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Ashok S/O Vinayakrao Pande vs State Of Maharashtra Thr. P.S on 4 January, 2018

1 apeal498.12

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO. 498 OF 2012

Ashok s/o Vinayakrao Pande,
Age 54 years, Occupation – Business,
R/o Air Force Colony, Plot No.22,
Dabha, Nagpur. …. APPELLANT

VERSUS

State of Maharashtra,
P.S. Gittikhadan, Nagpur (city). …. RESPONDENT

__

Shri C.H. and A.C. Jaltare, Advocate for the appellant,
Shri P.S. Tembhare, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT
: 21-11-2017
DATE OF PRONOUNCING THE JUDGMENT : 04-01-2018

JUDGMENT :

The appellant is aggrieved by the judgment and order

dated 25-10-2012 passed by the learned Additional Sessions Judge,

Nagpur in Session Trial 42/2011, by and under which the appellant

(hereinafter referred to as the “accused”) is convicted for offence

punishable under Section 376 of the Indian Penal Code (“IPC” for

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short) and is sentenced to suffer rigorous imprisonment for seven years

and to payment of fine of Rs.5,000/-.

2. Heard Shri Jaltare, learned Advocate for the accused and

Shri P.S. Tembhare, learned Additional Public Prosecutor for the State.

3. Shri Jaltare, learned Advocate for the accused submits that

the fact that the accused established sexual relationship with P.W.2

Latiba is not in dispute. The contentious issue is whether the

relationship was consensual and whether P.W.2 was aged less than 16

years at the relevant time rendering the consent, if any, irrelevant.

4. Shri Jaltare, learned Advocate has inter alia placed

reliance on Alamelu and another vs. State represented by Inspector

of Police reported in (2011) 2 SCC 385 in an endeavour to

demonstrate that the prosecution has not proved that at the relevant

time P.W.2 was less than 16 years. The relevant observations in the

said judgment read thus :

“39. We will first take up the issue with regard to the age of
the girl. The High Court has based its conclusion on the
transfer certificate, Ext. P-16 and the certificate issued by PW
8 Dr. Gunasekaran, Radiologist, Ext. P-4 and Ext. P-5”.

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3 apeal498.12

40. Undoubtedly, the transfer certificate, Ext. P-16
indicates that the girl’s date of birth was 15-6-1997.
Therefore, even according to the aforesaid certificate, she
would be above 16 years of age (16 years 1 month and 16
days) on the date of the alleged incident i.e. 31-7-1993. The
transfer certificate has been issued by a government school
and has been duly signed by the Headmaster. Therefore, it
would be admissible in evidence under Section 35 of the
Evidence Act, 1872. However, the admissibility of such a
document would be of not much evidentiary value to prove
the age of the girl in absence of the material on the basis of
which the age was recorded. The date of birth mentioned in
the transfer certificate would have no evidentiary value unless
the person, who made the entry or who gave the date of birth
is examined.

41. We may notice here that PW 1 was examined in the
court on 9-8-1999. In his evidence, he made no reference to
the transfer certificate (Ext. P-16). He did not mention the
girl’s age or date of birth. PW 2 was also examined on
9-8-1999. She had also made no reference either to her age
or to the transfer certificate. It appears from the record that
a petition was filed by the complainant under Section 311
CrPC seeking permission to produce the transfer certificate
and to recall PW 2. This petition was allowed. She was
actually recalled and her examination was continued on
26-4-2000. The transfer certificate was marked as Ext. P-16
at that stage i.e. 26-4-2000. The judgment was delivered on
28-4-2000. In her cross-examination, she had merely stated
that she had signed on the transfer certificate, Ext. P-16
issued by the school and accordingly her date of birth was
noticed as 15-6-1977. She also stated that the certificate has
been signed signed by the father as well as the Headmaster.
But the Headmaster has not been examined. Therefore, in our
opinion, there was no reliable evidence to vouchsafe for the
truth of the facts stated in the transfer certificate.

42. Considering the manner in which the facts recorded in
a document may be proved, this Court in Birad Mal Singhvi
v. Anand Purohit observed as follows: (SCC pp. 618-19, para

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14)

“14. … The date of birth mentioned in the scholars’
register has no evidentiary value unless the person who made
the entry or who gave the date of birth is examined. …
Merely because the documents Exts. 8, 9, 10, 11 and 12 were
proved, it does not mean that the contents of documents were
also proved. Mere proof of the documents Exts. 8, 9, 10, 11
and 12 would not tantamount to proof of all the contents or
the correctness of date of birth stated in the documents. Since
the truth of the fact, namely, the date of birth of Hukmi
Chand and Suraj Prakash Joshi was in issue, mere proof of
the documents as produced by the aforesaid two witnesses
does not furnish evidence of the truth of the facts or contents
of the documents. The truth or otherwise of the facts in issue,
namely, the date of birth of the two candidates as mentioned
in the documents could be proved by admissible evidence i.e.
by the evidence of those persons who could vouchsafe for the
truth of the facts in issue. No evidence of any such kind was
produced by the respondent to prove the truth of the facts,
namely, the date of birth of Hukmi Chand and of Suraj
Prakash Joshi. In the circumstances the dates of birth as
mentioned in the aforesaid documents have no probative
value and the dates of birth as mentioned therein could not
be accepted.” (emphasis supplied)

43. The same proposition of law is reiterated by this Court
in Narbada Devi Gupta v. Birendra Kumar Jaiswal where this
Court observed as follows: (SCC p 751, para 16)

“16. … The legal position is not in dispute that mere
production and marking of a document as exhibit by the
court cannot be held to be a due proof of its contents. Its
execution has to be proved by admissible evidence, that is, by
the evidence of those persons who can vouchsafe for the truth
of the facts in issue’.”

44. In our opinion, the aforesaid burden of proof has not
been discharged by the prosecution. The father says nothing
about the transfer certificate in his evidence. The Headmaster

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5 apeal498.12

has not been examined at all. Therefore, the entry in the
transfer certificate cannot be relied upon to definitely fix the
age of the girl.

45. In fixing the age of the girl as below 18 years, the High
Court relied solely on the certificate issued by PW 8 Dr.
Gunasekaran. However, the High Court failed to notice that
in his evidence before the court, PW 8, the X-ray expert had
clearly stated in the cross-examination that on the basis of
the medical evidence, generally, the age of an individual could
be fixed approximately. He had also stated that it is likely
that the age may vary from individual to individual. The
doctor had also stated that in view of the possible variations
in age, the certificate mentioned the possible age between one
specific age to another specific age. On the basis of the above,
it would not be possible to give a firm opinion that the girl
was definitely below 18 years of age.

46. In addition, the High Court failed to consider the
expert evidence given by PW 13 Dr. Manimegalaikumar, who
had medically examined the victim. In his cross-examination,
he had clearly stated that a medical examination would only
point out the age approximately with a variation of two
years. He had stated in this case, the age of the girl could be
from 17 to 19 years. This margin of error in age has been
judicially recognised by this Court in Jaya Mala v. Govt. of J
K. In the aforesaid judgment, it is observed as follows:
(SCC p. 541, para 9)

“9. … However, it is notorious and one can take
judicial notice that the margin of error in age ascertained by
radiological examination is two years on either side.”

5. Equally relevant are the observations of the Apex Court in

State of M.P. vs. Anoop Singh (2015) 7 SCC 773 in paragraphs 14, 15

and 16, which read thus:

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6 apeal498.12

“14. This Court in Mahadeo v. State of Maharashtra has
held that Rule 12(3) of the Juvenile Justice (Care and
Protection of Children) Rules, 2007, is applicable in
determining the age of the victim of rape. Rule 12 (3)
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 Board or, as the case may
be, 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 panchayat;

(b) and only in the absence of either (i), (ii) or (iii)
of clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will declare
the age of the juvenile or child. In case exact assessment of
the age cannot be done, the Court or the Board or, as the
case may be, the Committee, for the reasons to be recored
by them, may, if considered necessary, give benefit to the
child or juvenile by considering his/her age on lower side
within the margin of one year.

and, while passing orders in such case shall, after taking
into consideration such evidence as may be available, or
the medical opinion, as the case may be, record a finding
in respect of his age and either of the evidence specified in
any of the clauses (a)(i), (ii), (iii) or in the absence
whereof, clause (b) shall be the conclusive proof of the age
as regards such child or the juvenile in conflict with law.”

15. This Court further held in para 12 of Mahadeo as
under: (SCC p. 641)

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“12. … Under Rule 12(3)(b), it is specifically
provided that only in the absence of alternative methods
described under Rule 12(3)(a)(i) to (iii), the medical
opinion can be sought for. In the light of such a statutory
rule prevailing for ascertainment of the age of the juvenile
in our considered opinion, the same yardstick can be
rightly followed by the courts for the purpose of
ascertaining the age of a victim as well.”

This Court therefore relied on the certificates issued by the
school in determining the age of the prosecutrix. In para
13, this Court observed: (Mahadeo case, SCC p. 641)

“13. In light of our above reasoning, in the case on
hand, there were certificates issued by the school in which
the prosecutrix did her Vth standard and in the school
leaving certificate issud by the school under Ex. 54, the
date of birth of the prosecutrix has been clearly noted as
20-5-1990, and this document was also proved by PW 11.
Apart from that the transfer certificate as well as the
admission form maintained by the Primary School, Latur,
where the prosecutrix had her initial education, also
confirmed the date of birth as 20-5-1990. The reliance
placed upon the said evidence by the courts below to
arrive at the age of the prosecutrix to hold that the
prosecutrix was below 18 years of age at the time of the
occurrence was perfectly justified and we do not find any
grounds to interfere with the same.”

16. In the present case, we have before us two documents
which support the case of the prosecutrix that she was
below 16 years of age at the time the incident took place.
These documents can be used for ascertaining the age of
the prosecutrix as per Rule 12(3)(b). The difference of two
days in the dates, in our considered view, is immaterial
and just on this minor discrepancy, the evidence in the
form of Exts. P-5 and P-6 cannot be discarded. Therefore,
the trial court was correct in relying on the documents.”

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8 apeal498.12

6. The medical examination report (Exhibit 20) opines that

the age of P.W.2 was 18 years as on 07-12-2010. The prosecution

version is that the accused subjected P.W.2 to sexual intercourse from

February 2010 to May 2010. In Jaya Mala vs. Home Secretary,

Government of Jammu Kashmir and others reported in AIR 1982

SC, 1297 it is held thus:

“In view of the provisions of Section 45 of the Evidence Act,
opinion of doctor as to age of a person. Radiological test,
margin error in age ascertained by radiological examination
is two years on either side”.

7. P.W.3 Laxmichand Gaherwal, the Headmaster of

Government Primary School, Paraswani was examined to prove that

the date of birth of P.W.2 recorded in the school register is 03-4-1996.

P.W.3 has proved the school register and the school leaving certificate

issued by the Government Primary School, Paraswani. However, P.W.2

was admitted at Government Primary School, Paraswani in the 3 rd

Standard. P.W.3 admits that the original school leaving certificate on

the basis of which P.W.2 was admitted at Government Primary School,

Paraswani is not produced.

8. P.W.4 Raju Mehare is the Headmaster of Smt.

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9 apeal498.12

Rukhminibai Vidyaniketan High School, Dabha and proved the

admission register recording the date of birth of P.W.2 as 03-4-1996.

P.W.4 states that the date of birth mentioned in the school record is on

the basis of the earlier school leaving certificate. In the cross-

examination, it is brought on record that P.W.2 and her sister Radha

were admitted in the school on the same day. While P.W.2 was

admitted in the 6th standard Radha was admitted in the 5th standard.

The date of birth of Radha is recorded as 22-10-1996 and that of P.W.2

is recorded as 03-4-1996 would mean that at least one of the two dates

is incorrect.

9. The mother of P.W.2 is not examined. I am afraid,

although P.W.2 states that she was born on 03-4-1996, if the evidence

is considered on the anvil of enunciation of law by the Hon’ble Apex

Court referred to supra, it must be held that the prosecution has failed

to establish that P.W.2 was less than 16 years of age when the accused

established physical relationship with her.

10. In view of my finding that the prosecution has failed to

prove that P.W.2 was incapable of consenting to the sexual

relationship, the conviction for offence punishable under Section 376

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10 apeal498.12

of the IPC would be sustainable only if the evidence on record

conclusively proves that the accused subjected P.W.2 to sexual

intercourse against her will or without her consent or the consent is

obtained by putting P.W.2 or any person in whom she is interested in

fear of death or hurt.

11. The oral report is lodged by P.W.2 on 23-9-2010. It was

on 23-9-2010 that according to P.W.2, she experienced giddiness and

fell down in the hostel. She was admitted in private hospital and then

in Mayo Hospital. Medical examination revealed that she was carrying

foetus of six months.

The oral report (Exhibit 32) states that P.W.2 came to

Nagpur in 2008. She was residing with her maternal aunt Leela. Her

maternal aunt and mother Jaswanti admitted P.W.2 in Bethel Children

Home Hostel. The hostel authority admitted P.W.2 in the 6th standard

in Dhawal High School, Dabha. Her school teacher Naina Pande

suggested that P.W.2 should stay in her house and do the household

work promising that P.W.2 would be treated like her daughter. Naina

Pande promised to look after P.W.2. P.W.2 deserted the hostel in

December and started residing in the house of Naina Pande at Plot 22,

Air Forest Society, Thakare Layout, Dabha. She used to attend the

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school and to household work. She used to sleep in the room on the

first floor and the accused, who is the husband of Naina Pande, used to

sleep in the adjacent room. Naina Pande and her son used to sleep in

the rooms at the ground floor.

12. After two months, the accused subjected her to forcible

sexual intercourse. P.W.2 was frightened and did not disclose the

incident to anybody. She disclosed the incident to Naina after two days

and Naina said that her husband cannot commit such act. The accused

subjected P.W.2 to forcible sexual intercourse three to four times. On

29-4-2010 P.W.2 attended an engagement of a relative at Paraswani

(Madhya Pradesh) and returned in the evening. P.W.2 again left for

Seoni on 26-5-2010 to attend the marriage of her cousin brother. In

the interregnum, the accused committed forcible sexual intercourse

twice or thrice. During the stay at Seoni, she noticed that menstruation

stopped. She returned on 23-7-2010 and her maternal aunt and

mother again admitted to her in Bethel Children Home.

13. Leela, the maternal aunt of P.W.2, is examined as P.W.5,

however, her evidence does not take the case of the prosecution any

further. P.W.5 states that P.W.2 was detected with pregnancy which

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12 apeal498.12

was terminated at Mayo Hospital, Nagpur. However, since the accused

is not disputing that he did have physical relationship with P.W.2, the

evidence of P.W.5 is of little significance.

14. The evidence on record would reveal that even according

to the prosecution it is only the uncorroborated and sole version of

P.W.2 that she was subjected to sexual intercourse against her will.

Concededly, it is not even the case of the prosecution that P.W.2

narrated the sexual assault to her mother or maternal aunt or any other

person till the lodging of the oral report on 23-9-2010.

15. I have scrutinized the evidence of P.W.2 closely, and

having done so, I deem it extremely unsafe and hazardous to base the

conviction on the sole uncorroborated testimony of P.W.2.

16. P.W.2 has deposed that the accused established sexual

relationship with her on several occasions. She states that the accused,

after two months of her arrival in the house of the accused and Naina

Pande, started subjecting her to forcible sexual intercourse on the

terrace and that the accused committed such forcible intercourse on

five to six occasions. She then states that she disclosed to Naina Pande

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13 apeal498.12

that the accused used to embrace her and the response from Naina

Pande was that the accused was displaying fatherly love and affection.

The conduct of P.W.2 is most unnatural. It is inexplicable as to why

she would disclose to Naina Pande that the accused used to embrace

her if the accused had ravished her multiple times. Equally unnatural

and improbable is the conduct of not making any disclosure to any

person including her mother although P.W.2 did attend the

engagement ceremony of a relative in district Seoni and in May 2010

attended the marriage ceremony to her cousin in district Seoni. The

version of P.W.2 is that after attending the marriage ceremony, she

visited her mother in Hardoli. Since she had missed her periods since

two months, her mother did enquire. Concededly, she did not disclose

to her mother that she was forcibly ravished by the accused on multiple

occasions.

17. The evidence of the prosecutrix P.W.2 is not at all

confidence inspiring. Concededly, there is no corroborative evidence

on record. Her mother is not examined. Her maternal aunt, who is

examined, is not privy to any disclosure made by the prosecutrix

complaining of sexual abuse muchless forcible sexual intercourse. Even

if the mother were to be examined, it is not the version of the

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14 apeal498.12

prosecutrix that she disclosed that she was ravished by the accused,

even to her mother. The evidence on record is grossly insufficient to

convict the accused for offence punishable under Section 376 of the

IPC.

18. The appeal is allowed.

The judgment and order impugned is set aside.

The accused is acquitted of the offence punishable under

Section 376 of the IPC.

The bail bond of the accused shall stand cancelled. Fine

paid by the accused, if any, be refunded to the accused.

JUDGE
adgokar

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