Santosh S/O Mahadeo Darade vs The State Of Maharashtra on 7 June, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR

CRIMINAL APPEAL NO.116/2000

Santosh S/o Mahadeo Darade,
aged about 23 Yrs., R/o Waregaon,
P.S. Khaperkheda. ..Appellant.

..Vs..

The State of Maharashtra,
through Police Station Officer,
Police Station Khaperkheda,
Distt. Nagpur. ..Respondent.
– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –
Shri M.P. Kariya, Advocate for the Appellant.
Shri M.J. Khan, A.P.P. for the State / respondent.
– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

CORAM : Z.A.HAQ, J.
DATE : 7.6.2017.

ORAL JUDGMENT

1. Heard Shri M.P. Kariya, Advocate for the Appellant / accused and

Shri M.J. Khan, A.P.P. for the State / respondent.

2. The appellant / accused has challenged the judgment passed by the

Sessions Court convicting him for the offence punishable under Section 376 of

the Indian Penal Code and sentencing him to undergo rigorous imprisonment

for 7 years and to pay fine of Rs.1,000/- and in default of payment of fine to

undergo further rigorous imprisonment for 4 months.

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3. According to the prosecution, prosecutrix Jyoti lodged complaint on

28th March, 1995 against the accused stating that the accused used to visit her

house in absence of her parents, they were in love and assuring that he would

perform marriage with her, the accused had sexual intercourse with her.

According to the prosecution, the date of birth of the prosecutrix is

1st May, 1979 and the complaint was lodged on 28 th March, 1995 on which

date she was 15 years and 10 months old.

4. On the complaint of the prosecutrix, the investigation was

conducted and after completing the necessary formalities, charge-sheet was

filed before the Judicial Magistrate, First Class, Saoner. As the offence was

triable by the Sessions Court, the case was committed to the Sessions Court,

Sessions Court framed the charges, explained it to the accused and as the

accused did not accept the guilt, the trial was conducted.

5. After conducting the trial the learned Sessions Judge has recorded

that the prosecution has proved that the prosecutrix Jyoti was below age of 16

years on 28th March, 1995 and the prosecution has proved that during the

period between April, 1994 till 28th March, 1995 the accused committed rape

on the prosecutrix. The learned Sessions Judge has recorded that the

prosecution has proved that the accused made false representation to the

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prosecutrix dishonestly intending to defraud the prosecutrix and obtained her

consent for sexual intercourse by misrepresenting that he would marry her.

With the above conclusions the learned Sessions Judge has

convicted the appellant / accused as per the judgment.

6. The learned Advocate for the appellant / accused has submitted that

date of birth of the prosecutrix is not proved by the prosecution and looking to

the fact that even according to the prosecution the prosecutrix was about 16

years of age, the conviction of the appellant / accused for the offence

punishable under Section 376 of the Indian Penal Code is unsustainable.

According to the appellant / accused the evidence on the record shows that the

prosecutrix consented to the act and the medical report (Exh. No.45) and the

evidence of Dr. Aparna Jayant Kher (P.W.5) also show that there is no

forcible intercourse.

7. With the assistance of the learned Advocate for the appellant /

accused and the learned A.P.P. I have examined the record.

In the evidence of Dr. Aparna (P.W.5) the details which are relevant

for considering the legality of the conclusions of the learned Sessions Judge are

as follows:

“2. I have examined said Jyoti on the same day and I
detected the following:

1) Height of uterious was 22 weeks.
2) Fetal part palpable.

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3) Uterious well relaxed
4) Hymen old torn. The patient was pregnant.
The duration of pregnancy of 22 weeks. I had

advised ultra sonography. Sample of blood, pubic heirs and
vaginal swabs were collected. The samples were handed over
to the lady police constable. I have issued opinion. It is in
my handwriting and signed by me. It is at Exh.45.”

8. The prosecution has examined Keshav Jangluji Kalambe (P.W.3)

who was working as the Headmaster of Uccha Prathamik Shala where the

prosecutrix studied. This witness is examined to prove the date of birth of the

prosecutrix as recorded in the admission register of the school. Keshav (P.W.3)

has deposed that the date of birth of Jyoti (prosecutrix) was recorded as 1 st

May, 1979 on information given by her father. This witness has produced

photocopy of an affidavit sworn by father of Jyoti to substantiate his statement

that date of birth of Jyoti was recorded as 1 st May, 1979 on the information

given by her father. The prosecution has not brought any evidence on the

record to prove the date of birth of the prosecutrix. Though the entry of date

of birth in the school records is normally considered to be conclusive proof, in

the present case as admittedly it was recorded on the basis of information given

by father of prosecutrix and not on the basis of any document, in my view, it

was necessary for the prosecution to produce corroborating evidence to prove

the date of birth of the prosecutrix. As the prosecution has failed to prove the

date of birth of the prosecutrix and even according to the prosecutrix she was

aged about 15 years and 10 months when the complaint was lodged and

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considering the evidence of prosecutrix herself which shows that the

intercourse was with her consent, I find that the prosecution has failed to prove

beyond doubt the charge against the appellant / accused. The learned Sessions

Judge has failed to appreciate these aspects and, therefore, the impugned

judgment is unsustainable.

9. Hence, the following order:

(i) The impugned judgment is set aside.

(ii) The appellant / accused is acquitted of the offence punishable under

Section 376 of the Indian Penal Code giving him benefit of doubt.

(iii) The bail bonds of the accused stand cancelled.

(iv) The amount of fine, if paid by the appellant / accused, be returned

to him.

(v) The muddemal property be dealt with as per the directions of the

learned Sessions Judge after the period of appeal is over.

(vi)                 The appeal is allowed in the above terms.

JUDGE

Tambaskar.

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