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2013 DIGILAW 835 (BOM)

Dharmaraj Dagdu Ganpatil v. State of Maharashtra

2013-04-10

SADHANA S.JADHAV

body2013
JUDGMENT SADHANA S.JADHAV, J. 1. The appellant herein stands convicted for the offence punishable under Section 376 of the Indian Penal Code and is sentenced to R.I. for ten years and to pay fine of Rs.1,000/- in default to undergo S.I. for three months in Sessions Case No. 11 of 1998 by the Assistant Sessions Judge, Ratnagiri vide judgment and order dated 18.12.1998. Being aggrieved by the said judgment and order, the appellant has preferred this appeal. 2(a) Such of the facts, which are necessary for the decision of this appeal, are that the appellant was working as a Science Teacher in Jijamata Vidya Mandir, Raipatan. He was residing as a tenant of one Mr. Kulkarni. One Sanjivani (hereinafter referred to as the prosecutirx) was studying in Xth Std. in the same School. The School was taking extra classes for English, Mathematics and Science. Besides extra classes, the students used to go to their respective teachers for taking guidance between 6 p.m. to 8.30 p.m. (b) In the month of September-October, 1995, Sanjivani had gone to the house of the appellant. He was not at home. She opened the latch and began to study. The appellant returned home after half an hour. He solicited love from Sanjivani. She retaliated by saying that it would not be befitting him. When she returned to her home, she did not disclose this fact to anybody, but she continued to go to the house of the accused for study. After a couple of days, the appellant had reiterated the same favour but she refused. She was then threatened by the appellant that he would cut her marks. Thereafter, he forcibly took her to the adjacent room and ravished her. Sanjivani returned home early and had not disclosed anything to her parents. She continued to go to the house of the accused as usual from the very next day. She visited the house of the accused on Saturday and Sunday also and at intervals the accused used to have sexual intercourse with her. The prosecutrix had conceived pregnancy. She tried to conceal it from her mother. Her mother had taken her to Dr. Joshi in the month of May 1996. At that time, it was revealed that the prosecutrix was carrying 8 months' pregnancy. Upon enquiry, the prosecutrix disclosed to her mother about the incident. She was admitted in a Reception Home at Sawantwadi. She tried to conceal it from her mother. Her mother had taken her to Dr. Joshi in the month of May 1996. At that time, it was revealed that the prosecutrix was carrying 8 months' pregnancy. Upon enquiry, the prosecutrix disclosed to her mother about the incident. She was admitted in a Reception Home at Sawantwadi. She delivered a female child on 15th June, 1996. After two weeks, the infant had succumbed to illness on 27.6.1996 and the complaint was lodged on 4.8.1996. (c) It is the case of the prosecution that the prosecutrix or her parents had not approached the police station. However, an anonymous letter was received by the police on the basis of which the statement of the prosecutrix was recorded on 4.8.1996. At the time of recording the said statement, the prosecutrix was in Women Hostel at Sawantwadi. The said hostel is run by the Government. She had disclosed in her statement that she had no intention to lodge a report against the present Dharmaraj Ganpatil i.e. the present applicant. She further stated that someone had written an anonymous letter to the police station only to tarnish the image of her family and herself. She had further state that she does not wish to prosecute the matter or lodge a formal complaint to the police as she does not feel it necessary to do so. She further admitted in her statement that she was responsible for the said incident and that she intends to lead a peaceful life in future. On the basis of the said statement, Crime No.82 of 1996 was registered at Rajapur Police Station against the appellant for the offence punishable under Sec. 376 and 506 of IPC. The appellant was arrested on 9.8.1996. After completion of investigation, the case was committed to the Court of Sessions and registered as Sessions Case No.11/1998. Charge sheet was filed on 12.12.1996. 3. The prosecution has examined the prosecutirx as PW-1. PW-2 Vidya Karambelkar is the mother of the rosecutrix and PW-3 Raghav Bagwe is the Investigating Officer. PW-1 Sanjivani had deposed before the Court about the incident. She has stated that her date of birth is 20.8.1980. It is elicited in the cross-examination that the prosecutrix was a bright student and she always stood first or second in her class since 8th Std. PW-1 Sanjivani had deposed before the Court about the incident. She has stated that her date of birth is 20.8.1980. It is elicited in the cross-examination that the prosecutrix was a bright student and she always stood first or second in her class since 8th Std. She has also admitted that even after the first incident, she continued to study at the residence of the accused although she had felt awkward. She has further stated that till May 1996, nobody had suspected that she was carrying pregnancy. Her mother had also not suspected. She had not disclosed anything to her mother till she was taken to Dr. Mrs. Joshi. She has further confirmed the portion marked “A” in her statement that she did not wish to lodge any complaint. She has further admitted that a news was flashed in daily “Ratnagiri Times” dated 21.6.1996 before lording the complaint. It is pertinent to note that the prosecurix has not placed on record any contemporaneous record to show that the date of birth of the prosecutrix was 20.8.1980. The reliance can be placed on the statement of the prosecutrix herself. It is clear that the prosecutrix was passing through tan adolescent stage and therefore she must have been infatuated by the teacher. It is true that as a teacher the appellant could not have taken advantage of her innocence. The very fact that she was a meritorious student she had no reason to worry about the danger of the teacher's threat of being given less marks. In any case, it would be incumbent upon the proecution to establish that the appellant had ravished her sometime in October 1995. There is no medical evidence. There was no DNA test and more important fact is that the proseutrix had stated that she had no allegation against the appellant as she holds herself responsible for the incident. 4. PW-2 Vidya Karambelkar is the mother of the prosecutrix. She has deposed before the Court that in the month of April 1996, she realized that the prosecutrix was not having her menses regularly and therefore she enquired with her. The prosecutrix did not respond. She therefore took her to Dr. Joshi who examined her and informed PW-2 that the prosecutrix was 8 months' pregnant. Thereafter, she had insisted upon her daughter to disclose the identity of the person. The prosecutrix did not respond. She therefore took her to Dr. Joshi who examined her and informed PW-2 that the prosecutrix was 8 months' pregnant. Thereafter, she had insisted upon her daughter to disclose the identity of the person. However, the proecutrix had not inforrmed her but she had written the name of the accused on a piece of paper. Thereafter, PW-2 had admitted her in a reception home at Sawantwadi where she gave birth to a female child, but died subsequently. She has admitted in the cross-examination that PW-1 had indicated to her only by writing on a piece of paper. The piece of paper on which she had written the name of the appellant was not handed over to the police. There is nothing on record to show that the prosecutrix had disclosed the identity of the appellant either at the time of admission in the hospital or after she gave birth to the child on 10.6.1996. 5. Upon hearing about the name of the appellant, PW-2 had also not taken any steps to initiate prosecution against the appellant. Nor there is any evidence that she had expressed her anguish. It can therefore be inferred that she had exonerated the appellant at the request of the prosecutrix. There is neither any evidence on record to determine the date of the first incident when the prosecutrix was ravished against her will. The prosecution has not established the date of incident. 6. PW-3 Raghav Bagwe was attached to Rajapur Police Station. He had recorded the statement of the prosecutrix and registered Crime No.82 of 1996. It is elicited in the cross-examination that he had received an anonymous application on the basis of which he recorded the statement. The application does not form a part of charge-sheet nor is produced before the Court. 7. The medical certificate of the prosecutrix is on record which shows that the age of prosecutrix as determined by Radiological test and opined by Dr. Kamble is more than 17 and below 19 years. It further reveals that she had delivered a child more than 45 days prior to 7.9.1996. 8. 7. The medical certificate of the prosecutrix is on record which shows that the age of prosecutrix as determined by Radiological test and opined by Dr. Kamble is more than 17 and below 19 years. It further reveals that she had delivered a child more than 45 days prior to 7.9.1996. 8. Clause Sixthly of Section 375 of the Indian penal Code reads thus : “Sixthly – A man is said to commit “rape” who has sexual intercourse with a woman with or without her consent, when she is under sixteen years of age” In the present case, the prosecution has not placed on record the School leaving certificate to establish that she had not completed 16 years of age on the date of incident and, therefore, the only evidence is the deposition of the prosecutrix where she says that her date of birth is 20.8.1980. The Radiological examination cannot be faulted where it says that she may be above 17 years and below 19 years. There is a margin of two years on either side. Although according to the prosecution it is a case of statutory rape and that the appellant is said to have taken undue advantage of his position, the very fact that the prosecutrix has taken the entire blame upon herself may speak volumes for itself and the very fact that there was no complaint against the appellant by anybody, it is sufficient to infer that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. It is true that criminal prosecution can be initiated by anyone and there was no question of locus. In the present case, the anonymous letter is not on record nor it was filed along with the charge sheet. The very fact that it was an anonymous letter, there was no question of tampering of evidence identifying the person who has informed the police. Moreover, the paper on which the prosecutrix had scribed the name of the appellant is also not placed on record and therefore except the deposition of the prosecutrix that she was ravished against her will, nothing is on record. The appellant would therefore be entitled to the benefit of margin in respect of statutory rape. Moreover, the paper on which the prosecutrix had scribed the name of the appellant is also not placed on record and therefore except the deposition of the prosecutrix that she was ravished against her will, nothing is on record. The appellant would therefore be entitled to the benefit of margin in respect of statutory rape. In the absence of any cogent evidence about the age of the prosecutirx, the accused cannot be convicted on the basis of the uncorroborated testimony of the prosecutrix, especially when she herself had exonerated the appellant. In view of this admission, the appellant deserves to be acquitted. Hence the following order:- ORDER The Appeal is allowed. The impugned judgment and order dated 18.12.1998 passed by the Assistant Sessions Judge, Ratnagiri in Sessions Case No.11 of 1998 is hereby quashed and set aside. The appellant is acquitted. The bail bonds shall stand cancelled. Amount of fine be refunded to the appellant.