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2008 DIGILAW 710 (BOM)

Ashok Bhaurao Gaikwad v. State of Maharashtra

2008-06-02

V.R.KINGAONKAR

body2008
JUDGMENT: Challenge in this appeal is to judgment rendered by learned Additional Sessions Judge, Jalgaon, in Sessions Case No.90/1993, whereby appellant has been convicted for offence punishable under sections 366 and 376 of the LP. Code and sentenced to undergo rigorous imprisonment for five (5) years and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for three (3) months on each count. Though he was held guilty for offence punishable under section 363 of the LP. Code, yet no separate sentence was inflicted. 2. Appellant Ashok was original accused No.1 before the learned Vth Additional Sessions Judge. Original accused No.2, namely, Sanjay PundaIik Gawai was jointly tried with appellant for offence of abetment. He was acquitted. 3. The incident giving rise to prosecution occurred on 16th September, 1992. Undisputedly, prosecutrix (PW-7 Sandhya) is the eldest daughter of complainant (PW-5 Vimal). At the relevant time, complainant PW Vimal and her husband used to reside in a outhouse situated in Aath Bangalow area of BhusawaI. Her husband is a labour. Complainant PW Vimal is a nurse. There is no dispute about the fact that the appellant used to reside in the neigh bouring house situated in the same locality. 4. Briefly stated, the prosecution case is that the prosecutrix was aged about 15 years at the time of alleged incident. She was induced by the appellant and his friend to go with him in the noon of 16th September, 1992. The appellant enticed her to accompany him under the pretext that they would marry. He took her to Mumbai by evening train. He committed sexual intercourse with her while they were staying at Ambarnath. She was kidnapped from lawful custody of her parents without their consent and was ravished by him. Her mother (PW Vimal) lodged F.LR. on next day i.e. 17th September, 1992. On basis of material collected during investigation, the appellant was charge-sheeted for offence punishable under sections 363, 366 and 376 of the J.P. Code along with co-accused, namely, Sanjay. 5. To the charge (Exh-l0), the appellant pleaded not guilty. He denied truth into the accusations. He categorically denied that the prosecutrix was aged below 16 years at the relevant time. He entered witness box in support of his defence. According to his version, the prosecutrix used to wander here and there while her parents used to go out of house for work. He denied truth into the accusations. He categorically denied that the prosecutrix was aged below 16 years at the relevant time. He entered witness box in support of his defence. According to his version, the prosecutrix used to wander here and there while her parents used to go out of house for work. She requested him to take her with him as she wanted to see Mumbai. She herself accompanied him to Mumbai because she was desirous to see the metro city. He denied that he ravished her at Ambarnath. 6. At trial, the prosecution examined in all eleven (11) witnesses. The learned Vth Additional Sessions Judge accepted case of the prosecution. The learned Sessions Judge held that the prosecutrix was below 15 years of age and, hence, her consent for sexual intercourse could not make any difference. The learned Sessions Judge further held that the prosecutrix was kidnapped from lawful custody of her parents. In keeping with such findings, the appellant came to be convicted and sentenced as stated at the outset. 7. Mr. U.S. Malte, learned advocate for the appellant, would submit that the evidence of the prosecution regarding age of the prosecutrix is shaky and unreliable. He would submit that the prosecutrix is not proved to be a minor below 16 years of age. He submitted that the prosecutrix, unequivocally, admitted that she went with the appellant on her own volition and, therefore, the charge of kidnapping cannot stand. He argued that the appellant is wrongly convicted on assumption that the prosecutrix is minor and was enticed to go with the appellant from custody of her parents. Mr. D.R. Adhav, learned A.P.P. supports the impugned judgment. 8. At the threshold, let it be noted that there is no dispute about the fact that the prosecutrix either went with the appellant on her own volition or that she accompanied him to Mumbai at the relevant time. They traveled together in the night train from Bhusawal to Mumbai. They resided together since 16th till 21st September, 1992. They initially went to Govandi and stayed together for a short period. They together went to Ambarnath and stayed in a tenament of one Balu Londhe who happens to be brother-in-law of the appellant. There is also no dispute about the fact that all along, the prosecutrix did not raise any alarm. They initially went to Govandi and stayed together for a short period. They together went to Ambarnath and stayed in a tenament of one Balu Londhe who happens to be brother-in-law of the appellant. There is also no dispute about the fact that all along, the prosecutrix did not raise any alarm. She did not protest during the transit nor had ever attempted to flee from the company of the appellant. It is in this background that the prosecution evidence needs to be closely scrutinized. 9. First, I will advert to version of the prosecutrix (PW-7 Sandhya). For, she is the main witness and has given first-hand account of the alleged incident. Her version purports to show that the appellant used to reside in a neighbouring house and she knew him. Her version purports to show that the appellant blew whistle and called her on the road in front of her house. He assured that he would marry her. He told her to accompany him to Mumbai. They together went to house of original accused No.2 Sanjay at Samata Nagar, Bhusawal. Her version reveals that the appellant and herself went to a place near statue of Mahatma Gandhi. Thereafter, the appellant alone went to house of his friend to borrow money and she remained near the statue of Gandhi at the public place. After his return, they together went to watch a cinema movie. They boarded a train in the early hours of the morning and went to Mumbai. They went to house of aunt of the appellant, took lunch and stayed during the night. The appellant took her to Ambarnath to the house of his brother-in-law. She states that she had prepared food for both the accused persons in that house. Her version purports to show that appellant committed sexual intercourse with her in that house. She deposed that she told the appellant about impropriety of his act, but he replied that his intention was to marry her. 10. The version of the prosecutrix would make it manifestly clear that she was acquainted with the appellant. She admits that after meeting the appellant at Zope School, they used to go for a walk. He used to narrate her about the city life of Mumbai. So, she was eager to visit Mumbai. She admits, unequivocally, that she liked the appellant and asked him to marry her. She admits that after meeting the appellant at Zope School, they used to go for a walk. He used to narrate her about the city life of Mumbai. So, she was eager to visit Mumbai. She admits, unequivocally, that she liked the appellant and asked him to marry her. She admits that the appellant met her near the statue of Mahatma Gandhi while she was riding on the bicycle in the relevant noon. The place of the statue is about half a kilometre from her house. Obviously, the appellant met her while she was riding bicycle and was at a considerable distance from her parents' house. In other words, it is difficult to believe that he called her out of the house after blowing a whistle. The version of the prosecutrix shows that she did not object to sexual intercourse when they were together at Ambarnath. Though she improvised her version that she did not like the act of the appellant of committing the sexual intercourse with her, yet there is hardly any subtratum to believe her version. 11. As stated before, the prosecutrix went with the appellant on her own volition. She was desirous to see the mega city of Mumbai. She was wandering here and there during the day-time when her parents were engaged in their daily work. The appellant was a young lad of 19 years and the prosecutrix was at the threshold of sweet sixteen (16), even assuming that she was not above 16 years of age. Both of them were probably infatuated towards each other. She did not make any attempt to go away even when there was opportunity available to her while both bf them were roaming in Bhusawal town as well as during period of journey and their consortium at Govandi and Ambarnath. These are tale telling circumstances. 12. The version of PW-5 Vimal (complainant) reveals that she came to know that the prosecutrix had left the house in the relevant evening. Her version purports to show that the mother of the appellant informed her that the prosecutrix and the appellant might have gone to attend a movie and they could be• at residence of his maternal aunt. Obviously, she was well aware of the intimacy between the appellant and the prosecutrix. She lodged F.I.R. (Exh-33) on next day when the prosecutrix did not return home. Obviously, she was well aware of the intimacy between the appellant and the prosecutrix. She lodged F.I.R. (Exh-33) on next day when the prosecutrix did not return home. Her information is based upon conjecture that the appellant might have enticed the prosecutrix to go with him. The F.I.R. (Exh33) purports to show that the age of the prosecutrix was 15 years at the relevant time. The father of the prosecutrix did not enter the witness box. The version of PW Vimal reveals that she did not remember birth date of the prosecutrix. She admits that birth date of the prosecutrix was not noted down by her. Her evidence reveals that her mother had admitted the prosecutrix in the school. Her mother was illiterate woman. She admitted, unequivocally, that her mother was not knowing the age of the prosecutrix. She further admits that she was unable to locate at what age the prosecutrix was admitted in the school. She admitted the prosecutrix in a school at village Savda. The relevant entry in the school register (Exh-50) bears her signature. She admits that she did not remember whether the birth date of the prosecutrix was recorded as per the municipal register. 13. So far as the age of the prosecutrix is concerned, it is important to note that the prosecutrix gave her age as 19 years when she was in the witness box. She was examined on 25th September, 1996. She has no personal knowledge about the age. The medical evidence tendered by PW-3 Dr. Kavita reveals that the age of the prosecutrix could be above 15 years and below 16.5 years. This opinion is expressed on basis of radiological examination. It is of common knowledge that error of margin could be of two (2) years. Thus, the medical evidence does not positively show that the prosecutrix was aged below 16 years at the relevant time. 14. There is evidence of PW-8 Dr. Suman and PW-Il Smt. Sindhubai in the context of the school record. The version of PW-11 Sindhubai, who is Headmistress of Municipal School at Savda, reveals that birth date of the prosecutrix is recorded as 1st June, 1977. Both the school records are based upon the municipal entry regarding birth date of the prosecutrix. There is evidence of PW-8 Dr. Suman and PW-Il Smt. Sindhubai in the context of the school record. The version of PW-11 Sindhubai, who is Headmistress of Municipal School at Savda, reveals that birth date of the prosecutrix is recorded as 1st June, 1977. Both the school records are based upon the municipal entry regarding birth date of the prosecutrix. As pointed out before, the entry in the municipal record is said to have been taken on basis of information given by the illiterate deceased mother of the complainant (PW Vimal). The municipal entry is not proved by the prosecution. The basis for the municipal record is also not duly proved. It is difficult to countenance the contention of the prosecution that birth date as recorded in the municipal register is correct. The father of the prosecutrix did not come forward to spell out her birth date. The mother i.e. complainant has not noted down her birth date and has not informed any authority about the birth date. Under these circumstances, the prosecution evidence regarding birth date of the prosecutrix is not free from doubt. 15. In "State of Karnataka Vs. Sureshbabu Puk Raj Porral, 1994 Cri.LJ. 1216", the Apex Court observed thus: "6. Shri. S. S. Javali, learned senior counsel appearing for the respondent-accused, however, submitted that the age of the victim has not been satisfactorily proved to be 16 years and that on the other hand there is the doctor's evidence who examined her, which shows that her age could-be even above 18 or 20 years. We find considerable force in this submission. P.W. 21 was a doctor and Radiologist working in K.M. Hospital, Hubli. P.W.7 was referred to him for determination of her age. He conducted all the necessary tests and then also took X-rays. From the Ossification test, according to him, her age could be under 18 years. But according to Isshial Tuberosity, her age could be below 20 years. Like that, from the tests and examinations of Distal end femur and Tibia etc., the doctor gave the approximate age stating that it could be 16 years. But the data Given would showthat she could be aged 18 years also. In this context, the evidence of P.W.5, the mother of P.W.7 throws any amount of doubt about her age. The Courts below no doubt have relied on a transfer certificate Ex. But the data Given would showthat she could be aged 18 years also. In this context, the evidence of P.W.5, the mother of P.W.7 throws any amount of doubt about her age. The Courts below no doubt have relied on a transfer certificate Ex. P.1 in which the date of birth of P.W.7 was given as 5-9-61 and this certificate was obtained after the date of the offence namely on 12-1-77. That apart, the Headmistress simply stated that the entry was made on the basis of the information given by the parents," 16. In case of "S. Varadrajan Vs. State of Madras, AIR 1965 S.C. 942 ", the Apex Court observed that when the prosecutrix was on the verge of attaining majority, then it will have to be said that she had attained age of discretion. The prosecutrix could then decide right and wrong. 17. The fact situation in the present case reveals that the prosecutrix was acquainted with the appellant. Her mother knew about their intimacy. She did not undertake hectic search for the prosecutrix in the evening when she came to know from the mother of the appellant that the prosecutrix and the appellant might have gone to attend a cinema movie. This conduct of the complainant (PW Vimal) is indicative of the fact that she too was not averse to cordial relations between the prosecutrix and the appellant. In this view of the matter, it is difficult to hold that the prosecutrix was enticed to go away from custody of her parents or that she was induced by the appellant to leave house of her parents. I mean to say, it was a mutual affair between them, which prompted her to accompany him. The evidence on record shows that he was short of funds and had to borrow money when she accompanied him to Mumbai. 18. The medical evidence tendered by PW-2 Dr. Vishnu is of not much significance. He examined the appellant. He issued the medical certificate (Exh-25), which is unchallenged. The version of PW-3 Dr. Smt. Kavita reveals that the prosecutrix was clinically examined on 22nd September, 1992 at Municipal Hospital, Bhusawal. The Medical Officer did not locate any injury on the private part of the prosecutrix. The hymen was old toned. He examined the appellant. He issued the medical certificate (Exh-25), which is unchallenged. The version of PW-3 Dr. Smt. Kavita reveals that the prosecutrix was clinically examined on 22nd September, 1992 at Municipal Hospital, Bhusawal. The Medical Officer did not locate any injury on the private part of the prosecutrix. The hymen was old toned. It need not be reiterated that the prosecutrix herself did not say regarding use of any criminal force by the appellant while committing sexual intercourse during their stay at Ambamath. The version of PW -1 Hemraj is of no avail to either side. He is panch witness. The seizure panchanama is not supported by him. The version of PW-4 Dinesh reveals that the appellant met him at Ambarnath in the company of the prosecutrix. There is no dispute about the fact that they had together gone to Thane at the relevant time and, therefore, it is but natural that PW Dinesh saw them together at Thane. The remaining evidence of the prosecution comprises of the steps taken by PW-9 A.S.1. Gopal and PW-10 P.S.1. Rang rao during course of the investigation. It is not necessary to deal with the evidence of investigating officers with details. 19. Considering the nature of evidence placed on record, it is manifest that the prosecutrix was on the verge of attaining majority. There is no substantial reason to hold that she was induced by the appellant to accompany him from Bhusawal to Mumbai. It is also not proved beyond reasonable realm of doubt that she was minor below 16 years of age at the relevant time and, hence, her consent was immaterial. Under these circumstances, the impugned judgment is unsustainable. 20. In the result, the appeal is allowed. The impugned judgment rendered by learned Vth Additional Sessions Judge, Jalgaon, in Sessions Case No.90/1993 is set aside. The appellant is acquitted of the offence punishable under sections 363, 366 and 376 of the J.P. Code. His bail bonds be deemed as cancelled. The fine amount, if any, be refunded to him. Appeal allowed.