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2019 DIGILAW 677 (BOM)

Shrikant v. State of Maharashtra

2019-03-07

M.G.GIRATKAR

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JUDGMENT : M.G. GIRATKAR, J. 1. The present revision is against the order, dated 07.05.2012 passed by the learned Additional Sessions Judge, Achalpur below Exh.11 in Sessions Trial No. 16 of 2009, by which the application for discharge moved by the applicants (accused) came to be rejected. 2. Heard Shri Anil Mardikar, learned Senior Counsel along with Shri S.G. Joshi, learned Counsel appearing on behalf of the applicants (hereinafter referred as accused) and Shri B.M. Lonare, learned Additional Public Prosecutor appearing on behalf of the respondent/State. 3. Accused No.1 was aged about 65 years at the time of alleged incident. Learned Senior Counsel has pointed out the requisition letter dated 26.03.2009 issued by the SDPO, Dharni to Civil Surgeon, General Hospital, Amravati. The said requisition letter replied to by Dr. V.V. Jadhav, General Hospital, Amravati. 4. Shri Mardikar, learned Senior Counsel has submitted that accused No.1 was already performed family planning operation and, therefore, complainant could not be remained pregnant from him. The report of General Hospital, Amravati shows that it did not find that in the semen of accused No.1 there is active sperm so as to keep any lady pregnant. The complainant did not remain pregnant from accused No.1 She might have become pregnant from any other person. Offence punishable under Section 318 of the Indian Penal Code not made out because her mother had given consent to terminate the pregnancy. Doctor who terminated pregnancy of the complainant not made the accused. Accused Nos. 2 and 3 are the son and daughter-in-law and accused No.4 is the wife of accused No.1 respectively. Shri Mardikar, learned Senior Counsel has submitted that the prosecution prima facie has not made out any offence to frame the charge. Therefore, Sessions Court ought to have discharged the accused. Learned Senior Counsel has submitted that the offence under SC and ST Act not attracted because the offence of rape was not committed only because the complainant belongs to particular caste. Therefore, the provisions of said Act are not applicable. At last, prayed to allow the revision and set aside the impugned order and discharge all the applicants/accused. 4. Shri Lonare, learned APP for the respondent/State has strongly supported the impugned order and submitted that it is the matter of evidence before the trial Court. Therefore, the provisions of said Act are not applicable. At last, prayed to allow the revision and set aside the impugned order and discharge all the applicants/accused. 4. Shri Lonare, learned APP for the respondent/State has strongly supported the impugned order and submitted that it is the matter of evidence before the trial Court. After recording the evidence, learned trial Court may come to the proper conclusion as to whether the accused have committed the offence or not, at this stage, the applicants cannot be discharged. At last, prayed for dismissal of the revision. 5. Perused the report. The complainant was aged about 17 years in the year 2008. The report is dated 02.11.2008. From the report, it appears that the allegations are made against accused No.1 who was aged about 65 years at the time of lodging report. Accused Nos.2 and 3 are the son and daughter-in-law and accused No.4 is the wife respectively of accused No.1. It is alleged in the report that accused No.1 did sexual intercourse from time to time. Therefore, she remained pregnant. It is also alleged that her pregnancy was terminated by accused Nos.2 and 3. 6. As per the report, the complainant was working as maid servant in the house of accused persons. Her mother noticed pregnancy and was brought to the house of accused. The complainant made allegations against the accused saying that she remained pregnant from accused No.1. During investigation, Investigating Officer sent requisition letter dated 26.03.2009 to Civil Surgeon, General Hospital, Amravati and requested to give opinion on the point Nos.1 to 4. The said letter was replied to on 29.03.2009. After examination of semen of accused No.1, it was opined that accused No.1 has no active sperm to keep any lady pregnant. Other documents are also filed on record by the side of accused which show that accused No.1 has performed family planning operation in the year 1981. Certificate of Medical Officer is also filed on record. 7. When the Civil Surgeon, General Hospital, Amravati had given a specific finding/opinion that accused No.1 not able to keep any woman pregnant, then it is clear that she was not pregnant from accused No.1. Certificate of Medical Officer is also filed on record. 7. When the Civil Surgeon, General Hospital, Amravati had given a specific finding/opinion that accused No.1 not able to keep any woman pregnant, then it is clear that she was not pregnant from accused No.1. In respect of offence punishable under Section 376 of the Indian Penal Code, even the allegation in the report taken as it is, then also it is clear that the complainant was aged about 17 years at the time of incident and whatever she has stated about sexual intercourse, was with her consent. Before amendment of the year 2013 to Section 375 of the Indian Penal Code, any woman who is more than 16 years of age and the sexual intercourse took place with her consent then it does not amount to offence of rape. Therefore, prima facia offence punishable under Section 376 of the Indian Penal Code is not made out. 8. Offence punishable under Section 318 of the Indian Penal Code is alleged against accused Nos.2 and 3. Learned Senior Counsel has submitted that the mother of complainant gave consent to terminate the pregnancy and the doctor who terminated pregnancy is not made accused. Therefore, accused persons cannot be charged for the offence punishable under Section 318 of the Indian Penal Code. 9. Consent letter of the mother of complainant is filed on record in the charge sheet. Doctor who terminated pregnancy not made accused. Prima facie offence punishable under Section 318 of the Indian Penal Code also not made out. Insofar as offence punishable under the provisions of SC and ST Act is concerned, the complainant has not stated in her report that accused No.1 committed such act only because she belongs to a particular caste and, therefore, the said offences under the SC and ST (Prevention of Atrocities) Act are not attracted. 10. Learned Sessions Judge not recorded his findings properly. The documents filed on record clearly show that the complainant not became pregnant from accused No.1. Other offences are also not prima facie made out by the prosecution. Section 227 of the Code of Criminal Procedure reads as under :- "227. Discharge. 10. Learned Sessions Judge not recorded his findings properly. The documents filed on record clearly show that the complainant not became pregnant from accused No.1. Other offences are also not prima facie made out by the prosecution. Section 227 of the Code of Criminal Procedure reads as under :- "227. Discharge. - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing." 11. From the bare reading of Section 227 of the Code of Criminal Procedure, it is clear that when there is no material placed on record to frame the charge, then the accused are entitled for discharge. The material placed on record i.e. medical opinion etc. clearly show that the complainant not became pregnant from accused No.1. 12. For the reasons discussed above, revision is liable to be allowed. In the result, Criminal Revision is allowed. Impugned order dated 07.05.2012 below Exh.11 in Sessions Trial No. 16 of 2009 passed by learned Additional Sessions Judge, Achalpur is hereby quashed and set aside. Application (Exh.11) for discharge is hereby allowed. The applicants/accused are hereby discharged for the offence punishable under Section 376 and 318, 506 read with Section 34 of the Indian Penal Code and Sections 3(1)(12), 3(2)(5) of the SC and ST Prevention of Atrocities Act.