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2015 DIGILAW 2375 (BOM)

Gurudas v. State of Maharashtra

2015-10-20

V.M.DESHPANDE

body2015
JUDGMENT V.M. Deshpande, J. 1. The present appeal is directed against the judgment and order of conviction passed by the Special Judge, Chandrapur dated 30th January 2015 in Special (Child) Case No. 15 of 2013. By the said judgment and order, the appellant is convicted for the offence punishable under Section 363 of the Indian Penal Code and is directed suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer further RI for one month. Appellant is also convicted for the offence punishable under Section 366 of the Indian Penal Code and is directed to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1000/-, in default, to suffer further RI for two months. Appellant is also convicted for the offence punishable under Section 376(2)(n) of the Indian Penal Code read with Section 4 of the Protection of Children From Sexual Offences Act, 2012 and is directed to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 1000/-, in default, to suffer further RI for two months. Learned Judge directed that all the sentences shall run concurrently. The case of the prosecution is as under:- Bandu Raut (P.W. 2) is the first-informant. He reached to Police Station, Gondpipri on 7.9.2013. On that day, Ashok Bambole (P.W. 8), ASI was attached to the said Police Station. P.W. 2 Bandu gave his oral report. The same was reduced into writing by ASI Bambole (P.W. 8). Oral report is at exhibit 14. The said oral report since was disclosing commission of a cognizable offence, crime was registered as Crime No. 47/2013 for the offences punishable under Sections 363and 366(a) of the Indian Penal Code. Printed FIR is at exhibit 15. 2. The oral report recites that first informant is having three daughters and one son. The name of his wife is Shewantabai. The eldest daughter is married and she used to reside at Ganeshpipri. The prosecutrix is 3rd one whereas the son is his youngest issue. FIR further proceeds that prosecutrix was taking her education at Indira Gandhi High School, Chakdarur and before school reopened for 6th standard, the prosecutrix went to the house of her elder sister Shubhangi at Ganeshpipri. She went on 22.6.2013. She stayed there for sometime and on 27.6.2013, without giving any intimation to anybody, she left the house of her sister. FIR further proceeds that prosecutrix was taking her education at Indira Gandhi High School, Chakdarur and before school reopened for 6th standard, the prosecutrix went to the house of her elder sister Shubhangi at Ganeshpipri. She went on 22.6.2013. She stayed there for sometime and on 27.6.2013, without giving any intimation to anybody, she left the house of her sister. Search was made by the first-informant at various places including close relatives. However, she was not traced and, therefore, a missing report was lodged at Police Station, Gondpipri. Police also took search of the prosecutrix. FIR further proceeds that on 7.9.2013, Police Patil Prabhakar Srikondawar informed him that the prosecutrix and appellant are brought to the Police Station. On getting such information, he his wife Shewantabai, his sister-in-law and other relatives reached to the Police Station. They made enquiry with prosecutrix. That time, it was disclosed that on 27.6.2013 the appellant on the promise of marriage, enticed her. 3. Ramesh Basamwar (P.W. 9), Assistant Police Inspector of Police Station Gondpipri received case diary of Crime No. 47/2013 for further investigation. Spot Panchanama (exhibit 34) was drawn by him. The appellant was arrested under arrest memo (exhibit 35). The clothes of the prosecutrix were seized under seizure memo (exhibit 19). Clothes of the appellant were also seized under seizure memo (exhibit 21). The prosecutrix was also sent to the Government Hospital, Chandrapur for her medical examination. Vaginal swab, blood sample and pubic hair were seized under seizure memo (exhibit 20). Under requisition (exhibit 44) dated 24.9.1993, the Investigating Officer Ramesh Basamwar (P.W. 9) requested the Civil Surgeon of the Government Hospital, Chandrapur for ossification test of the prosecutrix. The statements of prosecutrix as well as the other witnesses were recorded. After completion of the investigation, the Investigating officer filed chargesheet before the Court of Law. 4. The case reached to the Sessions Court, Chandrapur as Special (Child) Case No. 15 of 2013 after passing of the committal order by the learned Magistrate. Charge was framed against the appellant for the offences punishable under Sections 363, 366A and 376(2)(n) of the Indian Penal Code read with Section 4 of the Protection of Children from Sexual Offences Act, 2012. In order to bring home the guilt of the appellant, the prosecution has examined in all eleven witnesses and also relied upon various documents. Charge was framed against the appellant for the offences punishable under Sections 363, 366A and 376(2)(n) of the Indian Penal Code read with Section 4 of the Protection of Children from Sexual Offences Act, 2012. In order to bring home the guilt of the appellant, the prosecution has examined in all eleven witnesses and also relied upon various documents. After a fulldress trial, learned Judge of the Court below convicted the appellant and sentenced him as stated in opening paragraph of this judgment. Hence, this appeal. 5. I have heard Mr. A.D. Hazare, learned counsel for the appellant and Mr. R.S. Nayak, learned Additional Public Prosecutor for respondent State. 6. The main thrust of the submission of learned counsel for the appellant is that prosecution has utterly failed to prove the age of the prosecutrix. According to him, the evidence in that behalf brought on record by the prosecution is wholly unreliable and on the basis of such evidence, conviction for the offences punishable under Sections 363 and366A of the Indian Penal Code cannot be sustained. He further submitted that even in respect of an offence under Section 376 IPC, the evidence is too short and also submitted that if the evidence of the prosecutrix is evaluated in its corrective perspective, then it clearly shows that the prosecutrix was the consenting party. 7. On the other hand, Mr. R.S. Nayak, learned Additional Public Prosecutor would submit that the learned Judge of the Court below has correctly appreciated the prosecution case. His submission is that evaluation of the prosecution evidence as done by the Court below cannot be faulted. He, therefore, submitted that appeal be dismissed. 8. According to the prosecution, the date of birth of the prosecutrix is 28.9.1998. The Court is called upon to decide the factum of the age of the prosecutrix since it goes to the root of the prosecution case. 9. In order to prove the age of the prosecutrix, the prosecution has mainly relied upon the evidence of P.W. 10 Tejraj Kuttarmare and the document in the nature of extract of Admission & Leave Register for the academic session 2012-13. The said extract is at exhibit 52. Besides document (exhibit 52), there is no documentary evidence brought on record by the prosecution. 10. Evidence of the prosecutrix would disclose that she was born at Darud in the house itself. The said extract is at exhibit 52. Besides document (exhibit 52), there is no documentary evidence brought on record by the prosecution. 10. Evidence of the prosecutrix would disclose that she was born at Darud in the house itself. There exists a Gram Panchayat at Darud. She has stated her date of birth as 28.9.1998. However, at the same time, she has stated that she is unable to state the date of birth of her brother and sister. Incidentally, the brother is younger to prosecutrix. Tejraj (P.W. 10) is a clerk in Indira Gandhi High School, Checkdarur. In the said school, prosecutrix was taking her education. At the time of his evidence, he brought original Admission & Leave Register. According to this witness, the name of prosecutrix stands opposite Entry No. 1732/12 and as per the said extract, date of birth of prosecutrix is 28.9.1998. Admittedly, the prosecutrix was admitted in the said school in 5th standard. She was not in the said School from 1st standard to 4th standard. On the basis of school leaving certificate of the prosecutrix of her previous school, she was admitted in Indira Gandhi high School, Checkdarur. Tejraj (P.W. 10) is candid enough to admit that he has not brought school leaving certificate of 4th standard of the prosecutrix. Further, he has admitted that the date of birth as recorded in document (exhibit 52) was not taken on the basis of birth certificate of the prosecutrix. In that behalf, it would be important to mention that the father of prosecutrix Bandu (P.W. 2) has admitted that he has not taken notes of dates of birth of his children. Further, he has stated as under: "They were admitted to the school on approximate date of birth." Thus, it is crystal clear that at the time of admission of prosecutrix, the date of birth was given by the father of prosecutrix on approximation. Further, entry No. 1723/12 in exhibit 52 in respect of date of birth of prosecutrix was taken on the basis of date of birth mentioned in the school leaving certificate of the prosecutrix of 4th standard. However, the said document is not coming on record. Worth to note, column No. 6 of exhibit 52 is meant for "Full Name & Address of the guardian, mother & occupation". However, the said document is not coming on record. Worth to note, column No. 6 of exhibit 52 is meant for "Full Name & Address of the guardian, mother & occupation". As against the entry relating to the prosecutrix, name of her mother in column No. 6 is mentioned as "Sau Mangala". Presumably, that must be the name of mother of candidate whose name is written against entry No. 1723/12. In that behalf, the First Information Report recites the name of wife of first-informant as "Sau Shewantabai". Thus, the name of mother of prosecutrix is not appearing in exhibit 52. Further, Tejraj Kuttarmare (P.W. 10) has not stated that he is the custodian of the Admission & Leave Register. 11. The Honourable Supreme Court in one of its pronouncements in the case of Jabar Singh v. Dinesh & Anr. reported in (2010) 3 SCC 757 : [2010 ALL MR (Cri.) 1277 (S.C.)] has ruled that the entry in the admission form, the school records and transfer certificates did not satisfy the conditions laid down in Section 35 of the Evidence Act inasmuch as the entry was not in any public or official register and was not made either by a public servant in the discharge of his official duty or by any person in performance of a duty specially enjoined by the law of the country and, therefore, the entry was not relevant under Section 35 of the Evidence Act for the purpose of determination of age. 12. The Investigating Officer during the course of investigation has issued Requisition to Civil Surgeon, Government Hospital, Chandrapur vide exhibit 44. The said requisition dated 24.9.1993 was for determination of age of prosecutrix. Obviously, by the same, the Investigating Officer was intending to have the ossification test of the prosecutrix. The prosecution in the present case has not proved the ossification test report of the prosecutrix. Even Dr. Sapna Tallarwar (P.W. 11) who examined the prosecutrix on she being referred to her, also opined while giving answers to the queries raised by the investigator that the prosecutrix was advised for x-ray for age determination. Thus, it was incumbent on the part of the prosecution to prove the ossification test report. The Record & Proceedings show that the prosecutrix was sent for her ossification test. However, for the reasons best known to the prosecution, the ossification report has remained to be proved. Thus, it was incumbent on the part of the prosecution to prove the ossification test report. The Record & Proceedings show that the prosecutrix was sent for her ossification test. However, for the reasons best known to the prosecution, the ossification report has remained to be proved. Thus, in my view, it is a serious flaw in the prosecution case. The Honourable Apex Court in reported case in Sunil v. State of Haryana (2010) 1 SCC 742 : [2012 ALL SCR 1183] has observed in paragraph 24 as under:- "Dr. Verma, P.W. 1, who had clinically examined the prosecutrix, found that her secondary sex characters were well developed. The short question in the facts and circumstances of this case that remains to be determined is whether the prosecutrix was a minor? Dr. Sadhna Verma, P.W. 1 who examined the prosecutrix referred her for verification to the dental surgeon and the radiologist. The failure of getting the prosecutrix examined from the dental surgeon or the radiologist despite the fact that she was referred to them by Dr. Sadhna Verma, P.W. 1 is a serious flaw in the prosecution version. We are not laying down as a rule that all these tests must be performed in all the cases, but in the instant case, in the absence of primary evidence, reports of the dental surgeon and the radiologist would have helped us in arriving at the conclusion regarding the age of the prosecutrix." 13. In the present case, in the absence of primary evidence, namely, the birth certificate from the Gram Panchayat which would have a best evidentiary value as envisaged under Section 35 of the Evidence Act and in absence of ossification test report of the prosecutrix, the prosecution loses credibility as regards the age of prosecutrix. Evaluation of the aforesaid, in my view, shows that the prosecution was unable to bring its case in respect of the age of prosecutrix beyond reasonable doubt. It would be hazardous to reach to a conclusion that the date of birth of the prosecutrix was 28.9.1998 in the light of evidence which is discussed hereinabove. 14. Thus, the age of the prosecutrix is not conclusively proved. On evaluation of her evidence, it becomes crystal clear that the prosecutrix was in love with the appellant. From her evidence, it is clear that the appellant used to reside in the same locality. 14. Thus, the age of the prosecutrix is not conclusively proved. On evaluation of her evidence, it becomes crystal clear that the prosecutrix was in love with the appellant. From her evidence, it is clear that the appellant used to reside in the same locality. It is established that the prosecutrix and appellant belonged to different castes. It is revealed that the prosecutrix belongs to upper caste whereas the appellant is a tribal, belonging to tribe Gond. It would be necessary to reproduce following portion from the evidence of prosecutrix for correct evaluation of the prosecution case: 15. From the aforesaid, it is crystal clear that the prosecutrix was in love with the appellant. Of course, the suggestion which was given to the prosecutrix that their love was opposed due to caste barier, is denied by the prosecutrix. However, it has its own impact on the prosecution case. 16. According to the prosecutrix, on 27.6.2013 when she was in the house of her elder sister at Ganeshpipri, she left the house in the company of the appellant. Her evidence would disclose that when she was at her sister's house at Ganeshpipri, her father called her for school purpose and, therefore, she left the house on 27.6.2013 and went to the Bus Stop of Gondpipri. She met appellant and he took her to Korpana. There, she was taken to the house of paternal aunt of appellant by name Nirmala, examined as prosecution witness No. 3. They halted there in the night. Thereafter as per the prosecutrix, she was taken to Ballarshah at the house of his relative by the appellant and then to the Railway Station. Appellant purchased a ticket for Secunderabad and they went to Secunderabad where appellant made phone call to his brother Ramdas Sidam and went to his room and there they stayed for about 1 and half months. Then appellant took a room on rent. They resided there for about 1 and half months. The evidence of prosecutrix did not show or suggest that till the room was taken on rent, the prosecutrix was subjected to sexual intercourse. As per her evidence, sexual intercourse was committed with her at a room which appellant had taken on rent. Her evidence is completely silent that the said sexual intercourse took place against her will. Dr. The evidence of prosecutrix did not show or suggest that till the room was taken on rent, the prosecutrix was subjected to sexual intercourse. As per her evidence, sexual intercourse was committed with her at a room which appellant had taken on rent. Her evidence is completely silent that the said sexual intercourse took place against her will. Dr. Sapna Tallarwar (P.W. 11) though has stated that the sexual intercourse has taken place, she is unable to state the time of the said sexual intercourse. 17. From the aforesaid evidence, it is clear that the prosecutrix was having ample chance to return to her house if she was not the consenting party for eloping. From the above evidence, it is clear that there was ample opportunity for the prosecutrix to rescue herself if at all she was per force taken by the appellant. Since the prosecution is unsuccessful in proving the age of the prosecutrix, it would be unsafe to record the conviction of the appellant for the offences punishable under Sections 363 and 366 of the Indian Penal Code. From the aforesaid discussion of the evidence, it is clear that the prosecutrix willingly was in the company of the appellant and in absence of the positive evidence that sexual intercourse was committed with her against her wish or will, the conviction for the offence under Section 376 IPC cannot be sustained. Hence, the following order:- ORDER I. Appeal is allowed. II. The judgment and order passed in Special (Child) Case No. 15 of 2013 by the Special Judge, Chandrapur whereby the appellant is convicted for the offence punishable under Section 363 of the Indian Penal Code and directed suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer further RI for one month; under Section 366 of the Indian Penal Code and directed to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1000/-, in default, to suffer further RI for two months and also convicted for the offence punishable under Section 376(2)(n) of the Indian Penal Code read with Section 4 of the Protection of Children From Sexual offences Act, 2012 and directed to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 1000/-, in default, to suffer further RI for two months, is quashed and set aside. III. 1000/-, in default, to suffer further RI for two months, is quashed and set aside. III. Appellant Gurudas son of Bandu Pendor is acquitted of the offences with which he was charged. IV. Appellant who is in jail, shall be released forthwith, if not required in any other case. V. Fine amount, if any paid by the appellant, be refunded to him.