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2017 DIGILAW 632 (BOM)

State of Maharashtra v. Ramesh Babulal Rewatkar

2017-03-30

B.P.DHARMADHIKARI, V.M.DESHPANDE

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JUDGMENT : B.P. Dharmadhikari, J. By this appeal under section 378 of Criminal Procedure Code, 1973 the respondent State questions judgment dated 23.12.2012 delivered in Sessions Case No. 408/2001 by the 7th Adhoc Sessions Judge, Nagpur acquitting respondent for offence punishable under Sections 363, 366 and 376 of Indian Penal Code. 2. We have heard Shri M.J. Khan, learned A.P.P. for the appellant - State. Shri A.M. Gedam, learned Counsel appointed for the respondent is not available. 3. Learned A.P.P. submits that because of alleged failure of prosecution to prove age of victim, the trial Court has dismissed the Sessions Case and acquitted the respondent/accused. He contends that accused, a major person has lured the victim, a minor, and committed these offences. As school certificate has been produced on record and 10.05.1986 is proved as date of birth, on the date of commission of offence i.e. 31.03.2001, the victim was minor and hence, there was no question of her consent. She was hardly 15 years old at that time, therefore, offence under Section 376 of Indian Penal Code has been established. Consequently, conviction for offence under Sections 366 and 363 is also warranted. He has taken us through relevant records for this purpose. 4. We have perused papers with the assistance of learned A.P.P. Charge has been framed vide Exh.2. Date of incident is 30.03.2001 from 12 O'clock to 31.03.2001 till 11 O'clock. In charge, age of victim is shown to be 15 years. 5. In the course of judgment the Trial Court has in paragraph no.4 framed points for determination. First point is Whether victim was under 16 years of age or under 18 years of age ? This has been answered in negative. Point No.2 is about lawful custody of victim with her mother and that also has been answered in negative. Vide point no.3, taking away or enticing the victim out of that custody by accused, is also answered in negative. Vide point nos. 4 and 5 taking away or enticing without consent of mother or intention or knowledge of illicit intercourse are also answered in negative. While answering point no.6, the trial Court has found that the prosecution could not establish sexual intercourse with Anita. It appears that while answering all these questions, the trial Court has also looked into the evidence regarding date of birth of victim. While answering point no.6, the trial Court has found that the prosecution could not establish sexual intercourse with Anita. It appears that while answering all these questions, the trial Court has also looked into the evidence regarding date of birth of victim. In paragraph no.18, the Trial Court has found that seizure of clothes on person of victim has not been established. Neither the Panch, nor the investigating officer deposed anything about it and hence, seizure of those clothes was itself found to be doubtful. In this situation, though report of Chemical Analyzer shows stains of blood and semen on clothes, the Trial Court has not relied upon it. It appears from the statement of victim and Dr. Minal Holkar, that in night time the respondent had sexual intercourse with victim and her hymen got ruptured and had fresh lacerations. All these findings by the trial Court are eclipsed by its finding that the prosecution could not establish her age to be 16 years. Discussion in paragraph no.15 of the judgment reveals that the trial Court found that the victim with consent went with the accused out of her free will. 6. The prosecution has relied upon the evidence of P.W.3 Keshaorao Chaple, who happens to be headmaster of a Secondary School where the victim was studying. Her name was removed from school records on 31.03.2000. This person issued school leaving certificate. He proved that school leaving certificate at Exh.31 and deposed that as per school records, date of birth of victim was 10.05.1986. Before Court, he also produced original admission register i.e. Dakhal Kharij Register of the school and proved entries regarding admission of victim at Exh.32. His cross examination shows that his school was not taking entry of date of birth on the say of guardian. He was not in the school in 1996 when victim took admission. He denied that entry of date of birth in school records was not on the strength of any document. He stated that school had taken that entry on the basis of a certificate of standard IV. 7. This evidence of P.W. 3 Keshav, therefore, shows that entry in dakhal kharij register (Exh.32), was taken on the basis of the school leaving certificate issued by the primary school. This fact appears recorded against name of victim. He stated that school had taken that entry on the basis of a certificate of standard IV. 7. This evidence of P.W. 3 Keshav, therefore, shows that entry in dakhal kharij register (Exh.32), was taken on the basis of the school leaving certificate issued by the primary school. This fact appears recorded against name of victim. She had taken admission in 5th standard and left school when she was taking admission in 9th standard. Her date of birth mentioned in Exh.32 is 10.05.1986. On the basis of this material in dakhal kharij register, P.W.3 issued school leaving certificate at Exh.31. 8. Thus, Exh.32 does not contain record of date of birth reported on the first occasion. It derives that information from certificate issued by the primary school. Moreover, when entries at Exh.32 were taken, P.W.3 was not in the school. Thus, he is not the person who has taken those entries. Exh.31 is the school leaving certificate issued by P.W 3 and it contains data as per Exh.32. Thus, no body has proved correctness of data contained in Exh.32. School leaving certificate of primary school has not been produced before the Court. 9. Precisely for this reason the trial Court has found that the prosecution could not establish the status of victim as a minor. 10. Similar controversy has been looked into by this Court in a judgment reported at 2011 All MR (Cri) 538 = 2011 (4) LJ Soft 184 (shaikh Feroz Shaikh Jainoddin v. State of Maharashtra and another). There such a later school leaving certificate has not been relief upon as proof of date of birth. Division Bench of this Court in judgment reported at 2014 All MR (Cri) 1169 = 2014 (4) LJ Soft 78 (Sandeep Kisan Waghe v. State of Maharashtra), found that the evidence of date with school first attended must be brought on record in such matters. We are in full agreement with this view. Date of birth as recorded initially must be proved and could have been proved by the prosecution. That has not been done in the present matter. 11. In absence of evidence of date of birth, it is clear that commission of offence under Section 376 of Indian Penal Code in present matter has not been established. Date of birth as recorded initially must be proved and could have been proved by the prosecution. That has not been done in the present matter. 11. In absence of evidence of date of birth, it is clear that commission of offence under Section 376 of Indian Penal Code in present matter has not been established. The finding that victim was a consenting party and went with the accused on her own free will and stayed with him does not appear to be erroneous or perverse. No case is therefore, made out for intervention of this Court. Learned Trial Court has taken a possible view and it is neither erroneous nor perverse. We therefore, proceed to pass the following order. (i) Criminal Appeal No.202/2003 is dismissed. (ii) Judgment and order dated 23.12.2002 in Sessions Case no.408/2001 delivered by the 7th Adhoc Asstt. Sessions Judge, Nagpur is maintained. (iii) Muddemal property be dealt with as directed by the trial Court after the appeal period is over.