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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.377 OF 2004

Gajanan s/o. Babarao Lodam,
Aged 24 years, Arkhed,
Tahsil Murtizapur, District
Akola. ………. APPELLANT

// VERSUS //

State of Maharashtra,
Through P.S.O., Murtizapur,
Police Station, Murtizapur,
Distt. Akola. ………. RESPONDENT

Mr.A.M.Ghare, Advocate for the Appellant.
Mr.H.R.Dhumale, A.P.P. for the Respondent/State.

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CORAM : M.G.GIRATKAR, JJ.

DATED : 10TH MAY, 2018.

ORAL JUDGMENT :

1. The appellant has assailed the Judgment of Sessions

Judge, Akola in Sessions Trial No.175 of 2002, 15.5.2004, by which

the appellant is convicted for the offence punishable under Section

363 of the Indian Penal Code and sentenced to suffer rigorous

imprisonment for two years and to pay a fine of Rs.3,000/- in

default, to undergo further rigorous imprisonment for six months.

The appellant is also convicted for the offence punishable under

Section 366 of the Indian Penal Code and sentenced to suffer

rigorous imprisonment for three years and to pay a fine of

Rs.4,000/-, in default to undergo further rigorous imprisonment for

eight months. He is further convicted for the offence punishable

under Section 376 of the Indian Penal Code and sentenced to suffer

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rigorous imprisonment for five years and to pay a fine of

Rs.10,000/-, in default to undergo further rigorous imprisonment for

ten months.

2. The prosecution case, as could be gathered from the facts

on record, is as under :

Complainant Pushpa Kisanrao Bayaskar (PW-1) is

resident of village Arkhed. Prosecutrix Shambala Bayaskar (PW-2) is

her daughter. She was 13½ years old at the time of incident i.e. on

14.5.2002. Complainant Pushpa has also one son. Husband of

Complainant Pushpa is a labourer. The accused had proposed two

months’ prior to the date of incident that Complainant Pushpa should

perform his marriage with prosecutrix Shambala. The proposal was

refused by Pushpa because prosecutrix Shambala was minor and was

taking education. The accused threatened her to face the

consequences of her refusal. Eight days prior to the date of incident,

the accused met prosecutrix Shambala in front of school in village

Arkhed and told her that he was in love with her and she should

marry him. However, the prosecutrix refused the proposal. On

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13.5.2002, while Shambala was fetching water, the accused met her

and told her that she should proceed with him next day in the

morning and they will marry. The prosecutrix refused to proceed

with the accused.

3. On 14.5.2002, the prosecutrix was alone at home. At

about 8.30 a.m., she left the house for proceeding to Murtizapur and

also for bringing T.C. from her School. At that time, a girl residing in

the neighbourhood namely Sonu Karapate (PW-3) asked her as to

where she was going. The prosecutrix replied that she was going to

Murtizapur for bringing her T.C. from the School. On the Bus Stand

of Murtizapur, the accused asked the prosecutrix to proceed with him

or else he would defame her. On such threats given by the accused,

the prosecutrix boarded a bus proceeding to Akola.

4. On returning home at 10.30 a.m., Complainant Pushpa

searched the prosecutrix. Sonu Karpate told her that she has gone to

Murtizapur to bring T.C. from the School. Since the prosecutrix did

not return home that day, Complainant Pushpa went to the houses of

her parents and sister-in-law to search her. Since the prosecutrix

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could not be found, Complainant Pushpa lodged report with Police

Station, Murtizapur against the accused. Crime No.84 of 2002 for the

offences punishable under Sections 363, 366 of the Indian Penal

Code was registered against the accused.

5. On arriving at Akola, the accused took the prosecutrix to

Ahmedabad at the house of one Raju Janrao Fuke (PW-4) , his

cousin. At the moment when Raju Fuke was not at home, the

accused committed forcible sexual intercourse with the prosecutrix at

about 3.30 p.m. on 15.5.2002. At about 11.30 p.m. On that day, a

telephone call was received by the accused from Arkhed informing

him that a complaint was lodged by Pushpa with police and he

should return to Arkhed immediately. On 17.5.2002, at about 12.30

p.m., the accused again raped the prosecutrix. On the same day, the

accused reached the prosecutrix to Murtizapur. Maternal uncle of

accused dropped the prosecutrix near her house. After reaching

home, the prosecutrix narrated the entire incident to her mother.

Complainant Pushpa took her to Police Station. Their statements

were recorded. Prosecutrix Shambala was referred for medical

examination. Dr.Rashmi Sharma (PW-6) issued medical Certificate

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on noticing bleeding from the private part and observing hymen of

the prosecutrix ruptured. On receipt of medical certificate,

investigation was set into motion. Knicker of prosecutrix was seized

and seizure panchanama was accordingly drawn. Samples of Vaginal

swab, public hair were obtained by Dr.Rashmi Sharma and they were

sealed and handed over to police. The accused was arrested. The

accused was referred for medical examination to Dr.Vikram Sharma

(PW-7). He was found capable of having sexual intercourse. After

completion of investigation, Charge Sheet came to filed in the Court

of Judicial Magistrate, First Class, Murtizapur, who, in turn,

committed the case to the Court of Sessions.

6. Charge was framed at Exh.7. It was read over and

explained to the accused. The accused pleaded not guilty and

claimed to be tried. The accused faced the trial. Ultimately, he was

convicted and sentenced, as stated above.

7. Heard Mr.A.M.Ghare, learned Counsel for the appellant.

He has submitted that the prosecutrix was in love with the appellant.

Prosecution has failed to prove the age of prosecutrix. She herself left

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her house, joined the company of appellant at Murtizapur and from

there, they went to Gujarat and resided in the house of brother of

appellant. From the evidence of mother, it appears that she was more

than 16 year at the time of incident. She was in love with the

accused. The accused proposed to marry her, but her mother refused

to perform her marriage with the accused. Therefore, the prosecutrix

herself left the house. Material ingredients of Sections 363, 366 and

376 of the Indian Penal Code are not proved by the prosecution.

Learned trial Court has not considered the evidence properly and

wrongly convicted the appellant. At last, the learned Counsel for the

appellant prayed to allow the appeal and acquit the accused.

8. Heard Mr.H.R.Dhumale, learned A.P.P. for the

respondent/State. He has supported the impugned Judgment.

9. Perused the evidence on record. Evidence of prosecutrix

Shambala Bayaskar (PW-2) and her mother Pushpa (PW-1) show

that the prosecutrix was in love with the accused. Mother of

prosecutrix stated her age as 13 ½ years. The prosecutrix has stated

her age as 14 years. Prosecution has not collected material evidence

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to prove the correct age of prosecutrix. The School Leaving

Certificate was not properly proved by examining the School

Authority. Birth Certificate issued by the Municipal Authority was

not produced by the mother of victim. As per her evidence,

prosecutrix was the eldest daughter.

10. I have perused the Certificate issued by the Municipal

Council, Murtizapur. Photograph of prosecutrix is attached to the

Certificate. It is mentioned that the prosecutrix was third issue of her

mother. On the contrary, her evidence shows that the prosecutrix

was the eldest issue Therefore, Certificate (Exh.50) is not reliable

evidence. The School Certificate (Exh.49) is not properly proved.

11. From the evidence of prosecutrix herself, it is clear that

she was in love with the accused. She herself left her house. She

resided at Gujarat at the house of brother of accused for about 10

days.

12. Mother of prosecutrix lodged the report against the

accused. Thereafter, he was informed on phone. The accused

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himself brought the prosecutrix and reached to the house of her

mother. Prosecution has not produced reliable evidence to prove the

age of victim. From the evidence of mother of victim, it appears that

she was more than 16 years of age at the time of incident.

13. Rape is defined under Section 375 of the Indian Penal

Code, which reads as under :

S. 375 (Before amendment of 2013)

“A man is said to commit “rape” who, except in the case
hereinafter excepted, has sexual intercourse with a
woman under circumstances falling under any of the six
following descriptions —

First.- ……..
Secondly.- ………
Thirdly.- ……….
Fourthly.- ……….
Fifthly.- ……….

Sixthly.- With or without her consent, when she is
under eighteen years of age.

Explanation. – Penetration is sufficient to constitute the
sexual intercourse necessary to the offence of rape.

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Exception.- Sexual intercourse by a man with his own
wife, the wife not being under fifteen years of age, is
not rape.

14. As per Section 375 of the Indian Penal Code, sexual

intercourse if took place with the consent and if the

victim/prosecutrix is more than 16 years, then it is not rape. In the

present case, prosecution has utterly failed to prove that the

prosecutrix was below 16 years of age at the time of incident. As per

her evidence, she was 14 years at the time of incident. To prove her

age, prosecution has relied on Exh. Nos. 49 and 50. Exh.49 and 50

both came to be exhibited in the evidence of writer of Investigating

Officer. Exh.49 was issued by the School Authority. It only shows

that she was studying in 8th Std. and her date of birth recorded is

15.12.1988. Not a single person from the School is examined by the

prosecution. School Registers are not produced before the Court.

Exh.49 is not duly proved. Prosecution ought to have examined the

Authority who recorded her date of birth in the School Register.

Nothing is on record to show that on what basis her date of birth

came to be registered in the School Register. Therefore, Exh.49

cannot be taken into consideration. Exh.50 is a Certificate issued by

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Municipal Council. This Certificate Exh.50 shows the date of birth as

15.12.1988. This Certificate is not reliable because passport

photograph of the victim is fixed. It was issued in 1992. It is not a

copy of the original. As per this Certificate, female girl born to

Pushpa (PW-1) was the third child. Whereas evidence of Pushpa

(PW-1) shows that PW-2 was the eldest one. Therefore, Exh.50 is not

a reliable document. Ossification test is not carried out by the

Medical Officer to show the age of prosecutrix. It appears from the

evidence of Pushpa (PW-1) and Shambala (PW-2) that the

prosecutrix was more than 16 years at the time of incident. She

herself left the house of her parents. She was waiting for the accused

at Murtizapur. Thereafter, she proceeded along with the accused to

Gujarat. Whatever sexual intercourse took place was with her

consent. It appears that she was more than 16 years and therefore, it

is not rape as defined under Section 375 of the Indian Penal Code.

15. Prosecution has failed to prove that she was taken by the

accused from the custody of her mother. On the other hand, evidence

of prosecutrix Shambala (PW-2) and her mother Pushpa (PW-1)

show that the prosecutrix herself left her house early in the morning.

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She went to Murtizapur. She was waiting there for accused near

medical store. She did not make any hue and cry. This itself shows

that the prosecutrix herself went along with the accused.

16. Material omissions are brought on record in the cross-

examination of Shambala (PW-2) as under :

“I was interrogated by the police. I had stated before the
police that the accused met me infront of the school 8 days
before the incident when I was returning from the house of
my uncle. I had stated about my talk with the accused to
the police. I had stated before the police that I was
threatened by the accused that he would defame me in the
society if I refuse to accept his proposal. I had stated before
the police that I did not disclose the incident of my
meeting with the accused to anybody else. I cannot tell
why the above mentioned facts are not mentioned in my
statement before the police. I had told the police that the
accused asked me to proceed with him on the next day
morning on 13-5-2002 and I refused to accept his
proposal. I told the police that on 14-5-2002 the accused
forcibly brought me to Akola, compelled me to wait
infront of medical stores. I had told to the police that I was

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threatened by the accused that he would sent Gundas
behind me if I would leave the place.

I had stated before the police that house of Raju
Fuke was locked when we reached at his house. Key of his
house was brought by Gajanan from the neighbour of
Raju. I cannot assign any reason why it is not so
appearing in my statement before police. I had stated
before the police that some persons had asked my age and
it was ascertained by them whether I was marrying with
accused, when I was in the house of Raju Fuke at
Ahmedabad. I cannot assign any reason as to why it is so
appearing in my statement. ”

17. Evidence of Pushpa, mother of prosecutrix shows that

the accused proposed to marry with the prosecutrix. She refused to

perform her marriage with the accused. Therefore, the prosecutrix

must have left home on her own accord. Material ingredients of

offences charged against the accused are not proved by prosecution.

Hence, I am inclined to allow the appeal and proceed to pass the

following order.

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// ORDER //

The appeal is allowed.

The impugned Judgment and Order in
Sessions Trial No.175 of 2002, dt.15.5.2004 is hereby
quashed and set aside. The appellant/accused is
acquitted of the offences charged against him.

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

The record and proceedings be sent back to
the trial Court.

JUDGE

[jaiswal]

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