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2019 DIGILAW 1529 (BOM)

Subhash v. State Of Maharashtra

2019-07-02

V.M.DESHPANDE

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JUDGMENT V M Deshpande, J. - By the present appeal, appellant Subhash and his mother Leelabai are challenging their conviction and sentence, respectively, imposed on them by the learned Additional Sessions Judge, Akot by the judgment and order 07.03.2005 in Sessions Trial No.08/2005 (old No. 116/2001). Appellant No.1 Subhash stands convicted for the offence punishable under Section 376 of the Indian Penal Code and for that he was sentenced to undergo imprisonment for seven years and to pay a fine of Rs.500/- with default clause of sufferance of further rigorous imprisonment for one year. He was also convicted for the offence punishable under Sections 363 and 366 of the Indian Penal Code and for that he was sentenced to undergo rigorous imprisonment for three years on each count and to pay a fine of Rs.500/- on each count with default clause of sufferance of further rigorous imprisonment for six months on each count. Appellant no.2 Smt. Leelabai was convicted for the offence punishable under Sections 363 and 366 read with Section 34 of the Indian Penal Code and for that she was sentenced to suffer rigorous imprisonment for three years on each count and to pay a fine of Rs.500/- on each count with default clause of sufferance of further rigorous imprisonment for six months on each count. The Court below directed that all the sentences shall run concurrently. 2. I have heard Mr. R. M. Daga, the learned counsel for the appellants and Mr. S. S. Doifode, the learned Additional Public Prosecutor for the State. Also perused the record and proceedings. 3. It is the submission of Mr. Daga, the learned counsel for the appellants that in the present case, age of the victim (PW1) is not conclusively proved to show that she was minor at the time of alleged incident. It is also his submission that the evidence of the victim is not trustworthy and in absence of any corroborative piece of evidence available in the prosecution case, appellant no.1 Subhash cannot be convicted for the offence punishable under Section 376 of the Indian Penal Code. He also submitted that the prosecution case cannot be accepted in respect of kidnapping inasmuch as according to him, the prosecution case is shorn of enticement. He also submitted that there is an unexplained delay in the prosecution case which cast serious doubt about its truthfulness. He also submitted that the prosecution case cannot be accepted in respect of kidnapping inasmuch as according to him, the prosecution case is shorn of enticement. He also submitted that there is an unexplained delay in the prosecution case which cast serious doubt about its truthfulness. He, therefore, submitted that the appeal be allowed. Per contra, Mr. Doifode, the learned Additional Public Prosecutor would vehemently submit that the victim was raped by taking her from her school at Khamgaon. He submits that the age of the victim is proved by the prosecution by examining PW5 Arun Kale, a Teacher of the school in which the victim was taking education. He supports the reasoning given by the Court below and prays for dismissal of the appeal. 4. The criminal law was set into motion by the victim (PW1) herself. Her oral report is at Exh.30. It is dated 29.01.2001. the report was reduced into writing by PW7 PI Suresh Deshpande, who ultimately conducted the entire investigation in view of the oral report (Exh.30). He registered the crime at Telhara police station, District Akola for the offences punishable under Sections 363,366A,342,506 read with Section 34 of the Indian Penal Code vide Crime No. 06/2001. The printed first information report is at Exh.31. The offence was registered against four accused persons. Apart from present appellants, Namdeo Ukarda Bharsakale, father of appellant no.1 and husband of appellant no.2 was also made accused along with one Ashok Suryawanshi. The Investigating Officer arrested them. On 4th February,2001, the victim gave another report in writing making allegation against appellant no.1 Subhash about commission of rape and therefore, an offence punishable under Section 376 of the Indian Penal Code was also added. 5. The Investigating Officer, during the course of the investigation, procured the birth certificate of the victim. She was also referred for her medical examination. After completion of other usual investigation, he filed the charge-sheet. 6. The charge was framed against four accused persons for the offence punishable under Sections 363,366,342 and 506 read with Section 34 of the Indian Penal Code. In addition to the same, appellant no.1 Subhash was also charged for the offence punishable under Section 376 of the Indian Penal Code. The charge was that on 30.10.2000 in the night at Khamgaon he committed rape on the victim. All accused persons abjured their guilt and claimed for their trial. 7. In addition to the same, appellant no.1 Subhash was also charged for the offence punishable under Section 376 of the Indian Penal Code. The charge was that on 30.10.2000 in the night at Khamgaon he committed rape on the victim. All accused persons abjured their guilt and claimed for their trial. 7. In order to prove their guilt, the prosecution has examined in all seven witnesses and also relied upon various documents proved during the course of the trial. The statements of accused persons, who were charged, were recorded under Section 313 of the Code of Criminal Procedure. Their defence was of total denial and false implication in the crime. 8. After appreciation of the prosecution case, the learned Judge of the Court below, by the impugned judgment, acquitted accused no.2 Namdeo and accused no.4 Ashok from all the offences. Their acquittal is not challenged by the State. However, the appellants were convicted and sentenced as observed in the opening paragraph of this judgment. Hence, this appeal. 9. As per first information report (Exh.30) dated 29.1.2001, on 30.11.2000 at about 2.30 in the afternoon appellant no.2 Leelabai, the sister of victim''s mother, resident of Ghatepuri, came to her school i.e. Matoshree Mainabai Dhone Vidyalaya at village Adsul and took her to her house at village Umari. As per the report, there she asked the victim to go along with appellant no.1 Subhash otherwise he will commit suicide. It is also stated in the report that Leelabai disclosed to her that Subhash is waiting for her in the field belonging to one Shaligram Patil outside the village and gave Rs.40/- to her and also told that she would also reach Shegaon after some time. As per the report because of fear she immediately went to the field outside the village where appellant Subhash met her and along with him she came to Shegaon by bus. After some time appellant no.2 Leelabai came and they three went to Khamgaon and in that night appellant Subhash kept her at a room belonging to his friend located at Farshi locality of Khamgaon. On the next day, he took her to his house situated at village Ghatepuri. There both the appellants asked her repeatedly to marry with Subhash. However, she was not ready to marry. On the next day, he took her to his house situated at village Ghatepuri. There both the appellants asked her repeatedly to marry with Subhash. However, she was not ready to marry. According to the report, thereafter police man (acquitted accused Ashok) came twice or thrice and as per his say the husband of her maternal aunt (acquitted accused Namdeo) brought her back to her village. However, since there was threat, she refused to stay with her parents. As per the report thereafter upto 28.12.2000 she again stayed at Khamgaon. During that period, according to the report, accused persons tried to change her mind, but since she was not ready, according to the report, on 29.12.2000 appellant Subhash took her to Nipana Phata as per the advice of Ashok (acquitted accused) and from that place he took her to Police Station Pimpalgaon Raja and sent her to remand home at Amravati. From that place, she was taken to her house on 24.01.2001. As per the written report dated 04.2.2001 (Exh.32), on the basis of which offence under Section 376 of the Indian Penal Code was added, it is stated in the said report that after reaching to Khamgaon from Shegaon, appellant Subhash took her to the house of one Gajanan Tole, where it was disclosed by the appellants to Gajanan that they are husband and wife and in the house of Gajanan against her wish sexual intercourse took place on three occasions. 10. Firstly, the Court would like to examine the prosecution case as to whether it is proved beyond reasonable doubt that the victim was minor at the time of the incident and was unable to extend consent. 11. In the reports dated 29.01.2001 and 04.2.2001, the victim who was taking education did not disclose her date of birth. She only states that her age was 14 years. The father of victim is examined. He is Kisan More (PW6). His evidence also does not reflect the date of birth of his daughter i.e. victim. Not only that, Kisan is conspicuously silent about the age of his daughter. 12. Though, in the first information report the victim does not disclose her date of birth, in her evidence, firstly she disclosed her date of birth as 11.5.1984 and then improved her version in that behalf by narrating that her date of birth is 11.5.1986. Not only that, Kisan is conspicuously silent about the age of his daughter. 12. Though, in the first information report the victim does not disclose her date of birth, in her evidence, firstly she disclosed her date of birth as 11.5.1984 and then improved her version in that behalf by narrating that her date of birth is 11.5.1986. As per the evidence of PW7 PI Suresh Deshpande, during the course of the investigation he procured birth certificate of the victim from the school in pursuance to the requisition given by him. 13. Pw5 is Arun Kale, a teacher working with Matoshree Mainabai Dhone Vidyalaya, Adsul where the victim was taking her education. When this prosecution witness was holding charge as In-charge Headmaster, police personnel from Police Station, Telhara came to school and demanded birth date certificate of the victim. As per evidence of Shri Kale, the school used to take entries regarding bio-data of the students in admission register. As per the practice of the school they used to do admission of new comers on the basis of transfer certificate. His evidence would show that as per the admission register the date of birth of victim is 11.5.1986. Accordingly he gave certificate Exh.58 and the extract of the entry in the admission register is at Exh.59. 14. Had PW5 Arun Kale brought original Transfer Certificate on the basis of which the entry in Exh.59 was taken, there would not have been any difficulty to record conclusively that the date of birth of the victim was 11.5.1986. During the course of cross-examination of In-charge Headmaster Shri Kale, he has stated as under : "It is true that at the time of admission of ... (victim) the concerned clerk has taken entry in admission register about her date of birth on the footing of entry in her transfer certificate." However, perusal of Exh.59 does not show that entry was taken on the basis of transfer certificate produced at the time of admission. Be that as it may. This prosecution witness has further stated as under : "It is true that we have to keep original transfer certificate with us after confirming the admission in our school. Be that as it may. This prosecution witness has further stated as under : "It is true that we have to keep original transfer certificate with us after confirming the admission in our school. It is true that I have not brought transfer certificate of ..(victim) with me." From the aforesaid evidence, it is clear that the original transfer certificate, on the basis of which entry was taken in Exh.59 and Certificate Exh.58 is given to show that the date of birth of the victim is 11.5.1986, was in possession of the school. However, for the reasons best known to the prosecution and to this prosecution witness, the said certificate is not coming on record. In the light of this, the suggestion though denied by the In-charge Headmaster Shri Kale that they have wrongly entered the date of birth of victim in the admission register, assumes its importance and an adverse inference in respect of documents Exh.58 and 59 is required to be drawn. In addition to this, this prosecution witness has admitted that as the parents of the victim accompanied with the police, the school issued the birth certificate of victim to them. The certificate (Exh.58) issued by the school showing date of birth of the victim, cannot be considered as primary evidence. Primary evidence would have been the transfer certificate on the basis of which the entry regarding date of birth in Exh.59 was taken and for the reasons best known to the prosecution, the said primary evidence is not brought on record. In view of the nature of evidence and its quality, there is no difficulty in my mind to reject the documentary evidence placed on record by the prosecution to corroborate the improved version of the victim in her evidence about date of birth i.e. 11.5.1986. 15. The victim when was referred for her medical examination, she was examined by Dr. Leena Bonde (PW4), who at the relevant time was attached as a Medical Officer to Lady Harding Hospital, Akola. Her evidence would show that for her age determination, the victim was referred to X-ray department. The contemporaneous document (Ex.46) the medical certificate also reflect the same. Thus, for age determination, the Medical Officer asked for ossification test of the victim. The prosecution case is completely silent as to whether the ossification test was carried out or not, nor there is any ossification report on record. The contemporaneous document (Ex.46) the medical certificate also reflect the same. Thus, for age determination, the Medical Officer asked for ossification test of the victim. The prosecution case is completely silent as to whether the ossification test was carried out or not, nor there is any ossification report on record. 16. From the aforesaid evidence available in the prosecution case, it would be very difficult to record a finding that the date of birth of the victim was 11.5.1986, which is also an improved version. Thus, the prosecution has failed to prove that at the relevant time, the victim was minor. 17. Let us examine whether the prosecution has proved its case against the appellant No.1 for the offence punishable under Section 376 of the Indian Penal Code. 18. When firstly the report (Exh.30) was lodged on 29.01.2001 by the victim, that report was totally silent about any physical atrocities to her at any place by any of the appellants. In her report dated 04.02.2001 (Exh.32), the victim alleged that she being taken to Khamgaon by both the appellants from Shegaon, appellant no.1 brought her to the house of one Gajanan Tole. There both of them told Gajanan and his wife that they are husband and wife and at his place in the night thrice against her wish sexual intercourse was done. 19. Dr. Leena Bonde (PW4) when examined the victim on 04.2.2001, she found that hymen of the victim was ruptured. There were no external or internal injuries and her vagina admits two fingers. According to the evidence of Dr. Leena Bonde, she could not give exact opinion as to when hymen was ruptured prior to reference. 20. According to the victim, sexual intercourse took place on 30.12.2000 and the victim was examined on 04.2.2001. In that view nobody can expect appearance of any external injuries on genital portion of victim. However, it is the specific prosecution case that appellant Subhash committed rape in the house of Gajanan Tole at Khamgaon. This Gajanan Tole or his wife are no examined by the prosecution to corroborate the prosecution case that the victim accompanied Subhash at their house and they stayed there. Exh.48 is the spot panchanama in respect of the spot shown by the victim herself where sexual intercourse took place with her by appellant Subhash. This Gajanan Tole or his wife are no examined by the prosecution to corroborate the prosecution case that the victim accompanied Subhash at their house and they stayed there. Exh.48 is the spot panchanama in respect of the spot shown by the victim herself where sexual intercourse took place with her by appellant Subhash. The said spot panchanama (Exh.48) is totally silent as to who is the owner of the house. The recitals of the spot panchanama would show that the spot of occurrence is situated on the hillock at Chandmari zopadpatti. The spot panchanama does not show that when the investigating agency visited the said spot, it was locked or open. It also does not show that it was in occupation of anybody. 21. Looking to the fact that the prosecution could not establish the spot of occurrence of rape and quality of evidence of the victim, which in my view, does not inspire confidence at all, it would be very harsh to reach to the conclusion that appellant Subhash has committed rape on victim. 22. Insofar as offence punishable under Sections 363 and 366 of the Indian Penal Code is concerned, as per the prosecution case, on 30.11.2000 when the victim was in the school that time appellant no.2 Leelabai came to the school and asked the victim to accompany her. According to the evidence of the victim, Leelabai asked her to come out. However, teacher Shri Kale asked her that the victim should ask for leave from Class Teacher Shri Jamode (PW3). Therefore, she and her cousin Najuk More (PW2) went to Shri Jamode and asked for leave. The leave was granted and thereafter the victim accompanied with her aunt Leelabai. PW2 Najuk More also corroborates the victim to that extent. PW3 Keshav Jamode, Class Teacher''s evidence does not show that he met appellant Leelabai and/or he noticed presence of Leelabai in the school. His evidence would show that in the school, muster role of the students is kept and he was taking presentee (roll call) of the students of his class. Not only that his evidence would show that the muster role is preserved in the school. His evidence would show that during the course of the investigation, police machinery did not seize the muster dated 30.11.2000 nor he brought the muster role dated 30.11.2000 in the Court. Not only that his evidence would show that the muster role is preserved in the school. His evidence would show that during the course of the investigation, police machinery did not seize the muster dated 30.11.2000 nor he brought the muster role dated 30.11.2000 in the Court. His evidence also shows that generally he used to enquire with the relatives about the reason as to why they want to carry their ward with them. His evidence would show that he did not call the maternal aunt of the victim i.e. appellant no.2 Leelabai in the school and made enquiry with her. It would have been very easy for the prosecution to seize the muster roll dated 30.11.2000 to show the presence of the victim in the school on the said day. The same was not seized. Not only that though the muster roll was preserved, for the reasons best known to the prosecution, the said muster roll is not brought on record. The best possible evidence to show the presence of victim in the school is withheld and is not placed on record. 23. Evidence of Najuk More (PW2) would show that on the day of the incident itself when there was a talk in the house that the victim has not returned to home, in the night his father and others went to other villages for searching the victim. Najuk More at the relevant time was aged about 15 years. He was aware that his sister is being carried by accused Leelabai and her absence is felt by family members. Not only that his father and his uncle made search of the victim. If that be so Najuk More (PW2) would not have missed to narrate that the victim was taken away by Leelabai. This really cast a doubt as to really the victim was present in the school on the day of the incident for which, as observed above, there is no documentary proof. Not only that when a young girl is missing it was but expected from the family members to lodge the missing report. The prosecution is totally silent that till filing of the report by the victim herself on 29.01.2001, no steps were taken to lodge the report either by the parents of the victim or any other relative of the victim. 24. The prosecution is totally silent that till filing of the report by the victim herself on 29.01.2001, no steps were taken to lodge the report either by the parents of the victim or any other relative of the victim. 24. From the cross-examination of Kisan More (PW6), the father of the victim, it is clear that he and the appellants are the close relatives. He also admitted that there is an agricultural field having gat No.17/3-A, having area 97 R of village Khatka, Taq. Telhara. It is also admitted that there is a dispute between them and a civil suit is filed against him by acquitted accused Namdeo seeking permanent injunction against him and the competent Court has restrained him from entering into the said field as it could be seen from vernacular of his deposition, which is reproduced hereunder : Though, Kisan (PW6) denied the suggestion that he lost in appeal also, he could not file any order of the Appellate Court in his favour. In view of the aforesaid, it is crystal clear that there was a reason for this prosecution witness to depose against the appellants. 25. It is an admitted position that PW6 Kisan, father of the victim obtained custody of the victim from remand home at Amravati. I have perused the entire record and proceedings. At file ''D'' of the record and proceedings, various certified copies pertaining to the passing of the orders by the learned Magistrate directing to place the victim in remand home till the application filed by the father of the victim before the learned Magistrate for her custody, are available. Evidence of PW6 Kisan would show that the application which was filed by him in the Court of learned Judicial Magistrate, First Class, Court No.2, Khamgaon in respect of the custody, was brought to his notice when he was in the witness box. This prosecution witness admitted that said application was field by him. He also admits his signature on the same. In spite of that, the learned Judge of the Court below, it appears, has not exhibited the said document, may be due to inadvertence. However, since the said document was referred to the prosecution witness and he admits the said application and signature, it can be looked into at this stage. He also admits his signature on the same. In spite of that, the learned Judge of the Court below, it appears, has not exhibited the said document, may be due to inadvertence. However, since the said document was referred to the prosecution witness and he admits the said application and signature, it can be looked into at this stage. Though, in the cross-examination he denied the suggestion that he has not mentioned in the application that his daughter has left the house, which is contrary to the recitals of his application. It would be useful to reproduce the relevant recitals of the said application, which reads as under :- 26. This application is dated 03.01.2001. From the aforesaid, it is clear that the victim on her own left her house. In absence of disclosure by Najuk (PW2) about taking away victim by Leelabai and in absence of any documentary proof to show the presence of victim in the school on the day of the incident, the aforesaid recitals speak volumes against the core of the prosecution case that the victim was enticed by the appellants at any point of time. On the contrary, a finding can be recorded that on her own she left her house. 27. On re-appreciation of the entire prosecution case, as discussed above, I have no hesitation in my mind to record a finding that the prosecution has failed to prove against the appellants beyond reasonable doubt. Not only that the prosecution has utterly failed to prove that the victim girl was present in the school on the day of the incident and she was taken away by the appellant Leelabai and subsequently she was subjected to rape. Resultantly, I pass the following order : ORDER 1. The criminal appeal is allowed. 2. The judgment and order of conviction of the appellants passed by the learned Additional Sessions Judge, Akot on 07.03.2005 in Sessions Trial No.08/2005 (old No. 116/2001), is hereby quashed and set aside. 3. Appellants - Subhash Namdeo Bharsakle and Sau. Leelabai W/o Namdeo Bharsakle are acquitted of the offence punishable under sections 376,363,366 read with Section 34 of the Indian Penal Code. 4. The appellants who are on bail their bail bonds stand cancelled. 5. With this, the appeal is allowed and disposed of.