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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.220 OF 2002
Badrya Amrrya Barela,
Aged about 25 years,
R/o Wagaon Pathan,
Tq. Jalgaon Jamod,
District Buldana. ……. APPELLANT
…V E R S U S…
The State of Maharashtra,
through P.S.O. Jalgaon Jamod,
Dist. Buldana. ……. RESPONDENT
WITH
CRIMINAL APPEAL NO.212 OF 2002
Mangalsing Khuma Mujalda,
Aged about 42 years,
R/o Wagaon Pathan,
Tq. Jalgaon Jamod,
District Buldana. ……. APPELLANT
…V E R S U S…
The State of Maharashtra,
through P.S.O. Jalgaon Jamod,
Dist. Buldana. ……. RESPONDENT
——————————————————————————————-
None for Appellant.
Shri N.R. Patil, APP for Respondent-State.
——————————————————————————————-
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CORAM: ROHIT B. DEO, J.
DATE: rd
23 JANUARY 2018.
ORAL JUDGMENT
1] None present for the appellant. Shri N.R. Patil, the
learned Additional Public Prosecutor for the respondent-State.
Criminal Appeal 220/2002 is preferred by Badrya Barela
challenging the conviction for offence punishable under sections
363, 366 and 376 read with section 34 of the Indian Penal Code
and sentence of rigorous imprisonment for three years and
payment of fine of Rs.500/- and Criminal Appeal 212/2002 is
preferred by accused Mangalsing Mujalda challenging the
conviction for offence punishable under sections 363 and 366 read
with section 34 of the IPC and sentence of rigorous imprisonment
for three years and payment of fine of Rs.500/-, recorded by the
2nd Additional Sessions Judge, Khamgaon in Sessions Trial
47/2001. Since both the appeals seek to assail the same judgment
and order impugned, they heard and decided by this common
judgment.
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2] The genesis of the prosecution lies in report dated
25.02.2001 lodged by the brother of the prosecutrix Isram
Nihalsing Bilala (P.W.1) the gist of which is that P.W.1 is a
resident of Mouza Mendhamari. His younger sister is aged 14 to
15 years approximately and is illiterate. The father and mother of
P.W.1 had gone to water the field on 20.02.2001 and the rest of
the family members were sleeping in the house. The prosecutrix
used to sleep alone in one room. On 21.01.2001 the prosecutrix
was missing from the house, the family searched for her and came
to know that on 20.02.2001 accused Badrya came to the house of
one Dhulsing Adiwasi and left during the night. Inquiries with
accused Mangalsing revealed that the whereabouts of Badrya was
known to Navalsing Adiwasi. P.W.1 states that he suspected that
his younger sister (P.W.2) was kidnapped.
3] On the basis of the oral report offence punishable
under section 363 and 366 of IPC was registered against the
accused Badrya.
4] Investigation ensued, the statement of the prosecutrix
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P.W.2 was recorded on 10.03.2001. P.W.2 stated that she was
kidnapped by accused Badrya who subjected her to forcibly sexual
intercourse with the assistance of accused Navalsing and accused
Mangalsing. In view of the said assertion, offence under section
376 of IPC was additionally registered, the victim was medically
examined on 10.03.2001, the investigation ensued and
charge-sheet under sections 363, 366 and 376 read with section
34 of IPC was submitted in the court of Judicial Magistrate First
Class, Jalgaon Jamod who committed the proceedings to the
Sessions Court. The learned Sessions Judge framed charge under
sections 363, 366 and 376 read with section 34 of the IPC. All the
accused Badrya Barela, Navalsing Deoda and Mangalsing Mujalda
abjured guilt and claimed to be tried in accordance with law.
The defence is of total denial. The learned Sessions Judge
acquitted accused Navalsing and convicted accused Badrya and
accused Mangalsing as afore-stated.
5] Since both the accused were not represented by
counsel, with the fair and able assistance of the learned A.P.P.
Shri N.R. Patil, I have closely scrutinized the record, and having
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done so, the conscious of the court is satisfied that both the
appeals deserve to be allowed. It is disturbing and indeed painful,
that although by order dated 03.05.2002 this court directed that
accused Badrya be released on bail, he was not released
presumably as the condition of bail could not be fulfilled.
Accused Badrya has suffered the sentence in entirety.
6] The evidence on record, which I shall discuss in some
detail at a later stage in the judgment, clinchingly establishes that
the sexual relationship, if any, between accused Badrya and P.W.2
was consensual. In so far as accused Mangalsing is concerned, his
conviction under section 363 and 366 read with section 34 of IPC
defies jurisprudential logic, I have searched in vain for the legal
evidence which could have persuaded the learned Sessions Judge
to convict accused Mangalsing.
7] P.W.1 is the informant Isram Nihalsing Bilala.
He states in examination-in-chief is that he asked accused Badrya
and others whether they had seen the prosecutrix and the
response was negative. P.W.1 states that after police brought
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accused Badrya and the prosecutrix to the village, the prosecutrix
narrated that Badrya gave her something as ‘Prasad’ and he took
her forcibly and she was forced to allow Badrya to have sexual
intercourse with her for 15 days since Badrya threatened to kill
her and her family with black-magic. Prosecutrix narrated to
P.W.2 that she resided with accused Badrya at Burhanpur for
eight days and at Raver for eight days. In the cross-examination it
is suggested to P.W.1 that prosexutrix was more than 18 years of
age, which suggestion is denied.
8] P.W.2 is the prosecutrix who has deposed that on the
date of the incident accused Badrya came to her house, asked the
prosecutrix to marry him, prosecutrix refused and accused
threatened her that he will kill her with black-magic.
Accused Badrya took her along with him and both spent the night
in Kherda forest and on the next morning went to Burhanpur to
the house of the accused where they resided for eight days.
The prosecutrix states that during the stay at Burhanpur she
permitted accused Badrya to have sexual intercourse since she
was threatened. She further states that she was taken to the
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Burhanpur Court by accused Badrya and accused Mangalsing and
some writing was recorded on which accused Badrya forcibly took
her thumb impression and then she along with accused Badrya
returned to his house at Burhanpur. She has deposed that
thereafter she and the accused went to Raver and resided there
for eight days during which period she permitted accused to have
sexual intercourse since she was threatened with black-magic.
In the cross-examination she denies the suggestion that her
age is more than 18 years and that on the fateful night she herself
came near the Bawadi (well) of the village.
9] P.W.3 Duglibai Bilala is the mother of the prosecutrix
who has deposed that the prosecutrix is 17 years old.
Her evidence is recorded on 12.03.2002. She states that she has
deposed that eight days after the incident she came to know that
the prosecutrix went along with accused Badrya. P.W.3 states that
when she met the prosecutrix after she and accused Badrya were
brought to Police Station Jalgaon Jamod, the prosecutrix narrated
that Badrya took her forcibly and had sexual intercourse with her.
In the cross-examination she admits that the
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prosecutrix has younger sister Venubai who is 14 years old and
that the prosectutrix is elder to Venubai by four years. She admits
that the accused Mangalsing and Nihalsing did not play any role
in the incident.
10] P.W.4 Bondribai Bilalal is a relative of the prosecutrix.
Her evidence is relevant only to the extent she has deposed that
she came to know prior to one month of the incident that accused
Badrya is interested in the prosecutrix.
11] P.W.5 Baban Aawchar is examined to prove spot
panchnama Exh.28 and the seizure panchnama Exhibits 29, 30
and 31.
12] P.W.6 Suresh Thakre has proved the printed F.I.R.
Exh.33 and on the basis thereof registered offence under section
376 of IPC.
13] P.W.7 is the Medical Officer who examined the
prosecutrix on 10.03.2001 and issued medical certificate Exh.47.
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He has opined that the age of the prosecutrix is between 16 to 17
years which opinion at Exh.50.
14] The pivotal issue is whether the prosecution has
established beyond reasonable doubt that the prosecutrix was less
than 16 years old as on the date of the incident to render
irrelevant her consent, if any, to sexual intercourse. The evidence
of the mother is that the prosecutrix is elder to her younger sister
Venubai by four years. The mother (P.W.3) states that the age of
the younger sister Venubai is 14 years, which would suggest that
the prosecutrix was 18 years old when the evidence of her mother
was recorded. The medical evidence does not take the case of the
prosecution any further. Exhibit 50 opines that the probable age of
the prosecutrix is between 15 to 17 years. It would be apposite to
refer to the following observations of the Apex Court in Jaya Mala
v. Home Secretary, Government of Jammu and Kashmir and others
reported in AIR 1982 SC 1297.
“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.”
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In the teeth of the evidence, it must be held that the
prosecution has not established that the prosecutrix was less than
16 years of age and her consent is irrelevant.
15] The evidence on record clearly indicates consensual
sexual relationship. The version of the prosecutrix that she
allowed the accused Badrya to have sexual intercourse for 16 days
in view of threat issued of taking recourse to black-magic to harm
her family etc. is neither probable nor confidence inspiring. It is
not even the case of the prosecution that the prosecutrix was
detained against her will or that her movements were forcibly
restricted. Au contraire, the evidence is that the prosecutrix went
to the Burhanpur Court along with accused Badrya and
Mangalsing. The judicial conscious of this court is satisfied that
the prosecutrix accompanied Badrya willingly and the sexual
relationship, if any, was consensual.
16] The conviction of accused Badrya militates against
the weight of evidence on record. It is a travesty of justice that he
has undergone the entire punishment. Presumably, he could not
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fulfill the conditions of bail. It is not clear from the record whether
it was brought to the notice of this court, at any point in time, that
the bail writ was not complied with in view of the inability of
accused Badrya to furnish bail.
17] In so far as accused Mangalsing is concerned, there is
no evidence worth the name and as I have already recorded supra,
the basis of conviction is an enigma.
18] In the result, both criminal appeal 220/2002 and
212/2002 are allowed. The judgment and order impugned is set
aside and the appellant Badrya is acquitted of offence punishable
under sections 363, 366 and 376 read with section 34 of IPC and
appellant Mangalsingh is acquitted of offence punishable under
section 363 and 366 read with section 34 of IPC.
19] The bail bond of the accused shall stand discharged.
JUDGE
NSN
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