STATE OF MAHARASHTRA Vs. NANDU PANDU KAMBLE

JUDGEMENT

(1.) This is an appeal impugning an order and judgment dated 30-9-2004 passed by Learned 3rd Ad-hoc Asstt. Sessions Judge, Kolhapur, by which, the accused were acquitted for the offence punishable under Sections 363 (Punishment for kidnapping), 366(A) (Procuration of minor girl) r/w Section 34 (Acts done by several persons in furtherance of common intention) of Indian Penal Code and accused no.1 was also acquitted for the offence punishable under Section 376 (Punishment for rape) of Indian Penal Code.

(2.) The facts in brief are, P.W.-7 Nakushi Shamrao Kamble and accused no.1 Nandu Pandu Kamble were cousins. It is prosecutions case that the four accused kidnapped P.W-7 Nakushi and later accused no.1 raped Nakushi. Trial Court concluded that the prosecution has failed to adduce cogent evidence that the accused kidnapped Nakushi and accused no.1 raped her. Evidence indicated that Nakushi voluntarily eloped with accused no.1, they got married at a temple and had sexual intercourse on 6 occasions. Learned APP in fairness states that evidence clearly indicates consensual sex. Learned APP, however, submitted that Trial Court had erred in concluding that prosecution failed to prove that Nakushi was below 16 years of age. Ms. Malhotra submitted that under Section 375 of IPC, prior to the amendment Act 13 of 2013, the date of the incident being 14-9-2003, even if there was consensual sex, a man is said to commit rape when he has sexual intercourse with a woman, with or without her consent when she is under 16 years of age. What remains to be seen is whether the victim- Nakushi was below the age of 16.

(3.) Prosecution, in support of its case that Nakushi was below 16 years of age relied upon the testimony of P.W.-8 Balwant Baburao Chavan, the school Head Master, in whose school Nakushi is stated to have studied for 3 years and certificate issued by him (Exhibit 49), testimony of P.W.-9 - Dr. Tukaram Govinda Mane, Medical Officer and of P.W.-11 Dr. Ranoji Vijaysingh Shinde. P.W.-8 has stated in his evidence that as per the records of the school, the date of birth of Nakushi is 20-9-1990, she was admitted in the school on 13-6-1997 and she left the school on 31-12-2000 as her name was removed from the school as she was continuously absent.