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2018 DIGILAW 1272 (BOM)

Gajanan Babarao Lodam v. State of Maharashtra

2018-05-10

M.G.GIRATKAR

body2018
JUDGMENT : M.G. Giratkar, J. 1. The appellant has assailed the judgment of Sessions Judge, Akola in Sessions Trial No. 175 of 2002, 15.5.2004, by which the appellant is convicted for the offence punishable under Section 363 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 3,000/- in default, to undergo further rigorous imprisonment for six months. The appellant is also convicted for the offence punishable under Section 366 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 4,000/- in default to undergo further rigorous imprisonment for eight months. He is further convicted for the offence punishable under Section 376 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 10,000/- in default to undergo further rigorous imprisonment for ten months. 2. The prosecution case, as could be gathered from the facts on record, is as under: Complainant Pushpa Kisanrao Bayaskar (PW-1) is resident of village Arkhed. Prosecutrix Shambala Bayaskar (PW-2) is her daughter. She was 13 years old at the time of incident i.e. on 14.5.2002. Complainant Pushpa has also one son. Husband of Complainant Pushpa is a labourer. The accused had proposed two months' prior to the date of incident that Complainant Pushpa should perform his marriage with prosecutrix Shambala. The proposal was refused by Pushpa because prosecutrix Shambala was minor and was taking education. The accused threatened her to face the consequences of her refusal. Eight days prior to the date of incident, the accused met prosecutrix Shambala in front of school in village Arkhed and told her that he was in love with her and she should marry him. However, the prosecutrix refused the proposal. On 13.5.2002, while Shambala was fetching water, the accused met her and told her that she should proceed with him next day in the morning and they will marry. The prosecutrix refused to proceed with the accused. 3. On 14.5.2002, the prosecutrix was alone at home. At about 8.30 a.m. she left the house for proceeding to Murtizapur and also for bringing T.C. from her School. At that time, a girl residing in the neighbourhood namely Sonu Karapate (PW-3) asked her as to where she was going. The prosecutrix refused to proceed with the accused. 3. On 14.5.2002, the prosecutrix was alone at home. At about 8.30 a.m. she left the house for proceeding to Murtizapur and also for bringing T.C. from her School. At that time, a girl residing in the neighbourhood namely Sonu Karapate (PW-3) asked her as to where she was going. The prosecutrix replied that she was going to Murtizapur for bringing her T.C. from the School. On the Bus Stand of Murtizapur, the accused asked the prosecutrix to proceed with him or else he would defame her. On such threats given by the accused, the prosecutrix boarded a bus proceeding to Akola. 4. On returning home at 10.30 a.m. Complainant Pushpa searched the prosecutrix. Sonu Karpate told her that she has gone to Murtizapur to bring T.C. from the School. Since the prosecutrix did not return home that day, Complainant Pushpa went to the houses of her parents and sister-in-law to search her. Since the prosecutrix could not be found, Complainant Pushpa lodged report with Police Station, Murtizapur against the accused. Crime No. 84 of 2002 for the offences punishable under Sections 363, 366 of the Indian Penal Code was registered against the accused. 5. On arriving at Akola, the accused took the prosecutrix to Ahmedabad at the house of one Raju Janrao Fuke (PW-4) his cousin. At the moment when Raju Fuke was not at home, the accused committed forcible sexual intercourse with the prosecutrix at about 3.30 p.m. on 15.5.2002. At about 11.30 p.m. On that day, a telephone call was received by the accused from Arkhed informing him that a complaint was lodged by Pushpa with police and he should return to Arkhed immediately. On 17.5.2002, at about 12.30 p.m., the accused again raped the prosecutrix. On the same day, the accused reached the prosecutrix to Murtizapur. Maternal uncle of accused dropped the prosecutrix near her house. After reaching home, the prosecutrix narrated the entire incident to her mother. Complainant Pushpa took her to Police Station. Their statements were recorded. Prosecutrix Shambala was referred for medical examination. Dr. Rashmi Sharma (PW-6) issued medical Certificate on noticing bleeding from the private part and observing hymen of the prosecutrix ruptured. On receipt of medical certificate, investigation was set into motion. Knicker of prosecutrix was seized and seizure panchanama was accordingly drawn. Samples of Vaginal swab, public hair were obtained by Dr. Prosecutrix Shambala was referred for medical examination. Dr. Rashmi Sharma (PW-6) issued medical Certificate on noticing bleeding from the private part and observing hymen of the prosecutrix ruptured. On receipt of medical certificate, investigation was set into motion. Knicker of prosecutrix was seized and seizure panchanama was accordingly drawn. Samples of Vaginal swab, public hair were obtained by Dr. Rashmi Sharma and they were sealed and handed over to police. The accused was arrested. The accused was referred for medical examination to Dr. Vikram Sharma (PW-7). He was found capable of having sexual intercourse. After completion of investigation, Charge Sheet came to filed in the Court of Judicial Magistrate, First Class, Murtizapur, who, in turn, committed the case to the Court of Session. 6. Charge was framed at Exh.7. It was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried. The accused faced the trial. Ultimately, he was convicted and sentenced, as stated above. 7. Heard Mr. A.M. Ghare, learned Counsel for the appellant. He has submitted that the prosecutrix was in love with the appellant. Prosecution has failed to prove the age of prosecutrix. She herself left her house, joined the company of appellant at Murtizapur and from there, they went to Gujarat and resided in the house of brother of appellant. From the evidence of mother, it appears that she was more than 16 year at the time of incident. She was in love with the accused. The accused proposed to marry her, but her mother refused to perform her marriage with the accused. Therefore, the prosecutrix herself left the house. Material ingredients of Sections 363, 366 and 376 of the Indian Penal Code are not proved by the prosecution. Learned trial Court has not considered the evidence properly and wrongly convicted the appellant. At last, the learned Counsel for the appellant prayed to allow the appeal and acquit the accused. 8. Heard Mr. H.R. Dhumale, learned A.P.P. for the respondent/State. He has supported the impugned judgment. 9. Perused the evidence on record. Evidence of prosecutrix Shambala Bayaskar (PW-2) and her mother Pushpa (PW-1) show that the prosecutrix was in love with the accused. Mother of prosecutrix stated her age as 13 years. The prosecutrix has stated her age as 14 years. Prosecution has not collected material evidence to prove the correct age of prosecutrix. 9. Perused the evidence on record. Evidence of prosecutrix Shambala Bayaskar (PW-2) and her mother Pushpa (PW-1) show that the prosecutrix was in love with the accused. Mother of prosecutrix stated her age as 13 years. The prosecutrix has stated her age as 14 years. Prosecution has not collected material evidence to prove the correct age of prosecutrix. The School Leaving Certificate was not properly proved by examining the School Authority. Birth Certificate issued by the Municipal Authority was not produced by the mother of victim. As per her evidence, prosecutrix was the eldest daughter. 10. I have perused the Certificate issued by the Municipal Council, Murtizapur. Photograph of prosecutrix is attached to the Certificate. It is mentioned that the prosecutrix was third issue of her mother. On the contrary, her evidence shows that the prosecutrix was the eldest issue Therefore, Certificate (Exh.50) is not reliable evidence. The School Certificate (Exh.49) is not properly proved. 11. From the evidence of prosecutrix herself, it is clear that she was in love with the accused. She herself left her house. She resided at Gujarat at the house of brother of accused for about 10 days. 12. Mother of prosecutrix lodged the report against the accused. Thereafter, he was informed on phone. The accused himself brought the prosecutrix and reached to the house of her mother. Prosecution has not produced reliable evidence to prove the age of victim. From the evidence of mother of victim, it appears that she was more than 16 years of age at the time of incident. 13. Rape is defined under Section 375 of the Indian Penal Code, which reads as under: S. 375 (Before amendment of 2013) "A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.......... Secondly.......... Thirdly.......... Fourthly.......... Fifthly.......... Sixthly - With or without her consent, when she is under eighteen years of age. Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." 14. Secondly.......... Thirdly.......... Fourthly.......... Fifthly.......... Sixthly - With or without her consent, when she is under eighteen years of age. Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." 14. As per Section 375 of the Indian Penal Code, sexual intercourse if took place with the consent and if the victim/prosecutrix is more than 16 years, then it is not rape. In the present case, prosecution has utterly failed to prove that the prosecutrix was below 16 years of age at the time of incident. As per her evidence, she was 14 years at the time of incident. To prove her age, prosecution has relied on Exh.49 and 50. Exhs.49 and 50 both came to be exhibited in the evidence of writer of Investigating Officer. Exh.49 was issued by the School Authority. It only shows that she was studying in 8th Std. and her date of birth recorded is 15.12.1988. Not a single person from the School is examined by the prosecution. School Registers are not produced before the Court. Exh.49 is not duly proved. Prosecution ought to have examined the Authority who recorded her date of birth in the School Register. Nothing is on record to show that on what basis her date of birth came to be registered in the School Register. Therefore, Exh.49 cannot be taken into consideration. Exh.50 is a Certificate issued by Municipal Council. This Certificate Exh.50 shows the date of birth as 15.12.1988. This Certificate is not reliable because passport photograph of the victim is fixed. It was issued in 1992. It is not a copy of the original. As per this Certificate, female girl born to Pushpa (PW-1) was the third child. Whereas evidence of Pushpa (PW-1) shows that PW-2 was the eldest one. Therefore, Exh.50 is not a reliable document. Ossification test is not carried out by the Medical Officer to show the age of prosecutrix. It appears from the evidence of Pushpa (PW-1) and Shambala (PW-2) that the prosecutrix was more than 16 years at the time of incident. She herself left the house of her parents. She was waiting for the accused at Murtizapur. Thereafter, she proceeded along with the accused to Gujarat. It appears from the evidence of Pushpa (PW-1) and Shambala (PW-2) that the prosecutrix was more than 16 years at the time of incident. She herself left the house of her parents. She was waiting for the accused at Murtizapur. Thereafter, she proceeded along with the accused to Gujarat. Whatever sexual intercourse took place was with her consent. It appears that she was more than 16 years and therefore, it is not rape as defined under Section 375 of the Indian Penal Code. 15. Prosecution has failed to prove that she was taken by the accused from the custody of her mother. On the other hand, evidence of prosecutrix Shambala (PW-2) and her mother Pushpa (PW-1) show that the prosecutrix herself left her house early in the morning. She went to Murtizapur. She was waiting there for accused near medical store. She did not make any hue and cry. This itself shows that the prosecutrix herself went along with the accused. 16. Material omissions are brought on record in the cross-examination of Shambala (PW-2) as under: "I was interrogated by the police. I had stated before the police that the accused met me in front of the school 8 days before the incident when I was returning from the house of my uncle. I had stated about my talk with the accused to the police. I had stated before the police that I was threatened by the accused that he would defame me in the society if I refuse to accept his proposal. I had stated before the police that I did not disclose the incident of my meeting with the accused to anybody else. I cannot tell why the above mentioned facts are not mentioned in my statement before the police. I had told the police that the accused asked me to proceed with him on the next day morning on 13-5-2002 and I refused to accept his proposal. I told the police that on 14-5-2002 the accused forcibly brought me to Akola, compelled me to wait infront of medical stores. I had told to the police that I was threatened by the accused that he would sent Gundas behind me if I would leave the place. I had stated before the police that house of Raju Fuke was locked when we reached at his house. Key of his house was brought by Gajanan from the neighbour of Raju. I had told to the police that I was threatened by the accused that he would sent Gundas behind me if I would leave the place. I had stated before the police that house of Raju Fuke was locked when we reached at his house. Key of his house was brought by Gajanan from the neighbour of Raju. I cannot assign any reason why it is not so appearing in my statement before police. I had stated before the police that some persons had asked my age and it was ascertained by them whether I was marrying with accused, when I was in the house of Raju Fuke at Ahmedabad. I cannot assign any reason as to why it is so appearing in my statement." 17. Evidence of Pushpa, mother of prosecutrix shows that the accused proposed to marry with the prosecutrix. She refused to perform her marriage with the accused. Therefore, the prosecutrix must have left home on her own accord. Material ingredients of offences charged against the accused are not proved by prosecution. Hence, I am inclined to allow the appeal and proceed to pass the following order. ORDER The appeal is allowed. The impugned judgment and order in Sessions Trial No. 175 of 2002, dated.15.5.2004 is hereby quashed and set aside. The appellant/accused is acquitted of the offences charged against him. Fine amount, if paid, be refunded to the appellant. The record and proceedings be sent back to the trial Court.