Kiran S/O Ashok Gawali vs The State Of Maharashtra on 3 October, 2017

1 Cri. Appeal 20/2016

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL No.20 OF 2016

Kiran s/o Ashok Gawali
Aged: 22 Yrs., occu. Labour,
R/o Vithal Nagar, Latur,
Tq. and dist. Latur. APPELLANT
(Orig.Accused)

VERSUS

The State of Maharashtra
Through the Police Station
Officer, Shivaji Nagar
Police Station, Latur,
Tq. and Dist. Latur. RESPONDENT
—–
Mr.NP Patil-Jamalpurkar, Advocate for Appellant;
Mr.PN Kutti, APP for Respondent-State.
—–
CORAM : P.R.BORA, J.

RESERVED ON:- 26
th
September,2017

PRONOUNCED ON: 3

rd
October,2017

JUDGMENT:

1) Appellant has filed the present appeal

challenging the judgment and order passed by III

Additional Sessions Judge, Latur in Special Case

(POCSO) No.28/2014 decided on 27th July, 2015.

2) The appellant was prosecuted in the

aforesaid Sessions Case for the offences

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punishable under Sections 363, 366, 376(2)(n) of

Indian Penal Code and Sections 6 and 10 of the

POCSO Act and also under Section 3(1)(w) of The

Scheduled Castes, Scheduled Tribes (Prevention of

Atrocities) Act. (herein after referred to as the

Atrocities Act) The Sessions Court has acquitted

the appellant – accused for the offences

punishable under the Atrocities Act, but has

convicted him for the offences punishable under

Sections 363, 366, 376(2)(n) of the Indian Penal

Code and Sections 6 and 10 of the POCSO Act. The

maximum sentence awarded to the appellant is ten

years’ rigorous imprisonment and fine of Rs.

5,000/-

3) In brief, it was the case of the

prosecution that the accused kidnapped the

prosecutrix from the lawful guardianship of her

parents on 6th May, 2014 with intent to seduce her

to illicit intercourse and took her with him at

Pune and the other places and committed repeated

rape on her during the period 8.5.2014 to

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21.5.2014. According to the prosecution, at the

relevant time, the prosecutrix was below 18 years

of her age.

4) The charge was framed against the

accused on 31st October, 2014 for all the

aforesaid offences. The accused did not plead

guFurther the reportilty and claimed to be tried.

In order to prove the guilt of the accused, the

prosecution examined as many as nine witnesses.

The prosecution evidence commenced with the

testimony of the panch witness viz. Vaijinath

Digambar Panchal (PW 1) and was concluded after

the evidence of Dr. Annasaheb Gulabrao Birajdar

(PW 9) was recorded. The defence of the accused

was that the prosecutrix, at her own, voluntarily

accompanied him and nothing was done by him

against the wish of the prosecutrix or without

consent of prosecutrix. The accused has also

examined one Uttam Limbraj Gomsale, who is

serving as Gramsevak at Grampanchayat Khadgaon as

the Defence witness.

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5) The learned Additional Sessions Judge,

after having assessed the oral as well as

documentary evidence brought on record, held the

appellant – accused guilty for the offences

punishable under Sections 363, 366 376(2)(n) of

IPC ad Sections 6 and 10 of the POCSO Act and

sentenced him to suffer R.I. as noted herein

above.

6) Shri N.P.Patil – Jamalpurkar, learned

Counsel appearing for the appellant, has assailed

the impugned judgment on various grounds.

However, his thrust was on the issue that though

the prosecution has failed in proving that the

prosecutrix was minor at the relevant time, the

learned Sessions Judge has erroneously held the

appellant guilty for the offences charged against

him.. As against it, learned APP has supported

the impugned judgment and order.

7) After having heard the arguments of the

learned Counsel for the appellant and learned APP

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and on perusal of the impugned judgment and the

evidence on record, it is apparently revealed

that the main issue to be decided in the present

appeal is, whether the prosecutrix was minor at

the relevant time and whether from the evidence

on record, the finding recorded by the learned

Additional Sessions Judge that the prosecutrix

was minor, can be sustained?

8) The evidence on record clearly reveals

that the prosecutrix has voluntarily eloped with

the accused on 6.5.2014. As has come on record

in the cross-examination of the prosecutrix, her

parents were about to fix marriage of the

prosecutrix with the son of her parental aunt,

for which, the prosecutrix was not willing and to

avoid the said marriage, she left the house at

her own along with the accused. From the

testimony of the prosecutrix coupled with the

other evidence on record, a reasonable inference

can be drawn that the physical relationship

established between the prosecutrix and the

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accused was with consent. Even father of the

prosecutrix has also admitted in his cross-

examination that he had fixed the marriage of the

prosecutrix with one Yogesh and the marriage was

scheduled on 12th May, 2014. He has further

candidly admitted that the prosecutrix was not

intending to marry with Yogesh and hence, she

eloped from the house.

9) In spite of the evidence, as aforesaid,

the learned Additional Sessions Judge has held

the appellant guilty for the offences charged

against him for the only reason that the

prosecutrix was minor and as such it was

immaterial whether she has consented for the

culpable acts alleged against the appellant. In

the circumstances, as I noted herein above, the

crucial and foremost issue to be determined in

the present appeal is, whether from the evidence

on record, the prosecution can be said to have

proved that the prosecutrix was minor at the

relevant time?

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10) As has been stated by the prosecutrix

herself, as well as her father viz. Babasaheb

Narayan Aadsule (PW 2), the date of birth of the

prosecutrix is 31st January, 1998. In order to

prove the age of the prosecutrix, the prosecution

had examined Headmaster of Shree Primary School,

Latur, viz. Shri Vaijinath Rarajam Ghatake as its

witness (PW 6). As deposed by PW 6 – Vaijinath,

the prosecutrix was admitted in Shree Primary

School, Latur on 15.7.2004 and at the time of her

admission in the said school, her date of birth

in the application form was mentioned as

31.1.1998. In the evidence of PW 6 – Vaijinath,

the extract of admission register, the

application form for the admission of the

prosecutrix and the birth certificate issued by

Sarpanch, Khadgaon, were exhibited respectively

as Exh. 38, 39 and 40. If the date, as mentioned

by the prosecutrix and as is appearing in the

document at Exh. 38, 39 and 40, is held to be

correct, age of the prosecutrix at the relevant

time was 16 years and 4 months.

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. The accused has seriously disputed that

the said is the correct date of birth of the

prosecutrix. It is the assertive contention of

the accused that the prosecutrix was more than

the age of 18 years at the relevant time.

11) The learned Counsel for the accused

invited my attention to the birth certificate

(Exhibit-40) issued by Sarpanch, Khadgaon. The

learned Counsel submitted that Sarpanch of the

village is not the authority to issue the birth

certificate and such birth certificate has to be

issued only by the Gramsevak. The learned

Counsel submitted that in the evidence of defence

witness, viz. Uttam Limbraj Gomsale, it has

specifically come on record that the

Grampanchayat record is maintained by the

Gramsevak and the Gramsevak only has the

authority to issue the birth certificate. The

learned Counsel submitted that in such

circumstances, no reliance could have been placed

on the birth certificate placed on record since

it was not coming through the proper authority

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and was not issued by the competent person.

12) The learned counsel further brought to

my notice that in the certificate at Exh.40,

there is over-writing in the year of birth. The

learned Counsel submitted that PW 6 – Vaijinath

has admitted in his cross-examination that there

is over-writing in the year of birth. The

learned Counsel submitted that even the said fact

can be noticed on bare perusal of the said

certificate at Exh.40. The learned Counsel

further submitted that the date of birth recorded

of the prosecutrix in the school record on the

basis of the aforesaid certificate at Exh.40,

therefore, is not free from doubt. The learned

Counsel submitted that, that is the only evidence

brought on record by the prosecution as about the

age of the prosecutrix.

13) The learned Counsel, inviting my

attention to the report of the Medical Officer,

wherein reference is also made to the report of

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the Radiologist, urged that from the Medical

Certificate, a reasonable inference can be drawn

that the prosecutrix was more than the age of 18

years at the relevant time. The learned Counsel

submitted that , overwhelming evidence has come

on record showing that the prosecutrix was the

consenting party in leaving her house and to

elope along with the accused. The learned

Counsel submitted that the evidence on record

further clearly establishes that even the

physical relationship established between the

accused and the prosecutrix was with consent of

the prosecutrix and the element of force or

coercion was totally absent. The learned Counsel

submitted that as such, in fact, no offence can

be said to have been made out against the accused

and he deserves to be acquitted from all the

charges levelled against him.

14) As against it, it was with equal

vehemence argued by the learned APP that the date

of birth certificate from the school first

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attended by the prosecutrix is held to be the

best evidence for proving the age of the minor.

The learned APP, invited my attention to Rule 12

of th Juvenile Justice (Care and Protection of

Children) Rules, 2007, and more particularly

referred to sub-rule (3) of Rule 12. In support

of his said contention, the learned APP cited

judgment of the Hon’ble Apex court in the case of

Mahadeo s/o Kerba Mhaske Vs. State of Maharashtra

and Anr. – (2013) 14 SCC 637. The learned APP

further submitted that the prosecution has

examined the Headmaster of the school, which was

first attended by the prosecutrix, and as such,

there is no reason for disbelieving the date of

birth, as is mentioned in the said school record,

which has been duly proved by the prosecution.

The learned APP further submitted that the

medical evidence as about the age of the minor

can only be taken into account in absence of any

cogent and sufficient evidence in the form of

birth certificate from the Grampanchayat or

Municipal Council or from the school record etc.

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The learned APP further submitted that even the

Medical Officer has certified the age of the

prosecutrix to be in between 16 to 17 years. The

learned APP further submitted that in the

circumstances, no blame can be attributed on part

of the learned Special Court in recording the

finding that the prosecutrix was minor at the

relevant time and as such, the defence of consent

put forth by the accused was immaterial to

absolve him from the culpability proved against

him.

15) As has been held by the Hon’ble Apex

court in the case of Mahadeo Mhaske (cited

supra), Rule 12(3) of the Juvenile Justice (Care

and Protection of Children) Rules, 2007 is to be

applied in determining the age of the victim of

rape. Rule 12(3) of the said Rules reads as

under, –

“12(3) In every case concerning a
child or juvenile in conflict with
law, the age determination inquiry
shall be conducted by the court or the

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Board or, as the case may be, by the
Committee by seeking evidence by
obtaining, –

(a)(i) the matriculation or equivalent
certificate, if available, and in the
absence whereof;

(ii) the date of birth certificate
from the school (other than a play
school) first attended; and in the
absence whereof;

(iii) the birth certificate given by
a corporation or a municipal authority
or a Pachayat.”

Under Rule 12(3)(b), it is specifically provided

that only in absence of alternative methods

described under Rules 12(3)(a)(i) to (iii),

medical opinion can be sought for. In view of

the law laid down, as above, the evidence in the

present matter has to be closely scrutinized. As

noted herein above, the prosecution has relied

upon the school record pertaining to the

prosecutrix wherein her date of birth is

mentioned as 31st January, 1998. It is further

not in dispute that by examining the Headmaster

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of the school, which the prosecutrix first

attended, the prosecution has brought on record

that the date of birth of the prosecutrix is 31st

January, 1998. In the evidence of the said

Headmaster (PW 8 Vaijinath), original application

form of the prosecutrix; her school leaving

certificate and the birth certificate issued by

Sarpanch Khadgaon, were brought on record and

they were exhibited. From the evidence, which

has come record, it is quite evident that the

date of birth, as was recorded in the school

register, was on the basis of the birth

certificate issued by Sarpanch of village

Khadgaon, which is at Exh.40. The said

certificate is thus the crucial document.

16) I have carefully perused the birth

certificate at Exh.40. It is apparently revealed

that there is some over-writing in the year of

birth. PW 6 – Vaijinath – Headmaster of the

school has also admitted the said fact. He has

also admitted that the over-writing was since

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before admission. He further submitted that he

does not know as to who had done the said scoring

and when it was done.

17) The birth certificate at Exh.40 is

admittedly issued by Sarpanch of village Khadgaon

Tq. And District Latur. It was the contention of

the learned counsel appearing for the accused

that the Sarpanch of the village cannot, under

his signature, issue such birth certificate.

There is substance in the submission so made. As

has come on record in the evidence of DW 1 –

Uttam Gomsale, only Gramsevak of the village can

issue such certificate. There further cannot be

a dispute that Gramsevak is the custodian of the

Grampachayat record. It was specifically deposed

by DW 1 – Gomsale that Gramsevak only has

authority to issue the birth certificate. The

prosecution has not brought on record any

evidence to show that Sarpanch of the village

also can issue the birth certificate.

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18) Further, the birth certificate at Exh.

40 does not reveal as to on which date the said

entry was taken in the Grampanchayat record. The

very second column meant for date of

registration of birth is blank. From Exh. 40 it

also cannot be gathered as to on which date, the

copy of the said birth date certificate was

issued by the Grampanchayat and more importantly,

there is apparent over-writing in the year of

birth. From bare eye, it can be seen that

previously some another year of birth was

recorded and subsequently figure/digit 8 seems to

have been over-written. The aforesaid document

is certainly not free from doubt. On the basis

of such certificate, it cannot be conclusively

said that date of birth of the prosecutrix is 31 st

January, 1998.

19) Admittedly, Exh.40 is the document on

the basis of which the date of birth is recorded

in the school record of the prosecutrix.

Obviously same date is, therefore, appearing in

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admission form and in the school leaving

certificate. As has come on record in the cross-

examination of PW 2 - Babasaheb Aadsule, i.e.

father of the prosecutrix, he also did tell the

date of birth of the prosecutrix on the basis of

her school leaving certificate. The father of

the prosecutrix has nowhere stated that he has

provided the information as about the birth of

the prosecutrix and that on the basis of the

information so provided by him, the entry was

taken in the Grampanchayat record.

20) In the above circumstances, the date of

birth of the prosecutrix, as is mentioned in the

birth certificate at Exh.40, cannot be

undoubtedly accepted as the correct date of birth

of the prosecutrix. Evidence brought on record

by the prosecution to prove that prosecutrix's

date of birth is 31.1.1998 is not free from doubt

and therefore cannot be depended upon.

21) In the foregoing circumstances,

according to me, it would be unsafe to determine

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the age of the prosecutrix on the basis of birth

certificate on record or on the basis of the

school record.. If the aforesaid record is kept

out of consideration, the other evidence existing

on record is the oral evidence of Dr. Annasaheb

Birajdar and the certificate, which was proved

through his evidence and marked as Exh. 52. As

has come on record through evidence of PW 9 -

Dr.Birajdar, age of the person can be opined on

the basis of number of teeth. Dr.Birajdar has

also admitted that the age of the person having

28 teeth may be more than 18 years. The medical

examination report at Exh.52 demonstrates that

the prosecutrix is having 28 teeth. Further, the

report at Exh.52 reflects that as per the

Radiologist's opinion, age of the victim was

between 16 to 17 years. As per the medical

science, opinion given by the Radiologist can

have margin or error on either side up to the

period of two years. There is, therefore, reason

to believe that the age of the prosecutrix at the

relevant time, may be more than 18 years. The

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prosecutrix was thus cannot be said to be a child

as defined under the Juvenile Justice Act or the

POCSO Act.

22) As I have elaborately discussed herein

before, there is overwhelming evidence on record

to show that the prosecutrix had voluntarily

eloped with the accused and no such inference can

be drawn from the other evidence on record that

the physical relationship, established between

the accused and the prosecutrix, was against the

will of the prosecutrix or without her consent.

The evidence on record clearly establishes that

since father of the prosecutrix had fixed the

marriage of the prosecutrix with one Yogesh with

whom the prosecutrix was not ready to get

married, she, at her own, eloped with the

accused and further whatever had happened was

with consent of the prosecutrix.

23) As I have noted in earlier paras of the

judgment, the accused has been held guilty by the

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learned Special Judge for the offences alleged

against him only for the reason that the

prosecutrix was minor at the relevant time and in

the circumstances, even if from the prosecution

evidence it was revealing that the prosecutrix

was the consenting party, the said aspect was

kept out of consideration.

24) Now, in view of the finding recorded by

me that the prosecution has failed in

conclusively establishing that the prosecutrix

was below the age of 18 years on the date of

offence allegedly committed by the accused, the

order of conviction passed by the learned Special

Judge cannot be sustained and deserves to be set

aside.

25) For the reasons stated above, following

order is passed, -

ORDER

i) The judgment and order dated

27th July, 2015 passed by III Additional

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Sessions Judge, Latur in Special Case

(POCSO) No.28/2014, is quashed and set

aside;

ii) The appellant - Kiran s/o Ashok

Gawali is acquitted of all the offences

charged against him. The appellant be

released forthwith, if not required in

any other case or crime;

iii) The Criminal Appeal thus stands

allowed.

(P.R.BORA)
JUDGE
bdv/
FLDR 27.9.17

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