apeal 161.15 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 161 OF 2015
Vishal S/o Vasantrao Kumkar,
Aged about 22 years,
R/o Pofali,Tq.Umarkhed,
District-Yavatmal ….. APPELLANT
…V E R S U S…
State of Maharashtra,
Through Police Station Officer,
Police Station Pofali,
Tq.Umarkhed,District-Yavatmal. …RESPONDENT
——————————————————————————————-
Shri Anil Mardikar, Senior counsel with Miss R.A.Mardikar for
appellant .
Miss T.H.Udeshi,Addl.P.P. for State.
——————————————————————————————-
CORAM:- V. M. DESHPANDE, J.
DATED :- JULY 12,2017
ORAL JUDGMENT
The present appeal is directed against the judgment and
order of conviction passed by learned Additional Sessions
Judge,Pusad on 30/12/2014 in S.T.No.39/2013 by which the Court
below convicted the appellant for the offence punishable under
Section 376 of the Indian Penal Code and directed that he will suffer
R.I. for a period of 10 years and to pay fine of Rs. 2,00,000/- and in
default to suffer R.I. for one year.
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For the conviction under Section 417 of the Indian Penal
Code is concerned, the Court below imposed sentence of R.I. for 6
months and fine of Rs. 50,000/- and in default to suffer R.I. for one
month.
2. The prosecution case as it is brought on record during the
course of trial is, as under:
Deorao Chandusingh Rathod (PW9) was discharging his
duty as P.S.O. of P.S.Pofali on 15/7/2012. On the same day, victim
(PW1) came to police station alongwith her parents. She lodged
complaint. Her complaint was oral one. Deorao Rathod (PW9) took
down her report as per her say. Her oral report is at Exh.26. On the
basis of said report Deorao Rathod (PW9) registered an offence
bearing Crime No.32/2012 and printed F.I.R. is at Exh.27.
3. As per oral report(Exh.26), the victim was taking her
education in 9th Standard at Shiwaji School,Pofali. Appellant is son of
Vasantrao who resides as neighbour of victim. Appellant and victim
were acquainted with each a other. When the victim used to cross the
house of appellant that time appellant used to pass remarks that she
is beautiful and he loves her and he wishes to meet her. As per the
report, initially the victim did not pay any heed to the remarks made
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by the appellant. Thereafter, the appellant gave some chits to her.
Report(Exh.26) further states that thereafter victim also
started developing love for appellant. The chits were exchanged in
between them. Their love affairs continued for a period of one year.
The report (Exh.26) further states that about 6-7
months of lodging of the report when she was proceeding for
answering nature’s call appellant came near her and asked her to
accompany with him in the house of one Sable and there he
disclosed that she is beautiful and he wants to marry with her and
committed sexual intercourse with her. The report (Exh.26) further
states that subsequently also the physical relations developed
resulting into the pregnancy. When she was conceived the said fact
was informed to the appellant that time he refused that she is
pregnant from him. He also refused to marry with her and therefore
the report was lodged.
4. After registration of the crime investigating officer Deorao
Rathod (PW9) went to the spot of incident. It was the house of one
Satish Sable who disclosed that he has shifted his house prior to one
month and therefore it was unoccupied. Investigating officer (PW9)
prepared spot panchnama panchnama(Exh.70).
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Thereafter victim was sent for her medical examination
under requisition (Exh.71). He also gave a letter (Exh.73) to Shivaji
Vidyalaya Pofali in order to ascertain the proof of age. He also
recorded the statements of parents of victim and other persons and
also Satish Sable.
Victim was referred for her medical examination. Exh.32
is the report of Dr.Archana Rathod. By the said report doctor pointed
out that the victim is pregnant. For determining age of victim
radiological examination was advised. Exh.32 also shows that victim
was habituated to sexual intercourse. She also gave vaginal swab in a
sealed condition.
The biological samples brought from medical officer were
seized by the investigating officer under seizure memo (Exh.35). In
the meanwhile, victim delivered a male child. Therefore, all the
relevant documents were called by giving requisition to medical
officer by the investigating officer (PW9). The appellant was arrested
on 8/5/2013 under arrest panchnama(Exh.77). He was also
medically examined.
On 8/5/2013 investigating officer (PW9) sought
permission from learned Magistrate for DNA test of accused by
moving an application (Exh.78) which was allowed by the learned
Magistrate. The investigating officer (PW9) also gave letter to the
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Director, Forensic Laboratory,Nagpur for supply of DNA kit and one
P.C.Yogesh was assigned duty pass for the same. After the kit was
received the appellant, victim and newly born child were brought
before medical officer for collection of their blood samples. After
completion of other usual investigation final reprot was present in
the Court of learned Magistrate.
5. The Magistrate found that the offence is exclusively
triable by the Court of Session therefore, he passed the committal
order.
6. Appellant was charged for the offence punishable under
Sections 376,417 and 506 of the Indian Penal Code and under
Section 4 of the Protection of Children from Sexual Offences Act,
2012.
7. In order to bring home the guilt of the appellant the
prosecution has examined in all 9 witnesses. After the appreciation of
prosecution evidence and its case though the Court below acquitted
appellant for the offence punishable under Section 506 of the Indian
Penal Code and under Section 4 of the Protection of Children from
Sexual Offences Act, 2012 he was convicted for the offence
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punishable under Sections 376 and 417 of the Indian penal Code.
Hence, this appeal.
8. I heard Shri Anil Mardikar, the learned Senior Counsel
with Miss R.A.Mardikar for appellant and Miss T.H.Udeshi, learned
Addl.P.P. for State. With their able assistance I have gone through
the record and proceedings. It is the submission of the learned Senior
Counsel Shri Anil Mardikar that the evidence as brought on record by
the prosecution clearly shows that there was love affair between
appellant and victim. He submitted that the Court below committed
mistake in convicting the appellant for the offence punishable under
Section 417 of the Indian Penal Code. He submitted that there is no
evidence whatsoever to show that at any point of time the appellant
established physical relations with victim by giving a promise that he
will marry with her. He invited my attention to the substantial
evidence of the victim and pointed out that her evidence is totally
silent in respect of the assertion that by giving promise to
marry,appellant established sexual relations with her.
It is the further submission of learned Senior counsel that
though the prosecution was duty bound to prove the age of the
victim below 16 years in order to invite conviction for the offence
punishable under Section 376 of the Indian penal Code he submitted
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that the prosecution has utterly failed to prove that the victim was
below the age of 16 years and therefore he submitted that the
conviction under Section 376 of the Indian Penal Code is also not
sustainable.
9. Per contra, learned Addl.P.P. would submit that if the
evidence of the victim is read in correct prospective then when she
deposed that appellant said to the victim that he will take full
responsibility, that tantamount to promise to marry. She submitted
that in view of the extract of admission register(Exh.51) it is clear
that the victim was below the age of 16 years and therefore she
submitted that appeal be dismissed.
10. The prosecution has placed on record DNA report
(Exh.13). The said report shows that the appellant is biological
father of child delivered by the prosecutrix. That clearly establishes
the fact that there were physical relations in between appellant and
the prosecutrix.
11. According to the prosecution the appellant established
physical relations with the prosecutrix though she was below the age
of extending consent. It is further case of the prosecution that the
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appellant obtained consent from the prosecutrix on the pretext that
he will marry with her.
12. Though the appellant was charged for the offence
punishable under Section 4 of the Protection of Child from Sexual
Offences Act,2012 and under Section 506 of the Indian Penal Code
for these two charges he is acquitted by the Court below and there is
no appeal filed against the said acquittal.
13. Since the appellant is acquitted for the offence punishable
under Section 4 of the Protection of Child from Sexual Offences
Act,2012 the prosecution was bound to prove the age of the
prosecutrix below the age of 16 years in order to bring home guilt for
the offence punishable under Section 376 of the Indian Penal Code
as the offence according to prosecution occurred prior to amendment
to Section 375 of the Indian Penal Code. In order to prove her age
the prosecution has relied on evidence of Dr. Prajwalatsingh
Pratapsing Gaur (PW5) and evidence of Tulshiram Raghoji
Thorat(PW6).
14. As per evidence of Dr.Gaur(PW5) X-ray plates of
prosecutrix were forwarded to him on 19/7/2012. On examination
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of said X-ray as per the version of Dr.Gaur the age of the prosecutrix
was more than 14 years but less than 16 years.
15. From the evidence of Dr.Gaur(PW5) it is clear that X-ray
for determining the age of the prosecutrix was not taken by him.
Those X-rays were taken by the technician of the X-ray Department
on 16/7/2012. The technician who took X-ray is not examined by the
prosecution. Further X-ray plates are not placed on record. In fact,
Dr.Gaur(PW5) has admitted as under:
“I have not brought the X-rays to the Court today. Witness
volunteers that the X-rayswere returned to the L.P.C.
B.No.521”.
Even this lady P.C. to whom X-ray plates were given is not examined.
In view of the aforesaid evidence and in view of the fact
that X-ray plates are not available on record much importance cannot
be given to the certificate (Exh.48) and evidence of Dr.Gaur(PW5)
that the age of the prosecutrix was more than 14 years but less than
16 years.
16. The other piece of evidence to determine age is through
documentary evidence. Tulshiram Raghoji Thorat(PW6) is examined
by the prosecution. This prosecution witness was working as Head
Master at Shivaji Vidyalaya,Pophali, Umarkhed since 2008 to 2013.
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His evidence shows that as per the admission register he informed
the police about the date of birth of the prosecutrix. As per the
admission register the age the date of birth of prosecutrix is
11/1/1998. His evidence shows that she was admitted in the school
in the 5th Standard on 1/7/2008. He proved the extract of register
(Exh.51).
This prosecution witness has admitted that entries in
Exh.51 are made from the transfer certificate issued by the earlier
school. It is also admitted by him that he did not verify the entries of
the earlier school are correct or not. Not only that it is his version
that there could be error in stating of birth date by the parents while
admission.
17. No doubt Exh.51 shows the date of birth, however the
transfer certificate on the basis of which entry in Exh.51 is taken is
not placed on record.
18. It would be useful to refer paragraph no.15 of the
authoritative pronouncement of the Hon’ble Apex Court in the case
of Birad Mal Singhvi ..vs..Anand Purohit,reported in AIR 1988 SC
page 1796. It is quoted as under:
” The High Court held that in view of the entries
contained in the Ex.8,9,10,11 and 12 proved by::: Uploaded on – 13/07/2017 15/07/2017 00:32:55 :::
apeal 161.15 11Anantram Sharma PW3 and Kailash Chandra Taparia
PW5, the date of birth of Hukmichand and Suraj Prakah
Joshi was proved and on that assumption it held that the
two candidates had attained more than 25 years of age
on the date of their nomination. In our opinion the High
Court committed serious error. Section 35 of the Indian
Evidence Act lays down that entry in any public, official
book, register, record stating a fact in issue or relevant
fact and made a public servant in the discharge of his
official duty specially enjoined by the law of the country
is itself the relevant fact. To render a document
admissible under Section 35, three conditions must be
satisfied, first,entry that is relied on must be one in a
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
discharge of his official duty, or any other person in
performance of a duty specially enjoined by law. An entry
relating to date of birth made in the school register is
relevant and admissible under Section 35 of the Act but
the entry regarding to the age of a person in a school
register is of not much evidentiary value to prove the age
of the person in the absence of the material on which the
age was recorded. In Raja Janaki Nath Roy and
Ors.v.Jyotish Chandra Acharya Chowdhury AIR 1941 Cal.
41 a Division Bench of the Calcutta High Court discarded
the entry in school register about the age of a party to the
suit on the ground that there was no evidence to show on
what material the entry in the register about th age of the
plaintiff was made. The principle so laid down has been::: Uploaded on – 13/07/2017 15/07/2017 00:32:55 :::
apeal 161.15 12accepted by almost all the High Courts in the Court, see
Jagan Nath v.Moti Ram Moti Ram and others[1951]
Punjab 377;Sakhi Ram and others..vs..Presiding Officer,Labour Court, North Bihar,Muzzafarpur and others[1966]
Patna 459: Ghanchi Vora Samsuddish Isabhai..vs..State of
Gujarat,[1970] Gujarat 178 and Radha Kishan Tickoo
and another..vs..Bhushan Lal Tickooand another,[1971] J
K 62. In addition to these decisions the High Courts of
Allahabad,Bombay have considered the question of
probative value of an entry regarding the date of birth
made in the scholar’s register or in school certificate in
election cases. The Courts have consistently held that the
date of birth mentioned in the scholors register or
secondary school certificate has no probative value unless
either th parents are examined or the person on whose
information the entry may have bee made, is examined ,
see Jagdamba Prasad..vs..Sri Jagannath Prasad and
others, 42ELR465:K.Paramalali..vs..L.M.Alangam and
another, 31 ELR 401 and Krishna Rao Maharu
Patil..vs..Onkar Narayan Wagh,14ELR 386.”
19. Also I would like to refer para no.38 of the authoritative
pronouncement. Of Alamelu and another..vs..State,reported in AIR
2011SC page 715.
“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,::: Uploaded on – 13/07/2017 15/07/2017 00:32:55 :::
apeal 161.15 13Radiologist,Exh.P4 and Ex.P5. Undoubtedly, the transfer
certificate, Ex.P16indicates 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., 31st 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 23 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 have no evidentiary
value unless the person, who made th 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 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 311of Cr.P.C. seeking permission to produce th 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.P16at that 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::: Uploaded on – 13/07/2017 15/07/2017 00:32:55 :::
apeal 161.15 14on 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
24 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.”
20. From the aforesaid, it is clear that though transfer
certificated is admissible under Section 35 of the Indian Evidence
Act, the admissibility of the said document would be no much
evidentiary value to prove the age of the girl since there is no
material available on record on what basis date of birth was
recorded. In the present case, the prosecution has not examined any
person from earlier school who has taken entry or who has given the
date of birth certificate of the prosecutrix. Since Exh.51 is not a
primary document, in my view the prosecution has failed to prove
the date of birth of the prosecutrix beyond reasonable doubt.
21. According to prosecution the appellant has given promise
and thereafter obtained her consent.
22. Though in the F.I.R. it is stated by the prosecutrix that the
appellant made a promise of marriage ,however her substantial
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evidence is silent in respect of promise of marriage. F.I.R. is not a
substantive piece of evidence. What prosecutrix has stated in her
evidence is that he will take her full responsibility. The responsibility
can be of different types. However, in th absence of specific evidence
one cannot deduce inference for the said word ” responsibility” that
there was promise from the appellant that he will marry with the
prosecutrix. The F.I.R. itself shows that she was in deeply love with
the appellant. In that view the law laid down by Hon’ble Apex Court
in Uday..vs..State of Karnataka,AIR 2003 SC1639 is aptly
applicable. Over all evidence as brought on record by the
prosecution in my view does not show that there was any promise of
marriage by the appellant. On the contrary, even as per the
prosecutrix herself there was love affair between her and the
appellant ultimately ,it resulted into the physical contact between
them.
23. On the reappreciation of the entire prosecution case I am
of the view that the appellant cannot be convicted. Hence, I pass the
following order.
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ORDER
I) The appeal is allowed.
II) The judgment and order of conviction passed by learned
Additional Sessions Judge,Pusad in S.T.No.39/2013,
dated 30/12/2014 is hereby quashed and set aside.
III) The appellant is acquitted under Sections 376 and 417 of
the Indian Penal Code.
IV) The appellant is in jail. He be set at liberty forthwith if
not required in any other case or crime.
JUDGE
kitey
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