501-APPEAL-724-2016-APPA-577-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.724 OF 2016
WITH
CRIMINAL APPLICATION NO.577 OF 2017
IN
CRIMINAL APPEAL NO.724 OF 2016
IMRAN GANI MUJAVAR )…APPELLANT
V/s.
THE STATE OF MAHARASHTRA )…RESPONDENT
Mr.Ganesh Gole a/w. Mr.Ritesh Ratnam, Mr.Bhavin Jain, Advocate
for the Appellant.
Mr.A.R.Kapadnis, APP for the Respondent – State.
CORAM : A. M. BADAR, J.
DATE : 23rd SEPTEMBER 2019
ORAL JUDGMENT :
1 By this appeal, the appellant/accused Imran Gani
Mujavar is challenging the judgment and order dated 6 th May
2016 passed by the learned Additional Sessions Judge Special
Judge under the SectionProtection of Child Rights Act, 2005, Ichalkaranji,
avk 1/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
Kolhapur, in Sessions Case No.36 of 2012, thereby convicting him
of offences punishable under Sections 363 and Section376 of the Indian
Penal Code. On the first count, the appellant/accused is sentenced
to suffer rigorous imprisonment for 3 years apart from direction to
pay fine of Rs.5,000/- and to undergo simple imprisonment for 3
months, in the event of default to pay the fine. On the second
count, he is sentenced to suffer rigorous imprisonment for 10
years apart from direction to pay fine of Rs.25,000/- and in
default, to undergo simple imprisonment for 1 year. Substantive
sentences were directed to run concurrently.
2 Facts, in brief, leading to the prosecution and the
resultant conviction of the appellant/accused, can be summarized
thus :
a) First Informant/PW2 Mahadev was resident of Datt Nagar
locality in Village Kabnur of Ichalkaranji Taluka in District
Kolhapur. The alleged victim of the crime in question is his
daughter, who is examined as PW1 by the prosecution. It is
case of the prosecution that the victim/PW1 was born on
avk 2/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
11th December 1997 and she was taking education in 9 th
Standard at Dr.Bapuji Salunkhe High School, Ichalkaranji.
(b) Appellant/accused no.1 Imran Mujavar used to reside in
neighbourhood of the victim/PW1. Acquitted accused
Dilshad Bairagdar was also residing near the house of the
victim/PW1. Juvenile in conflict with law Samir Gavandi
and Aakash Aamne were friends of the appellant/accused
Imran Mujavar.
(c) According to the prosecution case, acquitted accused Dilshad
Bairagdar along with juvenile in conflict with law
intentionally aided the appellant/accused and abetted him
to kidnap the victim/PW1 on 28th April 2012. She was then
taken to several places, and lastly, to Surat. There, at the
house of maternal uncle of juvenile in conflict with law
Samir Gavandi, the appellant/accused had committed sexual
intercourse with the victim/PW1. Parental relatives of the
victim/PW1 came to know that she is at Surat in company of
avk 3/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
the appellant/accused. Thereafter, mother and cousin of
juvenile in conflict with law Samir Gavandi advised them to
return to their native place. They all, then, came back to
Kolhapur. However, from Kolhapur, the appellant/accused
and the victim/PW1 decided to go to Miraj. Then from
Miraj, they went to Village Jamkhind. Ultimately, on 4 th May
2012, the appellant/accused brought the victim/PW1 to
Ichalkaranji. That is how, the appellant/accused came to be
arrested by police, in pursuant to the First Information
Report (FIR) Exhibit 39 lodged by PW2 Mahadev – father of
the victim/PW1 on 30th April 2012. The victim/PW1 was
then referred to the CPR Hospital of Kolhapur where she
was examined by PW6 Dr.Jyotsna Deshmukh. Routine
investigation followed and ultimately, the appellant/accused
along with co-accused Dilshad Bairagdar came to be charge-
sheeted.
(d) The learned trial court framed Charge for offences
punishable under Sections 363 and Section376 of the Indian Penal
avk 4/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
Code against the appellant/accused. Co-accused Dilshad
Bairagdar was charged for the offence punishable under
Section 109 read with Section 376 of the Indian Penal Code.
The appellant/accused as well as the co-accused pleaded not
guilty and claimed to be tried.
(e) In order to bring home the guilt to the appellant/accused,
the prosecution has examined in all eight witnesses
including the victim/PW1 as well as her father PW2
Mahadev and Medical Officer PW6 Dr.Jyotsna Deshmukh.
Defence of the appellant/accused as well as the co-accused
was that of total denial. However, they did not enter in the
defence.
(f) After hearing the parties, the learned trial court was pleased
to acquit co-accused Dilshad Bairagdar. However, the
appellant/accused came to be convicted and sentenced, as
indicated in the opening paragraph of this judgment, by
holding that he had kidnapped the victim/PW1, who was
below 18 years of age and had committed rape on her.
avk 5/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
3 I have heard the learned advocate appearing for the
appellant/accused. He argued that the learned trial court
concluded that the victim/PW1, at the time of the alleged offence,
was below 18 years of age, merely on the basis of oral evidence of
PW2 Mahadev – father. In submission of the learned advocate for
the appellant/accused, this course of action adopted by the
learned trial court was not proper. Evidence on record shows that
the victim/PW1 had taken education in several schools, and as
such, her recorded date of birth in the school records ought to
have been brought on record by the prosecution, in order to show
that she was not of consenting age. It is further argued that entire
evidence of the victim/PW1 shows that she was consenting party
to the incident and as her age is not proved by the prosecution,
the appellant/accused is entitled for acquittal.
4 The learned APP argued that he is going to file an
application under Section 391 of the Code of Criminal Procedure
for adducing additional evidence. It is further argued that
evidence of the victim/PW1 inspires confidence and the same
avk 6/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
shows that the appellant/accused had committed sexual
intercourse with her, when she was not of consenting age. The
learned APP strenuously urged that evidence of PW2 Mahadev,
who happens to be father of the victim/PW1, in respect of date of
birth of the victim/PW1 is not at all challenged in the cross-
examination and therefore, such unchallenged evidence in respect
of age of the victim/PW1 needs to be accepted. With this, it is
argued that the appeal deserves to be dismissed.
5 I have carefully considered the submissions so
advanced and also perused the record and proceedings including
oral as well as documentary evidence adduced by the prosecution.
The Charge held to be proved against the appellant/accused is for
offences punishable under Sections 363 and Section376 of the Indian
Penal Code. For making out the offence punishable under Section
363 of the Indian Penal Code, the prosecution is enjoined to
establish that the victim/PW1, at the time of commission of the
offence, was under 18 years of age. The offence allegedly took
place in April 2012 i.e. prior to 3rd February 2013 and therefore
avk 7/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
the prosecution, in order to make out the Charge, was duty bound
to establish that the victim/PW1 was below 16 years of age, for
ruling out the theory of consent. Let us, therefore, examine what
evidence is adduced by the prosecution to establish age of the
victim/PW1.
6 Evidence of the victim/PW1 shows that at the time of
the incident, she was studying in 9th Standard in Dr.Bapuji
Salunkhe High School, Ichalkaranji. She has not deposed about
her date of birth. Her father i.e. PW2 Mahadev has deposed that
date of birth of the victim/PW1 is 11th December 1997. He further
deposed that in the year 2012, his daughter i.e. the victim/PW1
was taking education in 9th Standard at Dr.Bapuji Salunkhe High
School, Ichalkaranji. Material elicited from cross-examination of
the victim/PW1 points out that she had taken school education
from 1st to 3rd Standard in a school at Ganesh Nagar of
Ichalkaranji. Thereafter, she took school education from 4 th to 5th
Standard at Vidya Mandir School of Daulatwadi, at Kagal in
Kolhapur District. She was then admitted to the Vidya Mandir
avk 8/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
School of Dattawadi, Kabnur in 6th Standard. She passed
examination of 7th Standard from the very same school. However,
thereafter, she had taken school education at Dr.Bapuji Salunkhe
High School of Ichalkaranji. It is, thus, clear that, the victim/PW1
had taken school education at different schools in Kolhapur
District. Logical corollary of this fact is that the prosecution could
have collected General Register maintained by the schools
reflecting date of birth of the victim/PW1. However, for the
reasons best known to it, the prosecution has failed to collect the
General Register of the schools where the victim/PW1 had taken
education right from 1st Standard up to 9th Standard, in order to
prove her age and to show that she had not attained the
consenting age. Apart from bare statement of her father PW2
Mahadev to the effect that the victim/PW1 was born on 11 th
December 1997, there is no other material to support his version
and to establish age of the victim/PW1. The Hon’ble Supreme
Court in the case of Mahadeo S/o Kerba Maske Vs. State of
Maharashtra and Anr.1 has held that Rule 12(3) of the Juvenile Justice
(Care and Protection of Children) Rules, 2007, is applicable in
1 (2013) 14 SCC 637
avk 9/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
determining the age of the victim of rape. Rule 12(3) reads as under:
“Rule 12(3) : In every case concerning a child or
juvenile in conflict with law, the age determination
inquiry shall be conducted by the court or the Board
or, as the case may be, the Committee by seeking
evidence by obtaining –
(a)(i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school (other
than a play school) first attended; and in the absence
whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or
the Board or, as the case may be, the Committee, for
the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or
juvenile by considering his/her age on lower side
within the margin of one year. and, while passing
orders in such case shall, after taking into
consideration such evidence as may be available, or
the medical opinion, as the case may be, record a
finding in respect of his age and either of the
avk 10/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
evidence specified in any of the clauses (a)(i), (ii),
(iii) or in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or
the juvenile in conflict with law.”
The Hon’ble Supreme Court further held in paragraph 12 of Mahadeo S/
o Kerba Maske (supra) as under:
“12 …………Under Rule 12(3)(b), it is specifically
provided that only in the absence of alternative
methods described under Rule 12(3)(a)(i) to (iii), the
medical opinion can be sought for. In the light of
such a statutory rule prevailing for ascertainment of
the age of the juvenile in our considered opinion, the
same yardstick can be rightly followed by the courts
for the purpose of the ascertaining the age of a victim
as well.
(Emphasis supplied)”
7 It is, thus, clear that, in a case concerning a child, the
court is required to look at the Date of Birth Certificate issued by
the school first attended by the child or in absence thereof, the
Birth Certificate given by the Municipal authority or Panchayat
can be looked into. Undisputedly, in the case in hand, school
avk 11/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
record of the schools at Kolhapur District was very well available
and the prosecution could have brought the same before this
court. This was not done. At this juncture, it is apposite to quote
observations of the Hon’ble Apex Court in the matter of SectionUmesh
Chandra vs. State of Rajasthan2. In that matter, the accused had
raised a plea that he is a “child” as contemplated by Rajasthan
Children Act, 1970. The High Court had reappraised evidence
and concluded that the appellant Umesh Chandra, at the time of
the offence, was 16 years 5 months and 20 days old and his date
of birth was September 22nd 1956. The Hon’ble Apex Court
allowed the appeal. It is held by the Hon’ble Apex Court that
ordinarily the oral evidence can hardly be useful to determine the
correct age of a person. It is further held by the Hon’ble Apex
Court that in villages people are not very vigilant in reporting
either births or deaths. Section 35 of the Evidence Act was
pressed into service and it was held that there is no legal
requirement that the public or other official book should be kept
only by a Public Officer but all that is required is that it should be
regularly kept in discharge of the official duty. An entry of date of
2 (1982) 2 Supreme Court Cases 202
avk 12/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
birth in the School Register was held reliable by the Hon’ble
Supreme Court in the said matter. Similarly, in the matter of
SectionBhupatbhai Somabhai Sardiya vs. State of Gujarat3 relied by the
learned advocate for the appellant/accused, the Division Bench of
Gujarat High Court has noted down that in absence of Certificate
of Registration of Birth, oral evidence of father of the prosecutrix
regarding age of the prosecutrix cannot be relied. In yet another
matter of SectionState of Madhya Pradesh vs. Munna4 the Hon’ble Apex
Court had relied on its judgment in the matter of SectionSunil vs. State of
Haryana5 and held that in a criminal case, the conviction of the
appellant cannot be based on an approximate date which is not
supported by any record.
8 Reverting back to the facts of the case in hand, though
evidence regarding age of the victim/PW1 could have been
produced by the prosecution by collecting General Register of
schools where she took school education up to 9th Standard, the
same is not forthcoming. This requires drawing of adverse
3 LAWS (GJH)-2012-3-24
4 (2016) 1 SCC 696
5 (2010) 1 SCC 742
avk 13/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
inference by this court in view of Illustration (g) of Section 114 of
the Evidence Act. So far as age of the victim/PW1 is concerned,
the learned trial court has erroneously held that it was on the part
of the defence to bring the document on record to show the actual
birth date of the victim/PW1. Thus, the learned trial court had
ignored provisions of Section 101 of the Evidence Act. Burden of
proving age of the victim/PW1 was certainly on the prosecution
and the appellant/accused was in no manner required to bring on
record the document showing actual birth date of the victim/PW1.
9 With this, it is concluded that the prosecution has
failed to establish that the victim/PW1 was below 18 or 16 years
of age, at the time of commission of the alleged offence.
10 Now let us examine whether the appellant/accused
had committed rape on the victim/PW1 after enticing her, thereby
requiring her to leave the lawful guardianship of her father. It is in
evidence of the victim/PW1 that the appellant/accused used to
reside in her neighbourhood, so also acquitted accused Dilshad
avk 14/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
Bairagdar. The victim/PW1 stated that the appellant/ accused
used to talk with her and he started loving her. He as well as
acquitted accused Dilshad Bairagdar used to advise her to elope
with the appellant/accused. As stated by the victim/PW1, on 28 th
April 2012, on advise of acquitted accused Dilshad Bairagdar, she
eloped with appellant/accused Imran Mujavar and at that time,
they were accompanied by acquitted accused Dilshad Bairagdar as
well as juvenile in conflict with law Samir Gavandi and Aakash
Aamne. By auto rickshaw of PW3 Balaji Alage, from Kabnur they
went to Ruiphata. Thereafter, acquitted accused Dilshad Bairagdar
returned, whereas they proceeded by bus to Kolhapur. Her
evidence reveals that from Kolhapur they went to Mumbai by
train. Thereafter, by train they all went to Surat and stayed there
at the house of maternal uncle of juvenile in conflict with law
Samir Gavandi. During the one day stay at the said house, in the
night, the appellant /accused committed sexual intercourse with
her. The victim/ PW1 further deposed that on the next day, the
mother as well as cousin of Samir Gavandi advised them to return
and they took all of them to Kolhapur. The victim/PW1 further
avk 15/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
deposed that from Kolhapur she as well as the appellant/accused
went to Miraj and from Miraj they went to Jamkhind. In cross-
examination, the victim/PW1 had not denied that she had love
relation with appellant/accused Imran Mujavar. To a suggestion
that she disclosed to police that she had love relation with the
appellant/accused, the victim/PW1 conveniently stated that she is
not remembering the said fact. She admitted that the
appellant/accused was unmarried. She admitted that she did not
disclose proposal of eloping given by appellant/accused Imran
Mujavar to anybody else. The victim/PW1 further stated that she
slept with the appellant/accused in a room, in the house of
maternal uncle of juvenile in conflict with law Samir Gavandi and
she did not shout at the time of commission of “rape” by the
appellant/accused. Though several persons were sleeping in that
house, the victim/PW1 did not make any hue and cry, when,
allegedly, the appellant/accused had committed sexual intercourse
with her, against her will and without her consent. The fact that
the victim/PW1 stealthily left the company of her parents and had
joined the company of the appellant/accused and his associates,
avk 16/20
::: Uploaded on – 24/09/201924/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
roamed with him at several places, stayed voluntarily with him in
a room in the house of maternal uncle of juvenile in conflict with
law Samir Gavandi, unerringly shows that the victim/PW1 was a
consenting party to the sexual intercourse committed on her by
the appellant/accused. The prosecution has failed to establish that
the victim/PW1 was not of consenting age at the time of
commission of this act by the appellant/accused.
11 Evidence of PW2 Mahadev – father of the victim/PW1
shows that when the victim/PW1 had eloped with the appellant/
accused, he was looking for a suitable match for her and a few
proposals were pending. Cross-examination of PW2 Mahadev
further shows that he had, infact, decided to marry the
victim/PW1 with his relative named Vijay at that time and it is
seen from evidence of the prosecution that when evidence of the
victim/PW1 was being recorded, she was married to said Vijay. On
this backdrop, it was suggested to the victim/PW1 that as her
father was settling her marriage, she insisted the
appellant/accused to marry her and threatened to commit suicide.
avk 17/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
Though these suggestions are denied by the victim/PW1, her
chief-examination itself shows that the appellant/accused used to
talk with her and started loving her. The next step of eloping with
the appellant/accused makes it clear that the victim/PW1 was also
in love with the appellant/accused. In this fact situation, it cannot
be said that the victim/PW1 was subjected to rape by the
appellant/accused by having forcible sexual intercourse with her
at Surat, in the house of maternal uncle of juvenile in conflict with
law Samir Gavandi.
12 Evidence of PW3 Balaji Alage – auto rickshaw driver
shows that the victim/PW1 had voluntarily accompanied the
appellant/accused and his friend from Village Kabnur to Ruiphata
and from there to Kolhapur.
13 In the result, it needs to be held that the prosecution
has failed to establish that the appellant/accused had enticed the
victim/PW1, and at the relevant time she was below 18 years of
age and then committed rape on her. The appellant/accused is
avk 18/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
certainly entitled for benefit of doubt, in the wake of this evidence
adduced by the prosecution. Therefore, the following order :
ORDER
i) The appeal is allowed.
ii) The impugned judgment and order dated 6th May 2016
passed by the learned Additional Sessions Judge Special
Judge under the SectionProtection of Child Rights Act, 2005,
Ichalkaranji, Kolhapur, in Sessions Case No.36 of 2012,
thereby convicting the appellant/accused of offences
punishable under Sections 363 and Section376 of the Indian Penal
Code and sentencing him accordingly is quashed and set
aside.
iii) The appellant/accused is acquitted of the charges leveled
against him.
iv) He be set at liberty if not required in any other case.
avk 19/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
501-APPEAL-724-2016-APPA-577-2017.doc
v) Fine amount, if any, paid by him, be refunded to him.
vi) The appeal stands disposed off accordingly.
vii) In view of disposal of the appeal, pending Criminal
Application No.577 of 2017 also stands disposed off.
(A. M. BADAR, J.)
avk 20/20
::: Uploaded on – 24/09/2019 24/09/2019 23:13:37 :::
