Judgment apeal527.03
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 527 OF 2003.
State of Maharashtra,
through Police Station Officer,
Arni, District Yavatmal. ....APPELLANT.
VERSUS
Suresh s/o Vitthalrao Chillawar,
Aged about 28 years,
Occupation - Barber, resident of
Arni, Tahsil Arni, District Yavatmal. ....RESPONDENT
.
-----------------------------------
Mr. S.S. Doifode, A.P.P. for Appellant.
Mr. H.P. Lingayat, Advocate (Appointed) for Respondent.
------------------------------------
CORAM : B. P. DHARMADHIKARI
& V.M. DESHPANDE, JJ.
DATED : APRIL 06, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J) State of Maharashtra is in appeal before this Court under Section ::: Uploaded on - 15/04/2017 ::: Downloaded on - 27/08/2017 22:15:20 ::: Judgment apeal527.03 2 378 of the Code of Criminal Procedure challenging acquittal of respondent for the offences punishable under Sections 363, 366, 376 of Indian Penal Code and Section 3[1][xii] of Scheduled Caste, Scheduled Tribe (Prevention of Atrocities) Act. This judgment of acquittal is delivered by the Additional Sessions Judge, Pusad on 03.05.2003 in Sessions Trial No.20/1999.
2. We have heard Shri S.S. Doifode, learned A.P.P. for appellant State and Shri H.P. Lingayat, learned Counsel (appointed) for the respondent - accused.
3. According to learned A.P.P. as the trial Court has accepted age to be 16 years and 7 months on 04.02.1999, the acquittal under Section 366 or 363 is unsustainable. He contends that 06.07.1982, is established to be the date of birth of victim and hence, the trial Court should not have acquitted respondent for all the offences. As commission of offence under Sections 363 and 366 of Indian Penal Code is established, offence under Section 3[1] [xii] of the Atrocities Act also stands established.
4. Shri Lingayat, learned Counsel for the respondent / accused, submits that no sexual exploitation of victim is established and hence, contention that offence under Section 3[1][xii] of the Atrocities Act stands ::: Uploaded on - 15/04/2017 ::: Downloaded on - 27/08/2017 22:15:20 ::: Judgment apeal527.03 3 proved, is erroneous. He further contends that as per records of trial Court date of birth of victim is 06.07.1981 and date of incident is 08.02.1999. He contends that as date of birth has not been successfully established, no offence under any provision is made out.
5. Respective counsel have taken us through the material available on record. The trial Court has framed the following points and recorded findings against it, as mentioned below :
POINTS FINDINGS
1. Whether the prosecution prove that .......... No. on 8.2.99 at about 8.30 a.m. at Arni the accused kidnapped a girl Ku.
Deepmala Ramhari Amte, age 17 years, from Arni by taking her out of her lawful guardianship of her parents, and thereby committed an offence under Section 363 of the IPC ?
2.Whether the prosecution further ...........No. prove that on the same day time and place the accused kidnapped a girl Ku.
Deepmala with intent to compell her to marry with him or to sexual intercourse and thereby committed offence under section 366 IPC ?
3.Whether the prosecution prove that ...........No. on the night of 8.2.99 accused ::: Uploaded on - 15/04/2017 ::: Downloaded on - 27/08/2017 22:15:20 ::: Judgment apeal527.03 4 committed rape on Ku. Deepmala and thereby committed offence under section 376 of IPC ?
4.Whether the prosecution further ...........No. prove that the accused not being a member of SC or ST, used the position to exploit her sexually, and thereby committed an offence u/s. 3[1][xii] of the SC ST (Prevention of Atrocities) Act ?
5.What order ? .....As per final order.
5. Trial Court has on the basis of date of birth 06.07.1982 found that the victim was more than 16 years old on 04.02.1999, and therefore, acquitted respondent of offence under Section 376 of Indian Penal Code. Certificate at Exh.49 issued as per School records proved by P.W.3 Headmaster, supports this finding and hence, the acquittal of respondent for said offence cannot be interfered with.
6. Cross examination of victim herself in paragraph no.6 shows that in her police statement she deposed that her date of birth is 06.07.1981. This position is proved on record by pointing out her statement to the investigating officer and this portion has been exhibited as Exh.59A. The ::: Uploaded on - 15/04/2017 ::: Downloaded on - 27/08/2017 22:15:20 ::: Judgment apeal527.03 5 then A.P.I. Gajanan examined as P.W.5 has proved the portions marked as 'A', 'B', 'C' in her police statement, as Exh. 59/A, B and C.
7. Perusal of evidence of P.W.3 Kalimullakhan Musaffirkhan shows that he was headmaster of Mahanta Bharti Vidyalaya, Arni. He knew prosecutrix who was then studying in his school. Certificate recording date of birth was shown to him and he accepted that he has issued it. It has been marked as Exh.49. He had brought dakhal kharij register [admission register], where while admitting the victim in 5th standard her date of birth was recorded as 06.07.1982 with caste, which is recognized as Scheduled Caste. In cross examination, he accepted that date of birth in admission register was taken as per transfer certificate issued by another school and victim had taken admission in his school on 11.08.1993. He could not explain how after attending earlier school, on that date she was admitted in first standard. He accepted that column meant for signature of parents was left blank. He further stated that such signatures of parents were not being obtained. He also stated that on 23.03.1999, transfer certificate was issued to the victim.
8. Transfer certificate issued to the victim has not been proved on record. His communication dated 23.02.1999 marked as Exh.49 is infact a ::: Uploaded on - 15/04/2017 ::: Downloaded on - 27/08/2017 22:15:20 ::: Judgment apeal527.03 6 letter to the Police Station Officer on subject of student/victim. He has in that letter communicated that her date of birth was recorded as 06.07.1982, and she belongs to 'Matang' caste. He has further certified that she was absent from 08.02.1999 to 23.02.1999.
9. Material on record reveals that while leaving house on 08.02.1999, she had taken with her extra clothes, which reveal that she left home with an intention not to return. Discussion by trial Court in paragraph nos.9 and 10 of its judgment is not shown to be perverse. There are several chits/letters written by victim to respondent. She has accepted that she had given 100 chits to accused, which were love letters.
10. In this situation, as date of birth has not been established, we find nothing wrong with the acquittal of respondent by the trial Court. Judgment cannot be said to be perverse at all. Hence we proceed to pass the following order.
ORDER (1) Judgment and order dated 03.05.2003 delivered by the Additional Sessions Judge, Pusad in Sessions ::: Uploaded on - 15/04/2017 ::: Downloaded on - 27/08/2017 22:15:20 ::: Judgment apeal527.03 7 Trial No. 20/1999, is maintained.
(2)Criminal Appeal is dismissed.
(3)Bail bond furnished by the respondent is cancelled. (4)Muddemal property be dealt with as directed by the Trial Court, after appeal period is over.
(5)Fees for the learned counsel appointed for respondent is quantified at Rs.7500/-.
JUDGE JUDGE
Rgd.
::: Uploaded on - 15/04/2017 ::: Downloaded on - 27/08/2017 22:15:20 :::