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Shantaram Arjun Gorase vs The State Of Maharashtra on 16 July, 2021

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 263 OF 2014

Shantaram S/o Arjun Gorase,
Age 31 years, Occ. Labour,
R/o Ranjangaon Deshmukh,
Taluka Kopargaon,
District Ahmednagar. … Appellant
(Orig. Accused)
versus

State of Maharashtra,
Through P.I. Shirdi Police Station,
Taluka Rahata, District Ahmednagar. … Respondent
(Orig. Complainant)

…..
Mr. B. A. Husale, Advocate for the Appellant.
Mr. S. P. Deshmukh, APP for the Respondent-State.
…..

CORAM : V. K. JADHAV AND
S. G. DIGE, JJ.

RESERVED ON : 05.07.2021
PRONOUNCED ON : 16.07.2021

JUDGMENT (PER V. K. JADHAV, J.) :-

1. This appeal is directed against the judgment and order of

conviction passed by Additional Sessions Judge, Kopargaon dated

09.04.2014 in Sessions Case No. 36 of 2013.

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2. Brief facts of the prosecution case are as follows:

a. The appellant-accused and the prosecution witnesses

Namdeo Eknath Pawar and Annasaheb Eknath Pawar are cousins.

Their residential houses are situated in the same locality of village

Ranjangaon Deshmukh, Taluka Kopargaon, District Ahmednagar.

The prosecutrix is the daughter of PW Namdeo. In the year 2013,

she was studying in school at the same village in 8 th standard. On

07.01.2013, the prosecutrix/victim attended the school but did not

return home in the evening. It was revealed during search that

since the intermission of the school she was not found in her class.

PW Annasaheb Eknath Pawar (real brother of PW Namdeo Eknath

Pawar) lodged a missing report at Shirdi Police Station. It was

mentioned in the missing report that the appellant-accused was

also not in his home.

b. On 14.01.2013, PW Namdeo Eknath Pawar (father of the

victim) lodged a complaint in the concerned police station. On the

basis of his complaint, crime no. 15 of 2013 came to be registered

for the offence punishable under Section 363 of IPC. PSI Sudhir

Patil (PW9) was entrusted with the investigation. During

investigation, the prosecutrix was found with the accused residing

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in a room near a brick-kiln situated at village Kalamb, Taluka

Ambegaon, District Pune. Thus, both were brought to the Shirdi

Police Station.

c. The appellant-accused was arrested in connection with the

crime for the offence punishable under Sections 363, 366-A of IPC.

After the statement of the prosecutrix was recorded, it revealed

that offence under Section 376 of IPC has also been committed.

Thus, the Investigating Officer prepared a panchanama of the scene

of offence, recorded the statements of witnesses and also referred

the prosecutrix for her medical examination. The appellant-accused

was also sent for his medical examination. The cloths on the person

of the appellant-accused as well as the prosecutrix were seized. The

statement of the prosecutrix was also recorded under Section 164

of Cr.P.C. before the Magistrate. After completion of the

investigation, the Investigating Officer submitted the charge sheet

against the appellant-accused.

d. The learned Additional Sessions Judge, Kopargaon has

framed charge against the accused (Exhibit 4) and the additional

charge under Section 6 of the Protection of Children from Sexual

Offences Act, 2012 (for short, “POCSO Act”). The appellant-

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accused pleaded not guilty to the charge. The defence of the

appellant-accused, as gathered from the statement under Section

313 of Cr.P.C. is of total denial. The prosecution has examined in all

10 witnesses to substantiate the charges levelled against the

accused.

e. Learned Additional Sessions Judge, Kopargaon, by the

judgment and order dated 09.04.2014, convicted the appellant-

accused as under:

1. The accused is convicted under Section 235 of
Cr.P.C. for committing the offence under
section 363,
366(A) and 376 of Indian Penal Code and under
section 6 of the Protection of Children from Sexual
Offences Act, 2012.

2. The accused is sentenced to undergo Rigorous
Imprisonment for 3 years and to pay fine of
Rs.2,000/-, in default to suffer Simple Imprisonment
for one year for the offence under
Section 363 of
Indian Penal Code.

3. The accused is sentenced to suffer Rigorous
Imprisonment for 5 years and to pay fine of
Rs.3,000/- in default to suffer Simple Imprisonment
for 18 months for the offence under
Section 366(A)
of Indian Penal Code.

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4. The accused is sentenced to suffer Rigorous
Imprisonment for 7 years and to pay fine of
Rs.5,000/-, in default to suffer Simple Imprisonment
for 2 years for the offence under
Section 376 of
Indian Penal Code.

5. The accused is also sentenced to undergo
imprisonment for life and to pay fine of Rs.5,000/-,
in default to suffer Simple Imprisonment for 2 years
for the offence under Section 6 of the Protection of
Children From Sexual Offences Act, 2012.

6. All substantive sentence shall run concurrently.

7. The accused is in custody since 18.01.2013, he is
entitled for set off for the period already undergone
in his substantive sentences under section 427 of
Cr.P.C.

8. ….

9. ….

3. Hence this appeal.

4. Learned counsel for the appellant-accused submits that the

evidence of PW 4 prosecutrix/victim is not reliable and trustworthy.

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Though the prosecutrix has deposed about her age as 14 years and

even though she was studying in 8 th standard in one Jai Hanuman

Vidyalaya in the village at the relevant time, the prosecution has

failed to prove beyond doubt that she was minor or child as defined

under the provisions of the POCSO Act at the time of the alleged

incident. Learned counsel submits that the bonafide certificate

issued by the Headmaster of the said school was not duly proved by

the prosecution. Learned counsel submits that the learned Judge of

the trial court has relied upon the said bonafide certificate merely

on the basis of the say submitted by the defence counsel to the

notice given by the prosecution under Section 294 of Cr.P.C.

(Exhibit 6) admitting thereby the arrest panchanama and the

bonafide certificate (Exhibit 8). Learned counsel for the appellant-

accused submits that even the original school record was not

produced to show the age of the prosecutrix. Learned counsel

submits that the admissibility of the said bonafide certificate would

be of no evidentiary value to prove the age of the prosecutrix in

absence of the material on the basis of which the age was recorded.

The date of birth mentioned in the bonafide certificate would have

no evidentiary value unless the person, who made entry or who

gave the date of birth, is examined. Thus, the entry in the bonafide

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certificate without examining the Headmaster of the school who

made the entry, cannot be relied upon to fix the age of the girl.

Learned counsel submits that in a case under Sections 366 and 376

of IPC and particularly under the stringent penal provisions of the

POCSO Act, the age of the prosecutrix is always of importance.

5. Learned counsel for the appellant submits that the

prosecution has examined witness no.6 Dr. Supriya Shankarrao

Jagtap. The prosecutrix was referred to the Civil Hospital,

Ahmednagar by the Medical Officer, Rural Hospital, Rahata on

21.01.2013. PW Dr. Supriya Jagtap was on duty as Casuality

Medical Officer and the prosecutrix was brought to her. Thus, PW 6

Dr. Supriya Jagtap has obtained radiological opinion, gynecological

opinion and the opinion of the psychiatrist. As per the clinical

finding, the secondary sexual characters of the prosecutrix were

well developed. PW 6 Dr. Supriya Jagtap has deposed that the

Radiologist has found the age of the prosecutrix between 14 to 17

years on ossification test. PW 6 Dr. Supriya Jagtap, by referring the

radiological examination report, opined that ossification center for

the head of radius fused and for distal end of radius partially fused

and the epiphysis for illac crest appears but not fused, indicates

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that the age of the prosecutrix was less than 18 years. She has

accordingly issued the certificate which is marked at Exhibit 29.

Learned counsel submits that there is vast gap between the age as

per the bonafide certificate Exhibit 8 and as per the medical

certificate Exhibit 29. Learned counsel submits that considering the

error of margin, it is doubtful as to whether the prosecutrix was

minor or child as defined under the POCSO Act at the time of the

alleged incident.

6. Learned counsel for the appellant-accused submits that the

evidence of the prosecutrix does not inspire confidence. The

prosecutrix has referred one incident occurred in the house one

month prior to the actual incident and deposed that the appellant-

accused entered in the house, caught hold of her hand and

threatened her. The prosecutrix has further deposed that on the

next day, the appellant-accused again entered in the house and

committed forcible sexual intercourse with her. As per her

evidence, on 07.01.2013, she went to school and during interval,

she joined the company of the appellant-accused. According to her,

she had joined the company of the appellant-accused for the reason

that the appellant-accused had threatened her. She has further

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deposed that the accused had come there on a bicycle and she

climbed over his bicycle. The appellant-accused took her on his

bicycle and they reached near village Pathare. Thereafter, they

boarded one bus and went to Nasik. The appellant-accused

purchased one dress for her and one jeans pant for himself.

Thereafter, both of them went to Vani and waited at the S.T. stand.

Thereafter, they went to village Manchar. The appellant-accused

asked her to wait at the S.T. stand at Manchar with a promise to

return after searching a job. The prosecutrix waited at the S.T.

stand for more than one hour and the appellant-accused had

returned after one hour and disclosed to her that he had found a

job. The appellant-accused thereafter took her to the brick-kiln and

they had stayed in a room at the said brick-kiln. Thereafter, police

arrived and took them to the Manchar Police Station and then to

the Shirdi Police Station.

7. Learned counsel for the appellant-accused submits that there

are allegations about forcible intercourse in the house only once.

Thereafter, there are no allegations against the appellant-accused

for having committed forcible sexual intercourse with her. As per

the evidence of PW 6 Dr. Supriya Jagtap and in terms of the

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medical certificate Exhibit 29 issued by her, there was an old

hymen tear and per vaginal examination admit two fingers easily.

The said opinion is contrary to the allegations made by the

prosecutrix. Learned counsel submits that the prosecutrix had

opportunities to raise hue and cry, to refuse to join the company of

the appellant-accused. She was alone waiting at the bus stand for a

complete hour. However, she did not try to run away and instead

waited for the arrival of the appellant-accused. Learned counsel

submits that there is suppression of material facts. The prosecutrix

is not only suppressing her age, may be under the pressure of her

father and the uncle, however, she is also suppressing the actual

incident. Learned counsel submits that the provisions of Section

366-A of IPC are not at all attracted. Even then the learned Judge

of the trial court has recorded conviction under Section 366-A of

IPC sentencing the appellant-accused to suffer Rigorous

Imprisonment for five years. Learned counsel submits that the

prosecution has failed to prove the case against the appellant-

accused for the offence under Sections 363 and 376 of IPC and

Section 6 of the POCSO Act. Learned counsel submits that it is not

safe to rely on the uncorroborated testimony of the prosecutrix.

The appellant-accused is a young person having no criminal history.

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The appellant-accused is a poor person, a labour by occupation.

The appellant-accused is entitled for the benefit of doubt.

8. Learned counsel for the appellant-accused, in order to

substantiate his contention, placed reliance on the following cases :

1. State of H.P. v. Jieu Nath, reported in 2014 Cr.L.J.

1536.

2. Alamelu and another v. State with other connected
matters, reported in AIR 2011 SC 715.

3. Ram Murti v. State of Haryana, reported in AIR 1970
SC 1029.

4. Thakor Narsangji v. State of Gujarat, reported in
2014 Cr. L. J. 1252.

5. Domnic Misquita and etc v. State, reported in 1996
Cr.L.J. 2799.

6. Chidda Ram v. State, reported in 1992 Cr.L.J. 4073.

7. Milan Rai v. State of Sikkim, reported in 2016 Cr.L.J.

4591.

8. Ram Ishwar Rai v. State of Bihar, reported in 2017
All.M.R. (Cri) 5359.

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9. Learned APP submits that the evidence of the prosecutrix is

reliable, trustworthy and inspiring confidence. Her evidence is well

corroborated by the medical evidence. The defence has admitted

the bonafide certificate Exhibit 8 and therefore, the same can be

read in evidence. The defence has not disputed the genuineness of

the bonafide certificate Exhibit 8. Learned APP submits that as per

the date of birth mentioned in the bonafide certificate Exhibit 8,

the prosecutrix was 14 years of age at the time of the alleged

incident. PW 9 – PSI Sudhir Patil i.e. the Investigating Officer has

caught red handed the appellant-accused along with the

prosecutrix in a brick-kiln at village Manchar. Learned APP submits

that PW 6 Dr. Supriya Jagtap has given opinion based on the

radiological examination of the prosecutrix and by considering the

error of margin. Thus, she has mentioned the age of the prosecutrix

between 14 to 17 years as on the date of the alleged incident. The

medical examination report Exhibit 29 clearly demonstrates that

the prosecutrix – victim, who was a child as defined under the

provisions of the POCSO Act, was a minor girl and she has lost her

virginity and thus, there is sufficient corroboration to the evidence

of the prosecutrix. Learned APP fairly submits that in the given set

of proved facts, it is difficult to say that the charge under Section

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366-A is proved against the appellant-accused, however, the

prosecution has proved the case against the appellant-accused

beyond reasonable doubt for the offence under Sections 363 and

376 of IPC and Section 6 of the POCSO Act. The appeal is thus

liable to be dismissed.

10. Learned APP, in order to substantiate his contention, placed

reliance on the following two cases:

1. Anversinh v. State of Gujarat, reported in AIR 2021
SC 477.

2. Bishnudayal v. State of Bihar, reported in AIR 1981
SC 39.

11. We have carefully considered the submissions advanced by

the learned counsel for the appellant-accused and the learned APP

for the respondent-State. With their able assistance, we have

perused the grounds taken in the appeal, annexures thereto, the

record and proceedings and the case law cited by the respective

parties.

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12. In the instant case, the trial court has recorded the conviction

of the appellant-accused on the sole evidence of the prosecutrix.

We have to thus carefully examine as to whether the conviction so

recorded does not suffer from any basic infirmities or

improbabilities which render it unworthy of credence. Before we

discuss about the evidence of the prosecutrix, we need to examine

the proof of age of the prosecutrix. We are of the considered

opinion that in cases under Section 366 and 376, and more

specifically under the POCSO Act, age of the prosecutrix is always

of importance.

13. In the instant case, the prosecution has strongly relied upon

the bonafide certificate Exhibit 8 issued by the Headmaster of the

Jai Hanuman Vidyalaya, Ranjangaon Deshmukh (private school).

Admittedly, the prosecution has not examined the Headmaster of

the said school to prove the contents of the bonafide certificate

Exhibit 8 on the basis of the original record maintained by the

school.

14. The prosecution has given notice in terms of the provisions of

Section 294 of Cr.P.C. and called upon the defence to admit or deny

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the genuineness of certain documents including the bonafide

certificate Exhibit 8. The said notice issued under Section 294

Cr.P.C. is marked at Exhibit 6 and the bonafide certificate is shown

in the description of the document at serial number 2. We have also

carefully perused the endorsement of the defence counsel. The

defence has admitted the documents at serial numbers 2 and 3 i.e.

the arrest panchanama and the bonafide certificate. Thus, the

learned Judge of the trial court has exhibited the bonafide

certificate Exhibit 8 without any formal proof.

15. Section 294 of the Criminal Procedure Code reads as under:

“294. No formal proof of certain documents.

(1) Where any document is filed before any Court by
the prosecution or the accused, the particulars of every
such document shall be included in a list and the
prosecution or the accused, as the case may be, or the
pleader for the prosecution or the accused, if any, shall
be called upon to admit or deny the genuineness of
each such document.

(2) The list of documents shall be in such form as may
be prescribed by the State Government.

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(3) Where the genuineness of any document is not
disputed, such document may be read in evidence in
any inquiry, trial or other proceeding under this Code
without proof of the signature of the person to whom it
purports to be signed: Provided that the Court may, in
its discretion, require such signature to be proved.”

16. In order to render a document admissible under Section 35

of the Evidence Act, three conditions must be satisfied. Firstly, the

entry that is relied upon must be one in any public or other official

book, register or record. Secondly, It must be an entry stating a fact

in issue or relevant fact and thirdly, it must be made by a public

servant in the discharge of his official duty or any other person in

performance of a duty specially enjoined by law or under the

directions of the person whose duty it is to make them at the time.

We are aware that the duty is imposed upon a school Headmaster

to ascertain and enter the age of all the pupils whom he admits in

his register and such entries, therefore, are admissible in evidence

to prove the age of the person concerned. In the instant case, a

copy of the bonafide certificate has been placed on record.

17. In the case of Alamelu and another v. State (supra), relied

upon by the learned counsel for the appellant, the Supreme Court

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in para nos. 38 and 40 has made the following observations:

“38. We will first take up the issue with regard to the
age of the girl. The High Court has based its
conclusion on the transfer certificate, Ex.P16 and the
certificate issued by PW8 Dr.Gunasekaran,
Radiologist, Ex.P4 and Ex.P5. Undoubtedly, the
transfer certificate, Ex.P16 indicates that the girl’s
date of birth was 15th June, 1977. Therefore, even
according to the aforesaid certificate, she would be
above 16 years of age (16 years 1 month and 16 days)
on the date of the alleged incident, i.e., 31 st July,
1993. The transfer certificate has been issued by a
Government School and has been duly signed by the
Headmaster. Therefore, it would be admissible in
evidence under
Section 35 of the Indian Evidence Act.
However, the admissibility of such a document would
be of not much evidentiary value to prove the age of
the girl in the absence of the material on the basis of
which the age was recorded. The date of birth
mentioned in the transfer certificate would have no
evidentiary value unless the person, who made the
entry or who gave the date of birth is examined. We
may notice here that PW1 was examined in the Court
on 9th August, 1999. In his evidence, he made no
reference to the transfer certificate (Ex.P16). He did
not mention her age or date of birth. PW2 was also
examined on 9th August, 1999. She had also made no

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reference either to her age or to the transfer
certificate. It appears from the record that a petition
was filed by the complainant under
Section 311,
Cr.P.C. seeking permission to produce the transfer
certificate and to recall PW2. This petition was
allowed. She was actually recalled and her
examination was continued on 26th April, 2000. The
transfer certificate was marked as Ex.P16 at the stage,
i.e., 26th April, 2000. The judgment was delivered on
28th April, 2000. In her cross-examination, she had
merely stated that she had signed on the transfer
certificate, Ex.P16 issued by the School and
accordingly her date of birth noticed as 15th June,
1977. She also stated that the certificate has been
signed by the father as well as the Headmaster. But
the Headmaster has not been examined. Therefore, in
our opinion, there was no reliable evidence to
vouchsafe for the truth of the facts stated in the
transfer certificate.

39…..

40. In our opinion, the aforesaid burden of proof
has not been discharged by the prosecution. The
father says nothing about the transfer certificate in his
evidence. The Headmaster has not been examined at
all. Therefore, the entry in the transfer certificate
cannot be relied upon to definitely fix the age of the
girl.”

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18. In the case cited above, the transfer certificate was issued by

the Government school duly signed by the Headmaster. However,

as observed by the Supreme Court, the admissibility of such

document would not be of much evidentiary value to prove the age

of the girl in absence of the materials on the basis of which her age

was recorded. The date of birth mentioned in the transfer

certificate would have no evidentiary value unless the person, who

made entry or who gave the date of birth is examined.

19. In the case of Ram Murti v. State of Haryana (supra), the

Supreme Court in para no. 7, has made the following observations:

“7. It is clear that in the High Court also it was not
appreciated that this un-proved and unexihibited
school certificate could not be treated as evidence in
the case. Nor was it noticed that according to this
document Satnam Kaur’s date of birth was November
5, 1948. The question of age of the prosecutrix in
cases under
Sections 366 and 376, Indian Penal Code
is always of importance. It was particularly so in this
case because according to the medical evidence the
prosecutrix was found to have been used to sexual
intercourse and the rupture of the hymen was old.

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The High Court having acquitted the appellant for an
offence under
Section 376, Indian Penal Code because
the prosecutrix appeared to be a consenting party not
only to the impugned acts of sexual intercourse in
question but even on earlier occasions, it was, in our
opinion, a fit case in which that Court should have
examined the question of her age more closely. On the
evidence on the record we are far from satisfied that
there is any trustworthy evidence on the record on
which the conclusion that Satnam Kaur, prosecutrix,
was under 18 years of age in March, 1965 can safely
be founded.”

20. In the case of State of H.P. v. Jieu Nath (supra), the Division

Bench of Himachal Pradesh High Court, in the facts of the said

case, has observed that the birth certificate issued on the basis of

entry in pariwar register cannot be relied upon. The Division Bench

of Himachal Pradesh High Court has further observed that even the

original school leaving certificate was not produced to show the

age of the prosecutrix and the medical report is showing the age of

the prosecutrix above 16 years. The Division Bench of Himachal

Pradesh High Court, in the facts of the said case, held that the

prosecutrix had consensual intercourse with the accused and the

accused is entitled to acquittal.

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21. In the instant case, a copy of the bonafide certificate Exhibit

8 has been issued and the same is relied upon by the court on the

basis of the admission given by the defence counsel in response to

the notice under Section 294 of Cr.P.C. issued by the prosecution.

22. Though the prosecution has examined PW 3 Narayan Gadkar,

who was serving as Headmaster of the said school, PW 3 Narayan

Gadkar i.e. the Headmaster has deposed about missing of the

prosecutrix from the school. According to him, original bonafide

certificate was issued to the police and the copy which is on record

of the court is the copy of the said original certificate. Exhibit 8 is

the same bonafide certificate which bears his signature. Though he

has admitted in his cross-examination that he has not brought the

record of the school with him and the said certificate has been

prepared by the clerk of the school and he put is signature on it,

however, the defence has not disputed that the said entry about the

date of birth recorded in the bonafide certificate Exhibit 8. It has

been recorded by the Headmaster in performance of the duty

specially enjoined by law to ascertain and enter the age of the

pupils whom he admits in the register. The defence has even not

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suggested that the date of birth is not correctly mentioned in the

said bonafide certificate by the school.

23. The prosecution has examined PW 6 Dr. Supriya Jagtap. At

present we will discuss her evidence to the extent of determination

of the age of the prosecutrix. PW 6 Dr. Supriya Jagtap has referred

the opinion expressed by the Radiologist about the age of the

prosecution between 14 to 17 years on ossification test. She has

explained that radiological examination ossification center for head

of radius fused and for distal end of radius partially fused.

Epiphysis for illac crest appears but not fused. In her opinion, the

age of the prosecutrix was between 14 to 17 years. The certificate

so issued is marked at Exhibit 29.

24. Ossification of bones is helpful for determination of age. In

ascertaining the age of young persons, radiograms of several main

joints of the upper or lower extremity of one or both sides of the

body are required to be taken and an opinion should be given

based upon it. The determination of age is always considered as a

complex exercise, where no fixed norms and abstract formula could

be laid down. In the case of Babloo Pasi v. State of Jharkhand,

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reported in 2008 (13) SCC 133, the Supreme Court said that the

court should remember that an opinion based on the radiological

examination is a useful guiding factor for determining the age of a

person but it is not incontrovertible. An ossification test, though not

a sure test, is generally accepted as the best available test for

determination of the age of the human beings.

25. PW 4 prosecutrix has deposed that before a month of the

incident, during the days of Dipawali, the accused entered in her

house and misbehaved with her. She has further deposed that on

the next day, the accused again entered in her house when she was

alone and committed forcible intercourse against her will. During

cross-examination, the prosecutrix has stated that she had attended

puberty before Dipawali. The defence has admitted the bonafide

certificate Exhibit 8. Further, from the tenor of the cross-

examination and since the victim – prosecutrix was never suggested

by the defence that she has attended the age of majority, coupled

with the evidence of Dr. Supriya Jagtap about the ascertainment of

the age of the victim – prosecutrix on the basis of the radiological

examination, we are of the opinion that the prosecution has proved

beyond doubt that the prosecutrix was minor/”child” as defined

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under the provisions of the POCSO Act.

26. We have carefully gone through the evidence of the

prosecutrix (PW4). She has deposed that she is studying in 8 th

standard in Jay Hanuman Vidyalaya in the village and the

appellant-accused was staying near their house. Before a month of

the incident, during the days of Dipawali, the accused called her in

his house. She has further deposed that the appellant-accused

expressed that he is liking her and further asked her to meet him.

However she did not respond due to fear. The prosecutrix has

further explained that after two/three days of the said incident, the

appellant-accused again accosted her on the way and asked her as

to why she did not answer his question. However, the prosecutrix

was frightened and rushed to the school. The prosecutrix has

further deposed that during Dipawali holidays, she was alone in the

house and other family members had gone for labour work. The

accused had realized it. The accused then entered in the house,

caught her hand, pulled her and tried to press her breasts and also

hugged her. She has deposed that the accused threatened her that

if she discloses the incident to anyone in the family, she would be

defamed. Consequently, she had not disclosed the incident to

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anybody in the family. The prosecutrix has further deposed that on

the next day, the accused again entered in the house when she was

alone. The accused compelled her to lay on the ground. She tried

to shout, but the accused pressed her mouth and then committed

forcible sexual intercourse with her. He then left the house. We find

nothing in cross-examination to disbelieve the evidence of the

prosecutrix. She was alone in the house. The accused had taken

advantage of the same, entered in the house and committed rape

on the prosecutrix. PW 6 Dr. Supriya Jagtap has deposed that the

prosecutrix has old hymen tear and upon examination of PV, two

fingers were easily admissible. We have carefully gone through her

cross-examination. In para 2 of her cross-examination, the

prosecutrix has stated that she did not shout because the accused

pressed her mouth with his hand. The lace of her pant was broken.

She had received injury to her private part. There was bleeding

from her private part and the said bleeding continued for about

one hour. Her nicker was stained with blood. The nicker stained

with blood was given to the police. So far as the incident as

narrated by the prosecutrix about commission of rape in her house

itself, we find her evidence reliable and trustworthy. We are thus of

the considered opinion that the prosecution has proved beyond

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doubt that the prosecutrix, who is a “child” as defined under the

provisions of the POCSO Act, subjected to penetrative sexual

assault as defined under Section 3 of the POCSO Act. Further, the

charge under Section 376 of IPC as levelled against the accused is

also proved to the extent of commission of rape as alleged and

proved by the prosecution.

27. The prosecutrix has deposed about one single act of forcible

intercourse against her wish in her house itself. So far as the charge

under Section 6 of the POCSO Act is concerned, we do not find any

instances indicating aggravated penetrative sexual assault as

defined under Section 5 of the POCSO Act. In view of the same and

since Section 4 of the POCSO Act is lesser offence, we deem it

appropriate to convert the conviction of the accused under Section

4 of the POCSO Act. The accused has undergone imprisonment

pending decision of his appeal for more than eight years. Thus,

considering the entire aspect of the case, it would be just and

appropriate if the accused is convicted under Section 4 of the

POCSO Act for the imprisonment which he has already undergone.

In view of the same, we do not think it necessary to record separate

sentence of conviction against the accused for the offence

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punishable under Section 376 of IPC.

28. So far as the charge under section 363 is concerned, the

prosecutrix has deposed that on 07.01.2013, as usual, she went to

the school. In the interval when she went out of the school for

purchasing vaseline, she saw that the accused was standing below

a tree along with a bicycle. She was proceeding towards the village

but the accused obstructed her and asked her to sit on his bicycle.

He told her that they have to run from the village. The accused also

expressed to her that he would marry her. The prosecutrix has

deposed that she refused but the accused threatened her to disclose

their physical relations and therefore she was frightened. She then

climbed over his bicycle. They reached near village Pathare.

Thereafter, one ST bus arrived there. Both of them boarded the said

bus and went to Nasik. The prosecutrix has further deposed that

the accused purchased a dress for her and also cloths for himself.

Thereafter, both of them went to Vani, prayed before the deity and

waited before the ST stand. Thereafter, they went to village

Manchar. The accused asked her to wait at the ST stand with a

promise to return after searching for labour work. She waited at

the ST stand for about an hour. The accused then returned and

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informed her that he has found a job. The accused took the

prosecutrix to a brick-kiln where they stayed in a room. The

accused had worked there for 5 days, but then police arrived and

they were taken to Manchar Police Station.

29. The prosecutrix has stated in her cross-examination that the

accused was standing at about 20 feet from the school. Because of

the interval, near about 200 to 400 students had come out from the

school. She has admitted that the accused did not lift her and

compelled her to sit on the bar in front portion of the bicycle.

According to her, she sat on the rear carrier. She has also explained

that she walked up to the Hanuman Temple from the school and

the accused followed her on the bicycle. He waited at the Hanuman

Temple. She has also explained that the accused sat on the bicycle

first and then she sat on the carrier. By a short cut they approached

the Kopargaon road. She has explained that there are houses of the

villagers to the other side of the road. According to her she did not

shout because of the threats of the accused. She has also accepted

that it was possible for her to jump from the bicycle and to reach

home. They crossed the village before they reached village Pathare.

She did not get down from the carrier till they reached village

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Pathare. We need to repeat here that it has come in her

examination-in-chief that both of them boarded ST bus and went to

Nasik. During the journey, the prosecutrix had not complained to

any one. Even accused had purchased clothes for her and also for

himself. Thereafter, they went to village Manchar. She has also

deposed in her examination-in-chief itself that the accused asked

her to wait at the ST stand at Manchar and promised to return after

searching a labour job for him. Thus, she alone waited at the ST

stand for about one hour. It is not possible for us to infer that she

was doing it under the threats given by the accused. Thereafter, she

had joined the company of the accused for staying in a room near

the brick-kiln where the accused had found work.

30. We are thus of the considered opinion that the prosecutrix

has suppressed material facts to the extent of kidnapping as alleged

by her.

31. In the case of Anversinh v. State of Gujarat (supra) relied

upon by learned APP, the Supreme Court has dealt with the

question as to whether consensual affair could be a defence against

the charge of kidnapping a minor? In para nos. 14, 15 and 16, the

Supreme Court has made the following observations:

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“14. Behind all the chaff of legalese, the Appellant has
failed to propound how the elements of kidnapping have
not been made out. His core contention appears to be
that in view of consensual affair between them, the
prosecutrix joined his company voluntarily. Such a plea,
in our opinion, cannot be acceded to given the
unambiguous language of the statute as the prosecutrix
was admittedly below 18 years of age.

15. A bare perusal of the relevant legal provisions, as
extracted above, show that consent of the minor is
immaterial for the purposes of
Section 361 of Indian
Penal Code. Indeed, as borne out through various other
provisions in
the Indian Penal Code and other laws like
the
Indian Contract Act, 1872, minors are deemed
incapable of giving lawful consent.
Section 361 Indian
Penal Code, particularly, goes beyond this simple
presumption. It bestows the ability to make crucial
decisions regarding a minor’s physical safety upon
his/her guardians. Therefore, a minor girl’s infatuation
with her alleged kidnapper cannot by itself be allowed
as a defence, for the same would amount to
surreptitiously undermining the protective essence of
the offence of kidnapping.

16. Similarly, Section 366 of Indian Penal Code
postulates that once the prosecution leads evidence to

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show that the kidnapping was with the
intention/knowledge to compel marriage of the girl or
to force/induce her to have illicit intercourse, the
enhanced punishment of 10 years as provided
thereunder would stand attracted.”

In the facts of the instant case, we are of the opinion that the

prosecution has failed to prove the ingredients of Section 361 of

IPC. We are not on the point of consent of the minor prosecutrix

which is immaterial for the purpose of Section 361 of IPC.

However, we find it difficult to believe the testimony of the

prosecutrix so far as the allegations about kidnapping are

concerned. A bare perusal of Section 361 of IPC shows that there

should be an act of enticing or taking. We do not find any evidence

about taking or enticing the prosecutrix by the accused.

32. Similarly, Section 366-A of IPC is also not attracted in the

facts of the present case. The prosecutrix has nowhere alleged that

she was forced or seduced to illicit intercourse when she was

kidnapped by the accused. Learned APP has also fairly accepted

that in the facts of the present case, the charge under Section 366-

A is not attracted.

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33. In view of the above discussion, we proceed to pass the

following order :

ORDER

I. Criminal Appeal No. 263 of 2014 is hereby partly allowed.

II. The impugned judgment and order of conviction dated

09.04.2014 passed by the Additional Sessions Judge cum Special

Judge, Kopargaon in Session Case No. 36 of 2013, convicting

thereby the appellant-accused Shantaram s/o Arjun Gorase for the

offence punishable under Sections 363 and 366(A) of IPC and

sentencing him to undergo Rigorous Imprisonment for 3 years and

to pay fine of Rs.2,000/-, in default to suffer Simple Imprisonment

for one year for the offence under Section 363 of IPC and to suffer

Rigorous imprisonment for 5 years and to pay fine of Rs.3,000/- in

default to suffer Simple Imprisonment for 18 months for the

offence under Section 366-A of IPC, is hereby quashed and set

aside.

III. The fine amount if paid in connection with this conviction

shall be refunded to the appellant-accused.

IV. The judgment and order of conviction dated 09.04.2014

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passed by the Additional Sessions Judge cum Special Judge,

Kopargaon in Session Case No. 36 of 2013, convicting thereby the

appellant-accused Shantaram s/o Arjun Gorase for the offence

punishable under Section 6 of the Protection of Children from

Sexual Offences Act, 2012 and sentencing thereby to undergo

imprisonment for life and to pay fine of Rs.5,000/-, is hereby

quashed and set aside and instead, the appellant-accused

Shantaram s/o Arjun Gorase is hereby convicted for the offence

punishable under Section 4 of the Protection of Children from

Sexual Offences Act, 2012 and sentenced to suffer imprisonment

which the appellant-accused Shantaram s/o Arjun Gorase has

already undergone, with fine amount of Rs.5,000/-, in default to

suffer Simple Imprisonment for two months.

V. The judgment and order of conviction dated 09.04.2014

passed by the Additional Sessions Judge cum Special Judge,

Kopargaon in Session Case No. 36 of 2013, convicting thereby the

appellant-accused Shantaram s/o Arjun Gorase for the offence

punishable under Section 376 of IPC stands confirmed. However,

no separate sentence is passed since the appellant-accused is

convicted under Section 4 of the Protection of Children from

Sexual Offences Act, 2012 to the extent that he has undergone the

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sentence so far which is more than eight years and some odd

months.

VI. The appellant-accused Shantaram s/o Arjun Gorase shall be

set at free forthwith, if not required in connection with any other

case.

VII. The appellant-accused Shantaram s/o Arjun Gorase shall

execute P.B. of Rs.15,000/- with one surety of the like amount to

appear before the higher court as and when the notice is issued in

respect of any appeal or petition filed against the judgment of this

Court. Such bail bond shall remain in force for a period of six

months from the date of its execution.

VIII. The Criminal Appeal is accordingly disposed off.

(S. G. DIGE, J.) (V. K. JADHAV, J.)

vre

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