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Amit S/O Ranglal Shende vs State Of Mah. Through Police … on 8 February, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL No.639 OF 2017

Shri Amit s/o. Ranglal Shende,
Aged about 25 years,
Occupation : Labour,
R/o. Behind Railway Station, Mangalwari,
Zopadpatti, Umrer, Tah Umrer,
Distt. Nagpur. : APPELLANT

…VERSUS…

State of Maharashtra,
Through Police Station Officer,
Police Station, Umrer,
Tah. Umrer, Distt. Nagpur. : RESPONDENT

———————————
Shri Prashant Kawale, Advocate for the Appellant.
Shri A.V. Palshikar, Addl. Public Prosecutor for the Respondent.
———————————

CORAM : S.B. SHUKRE, J.

th
DATE : 8
FEBRUARY, 2018.

ORAL JUDGMENT :

1. This appeal questions the legality and correctness of the

judgment and order dated 29th November, 2017, rendered in Special

Child Case No.231/2015 by the Special Judge and Additional Sessions

Judge, Nagpur.

2. By the judgment and order impugned herein, the appellant

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has been found guilty of the offences punishable under Section

376(2)(n) of the Indian Penal Code (in short, “I.P.C.”) and Section 4 of

the Protection of Children from Sexual Offences Act, 2012 (in short,

“PoCSO Act”) and sentenced to suffer rigorous imprisonment of ten years

and to pay fine of Rs.2,000/- with default sentence of two months.

3. According to the prosecution, there was a love affair going on

between the appellant and the prosecutrix since August, 2014 till before

filing of the F.I.R. The F.I.R. was filed against the appellant by the

prosecutrix on 31.8.2015. She complained that the appellant lured her

into having sexual relations with him by giving her a false promise of

marriage. She stated in the oral report that her date of birth was

12.3.1998. She also alleged that the physical intimacy between herself

and the appellant was in existence since August 2014 and continued a

few days before filing of F.I.R. on 31.8.2015. She also stated that as a

result of sexual relations, she developed pregnancy and when she insisted

upon the appellant to perform marriage with her, the appellant refused

to marry her. That was how a Police complaint was made by the

prosecutrix.

4. The offences punishable under Section 376(2)(n) of the I.P.C

and Section 4 of the PoCSO Act were registered against the appellant and

investigation was commenced. After completion of the investigation, a

charge-sheet was filed. The appellant was prosecuted in this case on the

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charge of commission of rape punishable under Section 376(2)(n) of the

Indian Penal Code and penetrative sexual assault punishable under

Section 4 of the PoCSO Act. On merits of the case, learned Special Judge

found that both the offences were proved beyond reasonable doubt and

accordingly by the impugned judgment and order, convicted and

sentenced the appellant, as stated earlier.

5. I have heard Shri Prashant Kawale, learned counsel for the

appellant and Shri A.V. Palshikar, learned Additional Public Prosecutor

for the respondent-State. I have gone through the impugned judgment

and order including the record of the case.

6. Now, the following points arise for my determination :

(i) Whether the prosecution has proved that
during the relevant period of time when the
multiple acts of sexual intercourse took place,
the prosecutrix was aged below 18 years and a
child and minor ?

(ii) Whether the prosecution has proved that
during the relevant period, the appellant
committed offences of rape and penetrative
sexual assault upon the prosecutrix ?

(iii) Whether any interference with the impugned
judgment and order is required ?

7. In the present case, the question of age of the prosecutrix has

assumed great importance for the reason that during the relevant period

of time when the alleged acts of sexual intercourse took place, the

prosecutrix has been alleged to be of the age of about 17 years and that

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the genesis of the whole case is that of a love affair gone sour. Therefore,

it would be essential to first consider the evidence of the prosecution on

the point of age of the prosecutrix. PW 2 is the prosecutrix and she has

deposed before the Court that her date of birth was 12.3.1998. However,

in support of her such statement, she did not produce, in her evidence,

birth certificate or school leaving certificate or any other document

containing entry of her date of birth which was having a evidentiary

value. Therefore, the evidence of PW 2 on the point of her own date of

birth, which is otherwise hearsay evidence, cannot be accepted and read

in evidence. It is, therefore, rejected.

8. PW 3 is the mother of the prosecutrix, but she did not assist

the prosecution to prove the age of the prosecutrix at the relevant time.

She kept complete silence as regards the age or the date of birth of the

prosecutrix. So, even her evidence is of no assistance to the prosecution

on the question of age of the prosecutrix.

9. Learned A.P.P. for the State submits that the evidence of

PW 5 Manohar Tonde, Headmaster of Nagar Parishad School, Umrer,

District Nagpur where the prosecutrix was admitted in first standard is of

great value and should be accepted as reliable so as to determine the

issue involved. According to the learned counsel for the appellant, it is

not known as to on what basis the entry regarding date of birth of the

prosecutrix, entry No.9320, was taken in the admission register and,

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therefore, even though such entry is available, it would have no

evidentiary value.

10. The argument of both sides could be best dealt with if we

advert to the evidence of PW 5 Manohar. He had brought a true copy of

the relevant page of the admission register. This true copy indicated

that, according to the admission register, date of birth of the prosecutrix

was 12.3.1998. He had also brought to the Court original admission

register. He stated that the copy of the relevant admission entry was

prepared from the original register and it was a true copy of the original.

So far so good. Such evidence ordinarily would have to be accepted

provided, one condition requisite for reading in evidence such an

admission entry is fulfilled. It must be proved by the witness that the

entry of birth taken in the admission register was on the basis of a

document admissible in evidence. Such document could have been

either the original birth certificate or the certificate issued by the Gram

Panchayat of the village where the child was born. In the present case,

no such evidence has been brought on record by the prosecution. On the

contrary, PW 5 Manohar has admitted that the entry regarding date of

birth in the admission register was taken on the basis of affidavit of the

parents of the prosecutrix. He has also admitted that this entry was not

under his hand and that in the original admission register it is not

mentioned as to on what basis the entry was taken. So, the date of birth

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entry taken in the admission register in the present case (Exh.-28) cannot

be relied upon and proper proof of the age of the prosecutrix was

required to be brought on record by the prosecution. The prosecution,

however, has not adduced any other evidence in support of its claim that

at the relevant time, the prosecutrix was a child aged below 18 years of

age.

11. Learned A.P.P. has submitted that under Rule 12 of Juvenile

Justice Rules, 2007 framed under the Juvenile Justice (Care and

Protection of Children) Act, 2000, entries taken in the admission register

in the absence of school leaving certificate or date of birth certificate

could be relied upon to determine the age of a minor. He relied upon the

case of Jarnail Singh vs. State of Haryana, reported in AIR 2013 SC

3467.

12. In the case of Jarnail Singh, the Hon’ble Apex Court has held

that the date of birth entry taken in the admission register, in the absence

of a school leaving certificate or date of birth certificate would have great

evidentiary value. There can be no doubt about the principle of law.

But, in the present case, the date of birth entry taken in the admission

register itself has not been proved by the prosecution and, therefore,

question of reading the entry, vide Exh.-28, would not arise. For this

reason, I am of the humble opinion that the law laid down by the Hon’ble

Supreme Court in the case of Jarnail Singh, would not be applicable to

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the facts of the present case.

13. Learned A.P.P. has also relied upon the the case of State of

Chhattisgarh vs. Lekhram, reported in AIR 2006 SC 1746, wherein it is

held that the entry in the school register though not conclusive has

evidentiary value. No doubt, birth entry in the school register would

have its own evidentiary value and the evidence of the parents of the

prosecutrix would be corroborative in nature. But, as stated earlier, this

is a case wherein birth entry in the admission register itself has not been

proved and there is no corroborative evidence of the parents. Therefore,

in my humble opinion, no assistance from the case of Lekhram could be

taken by the prosecution in the present case.

14. The result of the above discussion would be that it would

have to be held that in the present case, the prosecution has not proved

the fact that at the relevant time the prosecutrix was a child aged below

18 years. There is no ossification report also produced on record by the

prosecution. It would then follow that what remains in our hands now is

only to determine the issue of the age of the prosecutrix by

approximation with reference to the events that took place in the present

case and conduct of the prosecutrix.

15. The evidence of the prosecutrix PW 2 and her mother PW 3

both would show that the prosecutrix though indulging in explicit sexual

behaviour with the appellant for fairly long period of time, consciously

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concealed it from her mother and it was only when her mother noticed

that the prosecutrix had missed her monthly menstrual cycle that the

prosecutrix grudgingly disclosed her having sexual relations with the

appellant. It is also seen from their evidence that on the one hand the

prosecutrix used to ask the appellant to keep his promise of marrying

her, on the other hand the prosecutrix used to have sexual intercourse

with the appellant. Of course, for every incident of sexual intercourse,

the prosecutrix has prefixed the expression with the word “forcible”. But,

one does not understand the use of such a word when the prosecutrix

always used to allow the appellant on subsequent occasions to have

sexual intercourse with her. The indulgence shown by the prosecutrix

was to such an extent, as seen from her testimony, that even after

noticing that she was having pregnancy, the prosecutrix allowed the

appellant to have another round of sexual intercourse with her

apparently without any demur. So, it appears, she has used the word

“forcible” just to create an impression that the acts were performed by

the appellant against her will. But, she forgot that on subsequent

occasions she again had had sexual intercourse with the appellant which

would go against her.

16. All these events which happened consistently since August,

2014 till before 31st August 2015 and the conduct of the prosecutrix in

the case are reasonable indicators of the level of maturity and

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understanding of the prosecutrix. They show that the prosecutrix was

mature enough to fully know the consequences of her acts and knowing

them so well that she proceeded further in the matter and went on

having repeated rounds of sexual intercourse with the appellant. The

prosecutrix also did not disclose anything to her mother rather, it were

her mother who had to make prosecutrix talk about the same. This

would enable me to infer that prosecution was not, at the relevant time,

a child or a minor and had, either attained majority or was on verge of

attaining majority.

17. The discussion made so far would enable me to infer that

whatever was done in the present case by the appellant to the prosecutrix

was not the result of his unilateral decision, but was a product of

conscious decision taken by two mature persons. If this is so, I am of the

view that no offence in the present case has been committed by the

appellant. All these aspects of the case have not been properly

considered by the learned Special Judge and the result is of illegal

findings recorded by the learned Special Judge. The prosecution has not

proved beyond reasonable doubt the offences punishable under Section

376(2)(n) of the Indian Penal Code and Section 4 of the PoCSO Act with

which the appellant has been charged in this case. The appellant

deserves to be acquitted of the same by quashing and setting aside the

impugned judgment and order. All the points are answered accordingly.

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18. The appeal is allowed.

19. The impugned judgment and order are hereby quashed and

set aside.

20. The appellant is acquitted of the offences punishable under

Section 376(2)(n) of the Indian Penal Code and Section 4 of the PoCSO

Act.

21. The appellant be released forthwith from jail, if not required

in any other crime.

22. Seized muddemal property, being worthless, be destroyed

after six months.

23. Fine amount, if paid, be refunded to the appellant.

JUDGE
okMksns

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