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Mangalsing Khuma Mujalda vs State Of … on 23 January, 2018

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

CRIMINAL APPEAL NO.220 OF 2002

Badrya Amrrya Barela,
Aged about 25 years,
R/o Wagaon Pathan,
Tq. Jalgaon Jamod,
District Buldana. ……. APPELLANT

…V E R S U S…

The State of Maharashtra,
through P.S.O. Jalgaon Jamod,
Dist. Buldana. ……. RESPONDENT

WITH

CRIMINAL APPEAL NO.212 OF 2002

Mangalsing Khuma Mujalda,
Aged about 42 years,
R/o Wagaon Pathan,
Tq. Jalgaon Jamod,
District Buldana. ……. APPELLANT

…V E R S U S…

The State of Maharashtra,
through P.S.O. Jalgaon Jamod,
Dist. Buldana. ……. RESPONDENT

——————————————————————————————-
None for Appellant.
Shri N.R. Patil, APP for Respondent-State.
——————————————————————————————-

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CORAM: ROHIT B. DEO, J.
DATE: rd
23 JANUARY 2018.

ORAL JUDGMENT

1] None present for the appellant. Shri N.R. Patil, the

learned Additional Public Prosecutor for the respondent-State.

Criminal Appeal 220/2002 is preferred by Badrya Barela

challenging the conviction for offence punishable under sections

363, 366 and 376 read with section 34 of the Indian Penal Code

and sentence of rigorous imprisonment for three years and

payment of fine of Rs.500/- and Criminal Appeal 212/2002 is

preferred by accused Mangalsing Mujalda challenging the

conviction for offence punishable under sections 363 and 366 read

with section 34 of the IPC and sentence of rigorous imprisonment

for three years and payment of fine of Rs.500/-, recorded by the

2nd Additional Sessions Judge, Khamgaon in Sessions Trial

47/2001. Since both the appeals seek to assail the same judgment

and order impugned, they heard and decided by this common

judgment.

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2] The genesis of the prosecution lies in report dated

25.02.2001 lodged by the brother of the prosecutrix Isram

Nihalsing Bilala (P.W.1) the gist of which is that P.W.1 is a

resident of Mouza Mendhamari. His younger sister is aged 14 to

15 years approximately and is illiterate. The father and mother of

P.W.1 had gone to water the field on 20.02.2001 and the rest of

the family members were sleeping in the house. The prosecutrix

used to sleep alone in one room. On 21.01.2001 the prosecutrix

was missing from the house, the family searched for her and came

to know that on 20.02.2001 accused Badrya came to the house of

one Dhulsing Adiwasi and left during the night. Inquiries with

accused Mangalsing revealed that the whereabouts of Badrya was

known to Navalsing Adiwasi. P.W.1 states that he suspected that

his younger sister (P.W.2) was kidnapped.

3] On the basis of the oral report offence punishable

under section 363 and 366 of IPC was registered against the

accused Badrya.

4] Investigation ensued, the statement of the prosecutrix

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P.W.2 was recorded on 10.03.2001. P.W.2 stated that she was

kidnapped by accused Badrya who subjected her to forcibly sexual

intercourse with the assistance of accused Navalsing and accused

Mangalsing. In view of the said assertion, offence under section

376 of IPC was additionally registered, the victim was medically

examined on 10.03.2001, the investigation ensued and

charge-sheet under sections 363, 366 and 376 read with section

34 of IPC was submitted in the court of Judicial Magistrate First

Class, Jalgaon Jamod who committed the proceedings to the

Sessions Court. The learned Sessions Judge framed charge under

sections 363, 366 and 376 read with section 34 of the IPC. All the

accused Badrya Barela, Navalsing Deoda and Mangalsing Mujalda

abjured guilt and claimed to be tried in accordance with law.

The defence is of total denial. The learned Sessions Judge

acquitted accused Navalsing and convicted accused Badrya and

accused Mangalsing as afore-stated.

5] Since both the accused were not represented by

counsel, with the fair and able assistance of the learned A.P.P.

Shri N.R. Patil, I have closely scrutinized the record, and having

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done so, the conscious of the court is satisfied that both the

appeals deserve to be allowed. It is disturbing and indeed painful,

that although by order dated 03.05.2002 this court directed that

accused Badrya be released on bail, he was not released

presumably as the condition of bail could not be fulfilled.

Accused Badrya has suffered the sentence in entirety.

6] The evidence on record, which I shall discuss in some

detail at a later stage in the judgment, clinchingly establishes that

the sexual relationship, if any, between accused Badrya and P.W.2

was consensual. In so far as accused Mangalsing is concerned, his

conviction under section 363 and 366 read with section 34 of IPC

defies jurisprudential logic, I have searched in vain for the legal

evidence which could have persuaded the learned Sessions Judge

to convict accused Mangalsing.

7] P.W.1 is the informant Isram Nihalsing Bilala.

He states in examination-in-chief is that he asked accused Badrya

and others whether they had seen the prosecutrix and the

response was negative. P.W.1 states that after police brought

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accused Badrya and the prosecutrix to the village, the prosecutrix

narrated that Badrya gave her something as ‘Prasad’ and he took

her forcibly and she was forced to allow Badrya to have sexual

intercourse with her for 15 days since Badrya threatened to kill

her and her family with black-magic. Prosecutrix narrated to

P.W.2 that she resided with accused Badrya at Burhanpur for

eight days and at Raver for eight days. In the cross-examination it

is suggested to P.W.1 that prosexutrix was more than 18 years of

age, which suggestion is denied.

8] P.W.2 is the prosecutrix who has deposed that on the

date of the incident accused Badrya came to her house, asked the

prosecutrix to marry him, prosecutrix refused and accused

threatened her that he will kill her with black-magic.

Accused Badrya took her along with him and both spent the night

in Kherda forest and on the next morning went to Burhanpur to

the house of the accused where they resided for eight days.

The prosecutrix states that during the stay at Burhanpur she

permitted accused Badrya to have sexual intercourse since she

was threatened. She further states that she was taken to the

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Burhanpur Court by accused Badrya and accused Mangalsing and

some writing was recorded on which accused Badrya forcibly took

her thumb impression and then she along with accused Badrya

returned to his house at Burhanpur. She has deposed that

thereafter she and the accused went to Raver and resided there

for eight days during which period she permitted accused to have

sexual intercourse since she was threatened with black-magic.

In the cross-examination she denies the suggestion that her

age is more than 18 years and that on the fateful night she herself

came near the Bawadi (well) of the village.

9] P.W.3 Duglibai Bilala is the mother of the prosecutrix

who has deposed that the prosecutrix is 17 years old.

Her evidence is recorded on 12.03.2002. She states that she has

deposed that eight days after the incident she came to know that

the prosecutrix went along with accused Badrya. P.W.3 states that

when she met the prosecutrix after she and accused Badrya were

brought to Police Station Jalgaon Jamod, the prosecutrix narrated

that Badrya took her forcibly and had sexual intercourse with her.

In the cross-examination she admits that the

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prosecutrix has younger sister Venubai who is 14 years old and

that the prosectutrix is elder to Venubai by four years. She admits

that the accused Mangalsing and Nihalsing did not play any role

in the incident.

10] P.W.4 Bondribai Bilalal is a relative of the prosecutrix.

Her evidence is relevant only to the extent she has deposed that

she came to know prior to one month of the incident that accused

Badrya is interested in the prosecutrix.

11] P.W.5 Baban Aawchar is examined to prove spot

panchnama Exh.28 and the seizure panchnama Exhibits 29, 30

and 31.

12] P.W.6 Suresh Thakre has proved the printed F.I.R.

Exh.33 and on the basis thereof registered offence under section

376 of IPC.

13] P.W.7 is the Medical Officer who examined the

prosecutrix on 10.03.2001 and issued medical certificate Exh.47.

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He has opined that the age of the prosecutrix is between 16 to 17

years which opinion at Exh.50.

14] The pivotal issue is whether the prosecution has

established beyond reasonable doubt that the prosecutrix was less

than 16 years old as on the date of the incident to render

irrelevant her consent, if any, to sexual intercourse. The evidence

of the mother is that the prosecutrix is elder to her younger sister

Venubai by four years. The mother (P.W.3) states that the age of

the younger sister Venubai is 14 years, which would suggest that

the prosecutrix was 18 years old when the evidence of her mother

was recorded. The medical evidence does not take the case of the

prosecution any further. Exhibit 50 opines that the probable age of

the prosecutrix is between 15 to 17 years. It would be apposite to

refer to the following observations of the Apex Court in Jaya Mala

v. Home Secretary, Government of Jammu and Kashmir and others

reported in AIR 1982 SC 1297.

“9. ….. However, it is notorious and one can
take judicial notice that the margin of error in age
ascertained by radiological examination is two years on
either side.”

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In the teeth of the evidence, it must be held that the

prosecution has not established that the prosecutrix was less than

16 years of age and her consent is irrelevant.

15] The evidence on record clearly indicates consensual

sexual relationship. The version of the prosecutrix that she

allowed the accused Badrya to have sexual intercourse for 16 days

in view of threat issued of taking recourse to black-magic to harm

her family etc. is neither probable nor confidence inspiring. It is

not even the case of the prosecution that the prosecutrix was

detained against her will or that her movements were forcibly

restricted. Au contraire, the evidence is that the prosecutrix went

to the Burhanpur Court along with accused Badrya and

Mangalsing. The judicial conscious of this court is satisfied that

the prosecutrix accompanied Badrya willingly and the sexual

relationship, if any, was consensual.

16] The conviction of accused Badrya militates against

the weight of evidence on record. It is a travesty of justice that he

has undergone the entire punishment. Presumably, he could not

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fulfill the conditions of bail. It is not clear from the record whether

it was brought to the notice of this court, at any point in time, that

the bail writ was not complied with in view of the inability of

accused Badrya to furnish bail.

17] In so far as accused Mangalsing is concerned, there is

no evidence worth the name and as I have already recorded supra,

the basis of conviction is an enigma.

18] In the result, both criminal appeal 220/2002 and

212/2002 are allowed. The judgment and order impugned is set

aside and the appellant Badrya is acquitted of offence punishable

under sections 363, 366 and 376 read with section 34 of IPC and

appellant Mangalsingh is acquitted of offence punishable under

section 363 and 366 read with section 34 of IPC.

19] The bail bond of the accused shall stand discharged.

JUDGE
NSN

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