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Shrinivas Rajbabu Ramgiriwar vs The State Of Mah. Thru Police … on 3 May, 2018

1

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

CRIMINAL APPEAL 275 OF 2007

Shrinivas Rajabhau Ramgiriwar,
Aged 31 years, Occ. Kirana Shop,
R/o. Alapalli, Ward No.1, Alapalli,
Tahsil Aheri, District Gadchiroli …APPELLANT

…V E R S U S…

The State of Maharashtra,
through its Police Station Officer,
Police Station Aheri,
District Gadchiroli, …RESPONDENT
——————————————————————————————
Shri Rajnish Vyas, counsel for appellant.
Smt S.P. Kolhe, Additional Public Prosecutor for respondent.
—————————————————————————————–
CORAM: ROHIT B. DEO, J.
DATE: rd
3 May, 2018.

ORAL JUDGMENT

The appellant – accused is aggrieved by the judgment

and order dated 15.6.2007 rendered by the 2nd Adhoc Additional

Sessions Judge, Gadchiroli in Special Case 6 of 2002, by and under

which, the accused is convicted for the offence punishable under

section 376 of the Indian Penal Code (“IPC” for short) and is

sentenced to suffer rigorous imprisonment for two years and is

further convicted for offence punishable under section 417 of the

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IPC and is sentenced to suffer rigorous imprisonment for a period

of six months and to payment of fine of Rs. 5,000/-.

2 Heard Shri Rajnish Vyas, the learned counsel for the

accused and Smt. S.P. Kolhe, the learned Additional Public

Prosecutor for the respondent / State.

3 The prosecutrix, who belongs to the Pardhan –

scheduled tribe, lodged oral report dated 28.3.2003 at the Aheri

Police Station alleging that the accused induced her to have sexual

intercourse promising marriage and that when she conceived, the

accused refused to marry her. On the basis of the oral report Exh.

13, the Aheri Police registered offence punishable under section

376 of the IPC and under section 3(1)(xii) of Scheduled Caste,

Scheduled Tribe (Prevention of Atrocities) Act (“Atrocities Act” for

short). Upon culmination of the investigation, chargesheet for

offence under section under section 376 of the IPC and section

3(1)(xii) of Atrocities Act was submitted in the Court of Judicial

Magistrate First Class, Aheri, who committed the case to the

Sessions Court. The learned Sessions Judge framed charge

(Exh. 7) for offence punishable under section 376, 417 of IPC and

under section 3(1)(xii) of the Atrocities Act. The accused abjured

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guilt and claimed to be tried. In the statement recorded under

section 313 of the Code of Criminal Procedure, the defence is of

false implication. The motive for false implication is stated to be a

dispute between the accused and the father of the prosecutrix over

payment of amount of goods purchased on credit from the

accused. However, the suggestions given to the prosecutrix would

reveal that the accused admitted sexual relationship. The

suggestions given to the prosecutrix are that the sexual

relationship was consensual and the accused and the prosecutrix

were in love. The accused is convicted as afore stated.

4 In view of the suggestions given by the accused that

the sexual relationship is consensual, the pivotal issue is what was

the age of the prosecutrix when the accused established sexual

relationship with her. In the oral report Exh. 13, the date of birth

of the prosecutrix is stated as 23.2.1986. The prosecutrix was, if

her date of birth as stated is accepted, barely 16 years old. In her

testimony, the prosecutrix (PW 1) has stated that her date of birth

is 22.2.1986. PW 1 has deposed that in 2002, she was in the 10th

standard and was 16 years old. The prosecutrix was in a

relationship with the accused since two years prior to the lodging

of the oral report. The prosecutrix has deposed that 1½ years

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prior to lodging the oral report, the accused established sexual

relationship with her, for first time. The evidence of the

prosecutrix as regards the date of birth and as regards the point in

time when the accused first established sexual relationship with

her, has gone entirely unchallenged. The suggestion given to the

prosecutrix is that the sexual relationship was consensual, which

suggestion is candidly accepted by the prosecutrix. If the

unchallenged evidence of the prosecutrix is accepted, and there is

no reason to reject the evidence, the prosecutrix was 14 years and

7 months or thereabout when the accused first established sexual

relationship with her. In the teeth of the unchallenged evidence of

the prosecutrix, it is irrefutable that her consent is irrelevant and

the prosecution has established offence punishable under section

376 of the IPC, beyond reasonable doubt. PW 7 Dr. Pravin

Kinnake examined the prosecutrix on 30.3.2002. PW 7 has proved

the medical examination report Exh. 25. PW 7 has deposed that

the prosecutrix was carrying fetus of 22 weeks. The report of the

sonography Exh. 27 records the age of the fetus as 25 weeks. The

medical evidence clinchingly establishes that when the prosecutrix

conceived, she was less than 16 years of age. The learned counsel

for the accused has invited my attention to the ossification test

report Exh. 26 which records that on 30.1.2002, the prosecutrix is

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not less than 16 and not more than 19 years of age. In view of the

unchallenged evidence of the prosecutrix, the ossification test

does not take the case of the defence any further. It is well

recognized that the ossification test can not be the last word and

the error margin is two years either way. PW 6 Laxman Pal, the

Gram Sevak of Gram Panchayat Allapalli has deposed on the basis

of the school record that the date of birth of the prosecutrix is

recorded as 22.2.1986. The school record is of the school to which

the prosecutrix was first admitted. The Gram Sevak who was duly

authorized by the Head Master to produce the register has proved

the relevant entry Exh. 22. It is elicited in the cross-examination

of PW 6 that he is not aware of the basis on which the entry of

birth was taken in the school register. However, no specific

suggestion is given to PW 6 that the date of birth recorded in the

school register is incorrect. In view of the unchallenged testimony

of the prosecutrix which is corroborated, although no

corroboration is required, by the school record, the ossification test

does not create any doubt as to the date of birth of the prosecutirx.

5 Since I have held that since the prosecutrix was 14

years and 7 months or thereabout when the accused first

established sexual contact and was less than 16 years when she

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conceived, the defence of consensual sexual relationship is of no

assistance to the accused in escaping the dragnet of section 375 of

the IPC. The accused had admitted sexual relationship, albeit

contending that the sexual relationship was consensual and the

defence of false implication, fragile as the defence is, is rendered

irrelevant.

6 The conviction of the accused under section 376 of

IPC is unexceptionable. The reasons recorded by the learned

Sessions Judge for award sentence of two years, which is less than

the minimum, are not entirely satisfactory. However, State has not

chosen to prefer an appeal challenging the sentence. The incident

occurred 16 years ago and I am not, at this stage, inclined to issue

notice for enhancement of sentence.

7 The accused is further convicted for offence

punishable under section 417 of the IPC. In my opinion, the

conviction under section 417 of IPC is unsustainable. It is the

version of the prosecutrix herself, that she is Pardhan – Scheduled

Tribe and the accused is Shimpi by caste and that the parents of

the accused did not like prosecutrix since she belonged to a

different caste / tribe and therefore, rejected the marriage

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proposal. It is elicited in the cross examination that the

prosecutrix become acquainted with the accused since she and her

parents were purchasing grocery from the shop of the accused

who used to visit house of the prosecutrix to collect the cost of the

goods sold. It is elicited that the accused and the prosecutrix fell

in love and the sexual relationship was consensually established.

It is further elicited that since the prosecutrix is Gond /Pardhan

and the accused Shipi, she was suspecting from the very beginning

that there would be objection for marriage. It is difficult to record

a finding with any decree of certainty that at the very initial stage

the accused had no intention whatsoever of keeping his promise to

marry the prosecutrix. The learned counsel for accused Shri

Rajnish Vyas invites my attention to the decisions of the Apex

Court in Uday Vs. State of Karnataka, AIR 2003 Supreme Court

1639 and Deepak Gulati Vs. State of Haryana, (2013)7 SCC

675 to buttress the submission that the evidence on record is

grossly insufficient to bring home the charge under section 417 of

the IPC. The submission is well merited.

8 In the result, the appeal is partly allowed. The

conviction of the accused for offence under section 417 of IPC is

set aside. The conviction of the accused for offence under section

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376 of IPC is upheld.

9 The bail bond of the accused shall stands cancelled.

The accused is directed to surrender to serve the sentence. The

accused shall be entitled to benefit of section 428 of the Code of

Criminal Procedure.

10 If the accused does not surrender within seven days,

the Superintendent of Police, Gadchiroli is directed to take the

accused into custody. In any event, compliance report shall be

filed in the Registry of this Court within four weeks.

11 The appeal is partly allowed and disposed of.

JUDGE

RS Belkhede, PA

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