Kishor S/O Bhanudas Walhekar vs The State Of Maharashtra on 3 November, 2017

1 CRI.APPEAL 242/2016

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO.242 OF 2016

Kishor s/o. Bhanudas Walhekar,
Age: 23 years, Occu.:Labourer,
R/o. Ukhalwadi, Post. Jatnandur,
Tq. Shirur Dist. Beed APPELLANT
(Accused)

VERSUS

The State of Maharashtra
Through police Inspector
Police Station, Pathardi,
Taluka Pathardi,
Dist. Ahmednagar RESPONDENT
—–
Mr.NL Jadhav, Advocate for Appellant;
Mr.SW Mundhe, APP for Respondent
—–
CORAM : P.R.BORA, J.

RESERVED ON:- 10
th
August, 2017

PRONOUNCED ON:3

rd
November,2017

JUDGMENT:

1) The appellant has filed the present

appeal against the judgment and order passed by

the Judge of Special Court at Ahmednagar in

Sessions Case No.206 of 2014 decided on 20 th

November, 2015, whereby the appellant has been

convicted for the offences punishable under

Sections 3 and 4 as well as 5(1) and (6) of the

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Protection of Children from Sexual Offences Act,

2012 (for short, POCSO Act) and under Section

376, 366-A and 363 of Indian Penal Code. The

maximum sentence awarded to the appellant is of

ten years.

2) The appellant is in jail since the date

of his arrest in the crime registered against him

i.e. from 22nd May, 2014.

3) In short, it is the case of the

prosecution that the accused kidnapped the

prosecutrix, who is stated to be a minor girl,

from the lawful guardianship of her parents with

an intent to seduce her for illicit intercourse

and time to time committed rape on her in the

period between 7.5.2014 to 13.5.2014. According

to the case of the prosecution, on 7.5.2014, the

accused gave a phone call to the prosecutrix and

asked her to come at State Transport bus stand at

Amrapur so as to go along with him at his house

at Ukhal-wadi. Accordingly, the prosecutrix

reached to ST bus stand at Amrapur and then went

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along with the accused, first to Ahmednagar and

from there to Pune. It was the further case of

the prosecution that the accused took the

prosecutrix at Pimpri and stayed in a lodge at

Pimpri and during their stay in the said lodge,

had sexual intercourse with the prosecutrix

against her will. It was the further case of the

prosecution that on 10th May, 2014, the accused

took the prosecutrix to Aalandi and without her

consent, performed marriage with her and at that

time compelled the prosecutrix to state the year

of her birth as 1996. It was also the case of

the prosecution that thereafter the accused

several times had sexual intercourse with the

prosecutrix without her consent.

4) In the meanwhile period, father of the

prosecutrix was searching for her and when he

came to know that the prosecutrix is with the

accused at his house at Ukahlwadi, brought the

prosecutrix from there and then lodged the report

against the accused whereupon investigation was

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set in motion. The investigating officer

recorded statements of the necessary witnesses,

prepared panchanama of the spot, collected

details of the joint stay of the accused and the

prosecutrix at Pimrpi, Pune as well as Aalandi,

collected the documentary evidence pertaining to

age of the prosecutrix from the school, where the

prosecutrix had taken her education; got done the

medical examination of the prosecutrix as well as

the accused and after completing the

investigation, filed charge sheet against the

accused for the offences punishable under

Sections 376, 363 and 366-A of Indian Penal Code

and under Sections 3, 4 and 5(1) of the POCSO

Act.

5) In order to prove the guilt of the

accused, the prosecution had examined as many as

12 witnesses before the Sessions court. According

to the accused, the charges levelled against him

are false. It is his contention that the

prosecutrix, at her own, accompanied him at

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Pimpri, Aalandi etc and that he did never kidnap

her and it was not his intention to seduce her

for illicit intercourse. It is also the

contention of the accused that he did not have

sexual intercourse with the prosecutrix without

her consent. The accused, however, did not enter

into the witness box nor examine any witness in

his defence. The learned Sessions court, after

considering the oral as well as documentary

evidence brought before it, held the charges

levelled against the accused to have been proved

and convicted him for the aforesaid offences and

awarded the punishment as noted herein above.

Aggrieved by, the appellant has filed the present

appeal.

6) Shri N.L.Jadhav, learned Counsel

appearing for the appellant, assailed the

impugned judgment on various grounds. The

learned Counsel submitted that the learned

Sessions Judge has utterly failed in appreciating

that at the relevant time, the prosecutrix was

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not a minor girl and has accompanied the accused

at her own will. The learned Counsel further

submitted that though the prosecution has failed

in bringing on record any cogent evidence as

about the age of the prosecutrix, the learned

Sessions Judge, merely relying on the school

record, has held the prosecutrix to be a minor

girl.

7) The learned counsel further submitted

that the prosecution has also failed in bringing

on record any cogent evidence to prove that the

accused had sexual intercourse with the

prosecutrix against her wish. The learned

Counsel further submitted that at the relevant

time the prosecutrix was above the age of 18

years and had accompanied the accused

voluntarily. The learned counsel submitted that

in her cross-examination the prosecutrix has

candidly admitted that she voluntarily went with

the accused from bus-stand Amrapur. The learned

counsel further submitted that father of the

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prosecutrix has also admitted in his cross-

examination that the accused has not taken the

prosecutrix by force.

8) In view of the above, according to

learned Counsel, the accused could not have been

held guilty by the learned Sessions Court for the

offences charged against him. In support of the

submissions made by him, the learned counsel

relied upon the following judgments, –

i) Madan Mohan Singh and Ors. Vs. Rajni

Kant and anr – AIR 2010 SC 2933;

ii)

Ramesh
chandra Agrawal Vs. Regency

Hospital Ltd and ors. – AIR 2010 SC 906;

iii)
Birad Mal Singhvi Vs. Anand Purohit

– AIR 1988 SC 1796;

iv)

Gangadhar
s./ Gonduram Tadme Vs.

Trimbak s. Govindrao Akingire and ors. –
2005(1)Mh.L.J. 94;

v) Gurudas
Bandu Pendor Vs. State of

Maharashtra – 2015 ALL M.R.(Cri.) 4494.

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Eventually, the learned Counsel prayed for

setting aside the impugned judgment and order and

consequently to acquit the accused of the

offences charged against him.

9) Shri S.W.Mundhe, learned APP appearing

for the State, resisted the submissions made on

behalf of the appellant. The learned APP

submitted that the prosecution has brought on

record clinching evidence, proving the guilt of

the accused. The learned APP submitted that the

prosecution has, beyond any doubt, proved that

the prosecutrix was a minor girl at the relevant

time by examining the Headmaster of the school

where the prosecutrix had taken her primary

education and by bringing on record the

documentary evidence as about the age of the

prosecutrix. The learned APP further submitted

that in view of the fact that the prosecutrix was

below the age of 16 years, the theory of consent

was liable to be discarded and has been rightly

discarded by the learned Sessions Judge. The

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learned APP further submitted that the

prosecution has sufficiently proved that the

accused resided with the prosecutrix in a lodge

at Pimpri and had forcible sexual intercourse

with her. The learned APP submitted that the

medical evidence also supports the case of the

prosecution. In the circumstances, according to

the learned APP, no case was made out by the

appellant for causing interference in the

impugned judgment and order. In order to

substantiate his contentions, the learned APP

relied upon the judgment of the Hon’ble Apex

court in the case of State of Madhya Pradesh Vs.

Anoop Singh – 2015 3 Bom.C.R.(Cri.) 640. The

learned APP, prayed for dismissal of the appeal

stating the same to be devoid of any merit.

10) I have carefully perused the evidence on

record. The prosecution though has examined as

many as 12 witnesses so as to prove the guilt of

the accused, the evidence of the prosecutrix, of

her father Rajendra Dake (PW 2) and of Balkrishna

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Vinayak Kanthale (PW 7) the Head Master of the ZP

primary school at Susare, bear material

importance. After having considered the entire

evidence on record and more particularly the

testimony of the prosecutrix and her father, it

is apparently revealed that on 7th May 2014, the

prosecutrix had voluntarily, at her own, left the

parental house to accompany the accused. As has

been deposed by the prosecutrix, the accused had

asked her to reach at Amrapur ST Stand by giving

her a phone call on mobile phone. Accordingly,

the prosecutrix left her house when her parents

were not at home and reached to Amrapur ST stand

by an auto rickshaw by paying a fare of Rs.10/-

for the said auto rickshaw to travel from her

house to Amrapur ST stand. As has been further

deposed by the prosecutrix, after reaching to

Amrapur ST stand, she and the accused first went

to Ahmednagar by ST bus and thereafter went to

Pune. From Pune, they both went to Pimprip-

Chinchwad and resided at one lodge. As per the

version of the prosecutrix, they resided in the

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said lodge for two days and on both days, the

accused had taken her in the city in the day time

and in the night the accused had sexual

intercourse with her.

11) It has also come on record through the

evidence of the prosecutrix that the accused,

then took her at Aalandi and performed the

marriage with her. It is further deposed by her

that at that time, the accused compelled her to

tell her year of the birth as 1996. As has been

further deposed by her, she and the accused

returned to Pimpri-Chinchwad and further resided

for two days in the same lodge and then the

accused took her to his parental home at

Ukhalwadi. As has come on record, on 13 th May,

father of the prosecutrix came to Ukhalwadi and

took back the prosecutrix with him and lodged the

report on 14th May, 2014. In the report lodged by

her, of course, the prosecutrix has alleged that

the accused had forcible sexual intercourse with

her. However, in so far as her act of leaving

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the paternal house on 7th May, 2014, the

prosecutrix has admitted that she went

voluntarily with the accused from Susare to

Amrapur. Even father of the prosecutrix has

admitted in his cross-examination that the

accused did not take the prosecutrix with him by

force.

12) In her testimony before the court, the

prosecutrix though has deposed that the accused

on pretext that his son is missing the

prosecutrix and, therefore, she shall come to his

village for taking care of the said child, in the

FIR lodged by her, nowhere the said fact is

stated by her. On the contrary, the version in

the FIR demonstrates that the prosecutrix had

stated that she and the accused had fallen in

love with each other. The prosecutrix in her

cross-examination was confronted with the said

portion in the report lodged by her. Though the

prosecutrix denied that any such fact was stated

by her while lodging the report to the police,

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Dy.SP – Umesh Hajare (PW 12) in his cross-

examination stated that the said portion in the

FIR marked at portion `A’ was stated by the

prosecutrix and was recorded strictly as per the

version of the prosecutrix. In her further

cross-examination, the prosecutrix herself has

admitted that the police has recorded her

statement, which was treated as FIR as per her

own version.

13) It is further significant to note that

though after eloping from parental house on 7 th

May, 2014, till her father took her back with him

on 13th May, 2014, the prosecutrix was along with

the accused and as stated by her travelled with

him through public transport, i.e. State

Transport bus from Amrapur to Ahmednagar,

thereafter to Pune and then to Chinchwad and

Aalandi etc., the prosecutrix did not complaint

to anybody that she was compelled by the accused

to accompany him against her will. The

prosecutrix has also admitted that at Amrapur ST

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Bus stand, she saw some persons from village

Susare, but she did not make any grievance to

them that she was being forcibly taken by the

accused with him. As has come on record, the

accused used to take her for ride in the city in

day time. It was, therefore, possible for the

prosecutrix to make a complaint against the

accused. It was also possible for her to make a

complaint to the persons in the lodge or while

travelling by ST bus to the fellow-travellers.

Admittedly, no such complaint was made by the

prosecutrix. It is more significant to note that

the accused ultimately took her at her parental

house at village Ukhalwadi, where also the

prosecutrix did not make any complaint. The

entire behaviour of the prosecutrix undoubtedly

shows that she was not being taken by any force

by the accused, but was accompanying the accused

voluntarily at her own wish. If this was the

case of the prosecutrix that the accused had

sexual intercourse with her without her wish and

by force, then also it was possible for her to

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immediately make complaint to the persons in the

lodge or when she travelled from Pimpri-Chinchwad

to Aalandi by bus to the fellow-travellers in the

ST bus or even to the priest, who according to

her, performed her marriage with the accused.

The prosecutrix, admittedly did not make any such

complaint to anybody. The allegation so made

thus also does not appear to be believable.

14) Further, if it was the case of the

prosecutrix that she became ready to go along

with the accused, as because it was stated to her

by the accused that his son is missing her, when

the accused, instead of taking her to his

village, took her to Ahmednagar and from there to

Pune, the prosecutrix at the very first instance

must have refused to go with the accused and must

have made complaint to the police or to the

persons around her. Admittedly, no such

complaint was made by the prosecutrix. On the

contrary, the evidence on record shows that she

remained in the company of the accused thereafter

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for about 5 to 6 days and then along with the

accused went to the parental house of the accused

at village Ukhalwadi.

15) From the evidence on record, it is

difficult to believe the allegation made by the

prosecutrix in her testimony before the court

that she was being taken by the accused by

falsely stating that the son of the accused was

missing her and she was required at the village

where the accused was residing for taking care of

the child of the accused. It further cannot be

accepted for one more reason that it has come in

the evidence of the prosecutrix herself that the

accused was residing at Ukhalwadi along with

his wife and son. The question arises when

mother of the child was very much there, why for

the prosecutrix was required to take care of the

child. Considering all these circumstances, the

version of the prosecutrix in the FIR that she

and the accused had fallen in love with each

other and that was the reason that she went with

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the accused, appears more probable and

believable. As I noted earlier, even father of

the prosecutrix has also admitted in his cross-

examination that the accused did not take the

prosecutrix with him by using force.

16) After having considering the evidence of

the prosecutrix and father of the prosecutrix, I

find it difficult to accept the case of the

prosecution that the accused had forcibly taken

the prosecutrix with him to say in legal

parlance, kidnapped her, from the lawful

guardianship of her parents with an intent to

seduce her for illicit intercourse. It also

appears difficult to accept that the accused had

sexual intercourse with the prosecutrix without

her consent. The fact apart that the medical

evidence does not conclusively support the

version of the prosecutrix that the accused had

forcible sexual intercourse with her.

17) From the evidence on record, which I

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have elaborately discussed herein above, though

it is revealed that the prosecutrix had at her

wish eloped with the accused and voluntarily

remained in his company for the period of about

six days and during the said period also had

sexual intercourse with the accused,

18) The learned Sessions Judge has kept the

aforesaid evidence out of consideration on the

ground that the prosecutrix was minor at the

relevant time and as such, was not competent to

accord her consent. As it was submitted by the

learned APP, the prosecutrix being minor, consent

on her part, as alleged by the accused, was

immaterial.

19) The next question, therefore, which

falls for my consideration is, – whether the

prosecution has proved that the prosecutrix was

minor at the relevant time ?

20) As per the case of the prosecution, date

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of birth of the prosecutrix is 8th October, 1999

and as such, at the relevant time, the age of the

prosecutrix was 15 years and she was thus a minor

child, not competent to accord her consent. To

support the said contention the prosecution has

relied upon the testimony of the prosecutrix,

testimony of her father, testimony of the

Headmaster of the school (PW 7), where the

prosecutrix took her primary education and the

documents produced on record by PW 7, more

particularly the extract of the admission

register, bonafide certificate issued by the

Headmaster of the said school, and the copy of

the school leaving certificate wherein the date

of birth of the prosecutrix is noted as 8 th

October, 1999.

21) As was argued by learned APP, the

prosecution has undoubtedly proved the date of

birth of the prosecutrix to be 8th October, 1999.

according to which, the age of the prosecutrix,

at the relevant time was certainly below 16 years

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and as such, she has been rightly held to be

minor by learned Sessions Curt.

22) According to the accused, the

prosecutrix was major at the relevant time and

8th October, 1999 is not the correct date of her

birth, as has been canvassed by the prosecution.

It is the contention of the accused, that the

evidence, which has been brought on record by the

prosecution as about the age of the prosecutrix

is not free from doubt and hence cannot be relied

upon.

23) In the light of the submissions so made,

the evidence on record has to be closely

scrutinized.

24) PW 7 – Balkrishna Kanthale, the then

Headmaster of the Zilla Parishad Primary school,

Susare, was examined by the prosecution to prove

that the prosecutrix was minor at the relevant

time. PW 7 in his testimony before the court has

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deposed that the prosecutrix had studied in zilla

parishad primary school at village Susare. PW 7

had brought with him necessary record as about

age of the prosecutrix and filed the same on

record. As per the said record, the date of

birth of the prosecutrix is 8th October, 1999. As

deposed by PW 7, the entry as about the date of

birth of the prosecutrix was taken in the school

register from the original Birth Certificate

issued by Gramsevak, Susare. Referring to the

testimony of PW 7 and the documents which were

exhibited in the evidence of the said witness,

i.e. Exh. 38, 39 and 40, it was vehemently argued

by learned APP that by bringing on record such

evidence the prosecution has, beyond reasonable

doubt, proved that the prosecutrix was a minor

girl at the relevant time.

25) The learned APP relied upon the judgment

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

Madhya Pradesh Vs. Anoop Singh – (2015) 7 SCC 773

to urge that the date of birth certificate from

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the school (other than the play-school) first

attended can be held to be a valid and dependable

proof in so far as date of birth is concerned.

The learned APP submitted that the Hon’ble Apex

court in the case of Mahadeo Kerba Vs. State of

Maharashtra and Anr. – (2013) 14 SCC 637, has

held that Rule 12(3) of the Juvenile Justice

(Care and Protection of Children) Rules, 2007, is

applicable for determining the age of the victim

of rape. Sub-clause (ii) of the said Rule 12(3)

provides that the date of birth certificate from

the school first attended can be accepted as a

cogent proof as regards to the date of birth of

the victim of rape.

26) Per contra, it was vehemently argued by

Shri N.L.Jadhav, learned Counsel appearing for

the accused that in view of the law laid down by

the Hon’ble Apex court in the case of Madan Mohan

Singh and Ors Vs Rajani Kant and Anr. – AIR 2010

SC 2933, the entry in the school register has to

be proved in the same manner as required in Civil

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and Criminal cases. My attention was invited by

the learned Counsel to the discussion made by the

Hon’ble Apex court in Paras 14 to 18 of the said

judgment, which are reproduced herein below, –

“14. Therefore, a document
may be admissible, but as to
whether the entry contained
therein has any probative value
may still be required to be
examined in the facts and
circumstances of a particular
case. The aforesaid legal
proposition stands fortified by
the judgments of this Court in
Ram Prasad Sharma Vs. State of
Bihar- AIR 1970 SC 326; Ram
Murti Vs. State of Haryana, AIR
1970 SC 1029; Dayaram and Ors.
Vs. Dawalatshah and Anr. AIR
1971 SC 681; Harpal Singh and
Anr. Vs. State of Himachal
Pradesh, AIR 1981 SC 361;
Ravinder Singh Gorkhi Vs. State
of U.P. (2006) 5 SCC 584; Babloo
Pasi Vs. State of Jharkhand and
Anr. – (2008) 13 SCC 133; Desh
Raj Vs. Bodh Raj; AIR 2008 SC

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632; and Ram Suresh Singh Vs.
Prabhat Singh @ Chhotu Singh and
Anr. – (2009) 6 SCC 681. In
these cases, it has been held
that even if the entry was made
in an official record by the
concerned official in the
discharge of his official duty,
it may have weight but still may
require corroboration by the
person on whose information the
entry has been made and as to
whether the entry so made has
been exhibited and proved. The
standard of proof required
herein is the same as in other
civil and criminal cases.

15. Such entries may be in any
public document, i.e. school
register, voter list or family
register prepared under the
Rules and Regulations etc. in
force, and may be admissible
under Section 35 of the Evidence
Act as held in Mohd. Ikram
Hussain Vs. the State of U.P.
And Ors., AIR 1964 SC 1625; and
Santenu Mitra Vs. State of West
Bengal AIR 1999 SC 1587.

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16. So far as the entries made
in the official record by an
official or person authorised in
performance of official duties
are concerned, they may be
admissible under Section 35 of
the Evidence Act but the court
has a right to examine their
probative value. The
authenticity of the entries
would depend on whose
information such entries stood
recorded and what was his source
of information. The entry in
School Register/School Leaving
Certificate require to be proved
in accordance with law and the
standard of proof required in
such cases remained the same as
in any other civil or criminal
cases.

17. For determining the age of
a person, the best evidence is
of his/her parents, if it is
supported by unimpeccable
documents. In case the date of
birth depicted in the school
register/certificate stands
belied by the unimpeccable

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evidence of reliable persons and
contemporaneous documents like
the date of birth register of
the Municipal Corporation,
Government Hospital/Nursing Home
etc, the entry in the school
register is to be discarded.
(Vide: Brij Mohan Singh Vs.
Priya Brat Narain Sinha and
Ors., AIR 1965 SC 282; Birad Mal
Singhvi Vs. Anand Purohit, AIR
1988 SC 1796; Vishnu Vs. State
of Maharashtra (2006) 1 SCC 283;
(AIR 2006 SC 508; 2005 AIR SCW
6149); and Satpal Singh Vs.
State of Haryana JT 2010 (7) SC

500); (2010) AIR SCW 495).

18. If a person wants to rely
on a particular date of birth
and wants to press a document in
service, he has to prove its
authenticity in terms of Section
32(5) of the Evidence Act by
examining the person having
special means of knowledge,
authenticity of date, time etc.
mentioned therein. (Vide; Updesh
Kumar and ors. Vs. Prithvi Singh
and Ors. (2001) 2 SCC 524:(AIR

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2001 SC 703: 2001 AIR SCW 347);
and State of Punjab Vs. Mohinder
Singh, AIR 2005 SC 1868).”

27) Referring to the observations made and

the law laid down by the Hon’ble Apex court in

the aforesaid judgment, the learned Counsel

submitted that the age of the prosecutrix cannot

be determined on the basis of the date of birth

mentioned in the document at Exhibits 38, 39 and

40 since they have not been legally proved in

terms of Section 32(5) of the Evidence Act. The

learned Counsel submitted that as has come on

record through the evidence of PW 7, the date of

birth was entered in the school record on the

basis of the birth certificate issued by the

Gramsevak, Susare, however, the said birth

certificate has not been produced on record of

the present case. The learned Counsel further

submitted that a specific question was put to the

Investigating Officer in his cross-examination as

to whether he has collected birth certificate

from Gramsevak Susare and he has answered that he

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did not collect any such certificate from

Gramsevak Susare. The learned Counsel submitted

that since the very source, on the basis of

which, the entry in regard to the date of birth

of the prosecutrix was taken in the school record

is not existing on record and as such, the school

record cannot be accepted to be a dependable

evidence as about the age of the prosecutrix.

28) There are certain other circumstances on

record because of which also reasonable doubts

are created as about the correctness of the date

of birth of the prosecutrix, as has been entered

in the school record, which has been relied upon

by the trial Court. The document at Exh.38,

which is the extract from the school register,

shows that elder sister of the prosecutrix had

also studied in the same school in which the

prosecutrix had studied. In the document at

Exh.38, name of elder sister of the prosecutrix

appears at Serial 993; whereas name of the

prosecutrix is at serial No.992. As per the said

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document, date of birth of the prosecutrix is 8 th

October, 1999. As has been deposed by father of

the prosecutrix, i.e. PW 2 – Rajendra, the

prosecutrix was his second child. As has been

further deposed by him, the second child was born

after about 3 ½ years of the birth of the first

child. According to the fact so deposed, there

must be a difference of 3½ years in the date of

birth of the prosecutrix and her elder sister.

However, in the document at Exh.38, the date of

birth of the elder sister of the prosecutrix is

mentioned as 25th May, 1998. According to the

said document, the age difference between the

prosecutrix and her elder sister is less than 1½

years. It was stated by the prosecutrix in her

testimony before the court that she has two

sisters and one brother. As stated by her,

Sheetal is her elder sister; she was the second

child, Chhaya is her younger sister and brother

Rahul is the youngest child. As has come on

record in the evidence of the prosecutrix, age

difference between her and her elder sister is

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30 CRI.APPEAL 242/2016

about 2 to 2 ½ years. Even if the said version

is accepted to be true, the information

containing in the document at Exh.38 does not

commensurate with the same.

29) There is one more reason that the date

of birth of the prosecutrix, as mentioned in the

school record, cannot be said to be free from

doubts and therefore cannot be explicitly relied

upon. The prosecutrix in her evidence has deposed

that she studied up to 7th Std. I have carefully

perused the testimony of the prosecutrix. It was

not the case that it was suggested to the

prosecutrix that she studied up to 7 th Std. and

the said suggestion was accepted by her. From

the deposition of the prosecutrix as has been

recorded by the Court, it is quite evident that

the information so given by the prosecutrix that

she studied up to 7th Std. was by way of an answer

to the question which was put to her. Contents

of para 8 of her testimony further reveals that

the prosecutrix has reiterated the said fact by

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stating that she left her education from 7th Std.

In this context, if the another fact, deposed by

father of the prosecutrix in his testimony before

the Court, to the effect that the prosecutrix

left her school about 6 to 7 years back is

considered, in no case, it can be accepted that

the date of birth, as mentioned of the

prosecutrix in Exh.38, i.e. 8th October, 1999,

would be the correct date of birth of the

prosecutrix. If the fact stated by the

prosecutrix that she studied up to 7 th Std. and

the fact stated by her father that she left the

school prior to 6 to 7 years are conjointly read,

would lead to an inference that at the relevant

time, the prosecutrix was more than the age of 18

years. The fact stated by the prosecutrix that

she studied up to 7th Std. and the facts stated by

her father that the prosecutrix left the school

prior to about 6 to 7 years, are not controverted

by the prosecution.

30) Considering the evidence, as aforesaid,

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it is difficult to rely on the school record,

which demonstrates the date of birth of the

prosecutrix as 8th October, 1999. I reiterate

that the prosecution has not filed on record the

birth date certificate issued by Gramsevak of

Grampanchayat, Susare on the basis of which the

entries were stated to be taken in the school

record. The Head Master of the school, though,

filed on record the extract from the Admission

Register, a copy of the bonafide certificate;

copy of the school leaving certificate, did not

file on record the date of birth certificate when

it was existing in the school record according to

his own version. As noted earlier, the

Investigating Officer has testified that he did

not collect the birth certificate of the

prosecutrix during the course of the

investigation.

31) Perusal of the impugned judgment and

more particularly the discussion made in para 26

of the said judgment reveals that, relying on the

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33 CRI.APPEAL 242/2016

school record produced at Exhibits 38, 39 and 40,

the learned Sessions Judge recorded the

conclusion that age of the prosecutrix at the

time of the incident was below 16 years and she

was thus minor at the relevant time. In view of

the evidence which has come on record, which has

been analysed by me herein above, it is

difficult to agree with the discussion made and

the finding recorded by the learned Sessions

Judge in para 26 of the impugned judgment. From

the discussion made by the learned Sessions

Judge, it is discernible that the learned

Sessions Judge has presumed that the entries in

the school record were taken on the basis of

original birth certificate issued by Gramsevak

Susare. The learned Sessions Judge, has,

however, failed in appreciating that though PW 7

brought with him the other school record, i.e.

copy of the bonafide certificate; school leaving

certificate and the General Admission register,

did not bring the copy of the birth certificate

issued by Gramsevak, Susare. The copy of the

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said birth certificate is admittedly not there on

record.

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

court in the case of Madan Mohan Singh (cited

supra), the authenticity of the entries in the

school record would depend on whose information

such entries stood recorded and what was his

source of information. PW 7, in his cross-

examination has candidly admitted that he does

not have personal knowledge as to who has given

the information regarding the date of birth of

the prosecutrix at the time of her admission in

their school. Further, the admission form is

also not on record to show as to who had filled

in the said admission form while admitting the

prosecutrix in the Zilla Parishad primary school

at Susare. It is nowhere stated by PW 7 that the

information as about the date of birth of the

prosecutrix was given by father of the

prosecutrix or mother of the prosecutrix. What

has been stated by PW 7 is the fact that the

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35 CRI.APPEAL 242/2016

entry of date of birth was taken from original

birth certificate issued by Gramsevak Susare. As

noted earlier, the said birth certificate is not

brought on record by the prosecution. As is

revealing from the testimony of PW 7, the birth

certificate issued by Gramsevak Susare was the

only source of information for him to record the

date of birth of the prosecutrix in the school

register. The said birth certificate is

admittedly not brought on record by the

prosecution.

33) In the circumstances, the entry, as has

been taken in the school record as regard to the

birth date of the prosecutrix cannot be said to

be proved in accordance with law. The Hon’ble

Apex court in the case of Madan Mohan Singh

(cited supra) has ruled that, – entry in the

school register/school leaving certificate

required to be proved in accordance with law and

the standard of proof required in such cases

remained the same as in any other civil or

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36 CRI.APPEAL 242/2016

criminal case. In the circumstances, even if the

documents at Exh. 38 to 40 are held to be

admissible under Section 35 of the Evidence Act,

the entry as regards to the date of birth of the

prosecutrix contained therein whether has any

probative value requires to be examined in the

facts and circumstances of the case. The Hon’ble

Apex court in the case of Madan Mohan Singh

(cited supra) has held that entry in any public

document, i.e. school register, voters list etc,

may be admissible under Section 35 of the

Evidence Act, but the Court has a right to

examine their probative value. The authenticity

of such entries has to be proved. In the instant

matter, I have no hesitation in holding that the

prosecution has failed in proving the

authenticity of the date of birth of the

prosecutrix, as mentioned in the school record.

34) As has been elaborately discussed by me

herein above, if the other evidence and/or

circumstances which have come on record, more

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particularly the fact stated by the prosecutrix

that she studied up to 7th Std. And the another

fact deposed by her father that the prosecutrix

left the school prior to about 6-7 years, it is

difficult to accept the date of birth as

mentioned in the school record to be a correct

date of birth of the prosecutrix. As deposed by

the prosecutrix, she studied up to 7th Std. Even

if it is assumed that she was admitted in the

school at the age of 6, her age at the time of

leaving the school from 7th Std. Must not be less

than 13. As has been deposed by the father of

the prosecutrix, she left the school prior to 6-7

years. Even if it is assumed that the

prosecutrix left the school prior to six years,

her age may not be less then 18 years at the time

of the alleged incident. Considering all these

circumstances, the evidence, which has been

relied upon by the learned Sessions Judge, for

determining the age of the prosecutrix, cannot be

said to be free from doubt and, therefore, cannot

be relied upon. The prosecution has failed in

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bringing on record any impeccable evidence as

about the age of the prosecutrix.

35) The judgment of the Hon’ble Apex court

relied by the learned APP in the case of State of

Madhya Pradesh Vs. Anoop Singh (cited supra) may

not apply to the facts of the present case. In

the said case, the prosecution in support of its

case had brought on record two certificates, one

was the birth certificate and the other was the

middle-school examination certificate. The date

of birth of the prosecutrix was shown as 29 th

August, 1987 in the birth certificate while in

the middle-school examination certificate, the

date of birth was shown as 27 th August, 1987.

There was thus difference of just two days in the

dates mentioned in the above mentioned documents.

It had also come on record in the said case that

the entry as regards to the birth of the

prosecutrix was made in the record of the

Grampanchayat within two months of the birth of

the prosecutrix. In the circumstances, it was

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held by the Hon’ble Apex court that it could not

be guessed that the prosecutrix was shown under

aged in view of the possibility of the incident

in question. In the instant matter, the very

basic document, i.e. birth certificate is not

brought on record, on the basis of which the

entries are stated to have been taken in the

school record, which has been relied upon by the

prosecution. As such, the aforesaid judgment of

the Hon’ble Apex court may not be of any help for

the prosecution to urge that the evidence brought

on record by the prosecution was sufficient to

prove the age of the prosecutrix.

36) As has been held by me in the earlier

part of the judgment, the evidence on record

leaves no doubt that the prosecutrix left her

parental house and joined the accused and then

remained with him for next 5-6 days voluntarily

at her own. The evidence on record also does not

show that any force was applied by the accused

against the prosecutrix. This fact has been

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admitted by the prosecutrix as well as her father

in their respective testimonies before the court.

Though it was also alleged that the accused

forced the prosecutrix to marry with him and

accordingly performed marriage with her at

Aalandi and that at that time compelled the

prosecutrix to tell the year of her birth as

1996, the prosecution has not brought on record

any evidence to prove the said allegation.

Further, from the evidence on record, it is

difficult to hold that the accused had sexual

intercourse with the prosecutrix against her wish

or without her consent. It is quite evident that

the said consent is held immaterial by the

learned Sessions Judge on an assumption that the

prosecutrix was minor at the relevant time and

was, therefore, not competent to give her

consent.

37) After having considered the entire

material on record, I have no hesitation in

holding that the prosecution has failed in

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proving that the prosecutrix was minor at the

relevant time and was, therefore, incompetent to

consent for any of the acts allegedly committed

by the accused. On evaluation of the evidence of

the prosecutrix and the other circumstances on

record, it becomes clear that the prosecutrix

voluntarily left her parental house and joined

the company of the appellant-accused and remained

with him till she was brought back by her father

from the house of the accused at village

Ukhalwadi. As has been elaborately discussed by

me, from the evidence on record, it is evident

that the prosecutrix was having ample chances to

return to her home if she was not the consenting

party for eloping with the accused. Since no

such attempt was ever made by the prosecutrix, it

has to be held that the prosecutrix remained in

the company of the accused at her own wish. In

the circumstances, it would be very unsafe to

hold the accused guilty of the offences under

Sections 363 and 366 of IPC. Further, in absence

of any positive evidence that sexual intercourse

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was committed by the accused with the prosecutrix

against her wish or will, the conviction for the

offence under Section 376 of IPC also cannot be

sustained. In view of the fact that the

prosecution has failed in proving that the

prosecutrix was below the age of 18 years at the

relevant time, the conviction of the appellant-

accused for the offence under the POCSO Act also

is liable to be set aside.

38) In the result, following order is

passed, –

ORDER

i) The judgment and order dated

20th November, 2015 passed by the Judge,

Special Court Ahmednagar in Sessions

Case No.206 of 2014, is quashed and set

aside;

ii) The appellant – Kishor s/o

Bhanudas Walhekar is acquitted of all the

charges with which he was charged;

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iii) The appellant be released

forthwith, if not required in any other

case or crime. The fine amount, if any,

paid by the appellant, be refunded to

him;

iv) The Criminal Appeal thus stands

allowed.

(P.R.BORA)
JUDGE

bdv/
FLDR 12.10.17

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