1. By this appeal, the appellant has challenged the judgment and order dated 26.10.2005 passed by the Sessions Court, Akola (trial Court) in Sessions Trial No.134/2004, whereby the appellant was convicted under Section 376 of the Indian Penal Code (IPC) and he was sentenced to undergo rigorous imprisonment for seven years and six months, respectively on two counts, as also to pay a fine in terms of direction contained in the impugned judgment and order.
2. On 05.12.2005, this court allowed the application filed by the appellant and suspended the sentence passed by the trial Court further directing the appellant to be released on bail on same terms and conditions, as were applicable during the trial. Accordingly, the appellant has been on bail since 05.12.2005.
3. This appeal was listed on 15.06.2018 for hearing when none appeared on behalf of the appellant and the office note recorded that the counsel for the appellant had not even collected the paper book. Accordingly, time of one week was granted to the counsel for collecting the paper book. On 22.06.2018, when the appeal was listed again, none appeared on behalf of the appellant and paper book was also not collected. Hence, the appeal was adjourned to 29.06.2018. The office note dated 22.06.2018 recorded that the counsel for the appellant collected the paper book. But, when the appeal was again listed on 29.06.2018, the counsel for the appellant failed to appear to argue the appeal. It was recorded in the order dated 29.06.2018 by this Court that since the appeal pertains to the year 2005, it was to be listed on 09.07.2018, high on board. Accordingly, this appeal was listed high on board for final hearing on 09.07.2018 and it continued on the list on 10.07.2018 and even today i.e. on 11.07.2018. But, upon the appeal being called out, again none has appeared on behalf of the appellant.
4. The aforesaid events clearly demonstrate that the counsel for the appellant has chosen to remain absent, not once, but again and again when this appeal has been listed before this Court. In this situation, it becomes relevant to examine as to what is the course to be adopted by the Court for disposal of the appeal. In the case of Bani Singh and Ors. Vs. State of U.P.; reported in (1996) 4 SCC 720, a Three Judge Bench of the Hon'ble Supreme Court posed a similar question and then answered the same. The relevant portion of the said judgment reads as follows:
'9. The question is, where the accused is the appellant and is represented by a pleader, and the latter fails to appear when the appeal is called on for hea
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ring, is the Appellate Court empowered to dispose of the appeal after perusing the record on its own or, must it adjourn the appeal to a future date and intimate the accused to be present on the next date of hearing?
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14. We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo case, (1971) 1 SCC 855, appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of Section 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it 'must' call for the record and Section 386 mandates that after the record is received, the Appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by crosschecking the reasoning with the evidence on record with a view to satisfyiny itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav's case AIR 1987 SC 1500, that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution.
15. Secondly, the law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the Appellate Court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that Section 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also Section 386 provides for a hearing to be given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are, therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadav case did not apply the provisions of Sections 385-386 of the Code correctly when it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent.
16. Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not once but again and again till the Court issues a warrant for the appellant's presence. A complaint to the Bar Council against the lawyer for nonappearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too would need the presence of the appellant for instructions and that would place the Court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of the appellant, the higher court can remedy the situation is there has been a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted.'
The aforesaid judgment of the Hon'ble Supreme Court was referred to and followed in a subsequent judgment in the case of K. S. Panduranga Vs. State of Karnataka; reported in (2013) 3 SCC 721. The relevant portion of the said judgment reads as follows:
'19. From the aforesaid decision, the principles that can be culled out are:
19.1 That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits;
19.2 That the court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent; 19.3 That the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;
19.4 That it can dispose of the appeal after perusing the record and judgment of the trial court;
19.5 That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused-appellant if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and
19.6 That if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation.
20. In Bapu Limbaju Kamble; (2005) 11 SCC 413 and Man Singh; (2008) 9 SCC 542, this Court has not laid down as a principle that it is absolutely impermissible on the part of the High Court to advert to merits in a criminal appeal in the absence of the counsel for the appellant. We have already stated that the pronouncement in A.S. Mohammed Rafi; (2011) 1 SCC 688, dealt with a different situation altogether and, in fact, emphasis was on the professional ethics, counsel’s duty, a lawyer’s obligation to accept the brief and the role of the Bar Associations. The principle laid down in Sham Deo Pandey; (1971) 1 SCC 855, relying on Siddanna Apparao Patil;(1970) 1 SCC 547, was slightly modified in Bani Singh;(1996) 4 SCC 720. The twoJudge Bench in Mohd. Sukur Ali;(2011) 4 SCC 729, had not noticed the binding precedent in Bani Singh.
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26. Regard being had to the principles pertaining to binding precedent, there is no trace of doubt that the principle laid down in Mohd. Sukur Ali (2011) 4 SCC 729 by the learned Judges that the court should not decide a criminal case in the absence of the counsel of the accused as an accused in a criminal case should not suffer for the fault of his counsel and the court should, in such a situation, must appoint another counsel as amicus curiae to defend the accused and further if the counsel does not appear deliberately, even then the court should not decide the appeal on merit is not in accord with the pronouncement by the larger Bench in Bani Singh (1996) 4 SCC 720. It, in fact, is in direct conflict with the ratio laid down in Bani Singh. As far as the observation to the effect that the court should have appointed amicus curiae is in a different realm. It is one thing to say that the court should have appointed an amicus curiae and it is another thing to say that the court cannot decide a criminal appeal in the absence of a counsel for the accused and that too even if he deliberately does not appear or shows a negligent attitude in putting his appearance to argue the matter. With great respect, we are disposed to think, had the decision in Bani Singh been brought to the notice of the learned Judges, the view would have been different.
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32. In view of the aforesaid annunciation of law, it can safely be concluded that the dictum in Mohd. Sukur Ali, to the effect that the court cannot decide a criminal appeal in the absence of counsel for the accused and that too if the counsel does not appear deliberately or shows negligence in appearing, being contrary to the ratio laid down by the larger Bench in Bani Singh (supra), is per incuriam. We may hasten to clarify that barring the said aspect, we do not intend to say anything on the said judgment as far as engagement of amicus curiae or the decision rendered regard being had to the obtaining factual matrix therein or the role of the Bar Association or the lawyers. Thus, the contention of the learned counsel for the appellant that the High Court should not have decided the appeal on its merits without the presence of the counsel does not deserve acceptance. That apart, it is noticeable that after the judgment was dictated in open court, the counsel appeared and he was allowed to put forth his submissions and the same have been dealt with.'
5. Applying the aforesaid principles laid down by the Hon'ble Supreme Court to the present case, it becomes evident that this Court can decide the present appeal on merits after perusing the grounds of appeal, impugned judgment and order of the trial Court and the entire record and also on hearing the learned A.P.P., who has been present on every occasion when the appeal was called out for hearing. Hence, this Court is proceeding to examine the merits of the present appeal.
6. Heard Mrs. Shamsi Haider, learned A.P.P. appearing on behalf of the State. A perusal of the record of the present case and the impugned judgment and order of the trial Court shows that according to the prosecution on 05.10.2003, in the evening at about 4.00 p.m. when the prosecutrix (PW1) was alone in her house, the appellant entered the house and after holding the prosecutrix in a tight embrace, removed her clothes and committed the act of forcible sexual intercourse with her. At that time, father of the prosecutrix i.e. Babarao Tayade (PW5) entered the house and caught the appellant red handed in the act of committing sexual intercourse with his daughter i.e. the prosecutrix. The said witness Babarao (PW5) slapped the appellant twice, upon which the appellant fled away. According to the prosecution, Babarao (PW5) then came to know from the prosecutrix about the details of the incident and he left for Akola to fetch the mother of the prosecutrix before proceeding to approach the police. It is relevant that the appellant was related to the prosecutrix and he was her maternal uncle. It has come on record that Babarao (PW5) returned from Akola with his wife in the evening on 05.10.2003 and, thereafter, in the morning on 06.10.2003, they took the prosecutrix to the police station to lodge complaint in respect of the said incident.
7. On the oral report lodged by the prosecutrix, First Information Report (FIR) was registered on 06.10.2003 at 12.45 p.m. and an offence under Section 376 of the IPC was registered against the appellant. The prosecutrix (PW1) was sent for medical examination. Her clothes were seized and they were sent for chemical analysis. The investigating officer Govind Hirekar (PW6) took up the investigation. It was found that the school leaving certificate and certificate issued by the Gram Panchayat showed that the date of birth of the prosecutrix was 17.06.1988 and that she was less than 16 years old at the time of the incident. Govind (PW6), the investigating officer recorded the statement of witnesses and on the basis of the evidence and material on record, he submitted chargesheet against the appellant. On being charged for the aforesaid offence, trial against the appellant proceeded. The prosecution examined six witnesses in support of its case. PW1 was prosecutrix herself, PW2 was Dr. Kiran Deshmukh, who opined regarding the age of prosecutrix based on radiological test, PW3 Dr. Sheetal Mehta was the doctor who medically examined the prosecutrix after registration of the FIR, PW4 Ramrao Chotmal was the pancha witness for seizure of clothes of the prosecutrix, PW5 Babarao Tayade was father of prosecutrix and PW6 Govind was the investigating officer.
8. The appellant examined one defence witness Surekha Gavai as DW1, in order to demonstrate that the prosecutrix was having illicit relations with the husband of said witness, perhaps, in order to cast aspersions on the character of the prosecutrix.
9. Record shows that school leaving certificate, Exh.27, and certificate from Gram Panchayat, Exh.28, were brought on record by the prosecution. Both documents were showing date of birth of the prosecutrix as 17.06.1988. The prosecutrix (PW1) in her evidence also stated that her date of birth was indeed 17.06.1988, thereby showing that she was less than 16 years on 05.10.2003, when the incident took place. On the basis of the evidence available on record, the trial Court found that the prosecution had proved its case beyond reasonable doubt against the appellant and on that basis, the trial Court convicted and sentenced the appellant under Sections 376 and 448 of the IPC.
10. Perused the entire record of the case and the impugned judgment and order passed by the trial Court. The learned A.P.P. assisted this Court in perusing the oral and documentary evidence on record, including the evidence of the defence witness, on which the reliance was placed on behalf of the appellant in the trial Court.
11. The evidence of the prosecutrix (PW1) in the present case shows that she stated in detail about the manner in which the incident took place on 05.10.2003 in the evening. She also stated specifically that her date of birth was 17.06.1988 and that the contents of school leaving certificate and certificate issued by the Gram Panchayat, were true and correct. It is significant that the prosecutrix (PW1) has not been cross-examined on the aforesaid assertion made by her in respect of her date of birth. There were suggestions given on behalf of the appellant to the effect that there was some dispute between the father of the appellant and relatives of the prosecutrix (PW1), which were denied by her in the cross-examination. The version of the prosecutrix has not been discredited in any manner. The school leaving certificate at Exh.27 and certificate of Gram Panchayat at Exh.28 are on record which support the assertion of the prosecutrix that her date of birth was 17.06.1988, demonstrating that she was less than 16 years old when the incident took place on 05.10.2003. In this context, judgment of Division Bench of this Court is relevant, passed in the case of Kundan s/o Nanaji Pendor Vs. State of Maharashtra; reported in. 2017 ALL MR (Cri) 1137, wherein it has been held as follows:
'11. Since the appellant has been charged with having committed offence under Sections 3 (a), 5 (j) (ii) and 5 (l) of the Act of 2002, as per Charge at Exh.4, it would be necessary to first record a finding as to the age of "S". As per provisions of Section 2 (1) (d) of the said Act, a child means a person below the age of eighteen years. As noted above, the prosecutrix had stated on oath that her date of birth was 5th January, 1997. There is no cross-examination, whatsoever, to this specific assertion made by the prosecutrix in her Examination-in-Chief. Her said statement has gone totally unchallenged. It is a settled position of law that if a witness is not cross-examined on a particular portion of her deposition in her Examination-in-Chief, said statement is required to be accepted as the same is not challenged by the defence.'
12. Thus, it becomes evident that the prosecutrix was below the age of 16 years at the time of incident. It is further fortified by the evidence of Dr. Kiran (PW2), who has stated in her evidence, on the basis of radiological test that the age of the prosecutrix was indeed between 14 and 16 years. In fact, she has emphatically stated that the age of the prosecutrix, at the relevant time, was more than 14 years and less than 16 years of age. Nothing material has been brought out in the cross-examination of the said witness. Therefore, the finding rendered by the trial Court that the prosecutrix was below the age of 16 on 05.10.2003, cannot be found fault with.
13. Father of the prosecutrix-Babarao (PW5) has also described the incident, which corroborates the evidence of the prosecutrix. He has also clearly stated that when he entered the house, he caught the appellant red handed in the act of committing sexual intercourse with his daughter i.e. prosecutrix. In the cross-examination, efforts were made on behalf of the appellant to demonstrate that the said witness had no explanation for delay in registration of the FIR. The record shows that while the incident took place on 05.10.2003 between 04.00 to 05.00 p.m., FIR was registered on 06.10.2003 at 12.45 p.m. The record also shows that the said witness-Babarao (PW5) has stated that he first visited Akola to bring his wife back home before proceeding to lodge complaint with police. It has also come on record that the appellant was maternal uncle of the prosecutrix i.e. brother of the mother of the prosecutrix. In this situation, father of the prosecutrix-Babarao (PW5) could be expected to first bring the incident to the notice of his wife as it pertained to extremely serious allegation against her own brother and, therefore, it does not appear to be unnatural for the father of the prosecutrix-Babarao (PW5) to have first informed his wife and then approached the police for lodging the complaint. Thus, on this count, it could not be said that the delay in registration of the FIR was fatal to the case of the prosecution. This view taken by the trial Court, on the basis of the material on record, cannot be said to be erroneous.
14. Dr. Sheetal (PW4) is the Doctor who medically examined the prosecutrix on 06.10.2003 at about 2.45 p.m. after registration of the FIR. Medical examination report, Exh.38, shows that although no fresh injury or bleeding was seen, hymen was found to have been torn. In her evidence, the said witness stated that although there was possibility of sexual intercourse, she could not give an exact opinion regarding the same. She also told that rupture of hymen was beyond 12 hours. It was further contended before the trial Court on the part of the appellant that in the absence of injuries to the private parts of the prosecutrix, it could not be said that there was forcible sexual intercourse in the present case. It was further contended that the prosecution case was not made out against the appellant. But, perusal of the chemical analysis report, Exh.51 in the present case shows that the underwear and knicker, Exhs.E and G respectively, in the present case, show presence of stains of blood and semen, which were human. In the light of said material on record, the trial Court found that the act of sexual intercourse was proved in the present case and from the oral evidence of the prosecutrix (PW1) and her father Babarao (PW5), it was clear that the appellant was responsible for the incident that occurred on 05.10.2003.
15. The evidence of the investigating officer-Govind (PW6) did indicate that there were certain omissions or discrepancies in the evidence of Babarao (PW5). But said omissions/discrepancies did not go to the very root of the matter and they did not have any adverse effect on the prosecution case against the appellant. The trial Court also found that the said omissions/discrepancies were minor in nature and perusal of the entire record shows that the said conclusion rendered by the trial Court cannot be said to be erroneous.
16. Insofar as the evidence of defence witness Surekha Gavai (PW1) is concerned, there appears to be an attempt on the part of the appellant to cause aspersions on the character of the prosecutrix. It is claimed by this witness in her examination-in-chief that her estranged husband was not only having illicit relations with the prosecutrix but also with her sister Sujata. She has gone on to claim that the said sister of the prosecutrix had given birth to child of her estranged husband. It is also claimed by her that the prosecutrix was about 22 years old when her deposition was recorded on 18.10.2005. But in cross-examination, this witness has conceded that she was giving information about the alleged illicit relations between her estranged husband and the prosecutrix (PW1) for the first time in the Court when she attended the Court at the request of father of the appellant and further that father of the appellant had explained to her nature of the case pending against his son and that the manner in which she was expected to give evidence before the Court. The said witness further conceded that there was no document to support her statement. The said defence witness stands absolutely discredited in cross-examination and it is evident that she was brought up by the appellant and her father, only with an intention of creating an adverse opinion about the prosecutrix and her character. The trial Court has correctly ignored the same and it is correctly observed that even if the prosecutrix was assumed to be of loose character, it could not be said that the appellant had a right to rape her or to have sexual intercourse with her. The said finding of the trial Court cannot be found fault with.
17. The evidence and material on record, in the present case, clearly demonstrates that the prosecutrix (PW1) was less than 16 years old at the time when the incident took place on 05.10.2003. Thus, as per clause 'Sixthly' of Section 375 of the IPC, as it then stood, consent in the present case, was rendered immaterial. Therefore, even if it is presumed for the sake of argument that the medical evidence did not show that there had been forcible sexual intercourse indicating that there might have been consent on the part of the prosecutrix, since she was less than 16 years old, consent was immaterial. Proof of the factum of sexual intercourse, in the present case, was enough to prove that the appellant was guilty of rape, as defined in clause 'Sixthly' of Section 375 of the IPC.
18. The trial Court has taken into consideration each and every aspect of the present case with minute details and it has rendered a proper finding on appreciation of evidence and material on record. This Court has also perused the entire record, including oral and documentary evidence. It is found that the grounds raised in the appeal, pertaining to the age of the prosecutrix, alleged delay is registration of the FIR and omissions/ discrepancies in the evidence of the prosecution witnesses, are absolutely without any substance.
19. Consequently, this appeal is found to be without any merit. The impugned judgment and order passed by the trial Court is confirmed. Consequently, the appellant shall be taken in to custody forthwith, to serve out the remaining part of the sentence. List this appeal for compliance after four weeks.