BALASAHEB Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BEING aggrieved by the judgment of conviction for offences under Ss. 363, 366-A, 376 and 506, I. P. C. and sentence of R. I. for three years and fine of Rs. 1000/- under first count; R. I. for five years and fine of Rs. 1500/- under second count R. I. for six years and fine of Rs. 2,000/- under the third count and R. I. for one year and fine of Rs. 500/- under the fourth count, recorded by the 4th Addl. Sessions Judge, Ahmednagar in Sessions Case No. 178 of 1991, the appellant-accused has preferred this appeal inter alia contending that the entire evidence led on behalf of prosecution clearly establishes the consent on the part of the victim Nanda d/o Mohan Darade and that the medical evidence is also to the effect that her age is 16 years or more and in that light of the matter, the learned Trial Judge felled in serious error in recording the contrary conclusion and convicting the appellant-accused for the offences indicated above and that the same should be rectified by allowing this appeal and acquitting the accused of all the charges alleged to have been established against him.

(2.) THE learned advocate for the appellant has taken us through both oral and documentary evidence and has tried to suggest that the entire conduct of the victim Nanda is a conduct of consent and not of compulsion, force or seduction. Regarding the age, he has contended that the medical evidence comprising of ossification test shows that the age of Nanda might be between 14 and 16 years. He has drawn our attention to the observations in Modi's Medical Jurisprudence and Toxicology, 21st Edition, page 40 wherein according to him, the margin of error might be + three years. If that be so, the age could be even 17 years and in view of this, the appellant-accused deserves to be acquitted.

(3.) THE learned A. P. P. , on the other hand, has drawn our attention to various provisions of Penal Code, more particularly Secs. 363, 366-A, wherein according to him, the age of the minority is 18 years, she being the female. He has, therefore, urged that when the appellant comes forthwith the specific defence that Nanda accompanied him and had sexual intercourse with the appellant, that is not tenable defence that Nanda accompanied him and had sexual intercourse with the appellant, that is not tenable defence and the conviction recorded by the learned Trial Judge should be maintained and should not be tinkered with.