M.D. Bhatt, J.
1. This is the appeal of the accused Shyamrao, who on his conviction under sections 366 and 376 of the Indian Penal Code has been sentenced to seven years' R. I. on each count with the direction for the concurrent running of these sentences.
2. The prosecutrix Mst. Babybai Gond is the wife of P.W.4 Ramesh and at the relevant time of the incident i.e. on 23-6-1983, she was staying at her husband's house in village Gangatwada. Parents of the prosecutrix Mst. Baby were residents of village Lodhikheda and the appellant-accused well knew the prosecutrix and her parents, inasmuch as, he had been living in front of their house at Lodhikheda for a few months, long before the incident. A day prior to 23-6-1983, the appellant-accused had come to Gangatwada and had stayed at the house of the prosecutrix's husband Ramesh. On the next day, at about mid-noon, the appellant-accused, P.W.12 Mst. Babybai and her husband P.W.4 Ramesh had started by bus together, for Lodhikheda; but on the way, they had alighted from the bus at Sonsar and had stayed at the house of P.W.6 Mst. Rukmabai, to whose son, Keshavrao (P.W.9), the appellant-accused's sister had been married. The appellant-accused all alone in the comapny of Mst. Babybai had been finally gone to Nagpur. From Nagpur, both returned to Sonsar where the appellant-accused was apprehended by the police and the prosecutrix was handed over to her parents.
3. The above facts being not disputed, the case of the prosecution was that the appellant-accused when he had come to the house of the prosecutrix's husband P.W.4 Ramesh at village Gangatwada, on the day preceding 23-6-1983, he had told both Ramesh and his wife Babybai that he had been sent by the prosecutrix's parents to fetch Mst. Babybai to the parental home, inasmuch as, her mother was seriously ill. On this false representation, made by the appellant-accused, not only the prosecutrix accompanied the appellant-accused for going to her parental home at village Lodhikheda but her husband also accompanied her. During the journey when all these three had got down at Sonsar where the appellant-accused wanted to meet his sister, the appellant-accused had taken his brother-in-law P.W. 9 Keshavrao and the prosecutrix's husband P.W.4 Ramesh to see a cinema in a certain picture-house. In the midst of picture, the appellant-accused slipped away from the picture hall on a false pretext, and came back to the house of the appellant's sister and again misrepresented to the prosecutrix that her husband Ramesh was waiting for her at the Bus-Stand for going to Lodhikheda where they were required to go for seeing the prosecutrix's ailing mother. The prosecutrix, least suspecting the version of the appellant-accused, went with him to the Bus-Stand but she did not find her husband. The appellant-accused again misrepresented to her that her husband might well have left for Lodhikheda by an earlier bus; and therefore, at his behest, both boarded another bus, but the appellant-accused made her get down from the bus at Pandhurna crossing; and when the prosecutrix protested, he silenced her with a threat that he would kill her, in case, she made any protest. From Pandhurna crossing, the appellant-accused took her to village Badchicholi and next day, she was taken to the village Digras where the appellant-accused stayed with the prosecutrix at a certain person's house for about a week. From Digras, the appellant-accused took the prosecutrix to Nagpur at first to the house of one Soma, then to the house of one Kachrabai and finally to the house of the appellant-accused's close relation Dr. Kabre. The prosecutrix's husband and parents on learning of the fraud, committed by the appellant-accused, in taking away the prosecutrix, searched for both, and then, the matter was reported to the Police. On some clue that the appellant-accused was seen in Nagpur with the prosecutrix, relations went there and made the appellant-accused come to Sonsar along with the prosecutrix. At Sonsar the appellant-accused was arrested by the Police.
4. After due investigation, the appellant-accused was put up for trial, initially under section 366 of the Indian Penal Code to which was added. subsequently, the offence under section 376 of the Indian Penal Code, inasmuch as, the appellant-accused was prima facie found to have committed rape with the prosecutrix during all that period and at all such places where both had lived together for different periods of time.
5. The appellant-accused abjured the guilt in the tiral Court. The appellant-accused took the defence that he had taken the prosecutrix from the house of her husband at village Gangatwada to Nagpur for getting her medically examined as to whether or not, she was illicitly pregnant. The appellant-accused claimed to have taken the prosecutrix with the consent of her parents and equally so, at the instance of the prosecutrix's husband Ramesh. Eliciting and expounding this defence, the appellant-accused contended that the prosecutrix's father Janrao, who was his good friend and more like a brother, had told him that the prosecutrix was being harassed and ill-treated by her husband who was suspecting the fidelity of the prosecutrix and was equally suspecting that she had been pregnant from someone else. P.W.5 Janrao had beseeched the appellant-accused to get the prosecutrix medically examined so that her husband's doubts could be set at rest. In view of this request to which the appellant-accused had very reluctantly acceded, the appellant-accused had gone to the house of the prosecutrix's in-laws and had made her and so also her husband agreed to come with him for medical examination.
6. At Sonsar, the prosecutrix's husband, instead of accompanying the appellant-accused and his own wife to Nagpur for medical examination, allowed them both alone, to go to Nagpur, and he himself returned home. On reaching Nagpur, doctor was contacted but meanwhile, the appellant-accused, on learning from his brother Govinda and from others that false report had been lodged with the police, he came back to Sonsar along with the prosecutrix, and after consulting certain lawyers both at Nagpur and Sonsar, he himself went to the Police Station along with the prosecutrix, who was handed over to the custody of P.W.5 Janrao but he was got arrested by the Police due to his failure to bribe the police officials. Three defence witnesses were examined in defence.
7. The trial Court totally discarded the defence stand and defence evidence as a shrewdly manoeuvred concoction. The prosecutrix, on the strength of the School Certificate, was held to be a girl, aged about 15 1/2 years and in any case, below 18 years on the basis of ossification test. The Trial Court further held that the appellant-accused under misrepresentation and fraud had taken away the prosecutrix and had, thus, kidnapped/abducted her with intent to forcibly commit sexual intercourse with her and further with intent to force her for marriage with him. It was equally held that the appellant-accused had committed forcible sexual intercourse with the prosecutrix against her will and without her consent and accordingly the appellant-accused was convicted and sentenced to the extent as stated at the outset. Hence, now, the present appeal.
8. Shri Arvind Chawla, appearing as an Amicus Curiae for the appellant-accused (in jail) has in the first place, urged that the prosecutrix, as per the evidence on record, was above 18 years of age; and that the entry of birth in the school register was not at all reliable. It is also urged that the prosecutrix was a willing and consenting party, not only in the sense of her going away in the company of the appellant-accused but also in the matter of commission of sexual intercouse, inasmuch as, she is not found to have complained to any outsiders, despite in fact that she had got enough opportunities to meet various people at various places.
8-A. The age of the prosecutrix, as held by the trial Court has no scope for challenge. On the basis of the ossification test (Ex.P-5), the prosecutrix is stated to be aged about 16 years. Such medical evidence is not conclusive although it may have its importance, when this may be the solitary material on record; but in the instant case, there is clinching evidence regarding the date of birth in the school records. From the evidence of P.W.2 Narayan, Head' Master and P.W.3 Gopilal, teacher of Purva Madhayamik Hindi Vidya Mandir, Lodhikheda and so also from the evidence of the prosecutrix's father P.W.5 Janrao, it is clear that Janrao had got recorded the date of birth of the prosecutrix at the time of her admission in the school records (Exs. P-6 to P-8). The date of birth given there is 15-6-1968. On this basis, the prosecutrix is found to be about 15 years of age at the relevant time of the incident. There is no reason to doubt these entries in the school records which are duly proved, and as such deserve to be unreservedly accepted. Any way, all this proof is no longer necessary, considering the appellant-accused's reply to question No. 1 in his examination under section 313 of the Code of Criminal Procedure, 1973, wherein, he has admitted the fact that the prosecutrix Mst. Babybai at the relevant time was aged 15 1/2 years' old. Thus, the prosecutrix was a 'minor' for purposes of the offences, both under sections 366 and 376 of the Indian Penal Code.
9. Now, coming to the merits of the case in the matter of commission of the offences under sections 366 and 376 of the Indian Penal Code, it may be stated at the outset that this material fact is not disputed that the appellant-accused had taken the prosecutrix Mst. Babybai, accompanied with her husband Ramesh from Gangatwada to Sonsar, and then, the appellant-accused, in the company of the prosecutrix alone, to the exclusion of her husband Ramesh, had gone to Nagpur, where both had stayed for a few days and had then finally come back to Sonsar, where the appellant-accused was arrested by the police and the prosecutrix was then handed over to the custody of her father. The crucial question is whether the appellant-accused had kidnapped the prosecutrix by exercising fraud and misrepresentation on her as well as her husband and had thereafter subjected her to forcible sexual intercourse or the appellant-accused had taken the prosecutrix to Nagpur with the permission of her father Janrao and no less, of her husband, with the specific purpose of getting her medically examined in the matter of illicit pregnancy, as was alleged to be doubted by the prosecutrix's husband Ramesh.
10. No doubt, the appellant-accused's learned counsel is found to have given positive suggestions during the cross-examination of the prosecutrix, her husband and her father in the matter of the appellant-accused's positive defence, but all these witnesses are found to have vehemently denied those suggestions. The appellant-accused is also found to have adduced the evidence of three witnesses D.W.1 Dr. M. Kawre, D.W.2 Sheikh Jumman and D.W. 3 Rama, in support of his positive defence. The trial court is found to have given enough cogent reasons for disbelieving the defence stand and the defence evidence, the same being sheer manoeuvred concoction, an ingenious creation of a versatility and perversity. Such concoction can well be appreciated from the circumstance as admitted by the appellant-accused in his examination under section 313 of the Code and as also brought out from the prosecution evidence that the appellant-accused had consulted lawyers, not only at Nagpur but also at Sonsar, before he surrendered before the Police for being apprehended.
11. D.W.1 Dr. Kawre is the appellant-accused's own cousin and as such, his evidence is found to be highly interested. From his own evidence, it is found that the appellant-accused and the prosecutrix had stayed at his house. According to this witness, the appellant-accused had been advised to contact Dr. Mrs. Tamaskar for ascertainment of pregnancy. Had this been a fact, then the appellant-accused would have naturally got the prosecutrix examined by the said doctor, but there is absolutely nothing to show that the appellant-accused had actually got her examined by any doctor at Nagpur. This, by itself, shows that the defence story regarding the appellant-accused having taken the prosecutrix to Nagpur for getting her medically examined regarding her pregnancy is false to the core.
12. D.W. 2 Sheikh Jumman is also found to be close friend of the appellant-accused since childhood. D.W. 3 Rama has no personal knowledge regarding the appellant-accused's any talk with the prosecutrix's father regarding the taking of the girl Mst. Babybai to Nagpur by the appellant-accused at the direction of the prosecutrix's father P.W.5 Janrao. However, the statements of both Shaikh Jumman and Rama stand completely exposed as blatant lies, inasmuch as, both have deposed that the appellant-accused had taken the prosecutrix to Nagpur from the prosecutrix's parental home at Lodhikheda. Such is not the defence stand nor the trend of cross-examination of the prosecution witnesses, wherein, it has been suggested and stated that the appellant-accused had taken the prosecutrix to Nagpur, not from Lodhikheda itself but directly from Sonsar. The defence stand and defence evidence therefore are found to be rightly discarded by the trial Court. The defence stand, rather than having been satisfactorily proved is also not at all probabilised. On the contrary, the same is exposed to be untruthful in the light of the defence evidence itself but more so in the light of consistent and corroborative prosecution evidence, completely demolishing the defence theory.
13. Before discussing the prosecution evidence, it may equally be stated that the prosecutrix Mst. Babybai was not a consenting and willing party either for moving in the company of the appellant-accused or in the matter of the alleged commission of sexual intercourse. Such consent and willingness are of no consequence in view of the proof that the prosecutrix was a minor at the relevant time. This apart, it is also not the case of the appellant-accused that the prosecutrix had gone with him under her own free will and consent or that she had willingly consented for sexual affair with the appellant-accused. No part of the prosecution evidence shows in the least that the appellant-accused was the prosecutrix's paramour or they had any love affair, prior to the incident. It is also not the appellant-accused's case.
14. The prosecutrix P.W. 12 Mst. Babybai and her husband P.W. 4 Ramesh have both consistently and corroboratively deposed that the appellant-accused had misrepresented to them that the prosecutrix's mother was seriously ill at Lodhikheda and therefore, their presence was immediately required at Lodhikheda, and it was on this pretext that both husband and wife had left Gangatwada, in the company of the appellant-accused. It is also clear from the evidence of P.W. 4 Ramesh and the prosecutrix's father P.W. 5 Janrao that the prosecutrix's mother was hale and hearty; and was not at all ill. P.W. 5 Janrao's evidence also shows that there was no question of calling the daughter Mst. Babybai from Gangatwada through the appellant-accused, since his wife was not at all ill. This misrepresentation is clearly proved from the evidence of Janrao, Ramesh and Mst. Babybai, all of whom, are not found to have any animus against the appellant-accused, so as to falsely implicate him for nothing. The prompt FIR lodged by P.W. 4 Ramesh is found to be, fully in keeping with the prosecution story, as systematically unfolded by both Mst. Babybai and her husband Ramesh.
15. Then, again, the corroborative evidence of P.W.4 Ramesh and his wife prosecutrix Mst. Babybai (P.W. 12) leaves no room for doubt that on reaching Sonsar from Gangatwada, the appellant-accused had gone to the first night-show in some cinema house in the company of the prosecutrix's husband and his own brother-in-law P.W.9 Keshavrao, leaving the prosecutrix at the house of Keshavrao; and in the midst of the cinema show, the appellant-accused had slipped away from the cinema hall on some false pretext and had come back to Keshavrao's house wherefrom, he had taken the prosecutrix with him to the Bus-Stand. Their versions are further found to be corroborated by none else but P.W. 9 Keshavrao's own mother P.W.6 Mst. Rukhma that her son Keshavrao, the appellant-accused and the prosecutrix's husband had all gone to the cinema and then the appellant-accused, after some time, had come all alone and had asked the prosecutrix to accompany him to the bus-stand since her husband was waiting there for her. This is what the prosecutrix also has deposed, in clear and categorical terms.
16. The appellant-accused's brother-in-law P.W.9 Keshavrao is found to have turned hostile, in an attempt to exculpate the appellant-accused, and for this reason he is found to have stated falsely that after leaving Ramesh at the bus-stand where the appellant-accused and Mst. Babybai were seen, he had come back home, and as such he did not know as to what had happened thereafter. At least P.W.9 Keshavrao has admitted this fact that the appellant-accused had taken Mst. Babybai from his own house while he and the prosecutrix's husband Ramesh were away from home. This circumstance, by itself, fairly indicates that the appellant-accused had taken the prosecutrix from Keshavrao's house without the knowledge and consent of the prosecutrix's husband Ramesh, with some ulterior motive. The hostile witness Keshavrao's such half hearted version becomes more explicit, when one scrutinizes the oral testimony of his mother P.W.6 Mst. Rukhma who has clearly stated that the appellant accused had taken the prosecutrix from the house on the pretext that her husband was waiting at the bus-stand which fact was not found to be true; and on the contrary, was found to be sheer misrepresentation with ulterior motive. For the subsequent events, there is the oral testimony of the prosecutrix P.W. 12 Mst. Babybai.
17. P.W. 12 Mst. Babybai has deposed that on false pretext she had been taken to the bus-stand from Keshavrao's house; and when at the bus-stand, she did not find her husband, as was assured to her, the appellant-accused had again misrepresented to her that her husband might have left for Lodhikheda by some earlier bus; and consequently, made her sit in another bus and made her get down at Jodsadak, wherefrom, the appellant-accused took her by bus to Chincholi and then to Digras and finally to Nagpur. As regards their stay at Badchicholi and Gondi Digras, P.W.7 Kishna of Badchicholi who is the appellant-accused's distant nephew and P.W.8 Anandrao of Gondi Digras are found to have turned hostile. However, from the evidence of P.W.10 Mst. Chindhabai and P.W.11 Ramprasad, it is clear that the appellant-accused, in the company of the prosecutrix, had stayed for a night at Mst. Chindhabai's house at Nagpur and had thereafter shifted to D.W.1 Dr. Kawre's house who was the appellant-accused's first cousin. There is no reason to doubt the prosecutrix's oral testimony, as to, at what places, the appellant-accused made her to stay, before finally reaching Nagpur.
18. The prosecutrix P.W. 12 Mst. Babybai has deposed that during her stay at Digras and also later, the appellant-accused had committed forcible sexual intercourse with her, and he had also been pressurising her all the while, that he would ultimately marry her, which suggestion, she had always repelled, with a forcible 'NO'. She has also deposed that she was unable to complain to any person, whatsoever, regarding her being kidnapped by the appellant-accused since the appellant-accused had put her under threat of life which had made her keep silence all along. There is no reason to doubt her such version. The prosecutrix after all was a young girl belonging to an aboriginal tribe viz. Gond; and as such, there is nothing to doubt her version that it was under the threat of the appellant-accused who apparently was a grown-up man, that she had shuddered to complain to anyone against the appellant-accused. The trial Court which had recorded the oral testimony of the prosecutrix has made pertinent observations in its judgment regarding the demeanour of the prosecutrix in the course of cross-examination. The demeanour, as observed by the trial Court in its judgment, equally shows that the prosecutrix was an honest and straightforward witness and was not tutored to any extent. There does not appear to be any reason for her or even for her husband and her father to falsely implicate the appellant-accused by tutoring the prosecutrix to any extent. Any way, there is no iota of material to show any tutoring or to show the prosecutrix's evidence to be tainted to any extent. The trial Court is, thus, found to have rightly believed her oral testimony. Therefore, her version that she had been subjected to sexual intercourse by the appellant-accused repeatedly, cannot be doubted in the least. The appellant-accused could not and did not have any other intention in taking the prosecutrix to Nagpur except to force the prosecutrix for sexual intercourse and to further force her to marry him. The whole story regarding pregnancy and regarding his effort to get her medically examined at Nagpur in this regard is found to be sheer concoction.
19. It has been suggested in the cross-examination of P.W.4 Ramesh that he had allowed his wife viz. the prosecutrix to be taken by the appellant-accused to Nagpur for verification by medical examination, as to whether or not, the prosecutrix was pregnant. This suggestion is bound to be denied by the prosecutrix's husband Ramesh. Moreover such defence, as suggested, does not stand to reason also. No husband would allow his wife to go in the company of a third person for medical examination for checkup as to whether or not, she was illicitly pregnant. If the husband Ramesh had suspected his wife's fidelity, he himself would have taken the wife for medical examination at Nagpur or would have accompanied the appellant-accused for that purpose. Moreover, such medical checkup could as well be possible at Sonsar; and as such, where was the question of going to Nagpur?
20. The further defence that the prosecutrix's father Janrao had persuaded the appellant-accused, and had made him, take his daughter Mst. Babybai to Nagpur for the medical checkup does not, also, stand to reason. P.W.5 Janrao has denied this fact in his evidence. In such a critical matter, where the question of the prosecutrix's fidelity was concerned, the prosecutrix's father Janrao would not and could not have sought the help of the appellant-accused for having a medical checkup of -his daughter. In such a situation, if medical verification was required to be done, the father himself would have taken the girl and so also her husband if necessary, for ascertainment of illicit pregnancy and for removal of the prosecutrix's husband's doubts. The whole defence stand is, thus, found to be sheer manoeuvred concoction, obviously at the behest of some lawyers, whom the appellant-accused had contacted, both at Nagpur and at Sonsar.
21. P.W.11 Ramprasad's oral testimony shows that he and some other persons of the village Lodhikheda had forced the appellant-accused to come from Nagpur to Sonsar and it was then that the appellant-accused had appeared at the Police Station where he was arrested. Thus, the prosecution evidence on record, which not only demolishes the defence stand but also establishes beyond any shadow of doubt that the appellant-accused had kidnapped the prosecutrix with intent to force her for illicit intercourse and with further intent to marry her and had actually committed sexual intercourse with the prosecutrix numeral times at different places. The appellant-accused, therefore, is rightly found to be convicted of the offences under sections 366 and 376 of the Indian Penal Code.
22. Now, coming to the question of sentence, it may be observed that under section 376 of the Indian Penal Code as amended, seven years' rigorous imprisonment is the prescribed minimum, although the proviso enables the Court to impose the sentence of imprisonment for a term for less than seven years for adequate and special reasons to be recorded in the judgment. In the present case, there does exist, adequate and sufficient reasons for awarding lesser sentence. 'Adequate and special reason' is the trial Court's failure to totally ignore sub-section (3) of section 357 of the Code of Criminal Procedure, 1973, as stands amended in this State by M. P. Act No. 29/78, whereby, payment of separate compensation to the victims belonging to the Scheduled Castes and Scheduled Tribes has been made mandatory - see Nannu Singh Nahar Singh and Ors. v. State of M.P., 1985 MPLJ 268 = 1986 Cur. Cri. Jou. (M.P.) 174.
23. The prosecutrix Mst. Babybai is admittedly a Gond woman, belonging to the Scheduled Tribe. Since separate compensation has not been awarded by the trial Court, I consider it now, just and proper, to pass appropriate sentence of imprisonment and also fine, so that, reasonable compensation could be paid to the prosecutrix in accordance with section 357(1)(b) of the Code, out of the fine, if realised. In view of this matter, ends of justice would be duly met, if the appellant-accused is sentenced to five years' R.I. and also to pay the fine of Rs. 3,000/- and in default of fine, to further undergo 21 months' R.I. As for the offence under section 366, Indian Penal Code I am of the view that five years' R.I. would equally be appropriate.
24. In the result, thus, the appeal is partly allowed, only in the matter of sentence. Maintaining the order of convictions of the appellant-accused under sections 366 and 376 of the Indian Penal Code and setting aside the order of sentence, as passed by the trial Court, it is ordered instead that the appellant-accused, on his conviction under section 366 of the Indian Penal Code, be and is now sentenced to five years' rigorous imprisonment. It is further ordered that the appellant-accused, on his conviction under section 376 of the Indian Penal Code, be and is now sentenced to five years' rigorous imprisonment and also to pay the fine of Rs. 3,000/- (three thousand) and in default of fine, to a further term of 21 (twenty one) months' rigorous imprisonment. Both substantive sentences of imprisonment shall, however, run concurrently. The whole fine amount, if realised, be paid to P.W. 12 Mst. Babybai (wife of P.W.4 Ramesh resident of village Gangatwada and daughter of P.W.5 Janrao, resident of the Lodhikheda), by way of compensation, in accordance with section 357 of the Code of Criminal Procedure, 1973. The appellant-accused is already in jail.