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Ganesh Prahlad Sontakke vs State Of Mah.Thr.Pso Nagpur on 25 July, 2018

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

Criminal Appeal No.545 of 2005

Ganesh Pralhad Sontakke,
Aged about 23 years,Occupation: Labourer,
R/o Kumbhapur,Tah. Mauda, Distt. Nagpur. .. APPELLANT

.. Versus ..

State of Maharashtra through
PSO PS Mouda, Dist. Nagpur. .. RESPONDENT

Mr. Aniruddha Anantha Krishnan, Advocate for Appellant.
Mrs. Geeta Tiwari, APP for Respondent

CORAM : MANISH PITALE, J.
DATE OF RESERVING JUDGMENT : JULY 09, 2018.
DATE OF PRONOUNCING JUDGMENT : JULY 25,2018

JUDGMENT

1. The appellant has challenged judgment and order dated 16.09.2005 passed by the Sessions Court, Nagpur (trial Court), in Sessions Trial No. 466 of 2004, whereby the trial Court has convicted the appellant for offence punishable under Section 376 of the Indian Penal Code (IPC) and sentenced him to undergo rigorous imprisonment for 5 years and to pay fine of Rs.500/-.

2. The prosecution case was that about seven months prior to the prosecutrix PW1 submitting oral report to the Police dated 8.7.2004, the appellant (original accused) had caught hold of the prosecutrix when she had gone to a nearby field to answer nature’s call.

He allegedly removed her clothes and committed forcible sexual intercourse with her. After about eight days, when the prosecutrix had gone to the house of the appellant for viewing television programme, as no other person was present, the appellant again committed sexual intercourse with her. It is relevant that the house of the appellant was adjoining the house of the prosecutrix PW1 and that the appellant was on visiting terms with the family of the prosecutrix PW1.

According to the prosecution, after some period when the prosecutrix PW1 started suffering abdominal pain, she was taken for medical examination and it was found that she was pregnant.

The prosecutrix PW1 then disclosed details about the said acts of sexual intercourse committed by the appellant to her mother Vanita PW4. Thereafter oral report dated 8.7.2004 was submitted in the Police Station leading to registration of first information report (FIR) against the appellant under Sections 376 and 506 of the IPC. Upon completion of investigation and filing of charge sheet, trial commenced against the appellant.

3. The prosecution examined nine witnesses in support of its case. PW1 was the prosecutrix herself, PW2 Bandu was panch witness for spot panchanama, PW3 Dhondba was the father of the prosecutrix, PW4 Vanita was the mother, PW5 Dr. Harsha medically examined the prosecutrix, PW6 Dr. Anuprita was the Gynecologist who examined the prosecutrix, PW7 was the investigating officer, PW8 was the Village Development Officer of Gram Panchayat and PW9 was the peon working in the Gram Panchayat.

4. The prosecutrix PW1 claimed that her date of birth was 10.09.1989, demonstrating that when the incident occurred she was less than 16 years of age. In order to support the said claim, school leaving certificate and birth certificate from Gram Panchayat were produced. The aforesaid prosecution witnesses PW8 and PW9 were examined to prove the date of birth of the prosecutrix PW1. On the basis of such material, the trial Court found that the date of birth of the prosecutrix was indeed 10.09.1989 and that, therefore, consent was immaterial in the present case, as she was found to be less than 16 years of age.

The trial Court also found that the evidence of the prosecutrix PW1 read with the medical evidence on record, was sufficient to prove the case of the prosecution beyond reasonable doubt. On this basis, the trial Court convicted and sentenced the appellant.

5. Mr. Aniruddha Anantha Krishnan, learned counsel appearing for the appellant, submitted that the trial Court had committed error in giving finding to the effect that date of birth as 10.09.1989 stood proved in the present case. It was submitted that the oral and documentary evidence on record on the said point was not sufficient to prove the claim of the prosecutrix PW1. It was submitted that the witnesses PW8 and PW9 had admitted in cross-examination that there were certain over writings in the original register wherein the birth of the prosecutrix PW1 had been recorded by the Gram Panchayat. It was further submitted that the evidence of the prosecutrix as regards the incidents of alleged forcible sexual intercourse by the appellant was vague and that it was not reliable. A specific suggestion had been given on behalf of the defence that the prosecutrix PW1 was having an affair with her own cousin from whom she was pregnant.

Even in the statement recorded under Section 313 of the Code of Criminal Procedure, it had been stated by the appellant that he was falsely implicated as the prosecutrix PW1 was pregnant from her own cousin, with whom she had lived for 5 to 6 months. It was submitted that in the face of such material on record, it was necessary for the Investigating Officer to have conducted DNA test of the child who was born to the prosecutrix PW1 so as to ascertain her paternity. This was deliberately not done by the Investigating Officer to shield the actual culprit in the present case.

On this basis, it was contended that the impugned judgment and order deserved to be set aside.

6. On the other hand, Mrs. Geeta Tiwari, learned Additional Public Prosecutor, appearing on behalf of the respondent-State, submitted that the evidence in respect of date of birth of the prosecutrix was elaborate as documents as well as oral evidence were brought on record to prove the said fact. It was submitted that the evidence of the prosecutrix was trustworthy and that merely because DNA test was not conducted by the investigating officer, the prosecution case could not be disbelieved. It was submitted that the trial Court was justified in convicting and sentencing the appellant on the basis that the evidence of the prosecutrix PW1 and the medical evidence on record was sufficient to prove the guilt of the appellant.

7. Heard counsel for the parties and perused the record. In the present case if the finding rendered by the trial Court that date of birth of the prosecutrix PW1 was 10.09.1989 was accepted, there would be no question of consent in the present case and if the fact of sexual intercourse stood proved, the offence under Section 376 of the IPC, stood proved. On the question of proof of date of birth, the prosecution placed on record date of birth certificate Exh.22 issued by Gram Panchayat Narsala, as also certificate issued by Head Master of Primary School and Secondary School. In addition, prosecution witnesses PW8 and PW9 were examined who were the Village Development Officer and peon respectively of the Gram Panchayat.

These witnesses had brought the register of the Gram Panchayat wherein birth of the prosecutrix PW1 as 10.09.1989 was recorded.

A perusal of the said document shows that the date of birth certificate Exh.22 issued by the Gram Panchayat is a document issued by public body. The prosecution witness PW8 being the Village Development Officer appeared before the Court along with the register Exh.36, wherein date of birth as 10.09.1989 of the prosecutrix PW1 was shown to have been recorded on 30.09.1989 itself and the said witness as well as PW9 peon of the Gram Panchayat supported the entry in the said register. Although in cross-examination there are certain admissions made by these witnesses pertaining to entry made in the said register, they cannot be said to be fatal to the case of the prosecution. It is stated by these witnesses in the cross-examination that the name of the prosecutrix PW1 has been written in a different ink as compared to the other details in the register. But, this fact alone would not adversely affect the evidence of the said two witnesses based on entry in the said register, because the name of the prosecutrix PW1, could have been entered later, after the naming ceremony of the prosecutrix PW1.

In any case, the said entry in the register read with the date of birth certificate Exh.22 issued by the Gram Panchayat and the oral evidence of the prosecution witnesses PW8 and PW9 appears to be sufficient to prove that the date of birth of the prosecutrix PW1 was indeed 10.09.1989. The finding rendered by the trial Court in this regard cannot be said to be erroneous.

8. The evidence on record pertaining to the claim of the prosecution that the appellant was responsible for committing forcible sexual intercourse with the prosecutrix, resulting in her giving birth to a girl child, depends primarily on the evidence of the prosecutrix PW1. This is because the evidence given by her father PW3 and her mother PW4 was necessarily hearsay in nature. Therefore, it is necessary to examine in detail the evidence of the prosecutrix PW1.

9. A perusal of her evidence shows that according to her, about seven months prior to submitting oral report to the Police dated 8.7.2004, the appellant had dragged her when she had gone to the field and upon removing her clothes he had forcibly committed intercourse with her. She has further stated that after two to four days (although the trial Court has recorded that it was after 7 days), she had gone to the house of the appellant for viewing television programme, when the appellant again committed the act of sexual intercourse with her. It appears strange that the prosecutrix PW1, having suffered forcible sexual intercourse from the appellant two to four days earlier, chose to visit his house to view television programme when he was alone in the house.

There are no dates or other details given by the prosecutrix as regards the aforesaid two incidents of alleged forcible sexual intercourse committed by the appellant with her. In the cross-examination, the prosecutrix admitted that the son of her maternal uncle was of her age.

She also admitted that certain statements made by her in the evidence were not found in her original statement made to the Police pertaining to her blaming the appellant when it was found that she was pregnant. A specific suggestion was made on behalf of the defence that the prosecutrix PW1 was pregnant from Vishnu s/o Ambadas i.e. the very maternal cousin of the prosecutrix PW1, who she had conceded to be of her own age. A suggestion was also given to her that she had falsely implicated the appellant, which she had denied in cross-examination.

10. Since the trial Court has held that the evidence of the prosecutrix PW1 and that the medical evidence on record was sufficient to prove the prosecution case, it is necessary to examine the medical evidence on record. PW5 Dr. Harsha had medically examined the prosecutrix PW1 after registration of FIR. Her evidence only shows that the prosecutrix PW1 was capable of sexual intercourse and that her last menstruation was in the month of November, 2003. The medical examination report also does not reveal anything significant other than the fact that the prosecutrix PW1 was pregnant. PW6 Dr. Anuprita, was the Gynecologist who examined prosecutrix PW1.

She gave statement about the tenure of pregnancy of the prosecutrix PW1 when she was examined. There was nothing significant brought on record by the cross- examination of the said witness. But, a statement made in the examination-in-chief of PW5 Dr. Harsha assumes significance. The said witness has stated that when history was recorded, prosecutrix PW1 had stated to her that intercourse had taken place twice with her neighbour about six to seven months back on the promise to marry her. This statement of the prosecutrix PW1 given to the Doctor was at complete variance with her statements made in the oral report and in her evidence recorded in the Court.

11. The stated case of the prosecutrix PW1 in her oral report to the Police, as also her revelation to her mother and in her evidence before the Court was that the appellant had committed forcible sexual intercourse with her, firstly in the field and secondly in his house when she had gone to view television programme. There was not a whisper of any promise of marriage by the appellant, on the basis of which he had committed sexual intercourse with the prosecutrix PW1. Doctor PW5 had no reason to record wrong history of her patient and if the prosecutrix PW1 indeed made a statement to the Doctor PW5 that the appellant had sexual intercourse with her twice on the promise of marriage, it falsifies her claim in the statement made to the Police and in the evidence given before the Court. Apart from this, in the oral report given to the Police and even in the evidence tendered in the Court, the claims made by the prosecutrix PW1 are vague.

It is stated that about seven months prior to submitting the oral report dated 8.7.2004, the first act of forcible sexual intercourse was committed by the appellant and that two to four days thereafter, a similar act was repeated in the house of the appellant. As noted above, it was strange that when the prosecutrix PW1 had suffered forcible sexual intercourse from the appellant in a field just two to four days prior, she chose to visit the house of the appellant when he was alone, ostensibly to view television programme. These facts, assume significance when a specific defence of false implication was raised on behalf of the appellant.

12. In the cross-examination, specific suggestions were made to the prosecutrix PW1 that she was having a love affair with her own maternal cousin from whom she was pregnant. In the statement made by the appellant under Section 313 of the Cr.P.C. , it was specifically stated that the prosecutrix PW1 had lived with the said maternal cousin for five to six months and that she was pregnant from him.

In this situation, it was incumbent upon the investigating officer to have conducted DNA test of the girl child born to the prosecutrix PW1. It was stated in the evidence of the prosecutrix PW1 that after the girl child was born in Government Hospital at Kamthi, she had gifted that child to a couple. Thus, it has come on record that a girl child was born, who was available for conducting DNA test to ascertain paternity of the child. When it was the specific case of the appellant that he had not committed sexual intercourse with the prosecutrix PW1 and when a defence was raised that she was pregnant from Vishnu s/o Ambadas , her maternal cousin, it was necessary for the investigating officer to have conducted DNA test to ascertain the truth in the matter. But, he failed to do so. When specifically asked in the cross-examination, the investigating officer PW7 simply stated that he did not find it necessary to conduct DNA test. A suggestion was also given in cross-examination that he had purposely not conducted DNA test, which he denied.

13. The failure on the part of the investigating officer PW7 to conduct DNA test becomes fatal for the prosecution, in the facts and circumstances of the present case. As noted above, the evidence of the prosecutrix PW1 is absolutely vague as regards two alleged acts of forcible sexual intercourse inflicted by the appellant on her.

There is absence of particulars and the allegation appears to have been made in very general and vague terms.

The statement of the prosecutrix that when she was found to be pregnant, she told her mother that the appellant was responsible, is also an omission, which has been proved in the cross-examination of the investigating officer PW7.

In this situation, it was absolutely necessary for the prosecution to have brought on record material to show that the girl child born to the prosecutrix PW1 was indeed fathered by the appellant. This is so, because the sole testimony of the prosecutrix PW1 in the present case does not appear to be trustworthy and of sterling quality. It would be unsafe to convict the appellant on the sole testimony of the prosecutrix PW1, in the face of the aforesaid material on record.

14. The trial Court failed to appreciate this aspect of the matter and convicted the appellant on the evidence of the prosecutrix PW1, read with the medical evidence. A perusal of the medical evidence shows that there was nothing significant brought on record against the appellant. All that the documentary evidence and the evidence of two Doctors PW5 and PW6 shows that the prosecutrix PW1 was capable of sexual intercourse and that she was pregnant at the time of the medical examination. The clinching proof against the appellant would only have been DNA test, which was not conducted in the present case.

15. In the case of Mukesh and another .vs. State (NCT of Delhi) – (2017) 6 Supreme Court Cases 1, the Hon’ble Supreme Court, after taking into account various earlier judgments pertaining to authenticity of DNA test, has held as follows:-

“228. From the aforesaid authorities , it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for non-acceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted.”

Hence , there cannot be any doubt that DNA test in the present case would have been proper, scientific and clinching evidence to prove the guilt of the appellant. Having not conducted the said test, the prosecution case has suffered a fatal blow, which the trial Court did not appreciate while passing the impugned judgment and order.

16. In view of the above, it becomes obvious that the evidence brought on record by the prosecution fell short of proving its case beyond reasonable doubt against the appellant and that the conviction and sentence imposed by the trial Court was unsustainable. Accordingly, this appeal is allowed. The impugned judgment and order passed by the trial Court is set aside and the appellant is acquitted of the offence with which he was charged. Since the appellant is on bail, the bail bonds shall stand cancelled.

(Manish Pitale, J. )

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