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Kishor Hardoji Nimgade vs The State Of … on 14 March, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL 150 OF 2001

Kishor @ Bandu s/o. Hardoji Nimgade,
Aged about 23 years, Occ. Service,
Resident of Etapalli, District Gadchiroli, …. APPELLANT

VERSUS

The State of Maharashtra,
through Police Station Officer
Etapalli, District Gadchiroli …. RESPONDENT

__
Shri R.M. Daga, counsel for the appellant.
Shri. N.H. Joshi, Addl. Public Prosecutor for respondent.
__

CORAM : ROHIT B. DEO, J.
DATED : 14 th
MARCH, 2018

ORAL JUDGMENT :

Challenge is to the judgment and order dated 31.5.2001

rendered by the learned Additional Sessions Judge, Gadchiroli in

Sessions Case 23 of 1993 by and under which the appellant – accused

is convicted for offence punishable under section 376 of the Indian

Penal code (“IPC” for short) and is sentenced to suffer rigorous

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imprisonment for seven years and to payment of fine of Rs.500/-.

2 Heard Shri R.M. Daga, the learned counsel for the accused

and Shri N.H. Joshi, Additional Public Prosecutor for the respondent /

State.

3 The learned counsel for the accused Shri R.M. Daga

submits that the sexual relationship, even if it is assumed that the

sexual relationship is established, was consensual. Shri R.M. Daga

would then submit that the prosecution failed to prove that the age of

the prosecutrix was less than 16 years as on the date of the alleged

incident.

Per contra, Shri N.H. Joshi, the learned Additional Public

Prosecutor supports the judgment and order impugned. The learned

APP would submit that the learned Sessions Judge has after

appreciation of evidence recorded a finding that the prosecution has

proved that the prosecutrix was less than 16 years of age, which

finding is unexceptionable.

4 Having given my anxious consideration to the evidence on

record, I am inclined to accept the submission of Shri R.M. Daga that

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the sexual relationship between the accused and the prosecutrix was

consensual. PW 4 – Prosecutrix has deposed that she and the accused

became acquainted since both used to visit the house of one Ragabate

to watch television. It is the version of the prosecutrix that love

blossomed between the two, letters were exchanged and the

prosecutrix used to met the accused daily. Since the accused was not

seen for 2 to 3 days, the prosecutrix visited the quarter of the accused

who was working as class IV employee in Primary Health Center,

Etapalli. The accused induced the prosecutrix to have sex assuring that

some day or other he and the prosecutrix have to marry. According to

the prosecutrix, this incident took place on 10.10.1991, the exchange

of letters continued and the prosecutrix and the accused again had

sexual intercourse on 17.1.1992. The menstrual cycle was interrupted

and was regularized after prosecutrix consumed three pills given to her

by the accused. The prosecutrix then states that the accused assured

the prosecutrix that they would marry at Gadchiroli pursuant to which

assurance, the prosecutrix left the house on 17.1.1992 and went to the

quarter of the accused. The second sexual intercourse referred to supra

took place on that day and according to the prosecutrix this sexual

intercourse was against her will and she was induced to have the

sexual intercourse on the pretext of marriage. The next day morning

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the accused asked the prosecutrix to go home, she refused to do so

since she had left the house with the intention of going to Gadchiroli.

However, the accused told her that since she is under age, her father

may lodge report against him and he may be placed behind bars. The

prosecutrix did not relent and was driven out of the house by the

accused who threatened her that should she disclose the incident to

anybody, her parents will be harmed. The prosecutrix went to the

house of friend of her mother one Mainabai Sarkar. It was when she

was staying with Mainabai that she disclosed the incident to her

brother Rahul and then her father lodged report against the accused.

This report is lodged on 25.1.1992.

The evidence that the first sexual intercourse took place on

10.10.1991 is an omission. In the cross-examination, the prosecutrix

was questioned about the incident which took place on 17.1.1992 and

in response a grossly exaggerated and improved version is given.

According to the prosecutrix, she was forcibly made to lay down on the

ground, she kept on attempting to get up and she was brought down

on the ground time and again (about 15 to 20 times, is the deposition).

She states that her clothes were removed forcibly and she shouted for 5

minutes. She suffered pain in the private part, her breasts were

pressed forcibly, there was swelling on the private part and on the

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breasts. It is elicited in the cross-examination, that from 17.1.1992 to

25.1.1992 she did not have any talk with her father. The evidence that

she narrated the incident to her brother Rahul is an omission. It is

elicited that at the time of her birth her father was residing at Girgaon

Tahsil Nagbhid and her birth is registered at Grampanchayat, Aheri.

She denies the suggestion that in view of her questionable character,

accused refused to marry her and that in order to pressurize the

accused, she is falsely alleging that she is subjected to sexual

intercourse on 17.1.1992.

5 The prosecutrix was medically examined by PW 5 Dr.

Madhyama Chahande on 27.1.1992. PW 5 Dr. Chahande opines that

the age of the prosecutrix was 16 years or thereabout and the last

menstrual period was 15.1.1992. It is elicited that the prosecutrix did

not narrate any history of sexual intercourse to PW 5. No injury on the

person of the prosecutrix was noticed nor was any bleeding noticed

from the vagina. No injury was noticed over the internal genital

organs. PW 5 has proved the Medico Legal Certificate Exh. 22.

6 PW 2 – Shivlingu Parsalwar states that he is acquainted

with the prosecutrix and her father and also the accused. PW 2 states

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that he came to know from the father of the prosecutrix that she was

driven out of the house by the accused. The prosecutrix was then

living in the house of one Dipak Tikle. The prosecutrix expressed her

desire to marry the accused. However, PW 2 asked the accused

whether he is ready to marry the prosecutrix, he refused to do so. The

evidence of PW 2 does not take the case of the prosecution any further.

Rather the evidence that the prosecutrix was desirous of marrying the

accused would render improbable the version of the prosecutrix as to

what transpired on 17.1.1992.

7 PW 9 – Ishwar Dhoke is the father of the prosecutrix who

has deposed that there was a relationship between the prosecutrix and

the accused. PW 9 states that he told the prosecutrix that she had not

attained the age of marriage. PW 9 states that the prosecutrix

conveyed her decision to marry the accused and one evening she told

PW 2 that since her desires are being sacrificed, she wished to go to the

house of the accused and left residence. PW 9 states that he came to

know that within a day or two the accused throw the prosecutrix out of

the house. He states that the prosecutrix disclosed that the accused

had sexual intercourse with her by promising marriage.

It is elicited in the cross-examination that while admitting the

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prosecutrix in the school, the certificate of Grampanchayat was not

produced. The evidence that the prosecutrix disclosed that accused

promised marriage, is an omission. The evidence that the prosecutrix

disclosed after being allegedly driven out by the accused that the

sexual intercourse was in view of promise to marry, is again an

omission. It is elicited that he refused to accept the custody of the

prosecutrix when the police asked him to do so. Pertinently, PW 9

admits that he gave the date of the incident as 17.1.1992 in order to

show that the prosecution was minor.

8 The admission given by the father of the prosecutrix that

he stated the date of the incident (alleged sexual intercourse) as

17.1.1992 in order to show that the prosecutrix was minor is

particularly significant since as on 17.1.1992, the prosecutrix was only

3 days short of turning 16, even if the date of birth is accepted at face

value. Be it noted, that the fact that the report was lodged on

25.1.1992 and there is virtually no explanation for the delay in lodging

the report, may suggest that the report was not unduly delayed, but the

incident, assuming that such incident took place, occurred on or after

20.1.1992 when the prosecutrix turned 16. The evidence on record is

grossly insufficient to record a finding that the accused promised to

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marry the prosecutrix and it was only in view of such promise that the

prosecutrix agreed to the sexual relationship. The evidence of the

prosecutrix is not at all confidence inspiring. She is not consistent.

Her version in the cross-examination that she was forcibly ravished,

that she was resisting and shouting, is incompatible with the earlier

version that she was induced into sexual relationship by the promise of

marriage. Her readiness to marry the accused even after the alleged

incident took place on 17.1.1992 is again a circumstance which would

shake the credibility of the evidence of the prosecutrix. The conscious

of the Court is satisfied that the sexual relationship, assuming there be

any, was consensual.

9 The pivotal question is however, whether the prosecutrix

was not 16 years when the sexual intercourse took place, if at all. I

have already noted that the version of the prosecution that the incident

took place on 17.1.1992 is rendered suspect in view of the admission

given by the father of the prosecutrix that he stated the date of the

incident as 17.1.1992 only to show that the prosecutrix was minor.

That apart, the extract of the school register Exh. 25 which is proved by

PW 8 reveals that the prosecutrix was admitted in the 11 th standard.

Record of the first school in which the prosecutrix was admitted is not

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produced. PW 8 admits that entry of birth in Exh. 25 is on the basis of

the transfer certificate produced by the student. The primary

document on the basis of which the entry is taken is not produced.

Exh. 42 is ossification test report which states that the prosecutrix

appears to be between 14 to 16 years of age. The best possible

evidence, which is birth certificate is not produced on record although

it is admitted by the prosecutrix that her birth is registered with

Grampanchayat, Aheri. In my opinion, the prosecution did not prove

beyond reasonable doubt that the age of the prosecutrix was less than

16 years as on 17.1.1992. This is apart from the fact that it is doubtful

whether the sexual intercourse took place, if at all, on 17.1.1992.

In the light of the discussion supra, the judgment and order

dated 31.5.2005 is set aside, the accused is acquitted of offence

punishable under section 376 of the IPC.

10 Bail Bond stands discharged.

11 Fine paid by the accused, if any, be refunded to accused.

12 Appeal is allowed and disposed of accordingly.

JUDGE

RSB

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