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. RegencyHospital 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 ofMaharashtra – 2015 ALL M.R.(Cri.) 4494.
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8 CRI.APPEAL 242/2016
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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9 CRI.APPEAL 242/2016
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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14 CRI.APPEAL 242/2016
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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17 CRI.APPEAL 242/2016
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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20 CRI.APPEAL 242/2016
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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21 CRI.APPEAL 242/2016
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::: Uploaded on – 03/11/2017 04/11/2017 02:00:31 :::
24 CRI.APPEAL 242/2016632; 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
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26 CRI.APPEAL 242/2016evidence 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::: Uploaded on – 03/11/2017 04/11/2017 02:00:31 :::
27 CRI.APPEAL 242/20162001 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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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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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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34 CRI.APPEAL 242/2016
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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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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38 CRI.APPEAL 242/2016
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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42 CRI.APPEAL 242/2016
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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43 CRI.APPEAL 242/2016iii) 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)
JUDGEbdv/
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