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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.127 OF 2002
THE STATE OF MAHARASHTRA )...APPELLANT
Age 40 years, Occupation Service )
Resident of Terkheda, Taluka - Washi, )
District – Osmanabad )...RESPONDENT
Mr.H.J.Dedhia, APP for the Appellant– State.
Mr.Niteen Pradhan a/w. Ms.Shubhda Khot, Advocate for the
Respondent.
JUDGMENT
1 This appeal is filed by the State challenging the judgment and order of acquittal dated 6th August 2001 passed in Sessions Case No.198 of 2000 by the learned 2nd Ad-hoc Additional Sessions Judge, Solapur, for the offences punishable under Sections 376, 504, 506 and 109 of the Indian Penal Code (IPC).
2 It is the case of prosecution that prosecutrix at the relevant time was resident of Yeshwant Nagar, Mohol, near Court premises. Her mother was a peon in the Court at Mohol. The prosecutrix was a student of Class 8th of Nagnath Vidyalaya, Mohol.
3 Somewhere in the month of July 1996 accused Jayant Nanasaheb Salve along with one Keshpa[1] visited the house of the prosecutrix. Said Keshpal enquired with prosecutrix about her mother to which she replied that she had gone to her grandparents at Solapur. When she enquired about A-1, said Keshpal told her that A-1 was a teacher in a Technical High School at Mohol.
4 The prosecution then contends that after a month A-1 again visited the house of the prosecutrix and expressed his desire to avail the mess service to which the prosecutrix replied that since her mother was not there, she would ask her and then let him know. The prosecutrix alleges that whenever the prosecutrix used to go to school, A-1 used to tease her. But this fact was not told by her to her mother as she was frightened.
5 In the month of January 1999 while the informant was going to meet her grandmother Sumitra Adinath Jathithor at Solapur and to witness gadda yatra and was standing at bus stand, A-1 came there and told that he would also accompany her. Both of them therefore went to Solapur where A-1 took the prosecutrix through gadda yatra and returned to Mohol at about
10.30 a.m. The prosecutrix alleges that while sitting in the rear seat of the State transport bus, the accused throughout the journey pressed her breasts.
6 Then in the month of February 1999 A-1 again visited the house of the prosecutrix at about 10.00 p.m. and knocked the door. When the prosecutrix opened the door and asked him as to why he had come late in the night, he pressed her mouth and took her inside, removed her clothes and his clothes and then forcibly committed sexual intercourse. He also threatened her. It may be noted that at the relevant time, the mother of the prosecutrix had gone to her mother at Solapur. A-1 left the house of the prosecutrix at about 5.00 a.m. in the morning and while leaving he threatened the prosecutrix that if she disclosed the incident to anybody, he would kill her.
7 The prosecutrix further alleges that the accused repeated the said act after eight to fifteen days under threat and promise of marriage and forcibly committed sexual intercourse with her.
8 Alleging further, the prosecutrix contends that in the month of July 2000, while he was again forcibly committing sexual intercourse, somebody knocked the door and he found her mother standing there at about 2.00 a.m. However, the accused ran away after giving fist blow to prosecutrix’s mother.
9 The prosecutrix further alleges that on 14th April 2000 A-1, his father Nanaso Salvi (A-3) and brother Mukesh Salvi (A-2) took her to doctor at Kanna Square, Solapur and made her to undergo abortion.
10 In the above factual backdrop, the prosecutrix lodged a report on the basis of which Mohol Police Station registered Crime No.235 of 2000 under Sections 376, 504, 506, 109 read with 34 of the IPC.
11 It appears from the record that PW[7] Bhujang Dattatraya Kadam, Police Sub-Inspector, during the course of investigation prepared Spot Panchnama, recorded the statement of witnesses and arrested the accused. He also got examined A-1. He then collected Bonafide Certificate from the school of the prosecutrix, seized the clothes of the prosecutrix and as also that of A-1. After having received the Chemical Analyser’s Report from the Forensic Science Laboratory and as also completion of investigation, he forwarded the charge-sheet against the accused.
12 To bring home the charge, the prosecution has examined as many as seven witnesses and exhibited number of documents. The defence has also examined a defence witness namely DW[1] Shankar Anna Dudhale (Exh.49). The respondents-accused were questioned under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) about the incriminating evidence and circumstances and they denied all of them as false. According to A-1 and A-2 they have been falsely implicated in this case and that they have not committed any offence. A-3 on his part submitted that as he refused to perform their settled marriage, he is falsely involved in the present case and that he has not committed any offence.
13 Mr.Dedhia, learned APP for the appellant-State, submitted that the learned Trial Judge failed to take into consideration that at the time of the incident the prosecutrix was 16 years old and therefore a minor. The learned Trial Judge failed to take into consideration the evidence adduced by the prosecution in respect of the age of the prosecutrix. Even the learned Trial Judge wrongly refused to believe that it were the accused who in furtherance of their common intention made the prosecutrix to undergo an abortion. Thus, there being overwhelming evidence, the learned Trial Judge ought to have convicted the accused for the offences with which they are charged. According to him since the learned Trial Judge has failed to appreciate the whole evidence on record in proper perspective leading to an erroneous conclusion of acquittal of accused, the impugned judgment and order needs to be set aside.
14 Mr.Pradhan, learned counsel for respondent-accused, on the other hand, supported the impugned judgment and order of acquittal. According to the learned counsel the prosecution has miserably failed to prove the minority of the prosecutrix at the time of the alleged incident and therefore, the learned Trial Judge was justified in rejecting the case of the prosecution. There being no merit in the appeal, the same is liable to be dismissed, argued learned counsel.
15 At the very outset, it may be noted from the record and more particularly the prosecution case that at the relevant time the prosecutrix-informant was a minor as her date of birth is 01/06/1983. The prosecution has, therefore, led three categories of evidence; (i) the oral evidence that of the prosecutrix (PW-1) and her mother, namely, Trishala Sidram Kadam (PW-4); (ii) the medical evidence that of Dr. Umesh Murlidhar Karanjkar and Dr. Vyankatesh Dattatraya Airony (PW-5); and (iii) the school admission certificate. Let us examine these categories of evidence. 16 PW-3 Prosecutrix-informant states in her evidence (Exh.30) that she resides with her two brothers and mother Trishala Sidram Kadam (PW-4). Her date of birth is 01/06/1983.
17 It is her further evidence that she knows one Keshpal with whom the accused (Jayant Nanasaheb Salve(A-1) had visited her house. After one month, A-1 again visited her house as he wanted to start tiffin from her house. As the mother of prosecutrix had gone to Solapur, the prosecurtrix told him that she would inform her mother. Whenever she used to go school the accused used to meet her and ask her whether her mother had gone out and that he would visit her house.
18 In January, 1999 while the prosecutrix was going to see her grandfather at Solapur, A-1 met her at S.T. Stand and asked where she was going. She informed that she was going to see Gadda-Yatra at Solapur. A-1 also accompanied her. A-1 showed her all the ‘Gadda’ upto 10-30 p.m. and while they were returning they sat on the back side of the S.T. Bus. There were no lights in the S.T. Bus and it is her further evidence that accused pressed her breasts. It is her further evidence that one month after that incident, at about 10-30 p.m., A-1 visited her house, removed his clothes and her clothes and committed sexual intercourse. A-1 also told that she should not tell this fact to any one. A-1 was there upto 5-00 a.m. in her house, repeatedly assaulted her sexually and went away and went out threatening her if she told the incident to anyone, she will have to suffer.
19 Deposing further, according to prosecutrix, after 8 days A-1 again visited her house and repeated the same act. Then, in the month of July 2000 he again came in the night hours and repeated the same act. However, at about 2-00 a.m. someone knocked the door and she opened the door. Her mother was standing at the door. A-1 ran way from her house by pushing her mother. On being enquired as to who was that person, she narrated all the incidents to her mother.
20 It is her further evidence that when she became pregnant A- 1 and other accused, namely, Mukesh Nanasaheb Salve (A-2) and Nanasaheb Bhagwan Salve (A-3) i.e. brother and father of A-1 respectively, took her to hospital of Gurram Doctor (PW-1) at Kanna Chowk and caused abortion. Lastly, her evidence shows that A-1 had informed her mother that he would come along with his father but did not turn up. Therefore, she lodged the report against the accused. She then proved the complaint at Exh. 31. 21 PW-4 Smt. Trishala Sidram Kadam, mother of the prosecutrix, on her part, states in her evidence (Exh. 32) that A-1 had come to her residence in order to start the mess somewhere in the year 1996 along with Keshpal, who was known to her. She allowed A-1 to take tiffin from her house. According to her she used to go to Solapur to see her ailing mother every week. However, on one Sunday in the year 1997 she got late while returning to her village from Solapur. When she returned, she called her daughter ‘Mira’, however, Jayant Salve (A-1) came out from her house, dashed her and ran away. Such incidence had happened for 2-3 times. When she asked as to why he is there in her house, he answered that he desires to marry her daughter. She even asked to bring his relatives but A-1 told her that she should go to the village and tell his father. Accordingly she went to village of A-1. A-1’s father honoured her and told that they would marry their son with the prosecutrix.
22 Her evidence then shows that she was informed by prosecutrix that accused had performed forcible intercourse and threatened not to tell anybody. Because of this she remained pregnant. Further, A-1 told her that she (prosecutrix) was weak and he would show her to some doctor. Accordingly A-1 took her and caused abortion.
23 Before we look into the material aspect of the prosecution case i.e. whether there is sufficient evidence coming from the mouth of prosecutrix and her mother to show that the prosecutrix indeed was a minor at the time of incident, we think it proper to appreciate their evidence as regards the alleged ravishment at the hands of accused. There are many questionable bits which compel us to question and seriously question the conduct of both these witnesses.
24 If we start with the incident of prosecutrix allegedly travelling with A-1 in the S.T.Bus after having witnessed the Gadda-Yatra, it is clear that as there was no lights in the S.T.Bus, the accused allegedly had pressed her breasts. Why the prosecutrix kept mum is not made clear. There must have been some passengers in the S.T.Bus, if not, then at least the conductor of S.T. Bus and certainly she could have raised an alarm but it is not discernible from her evidence whether she offered any kind of resistance to the act of A-1.
25 Her substantive evidence broadly supports the contents of FIR and this being so, we come across the first incident of alleged rape somewhere in the month of February, 1999. The evidence clearly shows that while performing the alleged sexual act prosecutrix was neither subjected to threats nor any promise of marriage whereas FIR shows that she was ravished under threats. Her cross-examination clearly shows that at the time of first incident i.e. present incident which we are discussing about, one of her younger brother was very much present in the house while another had gone with her mother. It is not made clear despite the presence of younger brother in the house and she having every opportunity to resist or thwart the alleged act of accused, she opt to remain silent. How the whole incident went unnoticed from the eyes of younger brother, who was admittedly present in the house, is not made clear by this witness in her substantive evidence. On the contrary, her cross-examination shows that she had neither shouted nor sought help from the surroundings house when A-1 came and removed her clothes from her body. The conduct of the prosecutrix goes a long way to show her passive consent.
26 After the above-noted first incident, the accused went on repeating the same act and one day according to prosecutrix was caught by her mother. Here again it is quite interesting to note that according to evidence of PW 4- mother, she had caught the accused on 2-3 times which is not at all the case of prosecution. Even her evidence showing that she confronted A-1 and that accused told that he wanted to marry her daughter and requested to this witness to approach his father and even his father accordingly told that he would marry his son with the prosecutrix, has all come by way of omissions. All these material omissions are duly proved by PW-7, investigating officer, in his examination by stating that nothing of all this sort, as is noted by us, was stated before him by this witness. Therefore, there is no support to the version of prosecutrix that her mother had indeed caught A-1 red-handed in her house.
27 It is also pertinent to note from the cross-examination of PW-4 mother that when she came from Solapur late night at that time her daughter and her two sons were in the house. Now again the same question arises despite the presence of brothers of prosecutrix in the house how A-1 could indulge in the sexual activity. This could not have been possible without the consent of the prosecutrix.
28 Having noted the questionable conduct of both these witnesses, we now turn to the material aspect of the prosecution case and that is the age of the prosecutrix. Surprisingly, the PW-4 mother has not uttered a single word as to date of birth or even the age of the prosecutrix at the time of incident. The prosecutrix, on her part, has only stated that on 14/08/2000 she was a student of VIIIth standard and her date of birth is 01/06/1983 whereas according to PW-4 mother, her daughter was a student of class VIth in the year 2000. As deposed by prosecutrix that her date of birth is 01/06/1983 and whether this is sufficiently and satisfactorily established by the prosecution will have to be find out in the light of other evidence.
29 The second category of the evidence is the medical evidence. PW-2 Dr. Umesh Murlidhar Karanjkar states in his evidence (Exh.20) that according to the Radiologist opinion bony age of the prosecutrix as on 15/08/2000 was more than 15 years but less than 16 years. It appears that this witness gave the opinion on the basis of report of Radiologist Dr. V. D.Airony (PW-5). However, in the cross-examination this witness states that he has no knowledge about the x-ray report and he cannot give any opinion about the report of Radiologist. In our considered opinion, since this witness has deposed probable age of prosecutrix on the basis of the findings of PW-5 Radiologist and ultimately admitted in the cross-examination that he cannot give any opinion about the report of Radiologist, his evidence can not be read with a sense of satisfaction vis-a-vis the age of prosecutrix. All that is now necessary is to go through the evidence of PW-5 Radiologist. 30 PW-5 Dr. V. D.Airony states in his evidence (Exh. 35) that he is Radio-Diagnosist. On 15/08/2000, he took x-ray of the prosecutrix. Two x-rays of three parts were taken, of one right wrist, right elbow and right iliac crest as those parts are necessary for concluding the age of patient. Those x-rays were sent to him and his reports centres around elbow joint which appeared to had fused. Centre for iliac crest and distal end of radius ulna had appeared but not yet fused. His impression was that the bony age was more than 15 years but less than 16 years. He then proved his report and extract of MLC Register at Exh. 36.
31 The cross-examination of this material witness is full of significance. According to him, his opinion is based on some authors of Medical Jurisprudence, namely, Parikh and Modi and he formed his opinion on the basis of his experience as well as on the basis of books which he studied. He further states in his crossexamination that as per Parikh, x-rays of shoulder, elbow, wrist, pelvis and knee are necessary for determining the age.
32 It is clear from the cross-examination of this witness that he based his opinion on the Medical Jurisprudence authored by Parikh and Modi. He also admits as per Parikh, x-rays of shoulder, elbow wrist, pelvis and knee are necessary for determining the age. However, his examination-in-chief nowhere shows that he had also taken the x-ray of shoulder, pelvis and knee. Therefore, it is very much clear that he did not comply the requirements of the Medical Jurisprudence of Parikh though he says that he based his opinion on Parikh’s Medical Jurisprudence.
33 Assuming for the sake of argument that he complied all the requirements of Medical Jurisprudence of the Parikh, in that eventuality also his opinion shows that prosecutrix’s bony age was more than 15 years but less than 16 years. We are not unmindful of the fact that in a case of criminal liability benefit or margin should always go to the accused persons in such cases as certainty of the age of the prosecutrix is not there but it is only process of assumption. In the process of assumption, the margin has to be given to the accused so that he may be entitled for benefit of doubt. The accurate assessment of the age is required and it must find corroboration by some other evidence but in the present case corroboration is completely lacking. Even the mother of the prosecutrix has not deposed about the year of birth of her daughter.
34 The third category of the evidence is the register of admission produced on record by PW-6 Sitaram Kadappa Kadam. PW 6 states in his evidence (Exh. 38) that at the relevant time he was acting as Head Master in Nagnath Vidyalaya Mohol. While giving admission in the school, they ask the student to bring school leaving certificate of previous school. The birth date is noted in the register on the basis of school leaving certificate issued by previous school. It is his further evidence that prosecutrix was previously taking education in the School No. 16 of Municipal Corporation, Solapur. Accordingly, she submitted the certificate from that school. He then proved the said leaving certificate at Exh. 40. According to him, as per the register birth date (of prosecutrix) is 01/06/1983.
35 In the cross-examination this witness categorically states that he has no personal knowledge as to on what basis the birth date was recorded in the previous school or on the basis of information given by the guardians.
36 The evidence of PW-6, in our considered opinion, does not further the case of prosecution in any manner. All that evidence of this witness is to the effect that the date of birth of the prosecutrix was recorded in their register on the basis of date of birth of the prosecutrix given in her school leaving certificate issued by the previous school. This witness has also no personal knowledge as to on what basis the date of birth was taken in the school register and consequently in the school leaving certificate of the prosecutrix or for that matter whether the information as to the date of birth of the prosecutrix was supplied by the concerned guardians. It was bounden duty of the prosecution to examine the concerned authority from the earlier school of the prosecutrix where she had taken education as that school had the first opportunity to record the date of birth of the prosecutrix. No clear, cogent and convincing evidence establishing the correct date of birth is forthcoming. This was a very material and pertinent aspect from the point of view of the prosecution and we are constrained to say that the prosecution has completely failed to discharge its burden in that regard.
37 Taking over all view of the evidence discussed so far by us, we have no hesitation in our mind to hold that by oral evidence, the prosecutrix and her mother have not been able to fix with exactitude the age of the prosecutrix so as to make the appellantsaccused liable for the crime under Section 376 of IPC. Our conclusion, therefore, is that the prosecution has not established the age of the prosecutrix being below the age of 16 years.
38 On the basis of material on record, it is established that the sexual indulgence was voluntary and out of volition of both the parties. It was with the will and consent of the prosecutrix and in the absence of clear and unambiguous evidence about the age of prosecutrix, the learned trial judge was justified in acquitting the accused. We do not find any illegality or perversity in the findings so recorded by the learned trial judge.
39 For the aforesaid reasons, we find no merit in the Appeal and dismiss the same accordingly. (V. G. BISHT, J.) (PRASANNA B. VARALE, J.)