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Madhukar S/O Diliprao Wandile vs State Of Mah. Thr. P.S.O. Sindi … on 14 February, 2018

14.02.CRI.APPEAL308.11
1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.

CRIMINAL APPEAL NO. 308/2011

Madhukar Diliprao Wandile
Aged about 23 years, R/o Kandhali
Tah.Selu, Dist. Wardha. .. APPELLANT

versus

State of Maharashtra
Through P.S.O.
Police Station Sindi (Rly)
Dist. Wardha. .. RESPONDENT

……………………………………………………………………………………………………………………………..
Shri M.B. Naidu, Advocate for the appellant
Shri Amit Chutke, Assistant Public Prosecutor for respondent -State
………………………………………………………………………………………………………………………………

CORAM: MRS.SWAPNA JOSHI, J.

DATED: 14th February, 2018

ORAL JUDGMENT:

Being aggrieved by the judgment and order dated 21st June, 2011

in Sessions Case No.106/2010 delivered by the learned Sessions Judge Wardha,

convicting the appellant (hereinafter referred to as ‘the accused’) for the offences

punishable under Sections 366 and 376 of the Indian Penal Code, the present

Appeal is filed. For offence punishable u/s 366 of IPC, the appellant was

sentenced to suffer R.I. for three years and was directed to pay a fine of Rs.

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1000/-, in default, to suffer further RI for one month. Under section 376 of IPC,

the appellant was sentenced to suffer RI for a period of seven years and to pay a

fine of Rs. 2000/-, in default, to suffer RI for two months. Needless to mention that

substantive sentences of imprisonment awarded for both the offences were

directed to be run concurrently.

2. Brief facts giving rise to the instant Appeal may be summarized as

under:-

It is the case of the prosecution that at the time of incident, the

prosecutrix was studying in IX standard in Vikas Vidyalaya, Kandhali. The

prosecutrix was knowing the accused as he was resident of the same area and

they were in visiting terms with each other. On the date of the incident i.e. on

7.5.2010 at about 7.00 am, the prosecutrix was all alone in her house. The

accused visited her house and asked her to accompany him to Shegaon. The

prosecutrix consented for the same. The accused told her that he wanted to

marry with her and on that pretext, he took her to Shegaon. They first went to

Butibori and then they proceeded to Wardha, by bus. Then they went to Shegaon,

by train, They stayed at temple premises meant for the worshippers at Shegaon.

On 7.5.2010 as the victim was not seen in the house by her mother (PW1), she

searched her daughter at relatives places. However the prosecutrix was not

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found anywhere in the village. On 10.5.2010 PW1 came to know that the

accused had kidnapped her daughter. Therefore she lodged complaint against the

accused (Exh.14). On the basis of the said complaint, the offence came to be

registered. On 23.5.2010 the prosecutrix returned home and at that time she

informed her mother that she had gone with the accused to Shegaon. She further

told that the accused subjected her to sexual intercourse on the promise of

marriage. PW1 took the prosecutrix to Police Station. On 10th May 2010 PW1

lodged complaint against the accused. Therefore the Investigating Officer arrested

the accused. He referred both the victim as well as accused for medical

examination. Necessary investigation in that regard was carried out. After

completion of investigation charge sheet was filed in the court of learned JMFC.

The case was committed to the Court of Sessions. The learned trial Judge framed

the charge. After conducting the trial, the learned Sessions Judge found the

accused guilty and the aforesaid punishment was awarded to him.

3. Heard Shri M.B.Naidu, learned counsel for the appellant/ accused

and Shri Amit Chutke, learned A.P.P. for the respondent -State.

4. Learned counsel for the appellant vehemently argued that the

impugned judgment and order is perverse, inasmuch as it is based on

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assumptions and presumptions and guesswork, with regard to the age of

prosecutrix. He submitted that the prosecutrix was not below the age of 18-years

at the time of incident. He pointed out that there are glaring discrepancies with

regard to the date of birth of the prosecutrix. He contended that the extract of Gram

Panchayat register is replete with scoring, overwriting and manipulations. He

further argued that the learned trial Judge has relied upon the said extracts and

has erroneously come to the conclusion that the prosecutrix was below the age of

18-years. He pointed out that the parents of the victim were illiterate. The mother

of the victim failed to state the exact age of the prosecutrix. According to him,

the entire case of the prosecution hinges on the age of the prosecutrix. The

prosecution case reveals that the prosecutrix on her own accord accompanied

accused to Shegaon and stayed with him for a period of fifteen days in the

premises of temple and she did not complain to anyone during that period.

5. As against this, the learned APP contended that the learned trial

Judge has rightly appreciated the evidence on record and has come to the

conclusion that the appellant had taken away prosecutrix with him on the promise

of marriage and had sexually assaulted her.

6. The prosecution examined in all three witnesses. The mother of the

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prosecutrix, the prosecutrix and the Investigating Officer. So far as the testimony of

the victim on the point of kidnapping is concerned, the prosecutrix herself has

stated that the accused asked her to accompany him to Shegaon and she

accompanied him. Thereafter, the prosecutrix stated that the accused promised to

marry her and on that promise, had repeatedly indulged in sexual intercourse.

During the cross-examination, she has specifically stated that she along with the

accused went to Butibori, by Bus from there they came to Wardha, and then they

went to Shegaon by train. The prosecutrix categorically stated that no room was

hired at Shegoan for their stay and as such, they stayed at the premises of the

temple which is meant for visitors. It is worthy to note that there were number of

visitors. So also policemen were present in the premises, however, she did not

disclose to anybody that she was brought by the accused. The said testimony of

the prosecutrix makes it clear that the prosecutirix on her own accord accompanied

the accused from Kandhali to Shegaon. Similarly, the cross-examination of the

prosecutrix makes it clear that although she had opportunity to complain to the

police or visitors in Shegaon temple premises she did not complain about the

accused bringing her to that place and committing sexual intercourse with her. It

is not clear from the testimony of the prosecutrix as to at what point of time the

accused committed sexual intercourse with her in the premises of the temple,

particularly when there were so many visitors in that premises. Thus, the testimony

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of the prosecutrix in this regard does not inspire confidence.

7. So far as the medical evidence is concerned, no doubt, the medical

certificate (Exh.46) reveals that the prosecutrix was subjected to sexual intercourse

as her hyman was found to be ruptured admitting two fingers.

8. As regards the age of prosecutrix, the prosecution has relied upon

the testimony of the mother of the prosecutrix-Sau.Malta (PW1) who has not

stated anything about the date of the birth of the prosecutrix. However she has

stated that that she is having three children and the date of birth of her three

children were noted down in the Register of Gram Panchayat by her husband,

who is an illiterate person. The prosecutrix (PW2) stated her date of birth as

‘05.02.1995’. She produced her birth certificate (Exh.45). The prosecution has

failed to produce the record of the Gram Panchayat in order to prove the said

certificate.

9. The defence has placed reliance upon the testimony of the

Secretary of Gram Panchayat, Pramod Shelke (DW1) who was working as

Secretary from the year 2005. According to him, the Birth-Date Register was

maintained by the Gram Panchayat and the Secretary. The Peon of the Gram

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Panchayat used to take entries of birth-date in the register and the Secretary

used to certify the entries. DW1 deposed that one Krishna Devidas Wandile had

applied for the certified copy of the extract of birth register, in which the birth of the

prosecutrix was recorded. He issued the certified copy of the said register (Exh.

71) wherein the date of birth of prosecutrix is overwritten and not legible. Birth

certificate (Exh.45) was issued by DW1 on 14.9.2010. DW1 stated that it appears

from the original register that the date of birth of the prosecutrix was initially

recorded as overwritten and then the specific date 5.2.1995 is mentioned above

the same erased date. DW1 failed to state as to who made the correction in the

register. He produced the certified copy of the original register (Exh.72). He stated

that when he issued Exh.71,the date 5.2.1995 was not mentioned in the register.

10. In the cross-examination, DW1 failed to state as to who had

corrected the date and put the date 5.2.1995 and on what basis and when he

issued Exh.71. According to DW1, 5.2.1995 was not the date mentioned in the

register.

11. On careful scrutiny of the testimony of DW1 as well as the

documents relied upon by him, it is noticed that one Krishna Wandile had

applied under the Right to Information Act, for the date of birth of the prosecutrix

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and thereafter Exh.71 was issued which clearly depicts scoring with regard to

the date of birth. The said entry is not legible. The extract of Exh.72 reveals the

scoring with regard to the date of birth and above the said overwriting the date is

mentioned as 5.2.1995. No initials are noticed beside the said entry. The said

Exh.72 was produced directly in the Court and at that time said entry 5.2.1995

was noticed. It is however not clear as to why the entry Exh.71 does not reveal the

said date of birth as 5.2.1995. It is thus clear that the said date is introduced later

on. In any case, due to the said overwriting and the introduction of the new date

of birth and the scoring with regard to the date of birth, the said entry at Exh. 71 is

not found to be reliable and trustworthy document.

12. The learned Sessions Judge, on the presumption, has come to the

conclusion that when the certified copy was issued under the Right to Information

Act to Krishna Wandile the date 5.2.1995 was not specified in the register just

above the overwritten and illegible date. It is not clear as to on what basis the

learned Sessions Judge has come to the conclusion, without examination of any

witnesses in that regard. It appears that on the basis of document (Exh.72) the

birth certificate appears to be issued which reflects the date of birth as 5.2.1995.

The learned Sessions Judge has presumed that DW1 must have made those

manipulations as he was the custodian of the register. In this context, it cannot be

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ignored that the testimony of DW1 that the register was maintained by the

Secretary and the Peon used to make entries in the register cannot be ignored and

the said testimony of DW1 in that regard remains unchallenged. So the possibility

of Peon of Gram Panchayat making corrections cannot be ruled out. The learned

Sessions Judge has erroneously come to the conclusion that the handwritings on

Exh.72 and Exh.45 are in the same handwriting. If that was so, it is not clear as

to why the learned trial Judge has not referred those documents to the Handwriting

Expert at that point of time, in order to verify the correctness of the allegations. In

view of the manifest error on the face of the record, it is held that the prosecution

has failed to prove that the prosecutrix was below age of 18-years. It is thus clear

that the prosecutrix was having proper understanding of good and bad act. She

had attained puberty and she has on her own accompanied the accused to

Shegaon and willingly stayed with him for a period of 15 days. In view thereof,

there is no question of accused kidnapping the prosecutrix and taking her to

Shegaon. As regards the allegation of rape is concerned, apart from the bare

words of prosecutrix that the accused committed sexual intercourse with her for

multiple times, on the promise of marriage, there is absolutely no convincing

evidence on record. In fact, the testimony of the prosecutrix does not inspire

confidence at all. Thus, the prosecution has failed to prove any of the charges

levelled against the appellant. The the learned trial Judge has committed an error

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in convicting the accused. The judgment, therefore, needs to be set aside. Hence

the order :–

ORDER

i) Criminal Appeal No. 308/2011 is allowed.

ii) The judgment and order dated 21.06.2011 in Sessions Case No. 106/2010

delivered by learned Sessions Judge, Wardha, convicting the appellant for the

offences punishable under sections 366 and 376 of the Indian Penal Code is

hereby set aside.

(iii) The appellant is acquitted of the offence punishable under section 366 and

376 of the IPC.

iv) The bail bond of the appellant shall stand cancelled.

JUDGE

sahare

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