1 CR214.2007

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR

Criminal Revision Application No. 214/2007

Applicant : Kishor S/o Baburao Tikhade
Aged about 30 Years, Occ. Education,
Resident Anandwadi, Tiwasa Tq. Tiwasa, Dist.
Amravati

Versus

Non-Applicant : The State of Maharashtra, Through PSO
Tiwasa Tq. Dist. Amravati

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Shri A.R. Fule,Adv. for the Applicant
Smt K.R. Deshpande,A.P.P for the Non-Applicant/State

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CORAM : V.M. DESHPANDE, J.
DATE : 10.8.201
7
.

Oral Judgment

1. Heard Shri A.R. Fule for the applicant and Smt. K.R. Deshpande-

learned Additional Public Prosecutor for the State.

2. By the present revision, the applicant is challenging his conviction

for an offence punishable under Section 376 of Indian Penal Code and sentence

imposed upon him for the said offence by the Learned 3rd Ad-hoc Assistant

Session Judge, Amravati and the judgment and order passed by the learned

Session Judge, Amravati dated 09/08/2007 in Criminal Appeal No. 54/2002.

As per the order of sentence, the applicant was sentenced to suffer rigorous

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imprisonment for three years and to pay a fine of Rs. 1,000/- and in default

suffered rigorous imprisonment of three months.

3. The First Information Report was lodged by the victim herself vide

report Exhibit No. 29. The said report was lodged on 24/02/1999. The report

lodged by the victim (PW1) was recorded as Crime No. 20/1999 at Police

Station, Tiwasa by Nana Pimple (PW-5). During the course of the investigation,

in presence of Panch- Vilas (PW-4), the clothes of the applicant were seized

under seizure memo Exhibit No. 25. The panch in whose presence the clothes

of the victim were seized has turned hostile. However, the Investigating Officer-

Nana Pimple (PW-5) proved the seizure memo and it is at Exhibit No. 17.

4. The victim was also sent to hospital for her medical examination.

Dr. Pushpa (PW-6) examined her and gave a certificate at Exhibit No. 32. After

completion of investigation, charge-sheet was filed. The charge for an offence

punishable under Section 376 was framed against the applicant that he

committed rape on the victim, a minor girl. In order to prove its case, the

prosecution has examined in all six witnesses.

5. One question that is to be answered by this Court is in respect of the

age of the prosecutrix. Admittedly, at that time of the alleged incident, the

victim was pursuing her studies in school. However, for reasons best known to

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the prosecution, no document was procured from the school where the victim

was taking education to show the date of birth of the victim nor the

prosecution has attempted to file any document in the nature of the birth

certificate issued by the Competent Authority.

6. In the examination-in-chief, the victim did not state her date of

birth. However, in the cross-examination, it is brought on record that the date

of birth of the victim is 29/09/1985. Though it was for the prosecution to prove

the date of birth of the victim, it is brought on record in the cross-examination

of the applicant. In view of her further examination, should Court rush to

accept her statement in respect of her birth ? During the course of her further

cross-examination, she specifically states that she has not filed any

documentary evidence to prove that her date of birth is 29/09/1985.

7. The victim being school going girl, the prosecution ought to have

attempted to procure the documentary evidence to show the date of birth of

the victim. In my view the best possible evidence is withheld by the prosecution

by not making any attempt for procuring the document in respect of the date of

birth of the prosecution coupled with the fact that Nalini (PW-3) also did not

give the date of birht of the prosecutrix.

8. Further, the learned Lower Appellate Court has reached to the

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conclusion in Paragraph No. 9 of the judgment that though the prosecution has

failed to file any documentary evidence to show that the victim was below the

age of 16 years, ultimately, he reached to the conclusion that she was below

the age of 16 years. However, the reasoning given by the learned Session

Judge, in my view, is nothing but a guess work as it could not be seen from the

reasoning in the judgment from Paragraph No. 9 to 11.

9. Therefore, in the absence of any positive evidence on record, in my

view, the prosecution has failed to prove that on the date of incident, the victim

was below the age of 16 years. According to the First Information Report, the

incident, in question, has occurred on 20/02/1999. The matter is reported to

the Police on 24/02/1999. Thus, there is a delay of good four days. According

to the learned Additional Public Prosecutor, since threats were extended to

her, the matter was not reported to the police immediately.

10. Even the evidence of Nalini (PW-3), mother of the victim, for the

first time, she got the information about the incident only on 24/02/1999.

Thus, for four days, the incident was not even narrated to her mother.

11. Normally, a girl will not hesitate to state the happening to her

mother. Further, the applicant does not face charge that he extended any

threats to the victim. There is a document on record below Exhibit No.

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18/2001 which clearly shows that there was a love affair between the victim

and the applicant. The victim has also admitted in her cross-examination that

her parents were not ready to perform her marriage with the present applicant.

When Dr. Pushpa (PW-6) examined the victim, no injuries were noticed on her

private parts as mentioned in Medical Examination Report at Exhibit No. 32. In

her evidence, Dr. Pushpa (PW-6) has stated that no definate opinion can be

given in respect of rape. Exhibit No. 17 is the seizure Panchnama under which

the clothes of the victim were seized. Perusal of Exhibit No. 17 shows that the

clothes were having blood stains as well as semen stains. Her clothes were sent

to the Criminal Analyzer by the Investigating Officer under Requisition Exhibit

No. 12. However, the Criminal Analyzer’s report was not filed by the

prosecution.

12. In view of the aforesaid backdrop, if the evidence of the prosecutrix

is scrutinized, then it shows that the story which she has narrated in the FIR

appears to be improbable. In my view, the scrutiny of the evidence and the FIR

shows that there was ample opportunity available to her to raise hues and

cries. Exhibit No. 7 is a spot Panchnama. Reading of the said Panchnama shows

that house of the victim i.e the place of the occurrence of incident is

surrounded by houses of many persons from all directions. This Court is of the

view that the evidence of the victim does not appear to be cogent and which

suggests the implication of the applicant at the behest of the parents of the

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victim since they were not ready to perform the marriage with the applicant,

lodging of the FIR after four days plays a vital role to discard the prosecution

witness.

13. In my view, the Court below ought not to have fixed the age of the

victim only on guess work. Further, when the evidence of the prosecutrix does

not inspire confidence, then for want of corroboration from Doctor, it was

unsafe to record the conviction, that leads me to pass the following order:-

O R D E R

1] Criminal Revision No. 214/2007 is allowed.

2] Judgment and order passed by 3rd Ad-hoc Assistant Sessions Judge,

Amravati dated 01/11/2002 in S.T. No. 64/1999 and also

Judgment and order passed by the Session Judge, Amravati

dated 09/08/2007 in Criminal Appeal No. 54/2002 are hereby

quashed and set aside.

3] The applicant is acquitted for an offence punishable under Sections

376 of IPC.

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4] Bail bond of the applicant stands cancelled.

JUDGE

Ansari

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