1 Cri. Appeal 20/2016
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL No.20 OF 2016
Kiran s/o Ashok Gawali
Aged: 22 Yrs., occu. Labour,
R/o Vithal Nagar, Latur,
Tq. and dist. Latur. APPELLANT
(Orig.Accused)
VERSUS
The State of Maharashtra
Through the Police Station
Officer, Shivaji Nagar
Police Station, Latur,
Tq. and Dist. Latur. RESPONDENT
—–
Mr.NP Patil-Jamalpurkar, Advocate for Appellant;
Mr.PN Kutti, APP for Respondent-State.
—–
CORAM : P.R.BORA, J.
RESERVED ON:- 26
th
September,2017
PRONOUNCED ON: 3
rd
October,2017
JUDGMENT:
1) Appellant has filed the present appeal
challenging the judgment and order passed by III
Additional Sessions Judge, Latur in Special Case
(POCSO) No.28/2014 decided on 27th July, 2015.
2) The appellant was prosecuted in the
aforesaid Sessions Case for the offences
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punishable under Sections 363, 366, 376(2)(n) of
Indian Penal Code and Sections 6 and 10 of the
POCSO Act and also under Section 3(1)(w) of The
Scheduled Castes, Scheduled Tribes (Prevention of
Atrocities) Act. (herein after referred to as the
Atrocities Act) The Sessions Court has acquitted
the appellant – accused for the offences
punishable under the Atrocities Act, but has
convicted him for the offences punishable under
Sections 363, 366, 376(2)(n) of the Indian Penal
Code and Sections 6 and 10 of the POCSO Act. The
maximum sentence awarded to the appellant is ten
years’ rigorous imprisonment and fine of Rs.
5,000/-
3) In brief, it was the case of the
prosecution that the accused kidnapped the
prosecutrix from the lawful guardianship of her
parents on 6th May, 2014 with intent to seduce her
to illicit intercourse and took her with him at
Pune and the other places and committed repeated
rape on her during the period 8.5.2014 to
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21.5.2014. According to the prosecution, at the
relevant time, the prosecutrix was below 18 years
of her age.
4) The charge was framed against the
accused on 31st October, 2014 for all the
aforesaid offences. The accused did not plead
guFurther the reportilty and claimed to be tried.
In order to prove the guilt of the accused, the
prosecution examined as many as nine witnesses.
The prosecution evidence commenced with the
testimony of the panch witness viz. Vaijinath
Digambar Panchal (PW 1) and was concluded after
the evidence of Dr. Annasaheb Gulabrao Birajdar
(PW 9) was recorded. The defence of the accused
was that the prosecutrix, at her own, voluntarily
accompanied him and nothing was done by him
against the wish of the prosecutrix or without
consent of prosecutrix. The accused has also
examined one Uttam Limbraj Gomsale, who is
serving as Gramsevak at Grampanchayat Khadgaon as
the Defence witness.
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5) The learned Additional Sessions Judge,
after having assessed the oral as well as
documentary evidence brought on record, held the
appellant – accused guilty for the offences
punishable under Sections 363, 366 376(2)(n) of
IPC ad Sections 6 and 10 of the POCSO Act and
sentenced him to suffer R.I. as noted herein
above.
6) Shri N.P.Patil – Jamalpurkar, learned
Counsel appearing for the appellant, has assailed
the impugned judgment on various grounds.
However, his thrust was on the issue that though
the prosecution has failed in proving that the
prosecutrix was minor at the relevant time, the
learned Sessions Judge has erroneously held the
appellant guilty for the offences charged against
him.. As against it, learned APP has supported
the impugned judgment and order.
7) After having heard the arguments of the
learned Counsel for the appellant and learned APP
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and on perusal of the impugned judgment and the
evidence on record, it is apparently revealed
that the main issue to be decided in the present
appeal is, whether the prosecutrix was minor at
the relevant time and whether from the evidence
on record, the finding recorded by the learned
Additional Sessions Judge that the prosecutrix
was minor, can be sustained?
8) The evidence on record clearly reveals
that the prosecutrix has voluntarily eloped with
the accused on 6.5.2014. As has come on record
in the cross-examination of the prosecutrix, her
parents were about to fix marriage of the
prosecutrix with the son of her parental aunt,
for which, the prosecutrix was not willing and to
avoid the said marriage, she left the house at
her own along with the accused. From the
testimony of the prosecutrix coupled with the
other evidence on record, a reasonable inference
can be drawn that the physical relationship
established between the prosecutrix and the
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6 Cri. Appeal 20/2016
accused was with consent. Even father of the
prosecutrix has also admitted in his cross-
examination that he had fixed the marriage of the
prosecutrix with one Yogesh and the marriage was
scheduled on 12th May, 2014. He has further
candidly admitted that the prosecutrix was not
intending to marry with Yogesh and hence, she
eloped from the house.
9) In spite of the evidence, as aforesaid,
the learned Additional Sessions Judge has held
the appellant guilty for the offences charged
against him for the only reason that the
prosecutrix was minor and as such it was
immaterial whether she has consented for the
culpable acts alleged against the appellant. In
the circumstances, as I noted herein above, the
crucial and foremost issue to be determined in
the present appeal is, whether from the evidence
on record, the prosecution can be said to have
proved that the prosecutrix was minor at the
relevant time?
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10) As has been stated by the prosecutrix
herself, as well as her father viz. Babasaheb
Narayan Aadsule (PW 2), the date of birth of the
prosecutrix is 31st January, 1998. In order to
prove the age of the prosecutrix, the prosecution
had examined Headmaster of Shree Primary School,
Latur, viz. Shri Vaijinath Rarajam Ghatake as its
witness (PW 6). As deposed by PW 6 – Vaijinath,
the prosecutrix was admitted in Shree Primary
School, Latur on 15.7.2004 and at the time of her
admission in the said school, her date of birth
in the application form was mentioned as
31.1.1998. In the evidence of PW 6 – Vaijinath,
the extract of admission register, the
application form for the admission of the
prosecutrix and the birth certificate issued by
Sarpanch, Khadgaon, were exhibited respectively
as Exh. 38, 39 and 40. If the date, as mentioned
by the prosecutrix and as is appearing in the
document at Exh. 38, 39 and 40, is held to be
correct, age of the prosecutrix at the relevant
time was 16 years and 4 months.
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8 Cri. Appeal 20/2016
. The accused has seriously disputed that
the said is the correct date of birth of the
prosecutrix. It is the assertive contention of
the accused that the prosecutrix was more than
the age of 18 years at the relevant time.
11) The learned Counsel for the accused
invited my attention to the birth certificate
(Exhibit-40) issued by Sarpanch, Khadgaon. The
learned Counsel submitted that Sarpanch of the
village is not the authority to issue the birth
certificate and such birth certificate has to be
issued only by the Gramsevak. The learned
Counsel submitted that in the evidence of defence
witness, viz. Uttam Limbraj Gomsale, it has
specifically come on record that the
Grampanchayat record is maintained by the
Gramsevak and the Gramsevak only has the
authority to issue the birth certificate. The
learned Counsel submitted that in such
circumstances, no reliance could have been placed
on the birth certificate placed on record since
it was not coming through the proper authority
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and was not issued by the competent person.
12) The learned counsel further brought to
my notice that in the certificate at Exh.40,
there is over-writing in the year of birth. The
learned Counsel submitted that PW 6 – Vaijinath
has admitted in his cross-examination that there
is over-writing in the year of birth. The
learned Counsel submitted that even the said fact
can be noticed on bare perusal of the said
certificate at Exh.40. The learned Counsel
further submitted that the date of birth recorded
of the prosecutrix in the school record on the
basis of the aforesaid certificate at Exh.40,
therefore, is not free from doubt. The learned
Counsel submitted that, that is the only evidence
brought on record by the prosecution as about the
age of the prosecutrix.
13) The learned Counsel, inviting my
attention to the report of the Medical Officer,
wherein reference is also made to the report of
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the Radiologist, urged that from the Medical
Certificate, a reasonable inference can be drawn
that the prosecutrix was more than the age of 18
years at the relevant time. The learned Counsel
submitted that , overwhelming evidence has come
on record showing that the prosecutrix was the
consenting party in leaving her house and to
elope along with the accused. The learned
Counsel submitted that the evidence on record
further clearly establishes that even the
physical relationship established between the
accused and the prosecutrix was with consent of
the prosecutrix and the element of force or
coercion was totally absent. The learned Counsel
submitted that as such, in fact, no offence can
be said to have been made out against the accused
and he deserves to be acquitted from all the
charges levelled against him.
14) As against it, it was with equal
vehemence argued by the learned APP that the date
of birth certificate from the school first
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attended by the prosecutrix is held to be the
best evidence for proving the age of the minor.
The learned APP, invited my attention to Rule 12
of th Juvenile Justice (Care and Protection of
Children) Rules, 2007, and more particularly
referred to sub-rule (3) of Rule 12. In support
of his said contention, the learned APP cited
judgment of the Hon’ble Apex court in the case of
Mahadeo s/o Kerba Mhaske Vs. State of Maharashtra
and Anr. – (2013) 14 SCC 637. The learned APP
further submitted that the prosecution has
examined the Headmaster of the school, which was
first attended by the prosecutrix, and as such,
there is no reason for disbelieving the date of
birth, as is mentioned in the said school record,
which has been duly proved by the prosecution.
The learned APP further submitted that the
medical evidence as about the age of the minor
can only be taken into account in absence of any
cogent and sufficient evidence in the form of
birth certificate from the Grampanchayat or
Municipal Council or from the school record etc.
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The learned APP further submitted that even the
Medical Officer has certified the age of the
prosecutrix to be in between 16 to 17 years. The
learned APP further submitted that in the
circumstances, no blame can be attributed on part
of the learned Special Court in recording the
finding that the prosecutrix was minor at the
relevant time and as such, the defence of consent
put forth by the accused was immaterial to
absolve him from the culpability proved against
him.
15) As has been held by the Hon’ble Apex
court in the case of Mahadeo Mhaske (cited
supra), Rule 12(3) of the Juvenile Justice (Care
and Protection of Children) Rules, 2007 is to be
applied in determining the age of the victim of
rape. Rule 12(3) of the said Rules reads as
under, –
“12(3) In every case concerning a
child or juvenile in conflict with
law, the age determination inquiry
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13 Cri. Appeal 20/2016Board or, as the case may be, by the
Committee by seeking evidence by
obtaining, –
(a)(i) the matriculation or equivalent
certificate, 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 Pachayat.”
Under Rule 12(3)(b), it is specifically provided
that only in absence of alternative methods
described under Rules 12(3)(a)(i) to (iii),
medical opinion can be sought for. In view of
the law laid down, as above, the evidence in the
present matter has to be closely scrutinized. As
noted herein above, the prosecution has relied
upon the school record pertaining to the
prosecutrix wherein her date of birth is
mentioned as 31st January, 1998. It is further
not in dispute that by examining the Headmaster
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of the school, which the prosecutrix first
attended, the prosecution has brought on record
that the date of birth of the prosecutrix is 31st
January, 1998. In the evidence of the said
Headmaster (PW 8 Vaijinath), original application
form of the prosecutrix; her school leaving
certificate and the birth certificate issued by
Sarpanch Khadgaon, were brought on record and
they were exhibited. From the evidence, which
has come record, it is quite evident that the
date of birth, as was recorded in the school
register, was on the basis of the birth
certificate issued by Sarpanch of village
Khadgaon, which is at Exh.40. The said
certificate is thus the crucial document.
16) I have carefully perused the birth
certificate at Exh.40. It is apparently revealed
that there is some over-writing in the year of
birth. PW 6 – Vaijinath – Headmaster of the
school has also admitted the said fact. He has
also admitted that the over-writing was since
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before admission. He further submitted that he
does not know as to who had done the said scoring
and when it was done.
17) The birth certificate at Exh.40 is
admittedly issued by Sarpanch of village Khadgaon
Tq. And District Latur. It was the contention of
the learned counsel appearing for the accused
that the Sarpanch of the village cannot, under
his signature, issue such birth certificate.
There is substance in the submission so made. As
has come on record in the evidence of DW 1 –
Uttam Gomsale, only Gramsevak of the village can
issue such certificate. There further cannot be
a dispute that Gramsevak is the custodian of the
Grampachayat record. It was specifically deposed
by DW 1 – Gomsale that Gramsevak only has
authority to issue the birth certificate. The
prosecution has not brought on record any
evidence to show that Sarpanch of the village
also can issue the birth certificate.
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16 Cri. Appeal 20/201618) Further, the birth certificate at Exh.
40 does not reveal as to on which date the said
entry was taken in the Grampanchayat record. The
very second column meant for date of
registration of birth is blank. From Exh. 40 it
also cannot be gathered as to on which date, the
copy of the said birth date certificate was
issued by the Grampanchayat and more importantly,
there is apparent over-writing in the year of
birth. From bare eye, it can be seen that
previously some another year of birth was
recorded and subsequently figure/digit 8 seems to
have been over-written. The aforesaid document
is certainly not free from doubt. On the basis
of such certificate, it cannot be conclusively
said that date of birth of the prosecutrix is 31 st
January, 1998.
19) Admittedly, Exh.40 is the document on
the basis of which the date of birth is recorded
in the school record of the prosecutrix.
Obviously same date is, therefore, appearing in
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17 Cri. Appeal 20/2016admission form and in the school leaving
certificate. As has come on record in the cross-
examination of PW 2 - Babasaheb Aadsule, i.e.
father of the prosecutrix, he also did tell the
date of birth of the prosecutrix on the basis of
her school leaving certificate. The father of
the prosecutrix has nowhere stated that he has
provided the information as about the birth of
the prosecutrix and that on the basis of the
information so provided by him, the entry was
taken in the Grampanchayat record.
20) In the above circumstances, the date of
birth of the prosecutrix, as is mentioned in the
birth certificate at Exh.40, cannot be
undoubtedly accepted as the correct date of birth
of the prosecutrix. Evidence brought on record
by the prosecution to prove that prosecutrix's
date of birth is 31.1.1998 is not free from doubt
and therefore cannot be depended upon.
21) In the foregoing circumstances,
according to me, it would be unsafe to determine
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18 Cri. Appeal 20/2016the age of the prosecutrix on the basis of birth
certificate on record or on the basis of the
school record.. If the aforesaid record is kept
out of consideration, the other evidence existing
on record is the oral evidence of Dr. Annasaheb
Birajdar and the certificate, which was proved
through his evidence and marked as Exh. 52. As
has come on record through evidence of PW 9 -
Dr.Birajdar, age of the person can be opined on
the basis of number of teeth. Dr.Birajdar has
also admitted that the age of the person having
28 teeth may be more than 18 years. The medical
examination report at Exh.52 demonstrates that
the prosecutrix is having 28 teeth. Further, the
report at Exh.52 reflects that as per the
Radiologist's opinion, age of the victim was
between 16 to 17 years. As per the medical
science, opinion given by the Radiologist can
have margin or error on either side up to the
period of two years. There is, therefore, reason
to believe that the age of the prosecutrix at the
relevant time, may be more than 18 years. The
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19 Cri. Appeal 20/2016prosecutrix was thus cannot be said to be a child
as defined under the Juvenile Justice Act or the
POCSO Act.
22) As I have elaborately discussed herein
before, there is overwhelming evidence on record
to show that the prosecutrix had voluntarily
eloped with the accused and no such inference can
be drawn from the other evidence on record that
the physical relationship, established between
the accused and the prosecutrix, was against the
will of the prosecutrix or without her consent.
The evidence on record clearly establishes that
since father of the prosecutrix had fixed the
marriage of the prosecutrix with one Yogesh with
whom the prosecutrix was not ready to get
married, she, at her own, eloped with the
accused and further whatever had happened was
with consent of the prosecutrix.
23) As I have noted in earlier paras of the
judgment, the accused has been held guilty by the
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20 Cri. Appeal 20/2016learned Special Judge for the offences alleged
against him only for the reason that the
prosecutrix was minor at the relevant time and in
the circumstances, even if from the prosecution
evidence it was revealing that the prosecutrix
was the consenting party, the said aspect was
kept out of consideration.
24) Now, in view of the finding recorded by
me that the prosecution has failed in
conclusively establishing that the prosecutrix
was below the age of 18 years on the date of
offence allegedly committed by the accused, the
order of conviction passed by the learned Special
Judge cannot be sustained and deserves to be set
aside.
25) For the reasons stated above, following
order is passed, -
ORDER
i) The judgment and order dated
27th July, 2015 passed by III Additional
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21 Cri. Appeal 20/2016Sessions Judge, Latur in Special Case
(POCSO) No.28/2014, is quashed and set
aside;
ii) The appellant - Kiran s/o Ashok
Gawali is acquitted of all the offences
charged against him. The appellant be
released forthwith, if not required in
any other case or crime;
iii) The Criminal Appeal thus stands
allowed.
(P.R.BORA)
JUDGE
bdv/
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