Dismissed

Balaji Maruti Kamble v. the State of Maharashtra

Bombay HC11 Dec 2014APEAL/167/2013

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against conviction and sentence. Upholding the trial court's findings, the court held that village and school records proving the prosecutrix was under 16 years of age carried more weight than medical opinion. Consequently, the prosecution proved both kidnapping under Section 363 IPC and rape under Section 376 IPC.

What did the court decide?

The appeal was dismissed; the conviction and sentence awarded to the appellant were upheld.

Balaji Maruti Kamble Vs the State of Maharashtra — Child Sexual Offences (POCSO) | Bombay HC (2014)

¶1

Cri. Appeal No. 167/13

¶2

¶3

IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD

¶4

CRIMINAL APPEAL NO. 167 OF 2013

¶5

Balaji s/o. Maruti Kamble, Age 24 years, Occu. Driver, R/o. Anjali Nagar, Latur, Tal. & District Latur.

¶6

....Appellant.

¶7

Versus

¶8

The State of Maharashtra Through Police Station Officer, Police Station, Gandhi Chowk, Latur, Tal. & District Latur.

¶9

....Respondent.

¶10

Mr. S.S. Thombre, Advocate for appellant. Mr. S.B. Pulkundwar, APP for State. Mr. S.N. Patil, Advocate for assisting APP.

¶11

CORAM : T.V. NALAWADE, J. DATED : 11th December, 2014.

¶12

JUDGMENT :

¶13

The appeal is filed against judgment and order of Sessions Case No. 119/2011, which was pending in the Court of Additional Sessions Judge, Latur. The appellant is convicted and sentenced for offences punishable under sections 363 and 376 of Indian Penal Code ('I.P.C.' for short). The sentence of rigorous imprisonment for seven years is given to the appellant. The parents of the accused and other relatives of accused were also

¶14

Cri. Appeal No. 167/13

¶15

¶16

chargesheeted for offences punishable under sections 363 and 366-A of I.P.C., but they are acquitted. Both the sides are heard.

¶17

The families of prosecutrix and the appellant/ accused were resident of Anjali Nagar, Latur. At the relevant time, the prosecutrix was aged about 15 years and the accused was aged about 24 years. The prosecutrix had studied up to 9th standard. Accused was known to the prosecutrix as his house is situated at some distance from the house of prosecutrix. He used to work as a driver. He used to talk with the prosecutrix when she used to proceed to school etc. The father of prosecutrix was working at Vishakhapattanam and for most of the time he used to remain out of Latur. The prosecutrix used to live with her mother and brother in the house.

¶18

It is the case of prosecution that the accused developed contact with the prosecutrix and he started saying that he loved her. In December 2010, when mother of prosecutrix was out of station and brother of prosecutrix had left the house for college, the accused entered the house of prosecutrix. He said to the prosecutrix that he loves her and then he took sexual intercourse with her in her house. He told the prosecutrix that by such act, no harm will be caused to her.

¶19

Cri. Appeal No. 167/13

¶20

¶21

In similar manner, on 2-3 occasions subsequent to the first incident, the accused took sexual intercourse with the prosecutrix. He then started saying that he wanted to marry with her and if she marries with him, she would get all the comforts and amenities which she was not getting in the house of her parents.

¶22

On 30.1.2011 the accused said to prosecutrix that he wanted to take her away and there, they would live together. He asked the prosecutrix to bring money which was available in her house. On 30.1.2011 the mother of prosecutrix was at home and so, prosecutrix could not leave the house for going with the accused. On 31.1.2011 accused again contacted prosecutrix and asked her to come out of the house for going with him to Latur. He again gave aforesaid promises to the prosecutrix.

¶23

On 1.2.2011 at about 12.30 p.m., the mother of prosecutrix was not available and at that time, prosecutrix used a veil, which she had collected from the friend of accused and she left home. Prior to that, the accused had contacted the prosecutrix on that day and had asked her to come to the backside of the house where he was to wait for her in a four wheeler. As per the instruction of the accused, the prosecutrix

¶24

Cri. Appeal No. 167/13

¶25

¶26

took bundles of currency notes from the cupboard of her house. One girl, aged about 11 years, was working in the house of prosecutrix as a maid servant, for cleaning the clothes and utensils. The said girl said that she wanted to come with the prosecutrix. Then the prosecutrix and the girl went towards the backside of the house where the accused was waiting with a four wheeler.

¶27

The accused collected prosecutrix and aforesaid girl and he took them first to Tuljapur. At Tuljapur, accused took them to a lodge and there they took brief halt. The accused wanted to take prosecutrix and the said girl to Mumbai, but the driver of the car said no for taking them to Mumbai. The accused then hired another car.

¶28

Accused took prosecutrix and aforesaid girl first to Thane and then to Mumbai. In Mumbai, accused collected money from the prosecutrix, which was around Rs. two lakh. Accused then took her to the house of his married sister in Mumbai (from Malad). The said sister advised accused to return to Latur with prosecutrix. The said sister did not allow the accused to stay in her house.

¶29

Cri. Appeal No. 167/13

¶30

¶31

In Mumbai, the aforesaid girl became frightened and she started saying that she wanted to return to Latur. Accused then took the girl to Solapur and at Solapur bus stand, accused made the girl to board a bus for Latur. At Solapur bus stand prosecutrix said to accused that she also wanted to return to Latur. But the accused gave threats and used force and did not allow prosecutrix to return Latur.

¶32

The accused took the prosecutrix to Malad Mumbai from Solapur. He again went to the house of sister, where his father and younger brother were waiting for him. The father of accused told to the accused that father of prosecutrix was harassing them and they were searching for prosecutrix. He advised the accused to stay away from Latur as he was afraid that father of prosecutrix would do something against the accused as father of prosecutrix is serving in military. He promised to inform the developments from Latur and he returned to Latur.

¶33

From Mumbai, accused took prosecutrix to Banglore where they stayed for about four days. From Banglore, the accused took the prosecutrix to Pune and there, he took a room on rent basis. To the landlady Nilabai, the accused represented

¶34

Cri. Appeal No. 167/13

¶35

¶36

that prosecutrix was his wife. In this room also, the accused took sexual intercourse with the prosecutrix.

¶37

When prosecutrix and accused were living in Pune, it was informed to accused that police were after the accused. The accused forced the prosecutrix to tell police that she had left the house of her parents on her own and on phone, she told police accordingly. The aforesaid girl disclosed about the aforesaid incident to the relatives of the prosecutrix and the police. Ultimately, on 6.3.2011 police traced the prosecutrix in a room from Pune. At the relevant time, the accused had left the room for repairs of mobile handset and so, he was not available. Police searched for accused in Pune, but they could not trace him in Pune.

¶38

In the report given by the mother of the prosecutrix, she gave the age of the prosecutrix as 15 years. During the course of investigation, the prosecutrix was referred for medical examination and her statement came to be recorded. She also gave her age as 15 years. The record of school like school leaving certificate, copy of birth certificate are produced before the Trial Court for proving the age of the prosecutrix. Nine witnesses came to be examined for proving the aforesaid

¶39

¶40

Cri. Appeal No. 167/13

¶41

offences. The accused took the defence of total denial. He filed written say and under section 313 of Cr.P.C. but he only contended that the age of the prosecutrix was around 20 years at the relevant time.

¶42

The trial Court has held that the date of birth of prosecutrix is 8.3.1996 and she had not completed 16 years of age on the date of sexual intercourse and on the date, when the accused took her away from lawful guardianship of her mother. The trial Court has believed the version of prosecutrix and aforesaid girl and also the medical evidence and the accused is convicted and sentenced for aforesaid offences.

¶43

It was mainly submitted by the learned counsel for the appellant that the version as a whole of prosecutrix and the circumstances show that the prosecutrix had left the house of her parents on her own and accused had only given company to her. He submitted that if there was any sexual intercourse, there was consent for the same of the prosecutrix. He submitted that the birth certificate, copy of which is given exhibit by the trial Court, cannot be believed as the mother has given evidence that prosecutrix was born at other place.

¶44

Cri. Appeal No. 167/13

¶45

¶46

The learned APP placed reliance on the observations made by this Court in Criminal Appeal No. 31/2012 [between Bhaiyya Subhash Panpatil Vs. The State of Maharashtra]. The relevant provisions of I.P.C. and the Evidence Act are discussed by this Court. The position of law with regard to the disputed fact of the age needs to be kept in mind while appreciating the evidence in the case like present one. The relevant observations of this Court in aforesaid criminal appeal are at paragraph Nos. 8 and 9 and they are as under :-

¶47

"8. The appellant is convicted and sentenced for offences punishable under sections 363 and 376 of I.P.C. For both the offences, the age of the prosecutrix is relevant factor. The evidence on age of prosecutrix needs to be appreciated in the light of the law developed in that regard. In view of the definition of 'kidnapping', the prosecution is required to prove that the age of the prosecutrix was below 18 years at the relevant time. For proving that, there was no question of giving of consent by prosecutrix for sexual intercourse, the prosecution is required to prove that the age of the prosecutrix was below 16 years and that is in view of the definition of 'rape'.

¶48

In Criminal Appeal No. 499/2012 decided with Criminal Appeal No. 500/2012 on 11.9.2013 [Between Mahesh Tarachand

¶49

Cri. Appeal No. 167/13

¶50

¶51

Suryawanshi Vs. State of Maharashtra] by Aurangabad Bench of High Court of Bombay, this Court had an opportunity to discuss the law developed on aforesaid point. The discussion is as follows :-

¶52

"13. 'Age' as ingredient of both the aforesaid offences is required to be proved beyond reasonable doubt. This 'proof' under section 3 of Evidence Act need to be like proof of any other fact in criminal case. Oral evidence as to the age may always be available in such a case. Where a person gives evidence on oath, the Court is expected to start with presumption that he has spoken the truth. Only because in a case like present one, when there is oral evidence on age and it is given by the interested witnesses like mother or father, the Court is expected to look for corroboration. Corroboration need not be only of expert evidence. Corroboration may be of circumstances which may differ for each case. The opinion of doctor on clinical or radiological examination cannot be accepted straight away as a legal proof. The margin of error is of two years on either side even when the age is ascertained on the basis of radiological examination. [Reliance placed on AIR 1982 SUPREME COURT 1297 [Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and Ors.] . It is only

¶53

Cri. Appeal No. 167/13

¶54

¶55

medical opinion and other evidence including oral evidence cannot be discarded only because the medical evidence is in conflict with the oral evidence. Further, the medical evidence cannot stand against entries made in birth register, which are properly authenticated. Entry made in birth register has presumptive value in view of section 17 (2) of Birth and Death Registration Act, 1969 and this position of law needs to be kept in mind, when there is conflict between medical evidence and the other evidence.

¶56

In view of section 35 of Evidence Act, the entry made in school register about the date of birth also needs to be treated as relevant. Such register is kept in regular discharge of duty by school and it is required to be kept as per the Rules made by the State Government. When such entry was made before starting of dispute, many years prior to the commission of offence and when entry is proved by giving oral evidence of the concerned, due weight needs to be given to such entry. Such entries need to be treated as relevant and admissible in evidence, though such entry cannot form sole clinching factor for determining the age. It has no presumptive value like in the case of entry made in birth register as already observed.

¶57

Cri. Appeal No. 167/13

¶58

¶59

On the definition of kidnapping, there is the landmark case reported as AIR 1965 SC 942 [S. Varadrajan Vs. State of Madras]. In this case, the Apex Court has discussed the difference between the terms like 'taking' and 'enticing' used in section 361 of I.P.C. The Apex Court has observed that if the prosecutrix had reached the age of discretion, she had crossed the age of 16 years, though she is minor, it is necessary for the prosecution to show that the accused made the prosecutrix to accompany him by administering any threat to her or by blandishment. It is observed that if the prosecutrix had left the house of parents on her own and after that, the accused had given her company, it cannot be said that the act of the accused amounts to kidnapping. In view of peculiar facts of that case, the Apex Court held that the prosecutrix clearly knew what she was doing and what was good for her. In view of the facts of that case, the Apex Court held that the act of giving company of the accused to the prosecutrix was not amounting to offence of kidnapping.

¶60

Section 361 of I.P.C. reads as under :- " 361. Kidnapping from lawful

¶61

Cri. Appeal No. 167/13

¶62

¶63

guardianship. - Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

¶64

Explanation. - The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.

¶65

Exception.- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."

¶66

In view of observations made in Vardarajan's case cited supra, it can be said that if the minor prosecutrix had crossed the age of 16 years, it needs to be ascertained as to whether any active part was played by the accused due to which the prosecutrix left

¶67

Cri. Appeal No. 167/13

¶68

¶69

house of her guardian. In the case reported as AIR 1973 SUPREME COURT 2313 [Thakorlal D. Vadgama Vs. The State of Gujrat], the Apex Court again discussed the difference between the two terms like 'taking' and 'enticing'. It is laid down that the word 'takes' does not connote use of 'force' and it means that 'to cause to go', 'to escort', or 'to get into possession'. It further means 'physical possession'. On the other hand, it is inducing a minor to go of her own accord to the kidnapper i.e. the state of mind of willingness of minor is brought about in some way by the accused. This position of law needs to be kept in mind while appreciating the evidence in such a case."

¶70

The learned APP for the State placed reliance on another case reported as (2006) 1 Supreme Court Cases 283 [Vishnu alias Undrya Vs. State of Maharashtra] . In the case, the Apex Court has laid down that in a case of difference in record with regard to date of birth, the best evidence is that of parents. It is further laid down that the medical opinion of doctor, who conducted ossification test that the prosecutrix was aged about 18-19 years is not binding on occular evidence. The Apex Court has held that the age can be determined on the basis of evidence of parents and entries made in birth register. It

¶71

Cri. Appeal No. 167/13

¶72

¶73

is further laid down that once it is proved that the age of the prosecutrix was below 16 years, the consent of the prosecutrix is immaterial under Clause 5thly of section 375 of I.P.C.

¶74

The learned counsel for appellant placed reliance on the following reported cases :-

¶75

(i) AIR 2005 SC 203 [Deelip Singh @ Dilip Kumar Vs. State of Bihar],

¶76

(ii) 1984 (1) Bom.C.R. 453 [Nana Ramchandra Jadhav Vs. State of Maharashtra],

¶77

(iii) 2005 BCI (0) 93 [Gangadhar s/o. Gonduram Tadme Vs. Trimbak s/o. Govindrao Akingire and Ors.],

¶78

(iv) 2003 CRI.L.J. 1539 (1) [Uday Vs. State of Karnataka],

¶79

(v) 1994 CRI.L.J. 3044 [Babasaheb Vs. The State of Maharashtra],

¶80

(vi) 2007 (1) Bom.C.R. (Cri.) 916 [Amit @ Bapu Nanasaheb Bhandwalkar Vs. State of Maharashtra],

¶81

(vii) 1994 (2) Crimes 125 [Shamrao Vs. State of Maharashtra],

¶82

(viii) 1965 AIR (SC) 942 [S. Varadarajan Vs. State of Madras],

¶83

(ix) 2010 Cri.L.J. 1812 [State of Haryana Vs. Ramesh Kumar & Ors.]

¶84

(x) 2009 AIR (SC) 1109 [State of H.P. Vs. Suresh Kumar @ Chhotu], and

¶85

(xi) 1995 Cri.L.J. 3387 [Annakodi Vs. State].

¶86

Cri. Appeal No. 167/13

¶87

¶88

In the first case, cited by the counsel for the appellant, there was no convincing evidence with the prosecution to prove that the age of the prosecutrix was below 16 years. There was allegation that accused had given promise of marriage and then there was breach of promise. The accused had taken sexual intercourse with the prosecutrix. The Court held that the evidence, which was material to aforesaid disputed fact, was not considered by the Courts below and so, the conviction and sentence was set aside. In second case, in view of the facts of that case, lenient view was taken and sentence was reduced. In the third case, it is laid down that the certificate issued under the provisions of Births, Deaths and Marriages Registration Act without compliance of the mandatory requirement of section 22 (1) of this Act cannot be considered as a certificate issued under the provisions of this Act and it will not have presumptive value in such a case under section 114 of Evidence Act. This case was cited as copy of birth certificate which is given exhibit bears signature of Sarpanch only and not of Gramsevak.

¶89

In the fourth case, cited by the learned counsel for appellant, the facts were different and the question involved was whether prosecutrix had given consent under misconception of

¶90

Cri. Appeal No. 167/13

¶91

¶92

fact. In the fifth case, there was only the convincing evidence of medical opinion on age and so, the case was decided on the basis of that evidence. In the sixth case, it is observed that entry in school register is admissible, but not much having evidentiary value for proof of age. It is further held that this record does not meet requirement of section 35 of Evidence Act. In the seventh case, age of the prosecutrix was 17 years and there was the record to show that the prosecutrix and accused had intimacy and so, the defence of consent taken by the accused was accepted. Eighth case of Vardarajan is already discussed. In the ninth case of Punjab and Haryana High Court, it was held that there was no convincing evidence to prove that the age of the two girls was below 18 years. In the tenth case, the Court found that the documents about the date of birth were not relating to the prosecutrix. It was held that the age of the prosecutrix was above 16 years. In the last case, the age of the prosecutrix was 17 years and the father of the girl had given evidence that she was major.

¶93

In the present case, there is evidence of prosecutrix (PW 1) to the effect that she was born on 8.3.1996. Her evidence was recorded on 14.8.2012 and on that day, she gave her age as 17 years. There is evidence that she was studied only up to 9th

¶94

Cri. Appeal No. 167/13

¶95

¶96

standard when the incident took place. Shaikh Shamim (PW 3), the mother of prosecutrix, has given evidence that at the relevant time, prosecutrix had not completed 15 years of age.

¶97

Much was argued by the counsel for appellant in respect of admission given by the mother of prosecutrix (PW 3) in cross examination. The mother of the prosecutrix has admitted that the prosecutrix was born at Gadewadi, Tahsil Ahmedpur, District Latur, but her birth was registered in the record of Village Panchayat Bori. The mother has, however, denied that false date of birth was given to school.

¶98

Zambre (PW 8), the Headmaster of Vivekanand Prathmik Vidyamandir of Latur has given evidence that as per the record, the prosecutrix was admitted in his school on 12.6.2001 and she left the school on 23.6.2004. This was the first school of the prosecutrix. He has deposed that the entry in the school register was taken on the basis of birth certificate produced. The extract of the school register is produced at Exh. 77 and the copy of birth certificate, on the basis of which entry was made is produced at Exh. 68. Copy of application given for admitting the prosecutrix in school is also produced. This record shows that the birth date of prosecutrix, which was informed was

¶99

Cri. Appeal No. 167/13

¶100

¶101

8.3.1996. This was the first school of the prosecutrix and the entry was made well before the dispute and it was made on the basis of birth certificate and so, necessary weight needs to be given even to the entry made in the school record. The submissions made by the learned counsel for the appellant that there was no compliance of provision of Births Registration Act as the certificate with regard to the date of birth is not signed by Gramsevak, cannot be given much weight as it is only copy of entry from the concerned register maintained under the Births and Deaths Registration Act. If the defence had some doubt or the Court had some doubt, the original record from the Village Panchayat could have been called to ascertain as to whether there was compliance of relevant provisions. Thus, from the birth certificate and the school record, the date of birth of prosecutrix is 8.3.1996. The position of law in this regard is already discussed.

¶102

Dr. Jinturkar (PW 7), who examined the prosecutrix, has given evidence on the record of medical examination, Exh. 65. The record shows that opinion was given by the doctor that the age of the prosecutrix was 16-17 years. The prosecutrix was pregnant of 7 weeks on the date of examination. In view of the evidence of prosecutrix, mother and the record of birth

¶103

¶104

Cri. Appeal No. 167/13

¶105

certificate and school record, this Court holds that preference needs to be given to the other evidence and not to the medical opinion in this case. This Court holds that the prosecution has proved that the age of the prosecutrix was below 16 years at the relevant time, when the accused took the prosecutrix away from lawful guardianship of her mother and also when he took sexual intercourse with the prosecutrix.

¶106

There is both direct and circumstantial evidence for proving the offences. The prosecution has given evidence that the accused used to intercept her on a way to school and he used to search for opportunities to talk with her. He was virtually enticing her by saying many good things to her. He used to say that she was pretty looking and he would make her happy. She has given evidence that on one day, the accused entered her house when she was alone and even when she was opposing, he took sexual intercourse with her. She has deposed that on that occasion accused had told that nothing will happen to her due to such act and she should not disclose such incident to anybody. She has given evidence that in similar manner, on 2-3 more occasions, when she was alone in the house, the accused entered the house and took the sexual intercourse with her. She has given evidence that when she had refused, the accused had

¶107

Cri. Appeal No. 167/13

¶108

¶109

given threats and he had also said that he would disclose his relations with her to others.

¶110

The prosecutrix has given evidence that at the relevant time, her father had sold some property from Babulgaon and the sale proceeds were kept in her house and the accused was knowing this fact. She has given evidence that accused said to her that he would take her for outing and she should come with him with the amount which was kept in the house. She has given evidence that on that day, the accused was waiting on the backside of her house and then she took the money and went with the accused and she had taken the maid servant also with her.

¶111

The prosecutrix has given evidence about the places where she and the aforesaid girl were taken by the accused and those places were Tuljapur, Mumbai etc. She has deposed that in Mumbai, she was taken to the house of sister of accused, but the sister had refused to give shelter to them. She has given evidence that when the aforesaid girl started crying and started saying that she wanted to return to her mother, the accused left her at bus stand and then he took the prosecutrix forcibly to Banglore.

¶112

Cri. Appeal No. 167/13

¶113

¶114

The prosecutrix has given evidence that from Banglore, she was taken to Pune and she was again taken to Mumbai also. She has given evidence against the father of accused by saying that in the house of sister of accused, his father was waiting and he created fear in her mind by saying that the father of prosecutrix was waiting for her with sword.

¶115

The prosecutrix has given evidence that in Pune she was insisting to the accused that he should take her back to Latur, but accused avoided by saying that her father would kill her. She has given evidence that in Pune at Wagholi, room was taken on rent basis where they lived for few days. She has given evidence that in Pune, accused had represented that prosecutrix was his wife and by making such representation, he had taken a room on rent basis. She has given evidence that police had contacted accused when they were living in Pune. But, he had given false information to police and as per his instruction, she had supplied information to police. She has given evidence that in Wagholi also accused had taken sexual intercourse with her.

¶116

The evidence of prosecutrix shows that on the last day, when the accused was out of the room, he had gone for the

¶117

Cri. Appeal No. 167/13

¶118

¶119

repairs of mobile handset, police and father of prosoecutrix came there and they rescued her. She has given evidence that she was referred to medical examination and her police statement was recorded.

¶120

Some cross examination of the prosecutrix was made to show that she had probably completed 18 years of age, but nothing is brought on the record to create such probability. Most of the cross examination was made to show that she had probably left the house of her parents on her own. The statement given before the Magistrate was confronted to her during her cross examination. But, that statement cannot help the accused, in any way, as it is consistent on material points with the version of prosecutrix. She is cross examined to show that she had talk with police when she was living in Pune, but this admission also cannot help the defence in view of the nature of evidence given by the prosecutrix. Some cross examination is made to show that the accused used to visit the house of her parents. She has admitted that suggestion, but that cannot make a difference as it only shows that accused had developed contact with the prosecutrix. Specific suggestion is given to her during cross examination and answer to such suggestion is as under :-

¶121

¶122

Cri. Appeal No. 167/13

¶123

"It is true to say that 8th March 1996 is my birth date as per T.C."

¶124

She has admitted that her birth date is not referred in record of Village Panchayat or Municipal Council, but this admission cannot be used in favour of the accused when such record is in existence. Some evidence is brought on the record by giving following suggestion :-

¶125

"It is true that I came outside of the house by wearing veil of Guddi. It is true that on that day, I did so for concealing my identity."

¶126

The particulars of the amount are given by the prosecutrix during her cross examination and she has described currency notes. It is a fact that the girl, who was aged about 11 years, was also taken by the accused when he was taking the prosecutrix with him and thus, there was no escape for the accused from conviction for the offence punishable under section 363 of I.P.C.

¶127

The evidence of the said girl (PW 2) is consistent with the version of prosecutrix which is about the day on which the prosecutrix left the parent's house. This girl has given evidence that she was taken along with the prosecutrix to the

¶128

Cri. Appeal No. 167/13

¶129

¶130

house of sister of the accused and then she was allowed to return to Latur and accused had made her to board to bus for Latur. She has given evidence that in the bus, she came across one Khaja, a person residing in a neighbourhood and he helped to reach the house of her parents. Some cross examination is there on the place where she boarded the bus to return to Latur. She is illiterate girl and not much can be made out due to some inconsistency in her evidence about such place. Her evidence has given corroboration to the version of prosecutrix. Thus, the accused not only took the prosecutrix, who had not crossed the age of 16 years, but he had also taken other girl, who was about 11 years with him.

¶131

The evidence of Shaikh Shamim (PW 3), mother of prosecutrix, shows that on the day of incident, after 12.30 p.m. she realized that the prosecutrix was not at home. She has deposed that she searched for prosecutrix and when she could not trace her, she approached police. She has given evidence that when she learnt that other girl (PW 2) had returned to Latur, she met her and then she learnt that accused had taken prosecutrix with him. Her evidence shows that the prosecutrix also disclosed the incident to her. Some cross examination of this witness is on the point of date of birth and also the place of

¶132

Cri. Appeal No. 167/13

¶133

¶134

birth to show some inconsistency. However, it is already observed that such inconsistency cannot make much difference as the record was created long back. There is evidence of Sayed Khaja (PW 6) which is consistent with the evidence of PW 2.

¶135

In the cross examination of mother of prosecutrix, it is brought on the record that she had given loan of Rs. one lakh to accused No. 5 and that loan amount was not returned by that accused. On the basis of this admission, much was argued by the learned counsel for the appellant and he submitted that due to dispute over returning of this amount, the accused is falsely implicated. This submission is not at all acceptable. No parents would involve their marriageable daughter in such incident by making false allegations. Further, one more girl was involved in the incident. Further, there is medical evidence which is consistent with the version of prosecutrix. The prosecutrix was carrying of seven weeks when she was examined after her reference was made to doctor by police in this case. There is evidence to the effect that the prosecutrix was traced and she was collected from Pune by police. This Court has no hesitation to hold that aforesaid evidence is sufficient to prove the offences punishable under sections 363 and 376 of I.P.C. The Trial Court has not committed any error in convicting the accused. Sentence

¶136

Cri. Appeal No. 167/13

¶137

¶138

given to the accused is minimum possible sentence and there is no possibility of interference on the point of penalty also.

¶139