1 apeal445.07

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.445 OF 2007

Pravin Mahadeorao Gohade,
Aged about 21 years, Occu. Labour,
R/o Village Kinhi, Tq. Dist. Yavatmal. …. APPELLANT

VERSUS

The State of Maharashtra,
through Police Station Officer,
Police Station Yavatmal (Rural),
Tq. Distt. Yavatmal. …. RESPONDENT

__

Shri M.P. Kariya, Counsel for the appellant,
Smt. S.V. Kolhe, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATED : 11
APRIL, 2018.

th

ORAL JUDGMENT :

The appellant is aggrieved by the judgment and order

dated 14-9-2007 rendered by the learned Ad hoc Additional Sessions

Judge, Yavatmal in Sessions Trial 55/2006, by and under which the

appellant-accused is convicted for offence punishable under Sections

363, 366 and 376 of the Indian Penal Code (“IPC” for short) and is

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sentenced to suffer rigorous imprisonment for seven years and to

payment of fine of Rs.1,000/- for each offence.

2. Heard Shri M.P. Kariya, learned Counsel for the accused

and Smt. S.V. Kolhe, learned Additional Public Prosecutor for the

respondent.

3. Sunanda Purushottam Dandekar (P.W.2), the mother of

the prosecutrix, lodged oral report dated 12-5-2006 (Exhibit 18) at the

Yavatmal (Rural) Police Station alleging that the accused kidnapped

her daughter by assuring marriage. The gist of the report is that the

prosecutrix, then aged 15 years, left the house at 1.00 p.m. on

11-5-2006 on the pretext of purchasing lemon, she did not return till

noon and the informant searched but failed to locate her. The

informant enquired with Shrikrushna Dukare, Kishor Murmure and

Mayur Khatade about the whereabouts of the prosecutrix and was told

that the prosecutrix and the accused had gone towards the Ichori Fata.

The husband and son-in-law of the informant again searched for the

prosecutrix at the said location, but in vain. On the basis of the said

report, which was lodged at 10-30 a.m. on 12-5-2006 offence

punishable under Sections 363 and 366 of the IPC was registered

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against the accused. Offence punishable under Section 376 of the IPC

is apparently registered at a later stage. Investigation ensued and upon

completion thereof charge-sheet was submitted in the Court of Chief

Judicial Magistrate, Yavatmal, who committed the case to the Sessions

Court. The learned Sessions Judge framed charge (Exhibit 11) under

Sections 363, 366 and 376 of the IPC. The accused abjured guilt and

claimed to be tried. The defence is of total denial.

4. Shri M.P. Kariya, learned Counsel for the accused, at the

very outset, by taking me through the record, subjects the first

information report to severe criticism. The first information report is

shrouded in suspicious circumstances, is the submission. Shri

M.P. Kariya would submit that even if the contents of the first

information report are taken at face value, it is apparent that no

allegation of forcible sexual intercourse was levelled when the report

was lodged. The submission of Shri M.P. Kariya is that it has come in

evidence that the prosecutrix accompanied her parents when the report

was lodged at 10-30 a.m. on 12-5-2006. The version of the prosecutrix

is that she disclosed the incident to her mother at 9-00 a.m. or

thereabout on 12-5-2006, and if this evidence is to be believed, the fact

that the first information report merely states that the accused and the

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prosecutrix had eloped since the accused induced the prosecutrix on

the promise of marriage, ipso facto falsifies the allegation of rape.

5. The submission of Shri M.P. Kariya is well merited. The

evidence of the prosecutrix (P.W.1) is that she was present in the house

of the accused in the morning of 12-5-2006 and her parents came to

the house of the accused at 9-00 a.m., kicked the door open and

thereafter the prosecutrix and her parents went to the Yavatmal

(Rural) Police Station and lodged the report. Exhibit 23 is the property

search and seizure form which records that the clothes of the

prosecutrix were seized in presence of panchas at 11-00 a.m. on

12-5-2006. Exhibit 23 corroborates the evidence of the prosecutrix

that she was present with her parents at the police station at 10-30

a.m. when the report was lodged. The deposition of the Investigating

Officer (P.W.5) that the prosecutrix was brought from the house of the

accused at 2.30 p.m. on 12-5-2006 is falsified by the evidence of the

prosecutrix and property seizure form (Exhibit 23). The first

information report merely alleges that the prosecutrix is kidnapped by

the accused. The first information report suppresses the fact that the

prosecutrix was with her parents at least from 9-00 a.m. on 12-5-2006

and further the first information report makes no reference whatsoever

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to the prosecutrix having been subjected to sexual intercourse. The

suspicious circumstances surrounding the oral report (Exhibit 18) per

se renders the version of the prosecution unworthy of credit.

6. The mother of the prosecutrix Sunanda (P.W.2), in her

evidence, has not spoken of the accused having established sexual

relationship with the prosecutrix. The doctor who examined the

prosecutrix is not examined since the medical certificate (Exhibit 43) is

admitted by the defence. The medical certificate (Exhibit 43) records

that no injury is detected either on the genitalia or on any other part of

the body of the prosecutrix. The hymen is found torn. But then, the

fact that the hymen of the prosecutrix was found torn does not take the

case of the prosecution any further. The certificate (Exhibit 43) is

silent on the age of the tear. It is not mentioned in Exhibit 43 whether

the tear is old or fresh. Exhibit 44 is the medical certificate issued by

the doctor who examined the accused, which certificate is admitted by

the defence. No injury is detected on the person of the accused.

7. The prosecutrix (P.W.1) has deposed that the accused used

to meet her at Yavatmal Bus Stand and used to express his love for the

prosecutrix. P.W.1 has deposed that the accused told her that he would

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marry her. She has further deposed that on 11-5-2006 between 12-00

to 12-30 noon when she was present in the house, she was called by

the accused to his house by a gesture. She left home under the pretext

of purchasing lemon, and went to the house of the accused. The

prosecutrix and the accused engaged in conversation and the

prosecutrix said that they would elope and marry. The accused

established sexual relationship with the prosecutrix. At 10-00 p.m. the

accused asked the prosecutrix to go home, the prosecutrix went home

and found that the house was locked, she spent the night near the

water tank at a distance of 1 km. from village and next day in the

morning again went to the house of the accused where she remained

till her parents arrived at 9-00 a.m. and kicked the door open and took

the prosecutrix along with them to lodge the report at the Yavatmal

(Rural) Police Station. In the cross-examination, it is elicited that there

was friendship between the accused and the prosecutrix, of which her

parents were not aware nor were the villagers. It is further elicited that

the parents of the accused and his brother are residing with him in the

house. It is elicited that she disclosed the incident to her parents, in

the house of the accused, which would imply that she made the

disclosure to her parents at 9-00 a.m. on 12-5-2006. It is elicited in the

cross-examination that the date of birth i.e. 05-2-1991 mentioned by

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the prosecutrix is on the basis that the entry in the school register

records the said date as the date of birth.

8. The evidence of the prosecutrix is not at all confidence

inspiring. It is already noted that the first information report is lodged

at 10-30 a.m. on 12-5-2006 and it has come in the evidence that the

prosecutrix was present at the police station when the said report was

lodged. The said report does not allege that the accused established

sexual contact with the prosecutrix. It is highly improbable that sexual

contact could have been established by the accused at his house on

11-5-2006 since the evidence of the prosecutrix is that the accused

resided alongwith his father and brother. The mother of the prosecutrix

(P.W.2), to whom the prosecutrix is said to have been disclosed the

incident at the house of the accused at 9-00 a.m. or thereabout on

12-5-2006, does not speak of sexual relationship, in the evidence. The

father of the prosecutrix is not examined. The medical certificate

(Exhibit 43) does not mention whether the tear of the hymen was

relatively old or fresh or recent. The evidence on record is too shaky

and fragile to satisfy the conscience of the Court to hold that the

prosecution has established offence under Sections 363, 366 and 376

of the IPC against the accused beyond reasonable doubt.

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9. The next submission of Shri M.P. Kariya is that the

prosecution failed to prove the age of the prosecutrix. This submission

is also well merited. The date of birth disclosed by the prosecutrix in

the evidence is based on the date of birth recorded in the school record.

P.W.3 Madhuri Pandit who is the Headmistress of Matoshri Ramabai

Ambedkar Kanya Shala is examined to prove the school record. Her

evidence would show that the date of birth 05-2-1991 is entered in the

admission register of the school on the basis of the transfer certificate

of the earlier school. P.W.3 admits that except the transfer certificate

she did not come across any other document evidencing the date of

birth. The entry is recorded by the Clerk, who is still in employment, is

the admission extracted in the cross-examination. The transfer

certificate on the basis of which the entry is taken in the school record

is not proved. No evidence is adduced to prove the authenticity and

veracity of the entry in the transfer certificate. The entry in the

admission register, which is based on the transfer certificate issued by

the earlier school, is not sufficient to prove the date of birth of the

prosecutrix.

10. The investigation is ex facie unfair and indeed dishonest.

The evidence of the Investigating Officer that the prosecutrix was

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brought from the house of the accused at 2-30 p.m. on 12-5-2006 is

belied by the evidence of the prosecutrix and the property seizure form

(Exhibit 23). The evidence of the prosecutrix, unreliable and doubtful

as the evidence is, is not corroborated by the evidence of her mother

(P.W.2). It would be extremely unsafe and hazardous to base the

conviction on the sole testimony of the prosecutrix. The judgment and

order impugned is clearly unsustainable in law.

11. The judgment and order impugned is set aside. The

accused is acquitted of the offence punishable under Sections 363, 366

and 376 of the IPC.

12. Bail bond of the accused shall stand discharged. Fine paid

by the accused, if any, shall be refunded to him.

13. The appeal is allowed and is disposed of.

JUDGE
adgokar

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