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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.116/2000
Santosh S/o Mahadeo Darade,
aged about 23 Yrs., R/o Waregaon,
P.S. Khaperkheda. ..Appellant.
..Vs..
The State of Maharashtra,
through Police Station Officer,
Police Station Khaperkheda,
Distt. Nagpur. ..Respondent.
– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –
Shri M.P. Kariya, Advocate for the Appellant.
Shri M.J. Khan, A.P.P. for the State / respondent.
– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –
CORAM : Z.A.HAQ, J.
DATE : 7.6.2017.
ORAL JUDGMENT
1. Heard Shri M.P. Kariya, Advocate for the Appellant / accused and
Shri M.J. Khan, A.P.P. for the State / respondent.
2. The appellant / accused has challenged the judgment passed by the
Sessions Court convicting him for the offence punishable under Section 376 of
the Indian Penal Code and sentencing him to undergo rigorous imprisonment
for 7 years and to pay fine of Rs.1,000/- and in default of payment of fine to
undergo further rigorous imprisonment for 4 months.
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3. According to the prosecution, prosecutrix Jyoti lodged complaint on
28th March, 1995 against the accused stating that the accused used to visit her
house in absence of her parents, they were in love and assuring that he would
perform marriage with her, the accused had sexual intercourse with her.
According to the prosecution, the date of birth of the prosecutrix is
1st May, 1979 and the complaint was lodged on 28 th March, 1995 on which
date she was 15 years and 10 months old.
4. On the complaint of the prosecutrix, the investigation was
conducted and after completing the necessary formalities, charge-sheet was
filed before the Judicial Magistrate, First Class, Saoner. As the offence was
triable by the Sessions Court, the case was committed to the Sessions Court,
Sessions Court framed the charges, explained it to the accused and as the
accused did not accept the guilt, the trial was conducted.
5. After conducting the trial the learned Sessions Judge has recorded
that the prosecution has proved that the prosecutrix Jyoti was below age of 16
years on 28th March, 1995 and the prosecution has proved that during the
period between April, 1994 till 28th March, 1995 the accused committed rape
on the prosecutrix. The learned Sessions Judge has recorded that the
prosecution has proved that the accused made false representation to the
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prosecutrix dishonestly intending to defraud the prosecutrix and obtained her
consent for sexual intercourse by misrepresenting that he would marry her.
With the above conclusions the learned Sessions Judge has
convicted the appellant / accused as per the judgment.
6. The learned Advocate for the appellant / accused has submitted that
date of birth of the prosecutrix is not proved by the prosecution and looking to
the fact that even according to the prosecution the prosecutrix was about 16
years of age, the conviction of the appellant / accused for the offence
punishable under Section 376 of the Indian Penal Code is unsustainable.
According to the appellant / accused the evidence on the record shows that the
prosecutrix consented to the act and the medical report (Exh. No.45) and the
evidence of Dr. Aparna Jayant Kher (P.W.5) also show that there is no
forcible intercourse.
7. With the assistance of the learned Advocate for the appellant /
accused and the learned A.P.P. I have examined the record.
In the evidence of Dr. Aparna (P.W.5) the details which are relevant
for considering the legality of the conclusions of the learned Sessions Judge are
as follows:
“2. I have examined said Jyoti on the same day and I
detected the following:
1) Height of uterious was 22 weeks.
2) Fetal part palpable.
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3) Uterious well relaxed
4) Hymen old torn. The patient was pregnant.
The duration of pregnancy of 22 weeks. I had
advised ultra sonography. Sample of blood, pubic heirs and
vaginal swabs were collected. The samples were handed over
to the lady police constable. I have issued opinion. It is in
my handwriting and signed by me. It is at Exh.45.”
8. The prosecution has examined Keshav Jangluji Kalambe (P.W.3)
who was working as the Headmaster of Uccha Prathamik Shala where the
prosecutrix studied. This witness is examined to prove the date of birth of the
prosecutrix as recorded in the admission register of the school. Keshav (P.W.3)
has deposed that the date of birth of Jyoti (prosecutrix) was recorded as 1 st
May, 1979 on information given by her father. This witness has produced
photocopy of an affidavit sworn by father of Jyoti to substantiate his statement
that date of birth of Jyoti was recorded as 1 st May, 1979 on the information
given by her father. The prosecution has not brought any evidence on the
record to prove the date of birth of the prosecutrix. Though the entry of date
of birth in the school records is normally considered to be conclusive proof, in
the present case as admittedly it was recorded on the basis of information given
by father of prosecutrix and not on the basis of any document, in my view, it
was necessary for the prosecution to produce corroborating evidence to prove
the date of birth of the prosecutrix. As the prosecution has failed to prove the
date of birth of the prosecutrix and even according to the prosecutrix she was
aged about 15 years and 10 months when the complaint was lodged and
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considering the evidence of prosecutrix herself which shows that the
intercourse was with her consent, I find that the prosecution has failed to prove
beyond doubt the charge against the appellant / accused. The learned Sessions
Judge has failed to appreciate these aspects and, therefore, the impugned
judgment is unsustainable.
9. Hence, the following order:
(i) The impugned judgment is set aside.
(ii) The appellant / accused is acquitted of the offence punishable under
Section 376 of the Indian Penal Code giving him benefit of doubt.
(iii) The bail bonds of the accused stand cancelled.
(iv) The amount of fine, if paid by the appellant / accused, be returned
to him.
(v) The muddemal property be dealt with as per the directions of the
learned Sessions Judge after the period of appeal is over.
(vi) The appeal is allowed in the above terms.JUDGE
Tambaskar.
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