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Rupesh S/O Budhaji Ginghare (In … vs The State Of Maharashtra, Through … on 11 July, 2018

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

Criminal Appeal No.307 of 2015

Rupesh Budhaji Ginghare,
Aged about 24 years, Occ.-Labour,
R/o.-Polsa, Tah.-Gondpipari, Dist. Chandrapur. …. Appellant.

-Versus-

The State of Maharashtra,
through P.S.O. Shegaon, Tahsil Warora,
Dist. Chandrapur. …. Respondent.

Shri Sk. Sabhat Ullah, Counsel for appellant.
Mrs. Swati Kolhe, APP for respondent.

Coram : Manish Pitale, J.
Date of reserving the judgment on : 04 July, 2018.
th

Date of pronouncing the judgment on : 11
July, 2018.
th

J U D G M E N T

The appellant herein has challenged the judgment and order
dated 29-07-2015 passed by the Special Court at Warora (trial Court) in
Special Case No.01 of 2010, whereby the trial Court has convicted the
appellant for offences punishable under Sections 376, 363 and 366-A of
the Indian Penal Code (IPC), sentencing him to suffer rigorous
imprisonment for 7 years, 3 years and 5 years respectively on the three
counts. All sentences have been directed to run concurrently. The trial
Court acquitted the appellant for the offence punishable under the
provisions of the Scheduled Castes and Scheduled Tribes (Prevention of

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Atrocities) Act, 1989.

2] The prosecution case was that the appellant and the
prosecutrix (PW-6) were working together as labour on a construction site.
When they got acquainted with each other, the appellant called the
prosecutrix to an adjoining field and forcibly committed sexual intercourse
with her. Thereafter, he repeatedly called her and committed the said act
with her by threatening her that he would defame her. On 06-05-2009, the
appellant called the prosecutrix (PW-6) to the field of one Motiram and from
there he took her to village Polsa by bus. The appellant then kept the
prosecutrix with him in a vacant house belonging to his father at the said
village of Polsa for 3 to 4 months and he committed sexual intercourse with
the prosecutrix during the said period. About 15 days prior to the report
being lodged by the prosecutrix, the appellant allegedly left her behind at
Polsa and after waiting for about 7 to 8 days, the prosecutrix came to the
village where the appellant and his father were staying. But the appellant
beat her and drove her out of the house. Thereupon, she went to the
house of her parents and narrated the entire incident. She made attempts
to meet the appellant but he started avoiding her. On 06-10-2009, the
appellant met the prosecutrix (PW-6) at village Shegaon and told her that
he had no concern with her and that he did not want to marry her.

3] Thereupon, on 06-10-2009, the prosecutrix (PW-6) submitted
an oral report before the Police Station, giving the details of the manner in
which the appellant had taken her away and committed acts of sexual
intercourse, on the basis of which, on the same day, a First Information
Report (FIR) was registered in Police Station Shegaon against the

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appellant under Sections 363, 366-A and 376 of the IPC. The Police
conducted investigation in the matter and submitted charge-sheet against
the appellant, on the basis of which, he was charged for having committed
the aforesaid offences.

4] The prosecution examined 15 witnesses in support of its case.
The material witness were (PW-3) Duryodhan Shende (father of the
prosecutrix), (PW-6) the prosecutrix herself, (PW-7) Vilas a resident of
village Polsa, (PW-10) Godu Gohne (brother-in-law of the appellant),
(PW-12) Dr. Kiran Patel who examined the prosecutrix and (PW-13) and
(PW-15) the Investigating Officers.

5] The trial Court found that the oral and documentary evidence
placed on record by the prosecution demonstrated that the date of birth of
the prosecutrix was 12-09-1993 showing that she was less than 16 years
old when the incident in question took place. The trial Court found that the
evidence of the prosecution witnesses, particularly the prosecutrix (PW-6)
demonstrated that the appellant had taken her away and committed acts of
sexual intercourse that amounted to rape because even if the acts were
consensual, since the prosecutrix was found to be less than 16 years old,
consent was immaterial and offence of rape punishable under Section 376
of the IPC was made out. The trial Court found that the prosecution had
also successfully proved that the appellant had committed offence of
kidnapping punishable under Section 363 of the IPC and procuration of
minor girl under Section 366-A of the IPC. Accordingly, the trial Court
convicted and sentenced the appellant.

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6] Shri Sk. Sabahat Ullah, learned Counsel appearing on behalf

of the appellant, in support of the appeal, submitted that the impugned
judgment and order passed by the trial Court was unsustainable because
the prosecution had failed to prove that the prosecutrix was less than 16
years old when the instances of sexual intercourse between her and the
appellant took place. It was contended that when convincing proof was not
placed on record, no case was made out against the appellant because
there was ample evidence on record to show that the acts of sexual
intercourse, if any, between the appellant and the prosecutrix were with the
consent of the prosecutrix. It is submitted that even the father of the
prosecutrix i.e (PW-3) Duryodhan had not supported the prosecution case.
The evidence of the prosecutrix on its own was not truthful and trustworthy
and that therefore, even if it was assumed that the prosecutrix was less
than 16 years old, the conviction of the appellant could not be based on the
sole testimony of the prosecutrix. It was submitted that the medical
evidence did not support the case of the prosecutrix at all, because no
injuries were found on the private parts or the body of the prosecutrix
although hymen was found to be ruptured and further that two fingers could
be easily inserted in the vagina of the prosecutrix. On this basis it was
contended that the trial Court committed a grave error in convicting and
sentencing the appellant on the basis of the evidence of the prosecutrix.
Reliance was placed on the judgments of the Hon’ble Supreme Court in the
case of State of Karnataka vs. F. Natraj reported at [2015] ACR 875,
Md. Ali @ Guddu vs. State of U.P., reported at [2015] ACR 298 and the
judgment of this Court in the case of Ashok Bhaurao Gaikwad vs State
of Maharashtra, reported at 2009 ALL MR (Cri) 131.

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7] Per contra, Mrs. Swati Kolhe, learned APP appearing on

behalf of the respondent-State submitted that the trial Court was justified in
finding that the prosecutrix was less than 16 years old when the instances
of sexual intercourse took place in the present case, because the birth
certificate issued by the Gram Panchayat of the prosecutrix at Exhibit-75
was clinching proof of the fact that her date of birth was 12-09-1993. It was
further submitted that when the prosecution had proved that the prosecutrix
was indeed less than 16 years old at the time of incident, even if the acts of
sexual intercourse were performed with the consent of the prosecutrix, it
amounted to rape under Clause “Sixthly” of Section 375 of the IPC as it
then stood. It was submitted that the offences punishable under Sections
376, 363 and 366-A of the IPC were clearly made out on the basis of the
evidence and material on record and that, therefore, the impugned
judgment and order did not deserve to be interfered with. Reliance was
placed on the judgment of the Hon’ble Supreme Court in the case of
Mahadeo s/o Kerba Maske vs State of Maharashtra and another,
reported at 2013 (14) SCC 637 and judgment of Division Bench of this
Court in the case of Kundan s/o Nanaji Pendor vs The State of
Maharashtra, reported at 2017 All MR (Cri) 1137.

8] Having heard the learned Counsel for the parties, the crucial
question that arises for consideration in the present case is, as to whether
there was sufficient evidence on record to show that the date of birth of the
prosecutrix was 12-09-1993, thereby showing that she was less than 16
years old when the instances of sexual intercourse happened in the
present case. In support of the case that the date of birth of the prosecutrix
was 12-09-1993, the prosecution placed on record birth certificate issued

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by the Gram Panchayat at Exhibit-75. This document being issued by a
public authority did have presumptive value. The learned Counsel for the
appellant submitted that in the oral report dated 06-10-2009 submitted by
the prosecutrix before the Police, she herself had stated her date of birth as
03-05-1993 and that this was on the basis of School Leaving Certificate
(Article-A). According to the learned Counsel for the appellant, the
prosecution deliberately did not rely upon the said School Leaving
Certificate and heavily relied only on the said birth certificate issued by the
Gram Panchayat. It was submitted that when two documents were on
record, there was serious doubt about the claim of the prosecution that the
date of birth of the prosecutrix was 12-09-1993 and that therefore, the
benefit of doubt ought to have gone to the appellant.

9] A perusal of the evidence of prosecutrix shows that in her
examination-in-chief she categorically stated that her date of birth was
12-09-1993. In cross examination, the said assertion of the prosecutrix
was not challenged on behalf of the appellant (accused) at all. In this
situation, the learned APP was justified in relying upon the judgment of the
Division Bench of this Court in the case of Kundan Pendor (supra),
wherein it has been held as follows :-

“11. Since the appellant has been charged with
having committed offence under Sections 3 (a), 5(j)

(ii) and 5 (1) of the Act of 2002, as per Charge at
Exh.4, it would be necessary to first record a finding
as to the age of “S”. As per provisions of Section 2
(1) (d) of the said Act, a child means a person
below the age of eighteen years. As noted above,
the prosecutrix had stated on oath that her date of
birth was 5th January, 1997. There is no cross-

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examination, whatsoever, to this specific assertion
made by the prosecutrix in her Examination-in-
Chief. Her said statement has gone totally
unchallenged. It is a settled position of law that if a
witness is not cross-examined on a particular
portion of her deposition in her Examination-in-

Chief, said statement is required to be accepted as
the same is not challenged by the defence. …….”

As per the said position of law, the statement of the prosecutrix
(PW-6) was required to be accepted regarding her date of birth.

10] Apart from this, the document at Exhibit-75 i.e. birth certificate
issued by the Gram Panchayat is also crucial. A perusal of the same
shows that the registration of birth of the prosecutrix was made in the
record of Gram Panchayat on 14-09-1993 i.e. immediately within two days
of her birth on 12-09-1993. The said certificate was issued by a public
authority and therefore it certainly had presumptive value. There was no
reason to doubt the veracity of such a document issued by a public
authority. But, it was submitted on behalf of the appellant that the School
Leaving Certificate at Article-A showed her date of birth as 03-05-1993 and
therefore, a serious doubt was created about the actual date of birth of the
prosecutrix. The said School Leaving Certificate was never exhibited. In
any case, the School Leaving Certificate does not show the source from
where the date 03-05-1993 was recorded by the school.

11] In this context, the trial Court was justified in relying upon the

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judgment of the Hon’ble Supreme Court in the case of Cidco vs Vasudha
Gorakhnath Mandevlekar, reported at 2010 (1) Mh.L.J. 41 (SC), wherein
the Hon’ble Supreme Court has held that the entries made in statutory
registers would prevail over an entry made in the school register. In the
present case, the birth certificate issued by the Gram Panchayat would
certainly prevail over the School Leaving Certificate of the prosecutrix.
Therefore, it cannot be said that the trial Court committed an error in
reaching the finding that the date of birth of the prosecutrix was
12-09-1993.

12] As a result, it becomes clear that at the time when the
instances of sexual intercourse took place between the appellant and the
prosecutrix, she was less than 16 years old. As a consequence, even if
such acts were consensual, it was immaterial because such acts of sexual
intercourse would amount to rape under Clause “Sixthly” of Section 375 of
the IPC as it then stood.

13] In this situation, it needs to be examined whether the evidence
of the prosecution can be believed regarding the prosecutrix being taken
away by the appellant and the acts of sexual intercourse that took place
between them. The evidence of the prosecutrix (PW-6) is the most
important evidence to support the case of the prosecution. A perusal of the
evidence of the prosecutrix and the entire cross examination shows that
the appellant indulged in acts of sexual intercourse with her not only in the
village where the prosecutrix resided with her parents, but also at village
Polsa where he took her along with him. Although the prosecutrix (PW-6)

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has claimed that such acts were forcible acts of sexual intercourse, it
appears that the two were in love with each other and they had committed
acts of sexual intercourse during the said period. In fact, in cross
examination the prosecutrix (PW-6) has admitted that she had love affair
with the appellant. But, in cross examination a suggestion was also given
on behalf of the appellant that the brother of the prosecutrix had caught
her and the appellant in the act of sexual intercourse in the field of Motiram.
Such suggestion coming from the appellant clearly shows that there was
admission on his part about the acts of sexual intercourse in the fields.

14] The evidence of (PW-7) Vishal and (PW-10) Godu Gohne
shows that the appellant was seen in village Polsa with a girl and that the
two of them had stayed together in the said village for about four months.
The prosecutrix (PW-6) has stated exactly the same facts to the effect that
the appellant had taken her on 06-05-2009 to village Polsa and that they
had lived together in a house where the acts of sexual intercourse were
performed. Thus, there was ample evidence on record to show that the
appellant committed the acts of sexual intercourse with the prosecutrix
(PW-6) in the fields in her village and thereafter in a house in village Polsa,
where the appellant had taken the prosecutrix. The medical evidence on
record shows that the hymen of the prosecutrix was ruptured and that the
two fingers could be easily inserted in the vagina, indicating that she was
used to the act of sexual intercourse. In this situation, the appellant cannot
take benefit of the statement of doctor (PW-12) that on general
examination no injuries were found on the body and private parts of the
prosecutrix.

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15] It was contended on behalf of the appellant that the evidence

of (PW-3) Duryodhan (father of the prosecutrix) was in favour of the
defence. But, a perusal of the evidence of the said witness shows that the
appellant had indeed taken away the prosecutrix from her village. But,
later he left her and then drove her away when she approached him.
Thereafter her father i.e. PW-3-Duryodhan took the prosecutrix to the
Police Station to lodge the complaint. The tenor of the evidence of this
witness does not assist the defence of the appellant and it does not falsify
the prosecution case.

16] The learned Counsel for the appellant submitted that even if
the prosecutrix was found to be less than 16 years old, since her testimony
was full of contradictions and it was unbelievable, the appellant could not
be convicted on the basis of the same. A perusal of the evidence of the
prosecutrix (PW-6) shows that it is truthful and trustworthy. The cross
examination of the said witness has also not discredited her version. She
has stated in detail how the appellant committed acts of sexual intercourse
in the fields with her in her village and thereafter took her away to village
Polsa where he kept her in a house and committed further such acts.
There is nothing in the evidence of the prosecutrix (PW-6) that could be
said to be false or contradictory and therefore, her evidence comes out as
a reliable piece of evidence. In this situation, the reliance placed by the
learned Counsel for the appellant on the judgments of the Hon'ble
Supreme Court in the case of Md. Ali @ Guddu (supra) and State of
Karnataka (supra), is of no avail. The reliance placed on the judgment of
this Court in the case of Ashok Gaikwad (supra) is also misplaced

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because in that case this Court found that the evidence of the prosecutrix
was not reliable and that therefore, it could not be said that the offences
punishable under Sections 363 and 376 of the IPC were made out.

17] In the present case, a perusal of the evidence of the
prosecution witnesses, particularly the evidence of prosecutrix (PW-6),
demonstrates that the prosecution was able to prove its case against the
appellant beyond reasonable doubt. Since the prosecution proved with
cogent evidence that the prosecutrix was less than 16 years old at the time
when the instances of sexual intercourse took place, the appellant was
clearly guilty of rape as defined in Clause "Sixthly" of Section 375 of the
IPC. The trial Court correctly evaluated the evidence and material on
record to render findings against the appellant on all aspects of the
prosecution case. Therefore, it is found that there is no merit in the present
appeal and it is accordingly dismissed. The impugned judgment and order
passed by the trial Court is confirmed. Consequently, the appellant shall
be taken into custody forthwith for serving out the sentence imposed by the
trial Court.

JUDGE

Deshmukh

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