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2019 DIGILAW 1563 (BOM)

Ganesh v. State of Maharashtra

2019-07-05

ROHIT B.DEO

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JUDGMENT : Rohit B. Deo, J. This appeal is directed against the judgment dated 4.5.2018 rendered by the Additional Sessions Judge, Amravati in Sessions Trial 102 of 2012 whereby the appellant who shall be referred to as the accused hereinafter, is convicted and sentenced as follows: Section 363 of the IPC Rigorous Imprisonment for three years and payment of fine of Rs.3,000/-, in default to undergo simple imprisonment for three month. Section 366 of the IPC Rigorous Imprisonment for seven years and payment of fine of Rs.5,000/-, in default to undergo simple imprisonment for six month. Section 376 of the IPC Rigorous imprisonment for ten years and payment of fine of Rs.5,000/-, in default to undergo simple imprisonment for one years. 2. The prosecution case: (i) PW 1 - Rameshwar Jadhav, who is the father of the victim lodged report dated 13.12.2011 (Exh. 21) at Police Station Shirkhed alleging that the accused kidnapped the victim with the inducement of marriage. (ii) The gist of the report is that PW 1 - Rameshwar Jadhav is residing at village Wagholi with his deaf and dumb wife and three daughters. The eldest daughter is married, the victim is aged 15 years and the youngest daughter is aged 13 years. (iii) The victim went inside the jungle to collect wood for fuel on 7.12.2011. She did not return home. Search proved futile and on 8.12.2011, a missing report was lodged at Police Station, Shirkhed. After the victim returned home, the deaf and dumb wife of Rameshwar Jadhav communicated by signs that the accused had taken the victim with him. Rajeshwar Jadhav sought police assistance and went to the house of the accused and found the victim staying in the house with the accused. Rameshwar inquired with the victim and was told that the accused induced the victim by promising marriage and on 7.12.2011 at 3.00 p.m. took the victim from Wagholi to Jaltapur. Rameshwar then made the victim and the accused accompany him to Shirpur Police Station. (iv) On the basis of the report Exh. 21 and the printed First Information Report Exh. 22, offence punishable under section 363 and 366 of the IPC was registered. It appears, that at a subsequent stage, offence punishable under section 376 of the IPC was additionally registered. (v) API Shri Ganesh Thakre visited the spot and prepared spot panchanama (Exh. 92). 21 and the printed First Information Report Exh. 22, offence punishable under section 363 and 366 of the IPC was registered. It appears, that at a subsequent stage, offence punishable under section 376 of the IPC was additionally registered. (v) API Shri Ganesh Thakre visited the spot and prepared spot panchanama (Exh. 92). PSI Shri Nithale went to Jaltapur and prepared spot panchanama (Exh. 68) of the house where the victim was found with the accused. The clothes of the victim were seized from the said spot vide seizure panchanaa Exh. 69. Statements of witnesses were recorded. The victim was medically examined and the report obtained (Exh. 79). The victim was subjected to the ossification test and the report obtained (Exh. 96). API Ganesh Thakre collected the school record of the victim. The accused was arrested and blood samples, semen samples and pubic heir of the accused were collected and seized. The blood samples, vaginal swab and pubic hair of the victim were collected by lady police constable Netra, sealed and seized vide panchanama Exh. 45. The seized articles were sent for chemical analysis. After the completion of the investigation, the chargesheet was presented in the Court of the jurisdictional magistrate who committed the case to the Sessions Court. (vi) The learned Sessions Judge framed charge for offence punishable under section 363, 366 and 376 of the IPC. The accused abjured guilt and claimed to be tried in accordance with law. (vii) Prosecution examined seven witnesses to bring home the charge. The accused claimed false implication. The accused did not step into the witness box nor was any witness examined in defence. (viii) The reasoning of the learned Sessions Judge may now be noted. The learned Sessions Judge observes that in view of the medical certificate Exh. 78, it is proved that the accused had sexual intercourse with the victim. The evidence of the victim is also considered to support the finding that sexual intercourse took place between the accused and the victim. The learned Sessions Judge then considered the evidence adduced by the prosecution to prove the age of the victim. The learned Sessions Judge on appreciation of the evidence held that the prosecution proved that on the date of the incident, the victim was aged 15 years. The learned Sessions Judge then considered the evidence adduced by the prosecution to prove the age of the victim. The learned Sessions Judge on appreciation of the evidence held that the prosecution proved that on the date of the incident, the victim was aged 15 years. The learned Sessions Judge notes the admission of the victim in the cross-examination that she had affection for accused and that she travelled with the accused to several places including Savarkhede and Amravati. It is manifest from the observations and the reasons in the judgment impugned that the conviction is based entirely on the finding that the accused was a minor and therefore incapable of consenting. 3. I have heard the learned counsel Shri R.D. Hazare for the accused and the learned Additional Public Prosecutor Shri N.B. Jawade for the respondent / State and with their able assistance, the evidence on record is minutely scrutinized. It is clear from the evidence on record that the sexual relationship was consensual and that the victim accompanied the accused since she was in a relationship with the accused. The victim has deposed that the accused is the grandson of Smt. Shanta Mohod to whose house the victim used to go to watch television. The victim testifies that a relationship developed and the accused expressed his love for the victim and desired to marry her. The accused was residing at Jaltapur and used to visit his grandmother. The victim deposed that the accused used to come twice or thrice in a month and he established sexual relations with her. The victim then states that she accompanied the accused on 7.12.2011 since the accused promised marriage and the couple left for Jaltapur and then went to Amravati. The couple went to the house of the accused's cousin. The victim was given a saree and then taken to the maternal aunt of the accused. The couple stayed in the house of the aunt of the accused for the night. The next morning when the couple went to the maternal uncle of the accused, they were advised to report at the police station. The couple went to the police station and were asked to go to Shirkhed Police Station. The couple then returned to the house of the maternal uncle of the accused and during the stay had sexual intercourse. The next morning when the couple went to the maternal uncle of the accused, they were advised to report at the police station. The couple went to the police station and were asked to go to Shirkhed Police Station. The couple then returned to the house of the maternal uncle of the accused and during the stay had sexual intercourse. The victim then deposes that the couple went to the house of the paternal aunt of the accused and then returned to Jaltapur on 13.12.2011. The version of the victim is that the relatives of the accused asked her whether she was ready to marry the accused and she answered in the affirmative. In the cross-examination, the victim admitted that she liked the accused and had affection for him. 4. She denied the suggestion that the report is lodged since her father was not in favour of her relationship with the accused and that she was assaulted by her father. 5. Even if the cross-examination of the victim is kept aside, from the examination in chief, it is clear that she accompanied the accused of her free will and that she was in a relationship with the accused. The victim does speak of sexual intercourse, however, she does not state that she was forced to submit to the accused. It is also not stated by the victim that the accused refused to marry her. 6. The medical certificate Exh. 78, which according to the learned Sessions Judge proves the sexual intercourse, is admitted by the defence. No external injury over the private part or on the person of the victim is noticed. It is stated in Exh. 78 that no definite opinion can be given as regards forcible intercourse or whether the victim is habituated to sexual intercourse or otherwise. Tear to the hymen is old, is the opinion. I am afraid, while the medical evidence may suggest that the victim is used to sexual intercourse, no inference can be drawn that during the relevant period, the victim and the accused had sexual intercourse. Concededly, there is no other forensic evidence to show that the accused subjected the victim to sexual intercourse in the days they were together. Exh. 78, which is also admitted by the defefence, records the responses of the medical officer to the queries of the Investigating Officer. Concededly, there is no other forensic evidence to show that the accused subjected the victim to sexual intercourse in the days they were together. Exh. 78, which is also admitted by the defefence, records the responses of the medical officer to the queries of the Investigating Officer. The opinion is that the victim may be habituated to sexual intercourse. 7. The seminal issue is whether the prosecution has proved beyond reasonable doubt, that the victim was a minor. The birth certificate issued under the Birth and Death Registration Act, 1969, is not produced. The report of the ossification test (Exh. 96) which is admitted by the defence, opines the age of the victim to be 16 years (plus-minus 1 year). It is judicially recognized that the ossification test is not conclusive for age determination and the margin of error is two years on either side. Reference may be made to the decision of the Hon'ble Apex Court in Ram Suresh Singh vs. Prabhat Singh and anr, (2009) 6 SCC 681 and Jyoti Prakash Rai vs. State of Bihar, (2008) 15 SCC 223 . The observations in the judgment that the age of the victim as stated by the victim is not denied, is contrary to record. The only other evidence is the testimony of PW 3 Yogita Jirapure. She states that she provided the birth certificate of the victim to the police. The birth certificate to which PW 3 is referring to appears to be her communication dated 3.1.2012 in which the date of birth of the victim is mentioned as 6.1.1997. The communication dated 3.1.2012 (Exh. 38) addressed by PW 3 - Yogita purports to certify that the date of birth of the victim is 6.1.1997. Exh. 41 is the extract of the admission register on the basis of which the certificate Exh. 38 is issued. PW 3 admits that the entry in the admission register is recorded by the clerk and not by her. PW 3 further admits that there is no mention in the extract of the admission register Exh. 41 of the source of information or the document on the basis of which the entry of the date of birth is recorded. 8. PW 3 admits that the entry in the admission register is recorded by the clerk and not by her. PW 3 further admits that there is no mention in the extract of the admission register Exh. 41 of the source of information or the document on the basis of which the entry of the date of birth is recorded. 8. It is too well settled, to warrant a reference to the catena of decisions on the point that the evidentiary value of the school record would depend on the proof of primary evidence or source of information on the basis of which the entry is recorded. In my considered opinion, since the prosecution failed to establish the primary evidence on the basis of which the entry is taken in the admission register, the school record is of no evidentiary value as regards the age determination of the victim. 9. The benefit of reasonable doubt must go in favour of the accused. I am satisfied, that the prosecution has not conclusively established that the victim was a minor and therefore not in position to consent to the sexual relationship. 10. I am satisfied, that the accused is entitled to the benefit of the doubt and that the judgment impugned is unsustainable in law. 11. The judgment dated 4.5.2018, rendered by the Additional Sessions Judge, Amravati in Session Trial 102 of 2012 is set aside. 12. The appellant - accused is acquitted of offences punishable under sections 363, 366 and 376 of the Indian Penal Code. 13. Fine paid, if any, be refunded to the accused. 14. The accused shall be released from custody forthwith unless his detention is required in connection with any other crime. 15. Fees of the appointed counsel Shri R.D. Hazare, be paid as per rules