P.R. Bora, J.
1. All the above appeals are arising out judgment and order passed in Sessions Case No. 42/2002, decided by the learned Additional Sessions Judge, Shahada on 17-01-2012. In the aforesaid Sessions case, three persons were tried. The accused No. 1 was charged with the offences punishable under Sections 376 (2) (c) and 506 (II) of the Indian Penal Code (for the sake of brevity âI.P.C.â), whereas accused Nos. 2 and 3 (Respondents in Criminal Appeal No. 509/2012) were tried for the offences punishable under Sections 465, 466, 468, read with 34 of the I.P.C. All the three accused were also tried for the offence punishable under Section 201 read with 34 of the I.P.C.
2. The learned Additional Sessions Judge, Shahada has convicted accused No.1-Rehenjya Shelya Pawara (appellant in Criminal Appeal No. 106/2012) for the offence punishable under Sections 376 (2) (c) of the I.P.C. and sentenced him to suffer Rigorous Imprisonment for Ten Years and to pay a fine of Rs. 5,000/- (Rs. Five thousand only), in default to undergo R.I. for Six months. Accused No. 1 has also been convicted for an offence punishable under section 506 (II) of the I.P.C. and has been sentenced to suffer Rigorous Imprisonment for Two Years and to pay a fine of Rs. 1,000/- (Rs. One thousand only), in default to undergo R.I. for Two months.
3. Accused â Nago Lakha More and Vanita w/o Chandrasing Vasave (Original Accused No. 2 and 3 and respondents in Criminal Appeal No. 509/2012) have been acquitted of all the offences for which they were charged. The original Accused No. 1 has been acquitted of the offence punishable under Section 201 of the I.P.C.
4. Original accused No. 1 has preferred the Criminal Appeal No. 106/2012, thereby challenging the order of conviction passed against him by the trial Court. The Criminal Appeal No. 196/2012, has been filed by the State for enhancement of the sentence awarded to accused-Rehenjya Shelya Pawara. Criminal Appeal No. 509/2012 has also been filed by the State, challenging the acquittal of original accused Nos. 2 and 3 i.e. Nago Lakha More and Vanita w/o Chandrasing Vasave by the learned Additional Sessions Judge, Shahada in the afore-mentioned sessions case. Since all the three afore-said appeals are arising out of one judgment, we have simultaneously heard the arguments in all the three appeals and prefer to decide all these appeals by a common reasoning.
5. First we would like to deal with Criminal Appeal No. 106/2012, preferred by Accused-Rehenjya Shelya Pawara. As stated above, the appellant has been held guilty by the Trial Court for the offences punishable under Sections 376 (2) (c) and 506 (II) of the I.P.C. Before adverting to the grounds of objections raised by the appellant in exception to the judgment of the Trial Court, it would be necessary to state the facts of the case in brief, as are revealed from the prosecution case.
6. The prosecutrix was taking her education in an Ashram School situated at Village Bardi, Tq. Akkalkuwa, Dist. Nandurbar. She was in the 6th standard at the time of lodging report in the present case. She was in the 5th standard, when the alleged incident is stated to have occurred. Accused- Rehenjya Shelya Pawara, was working as the Manager of the said Ashram School. Prosecutrix was the resident student in the said Ashram School, the alleged incident is stated to have occurred on 12-02-2002. It is alleged that, on that day in the afternoon, when the prosecutrix was sweeping the office of the said Ashram School, accused-Rehenjya bolted the door of the said office from inside, and thereafter, committed rape on the prosecutrix. It is alleged that the prosecutrix was threatened by the said accused, not to disclose the said incident to any body. It is further alleged that four to five days thereafter, the prosecutrix was again called by the appellant/ accused in his office and again she was raped.
7. It is the further case of the prosecution, that in June-2002, when school re-opened for the next academic year, and more particularly on 29-06-2002, when the prosecutrix had been to the school, it was noticed by her class teacher that she was pregnant. Therefore, she was taken for medical examination, and her pregnancy was confirmed.
8. On 07-07-20 02, report was lodged of the alleged incident in the Police Station Molgi, whereupon the crime was registered against the appellant-Rehenjya for the offences under Sections 376 (2) (c), 506 (II) and 201 of the I.P.C., and the further investigation was set in motion without any delay. Accused was arrested. During the course of investigation the blood sample of the accused was obtained and was sent for DNA test. The investigation officer recorded the statements of the necessary witnesses. He also collected relevant documents from the Ashram School, in regard to the age of the prosecutrix. The prosecution record reveals that the prosecutrix refused to terminate her pregnancy. She was sent at Nashik in one Mahila Ashram. She delivered a female child in the government hospital at Nashik on 28.10.2002. The record further reveals that the blood samples of the prosecutrix as well as the female child delivered by her were collected and sent for their DNA test.
9. During the investigation, it was revealed that some discrepancies had occurred in making entry pertaining to the Menstruation Cycle of the prosecutrix in the register maintained at Ashram School, pertaining to the M.C. period of the prosecutrix. Suspecting that some foul role is played by the Head Master of the school and the class teacher with an intention to save Accused No. 1 from punishment, both were prosecuted for the offences punishable under Sections 465, 466, 468, 201 read with 34 of the I.P.C. (respondents in Criminal Appeal No. 509/2012).
10. After filing of the charge-sheet the case was committed to the Court of Sessions. The learned Additional Sessions Judge, Shahada framed the charge against the accused persons. Accused did not plead their guilt and claimed to be tried. In order to bring home the guilt of the accused, prosecution examined as many as twenty witnesses. The defence of the appellant was of total denial. Appellant-Rehenjya examined one witness in his defence. The learned Additional Sessions Judge, Shahada, on his assessment of the oral and documentary evidence brought on record by the prosecution, has held the appellant-Rehenjya guilty for the offences punishable under Sections 376 (2) (c), 506 (II) of the I.P.C. and sentenced him to suffer Rigorous Imprisonments as mentioned here-in-above. Accused No. 2 and Accused No. 3, however, were acquitted of all the charges leveled against them.
11. As is revealed from the argument advanced by Shri R.R. Mantri, the learned counsel appearing for the appellant, the appellant had without prejudice to each other taken the following three defences; â first that no such incident as alleged had ever occurred and that he has been falsely implicated in the alleged crime, second that DNA test allegedly conducted in the matter on the basis of which a conclusion has been drawn that the appellant is the biological father of the female child delivered by the prosecutrix, is illegal, faulty and invalid and third that even if it is assumed that the appellant had sexual intercourse with the prosecutrix it was with the consent of the prosecutrix. In the plea of 'consent' raised by the appellant the further plea that the prosecutrix was major at the relevant time is of course enveloped.
12. The learned APP has supported the conclusion drawn by the learned trial court holding the appellant i.e. original Accused no. 1 guilty for the offence punishable u/s 376 (2) (c) and 504(II) of I.P.C., though has disputed the quantum of sentence imposed on the appellant.
13. To butress the first ground of objection that the appellant has been falsely implicated in commission of the alleged crime, an attempt was made by the learned counsel for the appellant to submit that on instigation of and at the instance of one Gulaya Narsi Walvi, name of the petitioner was falsely implicated in commission of the alleged crime. However, nothing has been brought on record by the appellant to show as to why said Gulaya, would have falsely implicated his name in the alleged commission of crime. Merely because the said Gulaya Walvi had accompanied the prosecutrix, at the time of lodging F.I.R., no such inference can be drawn that the F.I.R. lodged by the prosecutrix was false or was at the instance of said Gulaya. Neither in the crossexamination of the prosecutrix, nor of said Gualya (P.W.-6) any such circumstance has been brought on record indicating any possibility of false implication of the accused by the said witness. Thus, there is no substance in the objection so raised.
14. It was further argued by Shri Mantri that taking into account the topography of the spot where appellant is alleged to have committed rape on the prosecutrix, and time at which the said act is said to have committed by the accused, serious doubts are raised about the very occurrence of the incident as alleged. The learned counsel submitted that the school at which the incident is stated to have occurred, consists of three big halls, of which in one hall there was an office and other two halls were used for holding classes in day time, and for the residential purpose thereafter. The learned counsel attempted to submit that both the alleged incidents are stated to have occurred in the afternoon, while classes were going on. The learned counsel submitted that it appears improbable that while the classes were going on, the accused could have dared to indulge in the alleged act.
15. The learned counsel further submitted that it also appears unnatural that the appellant would have called the prosecutrix by sending a message through some student. The learned counsel further submitted that the fact that after the alleged incident of rape the prosecutrix went to the class room and attended the class also creates all reasonable doubts, whether in fact, the incident alleged by her did occur. The learned counsel further submitted that it also appears unnatural and improbable that the prosecutrix would not make any complaint, not even to her mother, that she has been abused by the appellant. Referring to all those circumstances, the learned counsel submitted that the allegations made against the appellant apparently appears to be false.
16. We do not find any substance in the objections so raised. The prosecutrix in her testimony before the court has given sufficient particulars in regard to the alleged occurrence. She has deposed that on 12.2.2002 she was called by the appellant in the office room and was directed to clean the office room. She has further deposed that when she started cleaning the office room, the appellant closed the doors from inside and thereafter committee rape on her. She has also deposed that the appellant had threatened her not to disclose the said incident to anybody. The facts so stated by the prosecutrix have remained unshattered even in her cross-examination. In so far as the second incident of rape is concerned, it has come in the evidence of P.W.3 Dilip that on that day appellant had asked him to send the prosecutrix to his office. Prosecutrix has also testified that P.W. 3 Dilip had given her message that she was called in the office by the appellant. There seems no reason to disbelieve the testimony of P.W.3 Dilip as well as the prosecutrix. Secondly, merely because the prosecutrix attended the classes even after suffering the sexual assault by the appellant may not belie the facts stated by her that she was raped by the appellant in the office of the Ashram School. Further, it is quite probable that since the prosecutrix was threatened by the appellant not to disclose the alleged occurrence or else he will oust her out of the Ashram School, she might not have disclosed the said facts to her class teacher or even to her mother. Such conduct of the prosecutrix cannot be said to be unnatural or improbable. The aforementioned objections raised by the appellant are, therefore, liable to be rejected.
17. It has come in the evidence of P.W.11 Dr. Shripad Lunawat that on 28.10.2002, he collected the blood sample of the prosecutrix and of the female child delivered by her for the purpose of DNA test. P.W.11 has further stated that he sealed the blood sample bottles under his signature. He has further deposed that he also duly filled in the identification form for the purpose of DNA test and affixed on it the photograph of the prosecutrix. As has come in the evidence of P.W.14 Dr. Dravid, the blood sample of appellant/accused was collected on 6.9.2002 at government hospital at Dhule in his presence and was sent in properly sealed condition for the DNA test. The DNA test was conducted at Centre for DNA Fingerprinting and Diagnosis, Hyderabad. The report dated 24.1.2003 (Exh. 121) demonstrates that Rehenjya Shelya Pawara i.e. the present appellant is biological father of the female child delivered by the prosecutrix. Dr. Devindersingh Negi (P.W.10) was examined by the prosecution and the aforesaid report was duly proved during the course of his evidence.
18. In respect of the DNA test, the appellant has raised an objection that the same has not been conducted by following the due procedure. The learned counsel submitted that Dr. Nandkumar Dravid (P.W.14), has admitted in his cross-examination that appellant has not given his consent in writing for taking his blood sample for DNA test. The learned counsel further pointed out that identification form was required to be filled at the time of collecting the blood sample of the appellant, and not at any subsequent stage. The learned counsel taking us through the evidence of P.W-14, Dr. Dravid brought to our notice that though the blood sample was collected on 06.09-2002, the identification form was filled in and signed by the said witness on 18-11-2002. Learned counsel asserted that the blood sample of the appellant obtained without his consent and non filling of the identification form has rendered the DNA test invalid and ineffective.
19. After having perused the testimony of Dr. Dravid (P.W.14) and the other related evidence on record, it is difficult to accept the argument advanced by Shri Mantri. Dr. Dravid in his evidence before the the court, has stated that he had obtained the consent of the appellant for his examination and the said patient has signed on the case paper at the relevant time. It has also come in his evidence that on 06-09-2002, the appellant was referred to hospital for the specific purpose of collecting his blood sample for DNA test, and accordingly case paper was prepared and his blood sample was obtained. We have perused the case paper (Exh. 134), which bears an endorsement under the hand writing of the appellant to the effect that he was ready for his medical examination. It is not the case of the appellant that he has resisted for taking his blood sample and/or had refused to give his blood sample but the same was obtained by applying force. In such circumstances, the evidence of DNA test cannot be discarded, merely because there was no consent given by the appellant in writing in specific words for taking his blood sample. Secondly, merely because on the identification form, the photograph of the appellant was subsequently affixed, it would not negate the evidence of DNA test, in view of the other evidence on record. It has come on record that the blood sample was properly obtained and the bottle was properly sealed. It has also come on record that the carrier had carried the said bottle to the DNA laboratory, and the DNA laboratory had acknowledged the receipt that the blood sample was in sealed condition. In absence of any malafide alleged against the investigating agency, the lacuna pointed out of not affixing the photograph of the appellant on the identification form of the appellant sent along with his blood sample to DNA laboratory would not help the appellant to contend that the sample of blood sent to DNA laboratory was not his blood sample.
20. Moreover, the appellant has not pleaded any such case or has not given any suggestion to any of the prosecution witnesses examined on the point. In view of the above, we do not find any merit in the objection raised by the appellant, as regards to the DNA test and the result of the said test. DNA report is at Exhibit 121, and the same was duly proved in the evidence of Devindrasing Negi (P.W.10). As per the DNA report appellant is the biological father of female child delivered by the prosecutrix.
21. In view of the evidence brought on record by the prosecution proving that the appellant is the biological father of the child delivered by the prosecutrix, in fact no much force and/or substance had remained in the plea taken by the appellant denying the occurrence of the alleged incident and/or his false implication. Perhaps that was the reason that the learned counsel for the appellant did not press much the aforesaid objection and in his entire argument his thrust and emphasis was in submiing that the prosecutrix was the consenting party to the sexual intercourse with the appellant and since the prosecutrix was major at the relevant time, no offence of rape can be said to have been committed by the appellant/accused.
22. While elaborating the aforesaid point, the leaned counsel for the appellant first of all invited our attention to the prosecution evidence in respect of the age of the prosecutrix. The learned counsel submitted that the learned Additional Sessions Judge has implicitly relied upon the evidence of P.W.9 Nijam Pinjari, who was working as headmaster at the Birdi Ashram School since March, 2004. In the evidence of P.W.9 Nijam Pinjari the school leaving certificate of the prosecutrix came to be proved and was marked as Exh. 113 As mentioned in the said school leaving certificate, the date of birth of the prosecutrix is 12.07.1990. At the time of his evidence before the Court P.W.9 Nijam Pinjari had brought the original school register with him and during the course of his evidence the entry in respect of the prosecutrix in school register no. 5 at serial no. 1250 came to be proved and was marked as Exh.112. It was the contention of the learned counsel for the appellant that the evidence of P.W.9 Nijam Pinjari was of no help for the prosecution and though the school leaving certificate and the school entry in the school register have been marked and exhibited in his evidence cannot be taken into consideration for the reason that P.W.9 was not the author of the said documents and as such contents of the said documents cannot be held to have been proved.
23. The learned counsel brought to our notice that in his cross-examination P.W.9 has clearly admitted that he had not issued the school leaving certificate at Exh. 113 and further that at the relevant time the teachers used to make entry about the birth of the Adivasi students on surmises. To substantiate the objection so raised by him, the learned counsel placed his reliance on the judgment of the Hon'ble Apex Court in the case of Alamelu and Another Vs. State : (2011 AIR (SC) 715). The learned counsel invited our attention to some of the observations made by the Apex Court in para 39 of the said judgment. The Hon'ble Apex Court has observed that 'mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents'. The Apex Court has further held that 'the execution of the document has to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the fact in issue'. The Hon'ble Apex Court has referred to an observation made by the Apex Court in the earlier judgment in the case of Biradmal Singhvi Vs. Anand Purohit: 1988 Supplement SCC 604 that âthat the date of birth mentioned in the school register has no evidentiary value unless the person who made the entry or who gave the date of birth is examinedâ. Emphasizing the observations as aforesaid it was strongly contended by the learned counsel for the appellant that since the school leaving certificate as well as the entry in the school register have not been legally proved, no reliance can be placed on such evidence and the same is liable to be discarded.
24. The submissions so made were strongly opposed by Shri K.S. Patil, the learned Additional Public Prosecutor. The learned A.P.P. Cited the judgment of the Hon'ble Apex Court in the case of State of Chhatisgarh Vs. Lekhram(AIR 2006 (SC) 1746), and one more judgment in the case of Arjun Singh Vs. State of H.P., (AIR 2009 (SC), 1568), to submit that the entry in school register though not conclusive but it has evidentiary value. The learned A.P.P. Brought to our notice the observations made in para 12 of the judgment in the case of State of Chhatisgarh Vs. Lekhram (cited supra) to the effect that â A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Indian Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty.â
25. There cannot be a dispute regarding the preposition of law laid down in the Judgment, in the case of Alamelu and Anr. Vs. State (referred supra), relied upon by Shri Mantri, the learned counsel for the appellant. However, the Hon'ble Supreme Court in para 38 of the said judgment itself has noted that the transfer certificate issued by a Government School and duly signed by the Headmaster, would be admissible in evidence under Section 35 of the Indian Evidence Act. However, it is further observed that, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. In the above said case, neither the Headmaster was examined to prove the said certificate nor the prosecutrix or her father mentioned the age of the prosecutrix or date of birth of the prosecutrix. In background of such facts, the observations came to be made by the Hon'ble Supreme Court, that the date of birth mentioned in the school register had no evidentiary value. The facts situation in the present case is quite different. In the instant case, the prosecution has examined the Head master of the school Viz. P.W.-9-Nijam Karim Pinjari, so as to prove the school leaving certificate. As we have discussed earlier, P.W.-9 had brought with him the original record of the concerned Ashram School, at the time of his deposition before the Sessions Court and the entry in the said school register, pertaining to the prosecutrix was duly proved by the said witness. The said witness, has further stated that the school leaving certificate of the prosecutrix was prepared on the basis of information as was available in the school register. As mentioned earlier in the concerned school register the particulars relating to the prosecutrix are recorded at serial No. 1250 of book No. 5. The same registration number and the book number is appearing in the school leaving certificate of the prosecutrix.
26. We have carefully gone through the cross-examination of P.W.9. The said witness has not been controverted on the particulars entered at Sr.No. 1250 in the school register relating to the prosecutrix. In the school register along with other details, the birth date of the prosecutrix is also mentioned. It is true that P.W.-9 is not the author of the document at Exh.113 i.e. the school leaving certificate of the prosecutrix. However, that cannot be the sole reason for rejecting his evidence in its entirety. The entry in the school register has been duly proved by P.W.-9. The School Register (Exh. 112) is the record which is being duly maintained in the ordinary course of business of the school. The genuineness of the entries therein therefore cannot be doubted in the absence of any contrary material. As stated earlier, the particulars in the school leaving certificate were filled in as were recorded in the School Register (Exh.112). We therefore do not see any reason for not relying on the said document.
27. In addition to this, there is evidence of the father of the prosecutrix P.W.-5-Sarya Daulya Raut. He has deposed in his examination-in-chief, that the age of the prosecutrix was thirteen years at the time of alleged occurrence. In his cross-examination he had denied the suggestion that he was unable to give the exact age of his daughter i.e. the prosecutrix, as there was no written entry about her birth.
28. Further, while deposing before the court the prosecutrix has stated her date of birth as 12.7.1990. It was argued on behalf of the appellant that in the cross-examination the prosecutrix has admitted that she had stated her age on the basis of entry made in the school register. It was further pointed out that the prosecutrix has further admitted that her birth date is not taken down anywhere. Referring to the admission so given, the learned defence counsel has submitted that no reliance can be placed on such evidence and 12.07.1990 cannot be held to be the date of birth of the prosecutrix. We are, however, not convinced with the argument so advanced. There was nothing wrong on the part of the prosecutrix to say that she has stated her age before the court on the basis of the entry made in the school register. Admittedly, there is no further suggestion to the prosecutrix that 12.7.1990 is not her date of birth or that the birth date so stated by her and so recorded in the school register is falsely recorded.
29. According to Shri Mantri, the learned counsel for the appellant, if at all any plausible evidence has come on record in respect of the age of the prosecutrix, it is of Dr. Tryambak Chavan (PW-19). The learned counsel submitted that when the prosecution has not brought on record any cogent and sufficient documentary evidence in respect of the age of the prosecutrix, and when the prosecutrix herself and her father have also not stated the age of the prosecutrix correctly, the only evidence on the basis of which the age of the prosecutrix can be ascertained is the age certified in the ossification test. The learned counsel took us through the evidence of P.W19 Dr. Tryambak Chavan and more particularly invited our attention to the fact admitted by the said witness that in so far as the age of a person fixed on the basis of ossification test, the error of margin is three years according to the Modi's Medical Jurisprudence. The learned counsel submitted that in the ossification test the age of the prosecutrix is held as 14 years. Based on the opinion given by P.W.19 Dr. Chavan, the learned defence counsel submitted that considering the margin of plus three years, at the relevant time the age of the prosecutrix could be even 17 years and thus she was major at the relevant time. In support of his aforesaid contention the learned counsel placed his reliance on the judgment of the Division Bench of this Court in Balasaheb Vs. State of Maharashtra, (1994 Cri. L.J., 3044). The learned counsel submitted that in the cited case in the ossification test the age of the prosecutrix therein was held to be 14 to 16 years and relying on the opinion recorded in Modi's Medical Jurisprudence, it was held by the court that the accused was entitled to advantage of the marginal error and the prosecutrix could be even of the age of 17 years at the relevant time. The learned counsel submitted that even in the instant case, considering the error of margin of three years, it can be safely held that the prosecutrix may be of the age of 17 years at the relevant time.
30. In view of the other evidence, which we have discussed herein before in detail, in our opinion, the weightage will have to be given to the documentary evidence in respect of the age of the prosecutrix and not to the medical evidence i.e. the ossification test. We have already rejected the contention of the defence that there is no cogent and sufficient documentary evidence in regard to the age of the prosecutrix. We have also held that there is no reason to disbelieve the documents brought on record and validly proved by the prosecution that is the school leaving certificate and the school register wherein the date of birth of the prosecutrix is recorded as 12.07.1990. Even otherwise, the ossification test is not a sure test in respect of age. It gives an approximate age which may vary by two to three years on either side. The ossification test is ordinarily resorted to where there is absolutely no evidence regarding the age of a person. In the instant case, as mentioned earlier, when the school record was available and was duly proved by the prosecution, the ossification test loses its significance. Moreover, the father of the prosecutrix has also stated the age of the prosecutrix and prosecutrix herself has also stated her date of birth in her evidence before the court.
31. Further, a judicial note can be taken that in the moffusil, the children in the age group of six to seven years are being admitted in the first standard. The record which has been proved in the evidence of P.W.-9 shows that the prosecutrix was admitted in the school for the first time on 17-07-1997 in the first standard. Her date of birth as entered in the school record is 12-07-1990. It is thus, evident that the prosecutrix was seven years old, when she was admitted in the school in the first standard. At the time of alleged occurrence, the prosecutrix was in fifth standard. It is not the case of the appellant, at least no such evidence is brought on record, that the prosecutrix failed in any of the standard till she reached to the fifth standard. As such, there may not be any difficulty to assume that in the fifth standard the age of the prosecutrix was twelve years.
32. Considering the evidence elaborately discussed herein above with the objections raised thereto by the defence, we have no hesitation in recording the conclusion that at the relevant time the prosecutrix was definitely below the age of 16 years and thus was minor.
33. Once it is proved that at the relevant time the prosecutrix was of the age below 16 years, the defence put forth by the appellant alleging consent on the part of the prosecutrix in having sexual intercourse with him becomes irrelevant. Looking to the evidence on record, it is difficult to even accept the argument of the defence that the appellant had sexual intercourse with the prosecutrix with her consent. It has come in the evidence of the prosecutrix that she was threatened with the dire consequences by the appellant before the alleged commission of rape. It has also come in the evidence of the prosecutrix that after commission of the rape also she was threatened by the appellant not to disclose the said incident to anybody. Though an attempt was made to grill the prosecutrix on this point in her cross-examination nothing could be elicited by the defence so as to disbelieve the testimony of the prosecutrix. Admittedly, appellant was the manager of the Ashram School at the relevant time wherein the prosecutrix was studying as an inmate of the said Ashram School. As such, it does not appear improbable that out of fear because of the threat of dire consequences given by the appellant to her, prosecutrix did not resist the appellant from having sexual intercourse with her. In such circumstances, it cannot be accepted that the appellant had sexual intercourse with the prosecutrix with her consent.
34. After having carefully and consciously considered the entire documentary and oral evidence on record, unhesitatingly it can be said that the prosecution has beyond reasonable doubt proved that the appellant committed rape on the prosecutrix. As mentioned earlier, since at the relevant time the appellant was working as the manager of the Ashram School at Birdi and the prosecutrix was an inmate of the said Ashram School, the learned Additional Sessions Judge has rightly held the appellant guilty for an offence under section 376(2)(c) of I.P.C. Secondly, the offence under section 506(II) of I.P.C. Has also been beyond reasonable doubt proved against the appellant. We need not to again reproduce the evidence in that regard since the same has been referred to hereinbefore. The prosecutrix has deposed about the threat given by the appellant to her before and after committing rape on her. Her evidence in that regard has remained unshattered. Moreover, nothing has been brought on record so as to disbelieve the facts so stated by her. The trial court has therefore properly held the appellant guilty for an offence under section 506(II) of I.P.C. We do not find any reason to interfere in the conclusion so recorded by the trial court. The appellant has failed in making out any case . The appeal so filed by him is, therefore, liable to be dismissed and is accordingly dismissed.
CRIMINAL APPEAL NO. 196 OF 2012
35. This is an appeal filed by the State seeking enhancement in punishment imposed on respondent No.1 i.e. accused No.1 in Sessions Case No. 42 of 2002. Respondent No.1 has been held guilty by the trial Court for the offence punishable under Section 376(2)(c) of the Indian Penal Code and 506(II) of the Indian Penal Code. The trial Court has sentenced respondent No.1 to suffer rigorous imprisonment for ten years and to pay a fine of Rs.Five Thousand in default to undergo rigorous imprisonment for six months for the offence punishable under Section 376(2)(c) of the Indian Penal Code, whereas for the offence punishable under Section 506(II) of the Indian Penal Code, he has been sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.One Thousand in default to undergo rigorous imprisonment for next two months. Both the sentences are directed to run concurrently.
36. We need not to refer to the facts of the case since the same have been referred in the Criminal Appeal No.106 of 2012 in detail.
37. The State has filed the present appeal as mentioned hereinbefore taking exception to the sentence imposed on the respondent. In nut shell, it is the contention of the State that looking to the nature of the offence and the entire facts and circumstances involved in the case the respondent ought to have been punished with some graver sentence than awarded by the learned Additional Sessions Judge. The State has prayed for awarding maximum sentence as provided under Section 376(2)(c) of the Indian Penal Code.
38. The learned Additional Public Prosecutor reiterated the grounds raised in the memo of appeal and prayed for allowing the appeal.
39. Shri R.R. Mantri the learned counsel appearing for the respondent has strongly opposed the grounds raised in the memo of appeal and the request made therein. The learned counsel submitted that the learned trial Court after having considered the evidence before it has awarded the adequate punishment and no interference is required in the punishment so awarded.
40. Section 376(2)(c) of the Indian Penal Code provides rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.
Proviso to the said section says that the Court may, for adequate and special reasons to be mentioned in the judgment, imposed a sentence of imprisonment of either description for a term of less than ten years. Perusal of the impugned judgment reveals that before the trial Court also maximum sentence was prayed for by the prosecution. However, after having heard the prosecution as well as the accused on the point of sentence, the learned Additional Sessions Judge find it appropriate to sentence the respondent to suffer rigorous imprisonment for ten years and to pay a fine of Rs.Five Thousand in default to undergo rigorous imprisonment for further six months.
41. In the instant case, considering the facts and circumstances involved in the case the learned Additional Sessions Judge has imposed sentence on the respondentaccused to suffer rigorous imprisonment for ten years. Had it been the fact that the trial Court would have awarded the sentence of imprisonment less than the minimum prescribed, without providing adequate and special reasons, this Court certainly would have reason to interfere in such order. On perusal of the order passed by the trial Court it is revealed that the points which are argued and pressed before this Court were argued and pressed even before the trial Court and considering the points so raised the trial Court find it proper to sentence accused No.1 i.e. respondent in the present matter to suffer rigorous imprisonment for ten years. Considering the facts and circumstances in the case, the trial Court has exercised its discretion. We do not see any infirmity or perversity in the discretion so exercised. Criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit the sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime. No formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of the gravity of the crime, discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished. Viewed by this angle, we do not find any reason to interfere the order so passed and / or modify the same. It does not appear to us that the sentence awarded by the trial Court is inadequate or disproportionate. It does not appear to us that any case is made out for enhancing sentence imposed by the trial Court on the respondent. The appeal, therefore, fails and is accordingly dismissed.
CRIMINAL APPEAL NO. 509 OF 2012
42. The State has filed present Criminal Appeal against the acquittal of original accused Nos. 2 and 3 (Respondent No. 1 and 2 in the Criminal Appeal No.509/2013) in S.C. No. 42/2002, decided by the learned Additional Sessions Judge, Shahada, District Nandurbar. The respondent Nos. 2 and 3 were charged for the offences punishable under Sections 465, 466 and 468 as well as Section 201 read with 34 of the I.P.C. It was the case of the prosecution against the present respondent Nos. 1 and 2 that these respondents in furtherance of their common intention committed forgery by making false entry in the register maintained at Ashram School, Bardi, in respect of commencement of menstruation period of the inmate girl students, of said Ashram school with intent to destroy the evidence of commission of offence of rape committed by original accused No. 1. It was also alleged that the present respondent Nos. 1 and 2 forged the aforesaid document while discharging the official duty as a public servant, and as such were also charged for an offence punishable under Section 466 of the I.P.C. It was also alleged that in spite of having knowledge that the date entered in the relevant register was not the correct date of menstruation period of the prosecutrix, the same was entered into the concerned register for the purpose of cheating, and as such the charge was also framed for an offence under Section 468 read with 34 of the I.P.C. Original Accused No. 2 was the Head Master of the Ashram School at the relevant time, whereas the original accused No. 3 was the class teacher of the class in which the prosecutrix was the student.
43. The learned A.P.P. submitted that in spite of sufficient evidence brought on record by the prosecution to prove that the entries in the register in respect of the commencement of menstruation period were incorrectly made at the subsequent stage, the Trial Court has ignored the said evidence. The learned A.P.P. has brought to our notice that the prosecutrix has admitted that she has not given any information as is appearing in the said register. The learned A.P.P. further invited our attention to the fact deposed by the prosecutrix that she signed on the page of the said register in the month of April-2002. It was also pointed that the prosecutrix had signed the said register on the say of one Vanita madam i.e. the original accused No. 3. The learned A.P.P. submitted that the original accused Nos. 2 and 3 were duty bound to make correct and timely entries in the menstruation register kept in the Ashram School. The learned A.P.P. further submitted that from the evidence which has come on record it has been amply proved that the prosecutrix did not have the menstruation period after 12-02-2002 and as such the information entered in the menstruation register that she had menstruation period between 27-03-2002 to 30-03-2002 is absolutely false. The learned A.P.P. further submitted that as has been admitted by the concerned witness, the entries in the said register were to be made by the girl students themselves. This practice was not followed in the case of the prosecutrix. The learned A.P.P. submitted that recording of such incorrect information by respondent No. 3 and giving approval to the said information by respondent No. 2 is sufficient to indicate their involvement in commission of alleged crime. The learned A.P.P. submitted that there was no other reason for making such entries except to help the original accused No. 1 and to cause the disappearance of the evidence of the offence committed by said accused No. 1. The learned A.P.P. submitted that by sending the concerned register to the hand writing expert, the prosecution has proved beyond reasonable doubt that the entries in the said register are in the hand writing and under signature of original accused Nos. 2 and 3. The learned A.P.P. submitted that considering the evidence on record the learned Trial Court ought to have held original accused Nos. 2 and 3 guilty for the offences for which they were charged for.
44. Shri Ghanekar, the learned counsel appearing for original accused Nos. 2 and 3 i.e. respondent Nos. 1 and 2 in the present appeal submitted that the prosecution has utterly failed in proving the complicity of these accused in commission of any crime and the Trial Court has rightly acquitted them. The learned counsel taking us through the evidence of the prosecutrix as well as the other prosecution witnesses brought to our notice that even if the prosecution evidence is accepted as it is, no offence can be said to have made out against the present respondents (original accused Nos. 2 and 3).
45. After having going carefully perused the relevant evidence brought to our notice by the learned counsel for the respondents, we find substance in the arguments advanced on behalf of the respondent. The entry on the basis of which the present respondents have been impleaded as accused and charged for the offences punishable under Sections 465, 466 and 468 as well as Section 201 read with 34 of the I.P.C., was admittedly made in April, 2002. There is no dispute that the pregnancy of the prosecutrix was first noticed in the month of June, 2002. There is nothing on record to show that in April, 2002, the respondents i.e. original accused Nos. 2 and 3 were having any knowledge of the occurrence of the alleged incident. In such circumstances, no such inference can be drawn that the present respondents had made some wrong entries in the menstruation register so as to help the accused and to save them from the punishment. Though there appear some discrepancies in the entries made in the menstruation register, no malafides can be attributed on part of the respondents for making such entries in absence of any evidence therefor. From the evidence, it does not appear that in making such entry there was any intention much less the malafide intention of accused Nos. 2 and 3 i.e. present respondents to commit forgery or to cause disappearance of the evidence of the crime committed by original accused No.1. The trial Court has properly discussed the entire evidence on the point and has rightly exonerated the respondents from the charges levelled against them. We do not find any infirmity in the conclusion so recorded by the trial Court. The appeal, therefore, fails and is accordingly dismissed.