Criminal Appeal No. 459 of 1993. Case: Vishml s/o Parmeshwar Yadav and others Vs State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 459 of 1993 |
| Counsel | For Appellant: M. R. Daga, Adv. and For Respondents: S. B. Dawale, AGP/PP |
| Judges | V. S. Sirpurkar, J. |
| Issue | Indian Penal Code (45 of 1860) - Sections 361, 375, 363, 366 |
| Citation | 1997 CriLJ 1724 |
| Judgement Date | October 28, 1996 |
| Court | High Court of Bombay (India) |
Judgment:
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This appeal is at the instance of the three appellants who are convicted by the trial Court for offences under Sections 363 and 366 read with Section 34 of the Indian Indian Penal Code. Appellant/accused No. 1 - Vishnu Parameshwar Yadav additionally has been found guilty for the offence under Section 376 of the Indian Indian Penal Code.
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Originally, in all four accused persons came to be tried on the allegation that on or about 15th day of August, 1990, at about 7-O' clock, they kidnapped the prosecutrix, a minor girl about 15 years old from Sudamnagar, Nagpur as also from the lawful guardianship of her parents. It was alleged that this kidnapping was with the intent that she may be compelled to marry any person against will, or may be forced to illicit intercourse.
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Charge against the accused No. 1 was specific that he committed rape on the said girl on or about 17-8-1990 and therefore, committed an offence under Section 376 of the Indian Indian Penal Code.
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The accused persons as also the prosecutrix are the residents of Sudamnagar, Nagpur. Origi-nal accused No. 4 was the husband of appellant accused No. 3, while the other two appellants/accused are also belonging to the same caste and are near relations of accused Nos. 3 and 4. At the relevant time, the proserutrix was living with and in the custody of her parents who lived in Sudamnagar, Nagpur. Her mother, Smt. Sudha, who is examined as P.W. 1 runs a grocery shop at some distance from her residential house, while her father worked in an Automobile shop. The prosecutrix is the eldest amongst the three sisters, her two other sisters being Ku. Swarna aged about 13 years and Ku. Manisha aged about 11 years. At the relevant time, prosecutrix was studying in 10th Standard in Maharashtra Adhyayan Mandir, Gandhinagar, Nagpur. The accused persons, who were residing together, knew the family of the prosecutrix and were on the visiting terms with each other. The prosecution case is that on 15th August, 1990 at about 7-O' clock, prosecutrix left her house for going to school for attending the flag-hoisting ceremony. Before that, appellant/accused No. 2 - Ravindra had come on the previous day to her house to enquire as to whether she was going to the school for flag-hoisting day or not. He also took his meals and told her that he was going away to his native place by the night train. While she was on her way to the school on 15th August, 1990, accused Nos. 1 and 2 carne in an auto-rickshaw and stopped her while she was crossing Gandhinagar ground and told her that accused No. 3 - Rajkumari was calling her and insisted upon her to accompany them. They forced her to sit with them in the auto-rickshaw and they took her to Nagpur Railway Station where she found that accused No. 3 was also there. All the four of them boarded the train and went to Itarsi where they reached in the evening. Thereafter, all of them went to the house of the parents of accused No. 3. There some rituals were performed by accused No. 3. She was made to wear one Sari and also put Mayuri (red colour) on her feet. The prosecution further alleged that thereafter the accused Nos. 1 and 2 took her to the Railway Station and they went to Allahabad by train where they reached next day, i.e., on 16th August, 1990, in the afternoon. It is the further case of the prosecution that then the accused No. 1 and prosecutrix sat in a train bound for Patna and accused No. 2 went back and. returned to Itarsi. It is the further case of prosecution that in Patna, accused No. 1 stayed with her in one Lodging and Boarding House where he committed rape on her on 3 or 4 occasions. After two days, both of them left Patna and reached Nagpur in two or three days' time. The accused No. 1 took her to Sai Mandir by an autorickshaw where they stayed for 2 to 3 hours. From there they went to Tajbag shrine where they stayed throughout the night, and on the next day, they went to Hanuman Mandir of Rajabaksha area where the friends of accused No. 1 informed that the matter was already reported to the police. Thereafter, accused No. 1 went to the house of the parents and he requested her parents to withdraw the report. Thereafter, on the next day early in the morning at about 4.00 a.m., the accused No. 1 dropped her near Amravati Road near her house. She thereafter went to her house and narrated the entire incident to her parents.
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In the meantime, finding that prosecutrix had not returned from her school, Sudha, her mother, started enqrairies into the matter. She had tried to locate the prosecutrix in her relatives at Nagpur and also at Karanja, thinking that she might have gone to Karanja. She also sent couple of boys to Itarsi suspecting that the prosecutrix might have gone to Itarsi alongwith the accused persons. She found a chit in books of the prosecutrix and on that basis she made a report to Ambazari Police Station on 22-8-1990.
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The investigation started. One Police Constable Bhiwaji was sent to Itarsi for investigation, where he arrested accused Nos. 2 and 4. The Investigating Officer also recorded the statements of other witnesses on 23-8-1990. The girl, however, was reported to have come back by her mother Sudhabai. Her statement was also recorded. On 1-9-1990, the accused No. 3 was also arrested. Ultimately, even accused No. 1 came to be arrested and was referred for medical examination. Ultimately, on this basis, a charge-sheet came to be filed against all the four accused, and the accused were committed to the Sessions Court by the Chief Judicial Magistrate, Nagpur.
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The accused persons abjured there guilt and raised the plea that they were not guilty. Accused No. 1 claimed that he was out of Nagpur at the relevant time and was not in Nagpur at all on 15th August, 1990. He claimed to have come to Nagpur on or about 15th September, 1990 from Kanpur. His claim was that the girl's statement was full of falsehood. In short, he made a plea of complete denial. Accused No. 2 admitted that accused No. 3 was his elder sister and that he knew the family of the prosecutrix. He also raised a plea that prosecutrix was falsely implicating him. Accused Nos. 3 and 4 claimed complete ignorance about the whole story.
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In support of the prosecution case, the evidence of Sudha, the complainant; prosecutrix herself as also the two boys who had gone in search of girl to Itarsi, was led. Her father's evidence was also recorded. The other witnesses examined by the prosecution were P.W. 4-Swarna, the sister of Prosecutrix; P.W. 6-Mahadeo, the Head Master to establish the age of the girl; Investigating Officer, etc. On the basis of this evidence, the trial Court acquitted the original accused No. 4 holding that he had no concern in the whole matter. The trial Court, however, convicted the other three accused persons for the offences under Sections 363 and 366 read with Section 34 of the Indian Indian Penal Code and also convicted accused No. 1 additionally for having committed an offence of rape against the prosecutrix. This is how the present appeal is necessitated at the instance of original accused Nos. 1 to 3.
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Shri M. R. Daga, learned Counsel for the appellant/accused, forcefully submitted that the trial Court has committed a grave error in firstly convicting the appellant-accused No. 1 of the offence under Sec.376 of the Indian Indian Penal Code. He pointed out that in this case, it has not been established at all that there was any sexual intercourse committed with the prosecutrix, which was against her will or without her consent. According to him, if the factor of sexual intercourse itself is not established, then there was no question of the further finding regarding the said sexual intercourse being without consent or against the will of the prosecutrix. For this purpose he heavily relied upon the medical certificate. Shri Daga secondly contended that even otherwise the conviction of appellant-accused No. 3 was wholly uncalled for, inasmuch as it could not be said that she was in any manner responsible for taking the minor out of the custody of her parents. He pointed out that even as per prosecution case, the appellant-accused No. 3 had not in any manner participated in the actual act of taking the minor out of the custody of her lawful guardians, namely, the parents, nor was there any evidence regarding her activities prior to the said Act. Shri Daga submitted that even if it is presumed that afterwards the minor went and joined the company of the appellant-accused No. 3 who was on her way to Itarsi, she could be said to be accessory after the offence and as such there will be no criminal liability fixed against her.
As regards the appellant-accused Nos. 1 and 2, insofar as their conviction under Section 363 and 366 of the Indian Indian Penal Code was concerned, his contention is that it cannot be said that the prosecutrix was an innocent girl and that she was in any manner coerced or influenced by the accused persons to go with appellant-accused Nos. 1 and 2. He pointed out from the letters which are proved that the language of the letters shows that the prosecutrix was a girl of full and mature understanding and carrying love affairs with the appellant-accused No. 1, and there was enough evidence on record to show that she of her own accord had left her house and joined the appellant/accused Nos. 1 and 2, as the case may be, if at all it is proved that she was in the company of accused Nos. 1 and 2, after she left her house.
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Shri S. B. Dawale, learned Public Prosecutor, however vehemently submitted that the evidence of the prosecutrix was liable to be given a full weight as she had categorically stated about the sexual intercourse having been committed by the appellant-accused No. 1. He pointed out that the age of the girl was fully established by the prosecution, by producing her birth certificate and by leading the evidence of the Head Master of her school. According to the Public...
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