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Balu Alias Balasaheb Bhanudas … vs The State Of Maharashtra on 2 April, 2018

1-APPEAL-797-2017.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.797 OF 2017
WITH
CRIMINAL APPLICATION NO.1271 OF 2017
IN
CRIMINAL APPEAL NO.797 OF 2017

BALU @ BALASAHEB BHANUDAS KAMBLE )…APPELLANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Mr.Yashpal Thakur, Appointed Advocate for the Appellant.

Mr.Prashant Jadhav, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 2nd APRIL 2018

ORAL JUDGMENT :

1 The appellant/accused has sent a communication from

the jail which is registered as Criminal Application No.1271 of

2017. By this application, the appellant/accused has

communicated that he is in prison since the date of his arrest. The

incident allegedly took place on 2nd March 2011. The

appellant/accused, by his communication through jail, has

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requested for expeditious hearing of his appeal, as he is

undergoing jail sentence, and that is how this appeal came to be

heard.

2 By this appeal, the appellant/accused is challenging

the judgment and order dated 18th December 2015 passed by the

learned Additional Sessions Judge, Sangli, in Sessions Case No.19

of 2014, thereby convicting the appellant/accused of the offence

punishable under Section 376(2)(f) of the Indian Penal Code and

sentencing him to suffer rigorous imprisonment for 10 years apart

from payment of fine of Rs.5,000/- and in default to undergo

simple imprisonment for 1 month.

3 Brief facts leading to the institution of the present

appeal can be summarized thus :

(a) The prosecutrix/PW3, at the relevant time, was a minor girl

aged about 11 years, residing at Bhilwadi Datta Nagar,

Taluka Palus, District Sangli. She was taking school

education in 4th Standard at the Zilla Parishad School of

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Bhilwadi. She was residing with her parents and younger

sister named Chiwali.

(b) On 2nd March 2011, at about 8.30 p.m., mother of the

prosecutrix/PW3 directed her to bring back her younger

sister Chiwali to the house from the house of Lohar.

Accordingly, the prosecutrix/PW3 was taking her younger

sister Chiwali to her home. At that time, the present

appellant/accused met her and requested her to show the

way. The prosecutrix/PW3, therefore, asked her sister

Chiwali to go home and she had chosen to accompany the

appellant/accused. It is case of the prosecution that when

the prosecutrix/PW3 was accompanying the appellant/

accused, PW2 Hrudaynath Kamble, resident of Bhilwadi, had

seen them going by Hal Road. The appellant/accused

informed the prosecutrix/PW3 that his house is situated at a

longer distance and he will pay her money, if she showed

him the way. In this manner, the appellant/accused had

taken the prosecutrix/PW3 to the agricultural field located

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at the area known as Halbhag. He, then, dragged her inside

the sugarcane field and assaulted her. Thereafter, he

denuded her and committed rape on her. The

appellant/accused wrongfully confined the prosecutrix/PW3

in that agricultural field throughout the night and

committed rape on her repeatedly.

(c) At about 5.00 a.m. of 3rd March 2011, after hearing the siren

of the sugar factory, the appellant/accused asked the

prosecutrix/PW3 to tie her eyes by means of a cloth. She

refused and ran towards the road.

(d) When the prosecutrix came on the road, she saw a

motorcycle coming towards her direction. PW5 Shashikant

Gurav was riding that motorcycle and was going towards his

agricultural field for watering it. The prosecutrix/PW3

stopped him and requested him to drop her at Datta Nagar.

Accordingly, PW5 Shashikant Gurav took the prosecutrix/

PW3 to Datta Nagar and gave a call in the locality which

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was responded by the mother of the prosecutrix/PW3.

Accordingly, the prosecutrix/PW3 was given in the custody

of her mother.

(e) The prosecutrix/PW3, then, disclosed the incident of

commission of rape on her, to her parents. She was then

taken to the Bhilwadi outpost of Police Station Palus. The

incident was then disclosed to Assistant Police Inspector

Vishnu Wadgaonkar (PW12) who had prepared Occurrence

Report (Exhibit 54) and sent it to Police Station Palus.

Accordingly, Crime No.23 of 2011 for offences punishable

under Section 376 and 323 of the Indian Penal Code came to

be registered. During the course of investigation, statement

of PW2 Hrudaynath Kamble came to be recorded on 3 rd

March 2011 itself. The prosecutrix/PW3 was then referred

to the Civil Hospital, Sangli, where she came to be examined

by PW10 Dr.Nandkishor Gaikwad, Assistant Professor at

Government Medical College and Hospital at Sangli. Bony

age of the prosecutrix/PW3 came to be determined by PW7

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Dr.Bharatkumar Mudlagi of Civil Hospital, Sangli. The

prosecutrix/PW3 was subjected to the Ossification Test and

she was found to be aged about 10 to 12 years. By visiting

the primary school run by Zilla Parishad, Bhilwadi,

certificate regarding date of birth of the prosecutrix/PW3

came to be collected. Her frock came to be seized and sent

to the Forensic Laboratory. On completion of routine

investigation, the charge-sheet came to be filed against the

appellant/accused.

(f) Charge for offences punishable under Section 376(2)(f), 323

and 201 of the Indian Penal Code came to be framed against

the appellant/accused. He abjured guilt and claimed trial.

(g) In order to bring home the guilt to the appellant/accused,

the prosecution has examined in all 13 witnesses. Panch

witness Rajendra Koli is examined as PW1, whereas the spot

panchnama is at Exhibit 12. Hrudaynath Kamble is

examined as PW2. The prosecutrix is examined as PW3.

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The report lodged by her is at Exhibit 15. Panch witness

Bajrang Jadhav is examined as PW4 and Seizure panchnama

of the frock is at Exhibit 17. Shashikant Gurav is examined

as PW5. Dr.Vishnu Shinde, Medical Officer of Civil Hospital,

Sangli, is examined as PW6. Dr.Bharatkumar Mudlagi from

the said hospital is examined as PW7. Shalani Mahadik,

Head Mistress of Primary School, Zilla Parishad, Bhilwadi, is

examined as PW8. Exhibit 32 is the extract of the General

Register of the said school whereas Exhibit 33 is the

Bonafide Certificate. Panch witness Samadhan Kharkande is

examined as PW9. Exhibit 36 is the Memorandum

statement. Dr.Nandkishor Gaikwad, Assistant Professor with

Government Medical College and Hospital at Sangli, is

examined as PW10. Case papers of the medical examination

of the prosecutrix/PW3 are at Exhibit 38 whereas Medico

Legal Certificate is at Exhibit 39. Tahsildar Shivaji Shinde,

who had conducted Test Identification Parade is examined as

PW11. Memorandum of Test Identification Parade is at

Exhibit 40. Investigating Officers Vishnu Wadgaonkar,

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Assistant Police Inspector, Bhilwadi Outpost and Police

Inspector Bhausaheb Gondkar of Police station Palus, are

examined as PW12 and PW13 respectively.

(h) The defence of the appellant/accused was that of total

denial. After hearing the parties, by the impugned judgment

and order, the learned trial court was pleased to convict the

appellant/accused of the offence punishable under Section

376(2)(f) of the Indian Penal Code and he is sentenced

accordingly, as indicated in the opening paragraph of the

judgment. He, however, came to be acquitted of offences

punishable under Sections 323 and 201 of the Indian Penal

Code.

4 I have heard Shri Yashpal Thakur, the learned advocate

appointed to represent the appellant/accused at the cost of the

State. He argued that cross-examination of the prosecutrix/PW3

shows that because of darkness at the time of the alleged incident,

she was not in a position to see the person who had committed

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rape on her. Therefore, identity of the accused is seriously in

dispute, and as such, it cannot be said with certainty that it was

the appellant/accused, who had committed rape on the

prosecutrix/PW3. The learned advocate further argued that the

appellant/accused is convicted for the offence punishable under

Section 376(2)(f) of the Indian Penal Code. He argued that

evidence on record does not demonstrate that at the time of the

alleged incident, the prosecutrix/PW3 was under 12 years of age.

Her Birth Certificate was not produced. What was pressed in

service is the date of birth of the prosecutrix/PW3 recorded in her

School record. The learned advocate submitted that as per

version of PW8 Shalani Mahadik, Head Mistress, date of birth of

the prosecutrix/PW3 is recorded in the School record as per the

Discharge card, but the said Discharge card was not produced in

the court. The learned advocate for the appellant/accused

criticized the Test Identification Parade conducted by PW11

Shivaji Shinde, Tahsildar, by submitting that the same is contrary

to the guidelines given by this court. The victim has stated that

the identification parade was conducted at the Police Station

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where as PW11 Shivaji Shinde has stated that the same was

conducted at the Tahsildar Office. Lastly, the learned advocate for

the appellant/accused argued that in the wake of discrepant

evidence adduced by the prosecution, non-examination of the

mother of the prosecutrix/PW3 assumes importance and the

appellant/accused is entitled for acquittal.

5 As against this, the learned APP has supported the

impugned judgment and order by contending that evidence of the

prosecutrix/PW3 is clear and unambiguous. She has identified the

appellant/accused even in the Test Identification Parade. Her

evidence is duly corroborated by medical evidence adduced by the

prosecution. Hence, the appeal deserves to be dismissed.

6 I have carefully considered the rival submissions and

also perused the Record and Proceedings including oral as well as

documentary evidence. Case of the prosecution, primarily, rests

on testimony of the prosecutrix/PW3, who is victim of the crime

in question. Evidence of the prosecutrix/PW3 shows that at the

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time of the incident, she was a school going girl, taking education

in 4th Standard, at Zilla Parishad School of Bhilwadi in Sangli

district. While assessing evidence of the victim of the sexual

offence, the court is expected to bear in mind human psychology

and behaviour. Victim of such offence of rape is not merely an

injured witness but she stands on higher pedestal than the injured

witness, the reason being apart from physical harm, she also

suffers psychological trauma. The court, therefore, shoulders a

great responsibility while trying an accused of charge of rape.

The court is, therefore, required to show utmost sensitivity to such

type of offence by appreciating evidence on broader probabilities

of the prosecution case. Keeping in mind these aspects, let us

examine what the prosecutrix/PW3 has stated about the incident

in question. As per version of the prosecutrix/PW3, on 2nd March

2011, she had been to the house of Lohar for bringing back her

younger sister Chiwali, on instructions of her mother. During the

course of return journey, she met a middle aged person, who

requested her to show the way. The prosecutrix/PW3 deposed

that she, therefore, asked her sister Chiwali to go to the house and

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she accompanied that person up to the tar road. That person then

asked her to accompany him up to his house by alluring her that

money will be paid to her. He informed her that his house is

situated far away. The prosecutrix/PW3 then started walking with

him and proceeded towards the road leading to Halbhag area. As

per version of the prosecutrix/PW3, then that person took her in

the sugarcane field and started beating her. Her mouth was

gagged by pressing her throat. The prosecutrix/PW3 was then

pushed on the ground and he took out her clothes. By removing

his clothes, the said middle aged person committed rape on her.

The prosecutrix/PW3 deposed that she suffered severe pain and

started crying. However, said person repeated the said act causing

severe pain to her. Evidence of the prosecutrix/PW3 shows that

throughout the night, such act continued, and she was crying.

7 What happened in the morning hours of 3 rd March

2011 is also stated by the prosecutrix/PW3. As per her version, at

about 5.00 a.m., they heard siren of the sugar factory and that

person asked her to cover her eyes with cloth. She refused and

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removed that cloth from her eyes. Then, the rapist ran away, and

she came on the road from the sugarcane crop. The

prosecutrix/PW3 stated that then one motorcycle came and she

requested the rider to take her to her house. The said person

dropped her at the house and she disclosed the incident to her

parents. She was, then, taken to the police station, where she

lodged report Exhibit 15.

8 The prosecutrix/PW3 further stated that subsequently

police called her in their office and asked her to identify the rapist

from out of eleven persons, who were standing in a row. She

identified the person who had committed rape on her. Then, as

seen from evidence of the prosecutrix/PW3, the appellant/

accused was shown to her and she had identified the

appellant/accused as the person who had committed rape on her.

The prosecutrix/PW3 also identified her yellow coloured frock

while in the witness box.

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9 The prosecutrix/PW3 was subjected to searching cross-

examination in respect of directions and the positions of roads in

Village Bhilwadi. She admitted that only one road is available for

proceeding towards Halbhag and that road passed through the

tower. She, however, denied that if a person shouts from the spot

of the incident, then the sound can be heard at the turns of the

road and by inmates of the houses. In cross-examination, the

prosecutrix/PW3 has stated that it was not possible for her to run

away from the rapist as he had caught her. She admitted that she

did not scratch his hands. It is also brought on record from her

cross-examination that she as well as the rapist were awake from

8.30 p.m. to 5.00 a.m. in that night. She has stated that because

of darkness in the sugarcane field, she did not see that person, but

has further stated that she had seen face of that person in the light

and also identified him in the Test Identification Parade.

10 This is the version of the prosecutrix/PW3 about the

incident of commission of rape on her when she was taking

education in Fourth Standard at the school at Bhilwadi. The

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incident, as seen from the evidence of the prosecutrix/PW3, took

place in the night intervening 2nd March 2011 and 3rd March 2011.

The prosecutrix/PW3 was taken from the road leading to her

house by the appellant/accused to Halbhag area and then she was

raped at the sugarcane field throughout the night. Thus, the

prosecutrix/PW3 had been in the Company of the appellant/

accused right from about 8.30 p.m. of 2nd March 2011 to 5.00

a.m. of 3rd March 2011. During whole night, she was subjected to

sexual assault. Thus, considering the length of time during which

the prosecutrix/PW3 was in company of the appellant/accused

and the nature of act complained of by her to have been

committed on her by the appellant/accused, stray sentence in her

cross-examination that due to darkness she could not see that

person, is not sufficient to jettison her version that it was the

appellant/accused who had committed rape on her. Ultimately,

she was in the company of the rapist for a period of more than

nine hours. They proceeded by road for sometime and then she

was dragged inside the sugarcane field. While in the dock, she

had identified the appellant/accused as the person who had raped

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her. Therefore, stray sentence in cross-examination that because

of the darkness, she could not see that person, cannot be given

overbearing importance.

11 The appellant/accused, on his arrest was subjected to

Test Identification Parade by the prosecution. He came to be

arrested on 12th September 2013. On 17th September 2013, as

seen from evidence of PW13 Bhausaheb Gondkar, Police Inspector,

a letter was written to the Executive Magistrate for conducting

Test Identification Parade of the appellant/accused. Names of the

witnesses were also supplied to the Executive Magistrate by the

Investigating Officer. PW11 Shivaji Shinde had conducted the

Test Identification parade, memorandum of which is at Exhibit 40.

It is seen from the Memorandum of the Test Identification Parade

that along with ten panch witnesses, who were from the age

group of 35 years to 42 years, the appellant/accused was made to

stand in order to subject him to the identification by the

prosecutrix/PW3 i.e. the victim of the crime in question. She has

identified the appellant/accused by touching his person.

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Subsequent thereto, PW2 Hrudaynath Kamble had also identified

the appellant/accused. The Memorandum of Test Identification

Parade so also cross-examination of PW11 Shivaji Shinde,

Executive Magistrate, goes to show that witnesses were kept at his

ante-chamber where as the Test Identification Parade was

conducted in his chamber. Happenings in the chamber was not

visible form his ante-chamber. Arrangement for changing clothes

by the appellant/accused was also made by PW11 Shivaji Shinde,

Executive Magistrate. Memorandum of Test Identification Parade

further shows that the Executive Magistrate had ascertained from

the witnesses as to whether they had an opportunity to see the

appellant/accused after his arrest. On getting himself assured

that there was no such opportunity for the witnesses, the Test

Identification Parade came to be conducted in which the

prosecutrix/PW3 as well as PW2 Hrudaynath Kamble had

identified the appellant/accused. Thus, the evidence of

identification of the appellant/accused by the prosecutrix/PW3,

while in the witness box is gaining corroboration from the Test

Identification Parade conducted by the prosecution.

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12 It is well settled that if evidence of the prosecutrix/

PW3 is clear, unambiguous and trustworthy, then there is no

necessity for corroboration to her evidence in such type of offence.

However, in this case, there is sufficient evidence to corroborate

version of the prosecutrix/PW3. PW2 Hrudaynath Kamble is a

resident of Bhilwadi. As per his version, at about 8 to 8.30 p.m. of

2nd March 2011, he was taking walk on Hal Road and during the

course of his walk, he saw the appellant/accused with a girl aged

about 9 to 9½ years. PW2 Hrudaynath Kamble has deposed that

he as well as the appellant/accused belongs to the same caste, and

therefore, he was knowing the appellant/accused. During the

course of his evidence, PW2 Hrudaynath Kamble had claimed that

he was in a position to identify the girl who was accompanying

the appellant/accused. Therefore, the prosecutrix/PW3 was

called from the office of the Public Prosecutor for showing her to

PW2 Hrudaynath Kamble. While in the witness box, PW2

Hrudaynath Kamble has also identified the prosecutrix/PW3.

From cross-examination of this witness, case of the prosecution is

further cemented. It is elicited from his cross-examination that

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the house of the appellant/accused is situated near his house and

he knows all family members of the appellant/accused, including

daughter of the appellant/accused, who is aged about 8 to 9

years. Similarly, from his cross-examination it is also brought on

record that his statement was recorded by police immediately on

3rd March 2011 itself. There is nothing on record to infer that

PW2 Hrudaynath Kamble has any enmity towards the

appellant/accused for stating a lie. There are no suggestions to

that effect made to him in the cross-examination. Thus, evidence

of PW2 Hrudaynath Kamble unerringly points out that soon

before the incident of commission of rape on the

prosecutrix/PW3, it was the appellant/accused who had taken her

towards the Hal Road, where the incident of rape on the

prosecutrix/PW3 was committed.

13 Evidence of the prosecutrix/PW3 is further gaining

corroboration from evidence of PW5 Shashikant Gurav, who has

witnessed the post event happenings. Evidence of this witness

shows that at about 5.30 a.m. of 3rd March 2011, he was

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proceeding towards his agricultural field on his motorcycle for

providing water to his field. When he was proceeding towards

Halbhag area, suddenly a girl came on the way from the

sugarcane crop and therefore, he stopped is motorcycle. PW5

Shashikant Gurav has stated that the girl was frightened and was

unable to speak. Then, she requested him to drop her at Datta

Nagar locality, and therefore, he took her to the chawl at Datta

Nagar locality and gave a call to the residents of that locality. The

call was responded by the mother of the prosecutrix/PW3 and he,

therefore, gave custody of that girl to her mother. In cross-

examination, this witness has stated that the said girl was unable

to speak out as to what had happened with her. It is, thus, clear

from evidence of this witness that he found the prosecutrix/PW3

in a frightened condition at about 5.30 a.m. and she had come out

of the sugarcane field to obstruct his way. The condition of the

girl when she was witnessed by PW5 Shashikant Gurav and

narrated by him before the court is certainly a relevant fact and is

admissible in view of provisions of Section 6 of the Evidence Act.

After lodging the First Information Report (FIR) with Police

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station Palus on 3rd March 2011 itself, the prosecutrix/PW3 came

to be examined by PW10 Dr.Nandkishor Gaikwad, Assistant

Professor, working in Government Medical College and Hospital at

Sangli. Evidence of PW10 Dr.Nandkishor Gaikwad, shows that the

victim female child had narrated to him history of the incident.

As per version of PW10 Dr.Nandkishor Gaikwad, she told him that

on the pretext of finding out the address, one unknown person

took her in the open place and committed sexual intercourse with

her repeatedly till 5.00 a.m. of that day. These narrations of the

victim made to the attending Medical Officer are admissible in

view of provisions of Section 157 of the Evidence Act. Apart from

that, in medical examination of the prosecutrix/PW3, PW10

Dr.Nandkishor Gaikwad has found following external injuries on

her person :

i) 2x2 cm abrasion over left lateral aspect of right elbow. Black
in colour.

ii) 2x2 cm abrasion over lateral aspect of left elbow, black in
colour.

iii) Multiple small abrasion present over both lateral aspect of
abdomen and trunk.

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iv) Multiple abrasion seen over back on lumber and sacral
region.
v) Right lower leg abrasion on lateral aspect 4x1 cm.
vi) Contusion seen over left lower eyelid measuring 2x2 cm.
bluish in colour
vii) Upper lip contusion measuring 2x2 cm bluish in colour

viii) Contusion on lower lip bluish in colour measuring 2x2 cm.

14 Evidence of PW10 Dr.Nandkishor Gaikwad further

shows that during genital examination of the prosecutrix/PW3, he

found her hymen ruptured at 12, 4, 6, 8, 11 O'Clock positions.

PW10 Dr.Nandkishor Gaikwad also noticed laceration present over

fourchette and minimal per-vaginal bleeding. He also noticed

small contusion over left labia majora 2x2 cm over vulva region of

the prosecutrix/PW3. PW10 Dr.Nandkishor Gaikwad opined that

external as well as internal injuries were possible due to sexual

assault on the victim.

15 In cross-examination of PW10 Dr.Nandkishor Gaikwad

it is brought on record that external injuries can be caused by fall

on hard surface and hymen can be ruptured for various other

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reasons also. At this juncture, it is worthwhile to note that no

such theory of fall on hard surface or various reasons causing

rupture of hymen was put forth to the prosecutrix/PW3 while she

was under cross-examination. As such, these bald suggestions are

of no use to doubt the prosecution case. Suffice to state that

external injuries on the person of the prosecutrix/PW3 coupled

with injuries to her private part noted by PW10 Dr.Nandkishor

Gaikwad are fully corroborating the version of the

prosecutrix/PW3. Evidence of PW10 Dr.Nandkishor Gaikwad is

gaining corroboration from contemporaneous documents in the

form of Medical Certificate at Exhibit 39 and Medico Legal Case

papers of the prosecutrix/PW3 at Exhibit 38. His evidence is

further gaining corroboration from evidence of PW6 Dr.Vishnu

Shinde, Medical Officer of the Civil Hospital, Sangli, who has

deposed that he referred the prosecutrix/PW3 to the Gynecologist

Ward of the Civil Hospital, Sangli. It is, thus, clear that medical

evidence is fully corroborating the version of the prosecutrix/PW3.

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16 The appellant/accused is convicted of the offence

punishable under Section 376(2)(f) of the Indian Penal Code as

the prosecutrix/PW3 was held to be a girl under 12 years of age.

To establish age of the prosecutrix/PW3, the prosecution has

relied on evidence of Ossification Test conducted on her so also

her date of birth recorded in the School Register. Evidence of the

prosecutrix/PW3 shows that she was taking school education at

the Primary School run by the Zilla Parishad, Bhilwadi. PW8

Shalani Mahadik, Head Mistress of the said school had produced

and proved relevant page of the General Register maintained by

the school which is at Exhibit 32. The General Register in original

was also brought by this witness. On the strength of said General

Register, Bonafide Certificate Exhibit 33 showing date of birth of

the prosecutrix/PW3 came to be issued by the Zilla Parishad

School of Bhilwadi. Provisions of Section 35 of the Indian

Evidence Act, 1872, makes it clear that if entries are made by the

public servant in the official book in discharge of his official duty,

then said entry become relevant fact and is admissible in evidence.

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The date of birth of the prosecutrix/PW3 recorded in her school

record, as seen from the General Register at Exhibit 32 is 30 th

October 1999. This date of birth came to be recorded in the

School Register on the basis of Discharge card of the hospital. The

same has not been produced on record by the prosecution.

However, that by itself is not sufficient to cause a shadow of doubt

on the prosecution case. The General Register is maintained by

the Primary School of Zilla Parishad, Bhilwadi, regularly in the

routine official course of its business and the date of birth of the

prosecutrix/PW3 recorded therein is ante litem motam in nature.

There was no reason for the school authorities to mention a false

entry in respect of the date of birth of the victim as 30 th October

1999 and that too when the prosecutrix/PW3 was admitted in the

said school in first standard, way back in the year 2006.

17 The prosecutrix/PW3 was subjected to the Ossification

Test which was conducted by PW7 Dr.Bharatkumar Mudlagi from

the Civil Hospital, Sangli. Evidence of this witness goes to show

that X-rays of wrist, elbow and pelvis of the prosecutrix/PW3 were

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taken and upon examining those X-ray reports, this witness gave

an opinion that the victim was 10 to 12 years of age. True it is

that there is error of plus or minus sign of two years in the age

determined by the Ossification Test, but in the case in hand, there

is evidence regarding recorded date of birth of the

prosecutrix/PW3 in the records of the Zilla Parishad School which

shows that the prosecutrix/PW3 was born on 30th October 1999.

The incident in question took place on 2 nd March 2011. Thus, at

the time of the incident in question, the prosecutrix/PW3 was

below 12 years of age.

18 In the result, the prosecution has certainly established

commission of the offence punishable under Section 376(2)(f) of

the Indian Penal Code against the appellant/accused and

minimum sentence prescribed for the said offence was imposed on

him by the learned trial court. Hence, the appeal is devoid of

merit, and therefore, the order :

ORDER

i) The appeal is dismissed.

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ii) In view of disposal of the appeal itself, Criminal Application

No.1271 of 2017 does not survive and stands disposed of.

(A. M. BADAR, J.)

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