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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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