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Imran Gani Mujavar vs The State Of Maharashtra on 23 September, 2019

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,

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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,

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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.

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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

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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.

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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.)

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