious error in recording the contrary conclusion and convicting the appellant-accused for the offences indicated above and that the same should be rectified by allowing this appeal and acquitting the accused of all the charges alleged to have been established against him.
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The learned advocate for the appellant has taken us through both oral and documentary evidence and has tried to suggest that the entire conduct of the victim Nanda is a conduct of consent and not of compulsion, force or seduction. Regarding the age, he has contended that the medical evidence comprising of ossification test shows that the age of Nanda might be between 14 and 16 years. He has drawn our attention to the observations in Modi's Medical Jurisprudence and Toxicology, 21st Edition, page 40 wherein according to him, the margin of error might be + three years. If that be so, the age could be even 17 years and in view of this, the appellant-accused deserves to be acquitted.
3. The learned A.P.P., on the other hand, has drawn our attention to various provisions of Penal Code, more particularly Secs. 363, 366-A, wherein according to him, the age of the minority is 18 years, she being the female. He has, therefore, urged that when the appellant comes forthwith the specific defence that Nanda accompanied him and had sexual intercourse with the appellant, that is not tenable defence that Nanda accompanied him and had sexual intercourse with the appellant, that is not tenable defence and the conviction recorded by the learned Trial Judge should be maintained and should not be tinkered with. -
In order to appreciate these rival arguments, salient facts canvassed on behalf of the prosecution shall have to be recorded. Complainant Nanda is the sister of Manda, who in turn is the wife of the appellant. The appellant hails from Rahuri whereas Nanda hails from village Pratappur, Taluka Sangamner, District - Ahmednagar. In the year 1991, Nanda was studying in 6th standard vernacular in the school at Ashwi, situated at a distance of about 3 to 4 kms. from Pratappur. She was attending the school by going from Pratappur to Ashwi. According to the prosecution, on 4th March 1991 the accused and his wife Manda visited the above village of Mohan - the father of Manda. It was night time at about 11 p.m. On this visit, Nanda served tea to the appellant, obviously being the brother-in-law of Nanda.
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The further story of prosecution is that on 5th March 1991 at about 10 a.m., Nanda went to her school at Ashwi. At about 5 p.m. she was returning along with her friend Sitabai Rambhau Andhale along Matangwada Road. At that stage, the appellant accused appeared on a Spark moped. He asked complainant Nanda to accompany him on moped saying that his wife Nanda wanted to go to Rahuri early and the appellant was to accompany her. Nanda was made to sit on moped and in the first instance, the appellant took the victim Nanda towards village Pratappur. He turned towards other side saying that he wanted to have petrol for the moped at Loni. The same was not available at Loni and, therefore, both the appellant and victim proceeded on moped to the petrol pump at Rahuri Sugar Factory.
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It is claimed by the prosecution that at that stage, Nanda suspected some foul play on the part of the appellant-accused. She started weeping and the appellant-accused threatened her to keep mum under the show of knife and chain. The appellant and Nanda, in this position, went to Rahuri at the house of the appellant. They reached Rahuri at about 11 p.m. The appellant has two houses one having tin roof and the other having hay roof. The victim and the appellant went to the hut having tin roof and according to the prosecution, the appellant asked Nanda to spread the bed of Godhadi. Naturally Nanda suspected that she was being forced to sexual intercourse. She resisted this overture but this was thwarted by the appellant by the show of knife.
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The prosecution has further claimed that in that night, the appellant-accused committed rape on the complainant twice. The matter...
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