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Lahu S/O. Bhausaheb Sonwane vs The State Of Maharashtra on 9 March, 2020

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO.263 OF 2016

Lahu Bhausaheb Sonwane,
Age 28 yrs., Occ. Supervisor,
R/o Hadas Pimpalgaon,
Tq. Gangapur, Dist. Aurangabad.

… Appellant.

… Versus …

1 The State of Maharashtra,
Through Police Inspector,
Police Station, Shrirampur,
Dist. Ahmednagar.

2 X

… Respondents.

Mr. M.A. Tandale, Advocate for appellant

Mr. A.A. Jagatkar, APP for respondent No.1

Mrs. R.R. Mane, Advocate for respondent No.2

CORAM : SMT. VIBHA KANKANWADI, J.

RESERVED ON : 13th FEBRUARY, 2020
PRONOUNCED ON : 09th MARCH, 2020

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JUDGMENT :

1 Present appeal has been filed by original accused challenging his

conviction by learned Additional Sessions Judge, Shrirampur, Dist.

Ahmednagar in Sessions Case No.36/2011 dated 16.10.2014, whereby he

was held guilty of committing offence punishable under Section 363, 366-A,

376 of the Indian Penal Code.

2 Informant is the brother of the victim. He lodged report with

Shrirampur Police Station on 20.03.2011 stating that his sister, who was then

aged 15 was residing with him, another brother, brother’s wife and since last

about 5 years prior to the said date they all were at Taklibhan, Tq.

Shrirampur, in Ashok Nagar Sugar Factory for cutting sugarcane from the

jurisdiction of the factory. It was also stated that the brother’s wife had gone

for delivery, and therefore, his sister i.e. victim was doing all the domestic

work including cooking food. On 14.03.2011 at about 7.00 a.m. when the

informant was at his house in Agathan, Tq. Gangapur, his brother informed

from Taklibhan, that sister is missing since 10.00 p.m. of 13.03.2011. The

brother informed, that after the dinner they all went to sleep and in the

morning he found that the sister is not in the hut. He waited for a

considerable time and then made inquiry, however, she could not be found.

Ultimately when inquiry was further made with one lady, she told that the

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victim has gone with Lahu Bhausaheb Sonwane i.e. accused, and therefore,

both of them were searched. They both could not be found. Brother of the

accused brought accused as well as the victim to Taklibhan on 20.03.2011

and when inquiry was made with the victim, she told that accused had taken

her under the pretext to marry at Zolegaon, and therefore, the informant

lodged the report.

3 On the basis of the said First Information Report, offence vide

Crime No.29/2011 was registered under Section 363, 366-A of the Indian

Penal Code. The accused was produced before the police, so also the victim.

The victim was then sent for medical examination. After the medical

examination was conducted, offence under Section 376 of the Indian Penal

Code was added. Statement of witnesses were recorded. Medical

examination of the accused was also got done. Panchnama of the spot was

carried out, so also certain articles were seized. Samples were sent for

chemical analysis along with the other muddemal and after collecting the

evidence charge sheet was filed.

4 The accused appeared before the learned Sessions Judge, after

the case was committed and then charge was framed at Exh.6 for the offence

punishable under Section 363, 366-A, 376 of the Indian Penal Code. The

contents of the charge were read over and explained to the accused in

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vernacular. He pleaded not guilty and trial has been conducted. Prosecution

has examined in all seven witnesses to bring home the guilt of the accused.

After considering the incriminating evidence the statement of the accused

under Section 313 of the Code of Criminal Procedure was recorded. After

hearing both sides the learned Additional Sessions Judge held the accused

guilty. He has been sentenced to suffer rigorous imprisonment for three years

and pay fine of Rs.10,000/-, in default to suffer rigorous imprisonment for

two months for the offence punishable under Section 363 of the Indian Penal

Code. He has been further sentenced to suffer rigorous imprisonment for

seven years and pay fine of Rs.15,000/-, in default to suffer rigorous

imprisonment for three months for the offence punishable under Section 366-

A of the Indian Penal Code. Further, he has been sentenced to suffer rigorous

imprisonment for 10 years and pay fine of Rs.20,000/-, in default to suffer

rigorous imprisonment for four months for committing offence punishable

under Section 376 of the Indian Penal Code. All the sentences have been

directed to run concurrently. Set off has been granted under Section 428 of

Cr.P.C.. Out of the fine amount, amount of Rs.40,000/- was directed to be

paid to the victim as compensation under Section 357 of Cr.P.C.. This

conviction has been challenged by the accused in this appeal.

5 Heard learned Advocate Mr. M.A. Tandale for the appellant,

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learned APP Mr. A.A. Jagatkar for respondent No.1-prosecution and learned

Advocate Mrs. R.R. Mane (appointed through High Court Legal Services Sub-

Committee) for respondent No.2 victim.

6 It has been vehemently submitted on behalf of the appellant that

the perusal of the evidence, adduced on behalf of the prosecution, would

basically raise a question, that whether the victim was minor on the date of

the offence and whether she was a consenting party or not. Though a birth

certificate is produced, it has been marked as Article “H” and it was not

considered as ‘proved’ by the learned Trial Judge, however, still he relied on

the said document. Article “H” was not a public document and it could not

have been read in evidence unless concerned person ought to have been

examined. Further, though it has come on record that victim has studied up

to 5th standard, yet, the school record was not collected by the Investigating

Officer and the school authorities, where she had taken education, was not

examined. Though the victim has stated her birth date as ‘22.03.1995’, the

said date does not match with the birth certificate on record. In her cross-

examination she has stated that after studying up to 5 th standard she had left

the school about 10-15 years prior to her deposition. Inference can be drawn

from the point, that since she was married on the date of her deposition, she

says that she was 19 years of age and says that she was having two sons at

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that time; she was, in fact, major when the incident took place. The

admissions given by the informant as well as the victim in their cross

examination have not been considered by the learned Trial Judge. The

informant has in clear terms admitted that the victim had gone with accused

voluntarily. Though PW 2-victim says that the accused had given promise to

marry, we cannot infer that, that promise was an inducement. She has not

stated that she was ever, in any way forced, by the accused to come along

with him. The entire testimony of the victim shows, that she had left the

custody of guardian (if it is presumed that she was minor on that day) on her

own. The cross-examination of the victim would also give clear picture that

she had ample opportunity to escape but she did not. This also indicates that

she had willingly left with the accused. PW 3 is the another brother of the

victim, who has, in fact, not supported the prosecution story and in the cross-

examination has admitted, that his sister had voluntarily left with the

accused. PW 4 is the panch witness, who has witnessed execution of various

panchanamas. But the accused is not seriously disputing them. PW 5 Dr.

Chhatwani, the Medical Officer has deposed about results of the examination

carried out by her on the victim as well as accused and had come to the

conclusion that the victim was subjected to sexual intercourse, but the main

important point is that she had not conducted ossification test. She had not

examined the teeth of the victim. She has also admitted that she is agreeing

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with propositions and conclusions drawn in Modi’s Textbook on Medical

Jurisprudence for conducting ossification test; but, then says that those tests

have not been conducted. Therefore, the conclusion will have to be drawn

that the age of the accused is not established by the prosecution beyond

reasonable doubt. The Chemical Analyzer’s Reports are not supporting the

prosecution. Therefore, taking into consideration all these aspects the trial

Court ought to have acquitted the accused from all the charges.

7 The learned Advocate appearing for the appellant has relied on

the decision in Sunil vs. State of Haryana, 2010 Cri.L.J. 839, wherein the

prosecutrix was in love with accused and was the consenting party. The

reports of Dental Surgeon and Radiologist were not produced, though

prosecutrix was referred by doctor to them. The clinical examination

showing that prosecutrix had well developed secondary sex character. Close

and careful determination of age of prosecutrix was imperative. Admission

form of the school was not produced and the father was giving age of the

prosecutrix only approximately. Under such facts and circumstance, the

Hon’ble Apex Court held that the conviction of the accused on such evidence

would be improper.

Further, reliance has been placed on the decision in Deelip Singh

@ Dilip Kumar vs. State of Bihar, 2005 ALL MR (Cri) 220 (S.C.). In this case

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prosecutrix aged 16-17 years fell in love with accused, who was neighbour.

In the First Information Report the prsoecutrix stated that because of the

repeated promises to marry given by the accused she had surrendered before

him. It was held that it was most unlikely, that an unwilling girl will go to a

secluded place at mid-night and take the risk of being sexually assaulted, and

therefore, the finding was reversed. Further it has been held –

“While a promise to marry without anything more will not give
rise to ‘misconception of fact’ within the meaning of Section 90, it
needs to be clarified that a representation deliberately made by the
accused with a view to elicit the assent of the victim without having the
intention or inclination to marry her, will vitiate the consent. If on the
facts it is established that at the very inception of the making of
promise, the accused did not really entertain the intention of marrying
her and the promise to marry held out by him was a mere hoax, the
consent ostensibly given by the victim will be of no avail to the accused
to exculpate him from the ambit of Section 375, Clause secondly.”

Further, reliance has been placed on the decision in Alamelu and

another vs. State represented by Inspector of Police and other companion

matters, AIR 2011 SUPREME COURT 715, wherein the Hon’ble Apex Court

held that the entire story of abduction by car and forced marriage appears to

be a concocted story to falsely implicate accused and relatives. In this case

also though the prosecutrix was medically examined, there was no

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determination of age, and therefore, advantage of the said fact was given to

the accused.

Further, reliance has been placed on the decision in Dr.

Dhruvaram Murlidhar Sonar vs. The State of Maharashtra and others, 2019

ALL MR (Cri) 771 (S.C.), wherein the Hon’ble Apex Court held that –

“Section 90 of Penal Code though does not define “consent”, but
describes what is not “consent”. Consent may be express or implied,
coerced or misguided, obtained willingly or through deceit. If the
consent is given by the complainant under misconception of fact, it is
vitiated. Consent for the purpose of Section 375 requires voluntarily
participation not only after the exercise of intelligence based on the
knowledge of the significance and moral quality of the act, but also
after having fully exercised the choice between resistance and assent.
Whether there was any consent or not is to be ascertained only on a
careful study of all relevant circumstances.

There is a clear distinction between rape and consensual sex.
The court, in such cases, must very carefully examine whether the
complainant had actually wanted to marry the victim or had mala fide
motives and had made a false promise to this effect only to satisfy his
lust, as the latter falls within the ambit of cheating or deception. There
is also a distinction between mere breach of a promise and not fulfilling
a false promise. If the accused has not made the promise with the sole
intention to seduce the prosecutrix to indulge in sexual acts, such an
act would not amount to rape. There may be a case where the
prosecutrix agrees to have sexual intercourse on account of her love
and passion for the accused and not solely on account of the

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misconception created by accused, or where an accused, on account of
circumstances which he could not have foreseen or which were beyond
his control, was unable to marry her despite having every intention to
do. Such cases must be treated differently. If the complainant had any
mala fide intention and if he had clandestine motives, it is a clear case
of rate. The acknowledged consensual physical relationship between
the parties would not constitute an offence under Section 376 of the
IPC.”

8 Per contra, the learned APP as well as the learned Advocate for

the respondent No.2 supported the reasons given by the learned Trial Court

while convicting the accused. It was submitted that Exh.65, which is the

report of Medical Officer regarding age determination coupled with clinical

examination shows that Radiologist had given report, that the victim was

more than 16 years and less than 18 years of age. Therefore, she was minor

and was under the custody of brother. Though the informant was at his

native place on that day, yet, she was under the custody of PW 3, who was

the another brother of the victim. The medical evidence is supporting the

story of sexual intercourse given by the victim. The testimony of the victim is

inspiring confidence. She has categorically stated that accused was

introduced by the neighbouring lady. Accused used to come to her house

regularly and then when accused had given her promise to marry, he had told

that they will run away and then accordingly she had gone along with the

accused. C.A. report says the tests are positive, and therefore, taking into

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consideration the sole testimony of the victim coupled with medical evidence,

the learned Trial Judge was justified in holding the accused guilty of

committing the offences.

9 PW 1 is the informant, but as aforesaid, as per the contents of

the First Information Report as well as his testimony, he was not even at

Taklibhan on the day of incident. Therefore, his testimony is based on the

information supplied to him, firstly by his elder brother and secondly by the

victim after she was brought back. He has also stated that the lady in the

neighbourhood by name Mathurabai had given information that the victim

had gone along with the accused. Said Mathurabai had not been examined

by the prosecution for the reasons best known to it. How Mathurabai got the

information or whether she had seen personally victim going along with

accused, is a question. It could not also give indication, whether victim had

gone voluntarily or was forced by the accused to go along with him.

Thereafter, he says that after the sister was brought, upon inquiry she said,

that accused had shown willingness to marry and then kidnapped her. But in

the cross-examination he has admitted that the sister had gone along with

the accused willingly. Accused belongs to their community and they are the

relatives and then he has also stated, that due to misunderstanding he had

lodged the report against the accused. The said admission ought to have

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been considered by the learned Trial Judge. Further, in his examination-in-

chief itself it has come on record, that the victim is married and has two

children. There was no attempt, on the part of the prosecution, to bring it on

record as to when she got married and what are the age of her children. The

incident had taken place between intervening night of 13.03.2011 to

14.03.2011 and PW 1 was examined on 19.04.2014. We can not infer that

within the span of about three years she got married and had two children.

It was also not extracted from PW 1, as to what was the age of the victim

when she got married. Therefore, opportunity to bring her age on record

through PW 1 was not taken by the prosecution. Since even PW 1 is elder to

victim, he would have been in better position to say about the age of the

victim.

10 PW 3 is the another brother of the victim, who has stated that

the sister was residing with him on the day of incident and they were at

Taklibhan. When he got up in the morning he saw that the victim is not in

the bed. The neighbour Mathurabai told him that the accused had come and

took away the victim. When it was found that the witness was not answering

the questions and he was feeling uneasy, a break was taken and after his

willingness the remaining questions were asked. He told that the accused

had touched the person of the victim and then promised her to marry. His

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brother lodged the report. It appears that intentionally the prosecution did

not extract all the information from this witness also. PW 3 is younger to PW

1 but elder to victim. He has also not stated as to what was the age of the

victim on the day of incident. Other facts have not been extracted from him

and it is hard to believe that after the sister would have returned, PW 3

would not have made any inquiry with her, as to what had happened. In his

cross-examination this witness is also saying that the sister had told him, that

she wished to marry accused and had herself gone with the accused. Again

he has stated that the victim has married with another boy. Further,

opportunity was available to the prosecution to bring the exact age of the

victim on the date of incident on record. But this opportunity has again been

not taken.

11 PW 2 is the victim. She has stated that her parents had died and

therefore, she was living with her brothers. At the time of incident she was

with one brother and as her sister-in-law had gone for delivery, she used to

cook food for the brother. Accused used to come to the house of one

Nandabai and said Nandabai had introduced the accused to her. Accused had

told her that he would marry her and they both would run away, and

therefore, she and the accused went to village Zolegaon. They went to

Sandip Dhaba, stayed there for a night, where the accused had sexual

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intercourse with her. From Zolegaon they went to the house of maternal

uncle of accused, where they stayed and also at that place the accused had

sexual intercourse with her, and thereafter, the brother of the accused had

brought them to Police Station, Shrirampur. Thus, it is to be noted that she

had not even stated, that any force was applied by the accused on her. It was

his simple statement that they would run away. But since the promise to

marry was given, it appears that she voluntarily left. She has stated that her

date of birth is 22.03.1995. In her cross-examination she had stated that she

had studied up to 5th standard and thereafter left the school about 10-15

years prior to her deposition, which was recorded on 20.04.2014. If we get

the calculation about the same, then she would definitely be major on the

date of incident. Her School Leaving Certificate was not procured by the

Investigating Officer. The testimony of PW 7, PSI Kshatriya, who has done

the investigation, is silent on the point, as to why he had not collected any

evidence regarding her birth date from school record. At this stage itself, the

birth certificate, which is on record, is required to be considered, which has

been marked as Article “H”. This birth certificate is issued by Rui

Grampanchayat, Tq. Kopargaon, Dist. Ahmednagar. Name of the child born

on 22.07.1995 is stated. Name of the child is mentioned and name of the

parents is also mentioned (That name is not reproduced here with intention

that it should not disclose her identity). However, there is difference in the

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name of father given by PW 1 to 3 with the said certificate and none of them

have stated about the name of her mother. None of them have given that

place of birth of victim is Rui, Tq. Kopargaon. This Court does not agree with

the submission on behalf of the appellant that birth certificate is not a public

document. In fact, it is a public document, which is the extract of the register

maintained under the provisions of Birth and Death Registration Act, which is

always maintained by the Government servant under the Act. However, as

regards present case is concerned, since basic information to connect the said

certificate with the victim have not been adduced, it cannot be accepted that

the said birth certificate is in respect of the victim. The birth date mentioned

by the victim in her examination-in-chief is also different than it has been

mentioned in Article “H”. The learned Trial Judge has not exhibited the said

document. The reasons for non-exhibition of the said document cannot be

gathered from the impugned Judgment. But when it was not exhibited then

the learned Judge ought not to have read it in evidence. Opportunity to cross

examine the concerned person as well as the Investigating Officer has not

been properly then given to the accused, when during the evidence it is

marked as Article and then it is read in evidence at the time of writing

Judgment. Therefore, we cannot consider that document to be a conclusive

proof regarding the date of birth of the victim, so as to hold that she was

minor, aged around 15, at the time of incident.

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12 As regards document Exh.65, it says that the age of the victim

was between 16 to 18 years. Though PW 5 Dr. Chhatwani has been

examined, Radiologist was different and document Exh.65 was not even

referred in the testimony of PW 5 Dr. Chhatwani. From the said document it

is absolutely not clear, as to how the said document came to be exhibited.

PW 7, PSI Kshatriya was the last witness, examined at Exh.41. The roznama

dated 25.09.2014 says that Exh.64 is given to medical certificate and

Judgment is at Exh.65. Yet, the document which has the heading ‘District

Hospital, Ahmednagar’ report of medical officer on examination of injuries

dated 22.03.2012 has been given Exh.65. That means, Exh.65 is repeated

and Exh.64 is given is the MLC document (OPD registration charges), which

is generally given at the stage of admission to any patient. Therefore, the

procedure adopted by the learned Trial Judge while exhibiting these

documents is absolutely illegal and the said document without examining any

medical officer, who was either the author or any way connected to the tests

conducted. It ought not to have been read in evidence. Thus, there is no

authentic document produced by the prosecution to prove that victim was

below 18 years of age, on the day of incident. Rather the admissions, that

she is married and has two children would show, that she was major or near

about 18 when the incident took place. Even if for the sake of convenience

we accept that Exh.65 report can be considered, it says that the age of the

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victim was between 16 to 18 years and there would be then margin of plus as

well as minus two and then when it comes to giving benefit to the accused

taken as plus two, therefore, she was having sufficient understanding

capacity on the day of incident.

13 Though the medical evidence in the form of PW 5 Dr. Chhatwani

can be said to be supporting prosecution and stating, that there were signs of

sexual intercourse and coupled with the testimony of the panch witnesses as

well as the panchanamas, those have been proved, C.A. report as well as the

other aspects deposed by the Investigating Officer, yet, the prosecution has

failed to prove that victim was below 18 years of age, on the day of incident,

beyond reasonable doubt. She had voluntarily gone with the accused and the

accused had not in any way forced her to leave the place, where she was

residing with her brother. Apart from the ratio in the decision relied by the

learned Advocate for the appellant, we will have to again take into

consideration the law laid down by the three Judge Bench of the Hon’ble

Apex Court in S. Varadarajan vs. State of Madras, AIR 1965 Supreme Court

942, wherein it has been observed that –

“But when the girl (who though a minor had attained the age of
discretion and is on the verge of attaining majority and is a senior
college student) from the house of the relative of the father where she
is kept, herself telephones the accused to meet her at a certain place,

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and goes there to meet him and finding him waiting with his car gets
into that car of her own accord, and the accused takes her to various
places and ultimately to the Sub -Registrar’s Office where they get an
agreement to marry registered, and there is no suggestion that this was
done by force or blandishment or anything like that on the part of the
accused but it is clear from the evidence that the insistence of marriage
came from her side, the accused by complying with her wishes can by
no stretch of imagination be said to have “taken” her out of the
keeping of her lawful guardianship, that is the father.

The fact of her accompanying the accused all along is quite
consistent with her own desire to be the wife of the accused in which
the desire of accompanying him wherever he went is of course implicit.
Under these circumstances no inference can be drawn that the accused
is guilty of taking away the girl out of the keeping of her father. She
has willingly accompanied him and the law does not cast upon him the
duty of taking her back to her father’s house or even of telling her not
to accompany him.”

“There is a distinction between “taking” the allowing a minor to
accompany a person. The two expressions are not synonymous though
it cannot be laid down that in no conceivable circumstances can the
two be regarded as meaning the same thing for the purposes of S.361.
Where the minor leaves her father’s protection knowing and having
capacity to know the full import of what she is doing, voluntarily joins
the accused person, the accused cannot be said to have taken her away
from the keeping of her lawful guardian. Something more has to be
shown in a case of this kind and that is some kind of inducement held
out by the accused person or an active participation by him in the
formation of the intention of the minor to leave the house of the
guardian.”

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14 Taking into consideration the said law laid down and for the

above discussion this Court comes to the conclusion, that the learned Trial

Judge totally erred in convicting the accused by holding that he has

committed offence punishable under Section 363, 366-A, 376 of the Indian

Penal Code. The said conviction as well as the order of the payment of

compensation under Section 357 of Cr.P.C. deserves to be set aside. It will

have to be observed, taking into consideration the admissions, those were

given and basic documents regarding proof of the age of the victim were not

coming forward and also the fact that without any evidence being led and

without giving any opportunity to the accused, certain documents have been

exhibited behind the back of the accused by the learned Trial Judge, the

entire approach of the learned Trial Judge is perverse. Appeal, therefore,

deserves to be allowed and following order is passed.

ORDER

1 Appeal stands allowed.

2 The conviction awarded to the appellant by learned Additional

Sessions Judge, Shrirampur in Sessions Case No.36/2011 on 16.10.2014 is

hereby quashed and set aside including the order of payment of

compensation to the victim under Section 357 of the Code of Criminal

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Procedure.

3 The accused-appellant stands acquitted of the offence punishable

under Section 363, 366-A, 376 of the Indian Penal Code.

4 He be set at liberty forthwith, if not required in any other case.

5 Needless to say that the order regarding disposal of muddemal

passed by the learned Trial Judge is confirmed.

( Smt. Vibha Kankanwadi, J. )

agd

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