Case Note & Summary
The State of Maharashtra appealed against the acquittal of four accused persons (Nandu Pandu Kamble, Sanju @ Sandip Dadu Kamble, Mahadeo Dhondiram Kamble, and Dadu Bhau Kamble) by the 3rd Ad-hoc Assistant Sessions Judge, Kolhapur, on 30-9-2004. The accused were acquitted of offences under Sections 363 (kidnapping), 366A (procuration of minor girl) read with Section 34 IPC, and accused no.1 was also acquitted under Section 376 (rape) IPC. The prosecution alleged that the four accused kidnapped the victim, Nakushi Shamrao Kamble (PW-7), who was a cousin of accused no.1, and that accused no.1 later raped her. The trial court found that the evidence indicated Nakushi voluntarily eloped with accused no.1, they got married at a temple, and had consensual sexual intercourse on six occasions. The learned APP conceded that the evidence showed consensual sex but argued that the trial court erred in concluding that the prosecution failed to prove Nakushi was below 16 years of age. Under Section 375 IPC (prior to the 2013 amendment), sexual intercourse with a girl under 16 is rape even with consent. The High Court examined the evidence regarding age, including the testimony of the school headmaster (PW-8) and the school certificate (Exhibit 49), as well as the medical evidence (PW-9). The court found inconsistencies and unreliability in the age evidence. The High Court held that the prosecution failed to prove beyond reasonable doubt that the victim was below 16 years. Consequently, the appeal was dismissed, and the acquittal was upheld.
Headnote
A) Criminal Law - Kidnapping - Section 363 IPC - Prosecution failed to prove that the victim was taken away without her consent - Evidence showed victim voluntarily eloped with accused no.1 - Held that acquittal for kidnapping was proper (Paras 2-3). B) Criminal Law - Rape - Section 376 IPC - Age of consent - Prior to 2013 amendment, sexual intercourse with a girl under 16 years is rape even with consent - Prosecution failed to prove victim's age below 16 - School certificate and medical evidence were inconsistent and unreliable - Held that acquittal for rape was proper (Paras 2-3). C) Evidence - Age Determination - Ossification test and school certificate - Discrepancies in evidence regarding victim's age - Held that prosecution must prove age beyond reasonable doubt (Para 3).
Issue of Consideration
Whether the prosecution proved beyond reasonable doubt that the victim was below 16 years of age at the time of the incident, and whether the accused were guilty of kidnapping and rape.
Final Decision
Appeal dismissed. Acquittal of all accused upheld.
Law Points
- Consent
- Age of consent
- Burden of proof
- Kidnapping
- Rape
- Section 375 IPC
- Section 363 IPC
- Section 366A IPC
- Section 34 IPC
- Section 376 IPC
