CRI.APPEAL.287.03+
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 287/2003
with
CRIMINAL APPEAL NO. 290/2003
CRIMINAL APPEAL NO. 287/2003
Yogesh s/o Laxmanrao Navarkar
Aged about 23 years, occu: student
R/o Gurudeo nagar, Nagpur. .. APPELLANT
versus
State of Maharashtra
Through Police Station Officer
Malkapur, Dist. Buldana .. RESPONDENT
...............................................................................................................................................
None for the appellant
Mr. S.B.Bissa, Additional Public Prosecutor for respondent-State
................................................................................................................................................
CRIMINAL APPEAL NO. 290/2003
Prashant Manikrao Kawalkar
Aged about 25 years R/o B-16
Ramna Maroti nagar
Nagpur-09. .. APPELLANT
versus
State of Maharashtra
Through Police Station
Malkapur Dist. Buldana. .. RESPONDENT
...............................................................................................................................................
Mr.S.R.Chakraverti Adv.h/for Mr.R.M.Patwardhan, Advocate
for appellant
Mr. S.B.Bissa, Additional Public Prosecutor for respondent-State
................................................................................................................................................
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CRI.APPEAL.287.03+
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CORAM: MRS.SWAPNA JOSHI, J.
DATED: 29th September, 2017 ORAL JUDGMENT:
1. Since the Appeal arises from the same crime and common judgment and order delivered by the learned trial Judge and since the paper-book is common, Criminal Appeal No.290/2003 is taken on today's Board and both the Appeals are being disposed by this common judgment and order.
2. Appeal No.287/2003 has been preferred by appellant/original accused no.1-Prashant, whereas Appeal No.290/2003 has been preferred by appellant-original accused no.2-Yogesh, against the judgment and order passed by learned Ad-hoc Additional Sessions Judge, Buldana in Sessions Case No. 64/2001 on 22nd April,2003. The accused no.1-Prashant was convicted for offence punishable under Section 363 read with Section 34 of the Indian Penal Code and sentenced to suffer RI for one year and to pay a fine of Rs. 500/- in default, to suffer R.I. for one month, whereas accused no.2-Yogesh was convicted for offence punishable u/s 363 r/ws.34 of IPC and sentenced to suffer R.I. for three years and to pay a fine of Rs. 1000/- in default, to suffer R.I. for three months.
3. None appears on behalf of appellant in Cri.Appeal No. 287/2003. I have heard Shri S.R.Chakravarti, Advocate h/for Shri R.M.Patwardhan, for the appellant in Cri. Appeal No.290/2003, as well as Shri S.B. Bissa, the learned Additional Public Prosecutor for the respondent-State, in both the Appeals. With their assistance, I have perused the entire record of the case.
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4. The prosecution case in brief is that, the prosecutrix (PW2), aged about 15-years, was residing along with her parents at Gurudeonagar, Nagpur. Her father is serving as a Traffic Inspector in Maharashtra State Road Transport Corporation, Nagpur. One Rashmi was the friend of prosecutrix and was residing in the same building. One Harde was the neighbour of Rashmi. It is the case of the prosecution that accused No.2-Yogesh and one Akshay, as well as the prosecutrix and her friend- Rashmi used to visit the house of Harde and in this manner the prosecutrix was acquainted with the accused. Since the prosecutrix along with Rashmi used to visit the places, such as, shop, temples etc. Akshay and accused no.2-Yogesh used to meet them at different places. Thus, there was love affair between the prosecutrix and accused No.2-Yogesh.
5. On 14.3.2001 as the SSC examination of the prosecutrix was over, she went to Malkapur, the place of her maternal uncle Pramod (PW1). She stayed at Malkapur for about eight days. During that period, she used to receive phone calls from her friend Rashmi, who was at Nagpur. After the talk with Rashmi, accused no.2- Yogesh also used to talk with the prosecutrix on phone. On 27.3.2001 at about 10.30 pm, the prosecutrix received a phone call from Rashmi. Accused no.2 also talked to her. He said to the prosecutrix that she should come down at Nagpur or else he would come over to Malkapur at 1.00 a.m, at midnight and she should remain present in the house. The prosecutrix got frightened and therefore she did not disclose about the same, either to her grandmother or maternal uncle Pramod (PW 1).
6. On 28.3.2001 during night time after having dinner, the prosecutrix went ::: Uploaded on - 12/10/2017 ::: Downloaded on - 12/10/2017 23:41:06 ::: CRI.APPEAL.287.03+ 4 to bed with her grandmother. Between 1.00 and 1.30 a.m. she heard the horn of a motorcycle, so she came out in the courtyard. She found both the accused on the motorcycle. At the request of accused no.2 Yogesh, the prosecutrix went with him to Railway Bridge at Malkapur. The accused no.2 asked her to wait there and he would reach her to her house later on. The accused no.1-Prashant was waiting on the road in front of the house of Pramod (PW1). The prosecutrix was told by the accused no.2 that he would bring his friend to that place. However after some time the police came to that place along with accused no.1-Prashant. The prosecutrix was found in a suspected condition by the police that too during odd hours of night. They informed about finding of the prosecutrix at that place to her maternal uncle PW1-Pramod. PW1 then lodged his complaint on 30th March 2001 (Exh.17) against the accused. On the basis of the said report, offence was registered. PSI Rajendra Bagul (PW5) conducted the investigation. He arrested the accused and recorded the spot panchnama (Exh.29). He seized the motorcycle of the accused no.2-Yogesh under seizure panchnama (Exh.
30). The statements of the witnesses were recorded. After completion of investigation, the charge-sheet was filed in the court of learned JMFC. The case was committed to the court of Sessions. The learned trial Judge framed the charge and on assessment of the evidence on record and hearing both the sides, convicted the accused, as aforesaid. Hence these Appeals.
7. In order to being home the guilt of the accused, the prosecution heavily relied upon the testimony of victim-PW2 and her material uncle PW1-Pramod Dasarwar. To prove the age of the prosecutrix, the prosecution relied upon the ::: Uploaded on - 12/10/2017 ::: Downloaded on - 12/10/2017 23:41:06 ::: CRI.APPEAL.287.03+ 5 testimony of PW8-Ramesh Bijekar, who is Headmaster of the school where the prosecutrix was studying.
8. As far as the testimony of PW1-Pramod Dasarwar, who is the maternal uncle of the prosecutrix is concerned, he deposed that the prosecutrix stayed in his house for about 8 to 10 days. On 28.3.2001 between 9.00 and 9.30 pm, they had a dinner and thereafter went to bed. The prosecutrix slept with her grandmother. At about 2.00 am, on 29.3.2001, PW1 woke up for relieving himself. However he could not find the prosecutrix. At about 3.00 p.m. he received a phone call from the police at this residence. The police enquired with him about the prosecutrix. He was called at the Police Station. Accordingly, PW 1 proceeded to the Police Station and found the prosecutrix there. The prosecutrix informed him that two persons have tried to kidnap her by deceiving her. Those two persons were present in the Police Station ( i.e. accused). On 29.3.2001 at about 5.00 pm. the parents of the prosecutrix arrived at Malkapur. Thereafter giving a cool thought over the matter, on the next day, PW1- Pramod lodged his complaint in the Police Station.
9. During the cross-examination, an improvement was pointed out in the version of PW1-Pramod that in the Police station the prosecutrix informed him that the accused had tried to kidnap her by deceiving her. The said improvement goes to the root of the case and it creates doubt whether the prosecutrix had informed her maternal uncle at the Police Station about the kidnapping by the the accused persons by deceiving her. It is not clear from the testimony of PW1-Pramod as to in what manner the accused had deceived her. The testimony of PW1 simply indicates that he did not ::: Uploaded on - 12/10/2017 ::: Downloaded on - 12/10/2017 23:41:06 ::: CRI.APPEAL.287.03+ 6 see the prosecutrix in his house; he tried to search the prosecutrix and on receipt of the phone call from the police, he attended the Police Station and he found the prosecutrix along with both the accused at the Police Station. There is nothing to disbelieve the testimony of PW1-Pramod. The testimony of PW 1 is in consonance with the FIR (Exh.17). There is nothing to doubt the testimony of PW1-Pramod.
10. The prosecutrix (PW2) deposed that she used to visit the house of one Harde, who was the neighbour of Rashmi. At that place, accused persons used to visit the house of Harde. The prosecutrix came in contact with accused no.2-Yogesh through Rashmi. The prosecutrix was thus acquainted with the accused. According to the prosecutrix (PW 2), on 14.3.2001 after her SSC examination was over, she went to the house of her maternal uncle Pramod (PW1) at Malkapur. She resided there for about 4 to 5 days. At that place, she used to receive phone calls from Rashmi. Yogesh- accused no.2 also used to talk to her. On 27.3.2001 at about 10.30 p.m, she received a phone call from Rashmi. Yogesh also talked to her and told her that she should come down to Nagpur on next day or else he would come to meet her at night. He further told that he would come to Malkapur at 1.00 am. and she should remain present in the house. PW2 got frightened. She did not disclose this fact, either to his grandmother or maternal uncle. On 28.3.2001 when she was sleeping, she heard the noise of horn of a motorcycle. She came out in the courtyard and saw accused no.2 Yogesh with his friend. The accused no.2 was with his friend on the motorcycle. Yogesh requested PW2 to go with him for ten minutes as he wanted to talk to her. PW2 then went on the motorcycle of the accused no.2. His friend stayed there on the ::: Uploaded on - 12/10/2017 ::: Downloaded on - 12/10/2017 23:41:06 ::: CRI.APPEAL.287.03+ 7 road in front of the house of her maternal uncle. The accused no.2 took PW2 on the motorcycle near the Railway bridge. He halted the motorcycle and asked PW 2 to wait at that place. He told her that he would bring his friend from the place where he was standing. After about 4 to 5 minutes, the police reached at that place along with friend of accused no.2-Yogesh. The police enquired with them and took them to the Police Station. The police contacted her maternal uncle PW1-Pramod. In the Police Station PW2 informed her maternal uncle about the incident. Thereafter her parents came to Malkapur on 29.3.2001 at about 6.00 p.m. In the testimony of PW2, an improvement was pointed out with regard to the fact that prior to 27.3.2001 she used to receive phone calls of Rashmi from Nagpur and Yogesh also used to talk to her. One more improvement was pointed out in the testimony of PW2 that as Yogesh was coming about at 1.30 in the night, she got frightened and due to that, she did not disclose it, either to her grandmother or her maternal uncle. The said improvement creates doubt whether PW2 was frightened as accused no.2 was to come at about 1.30 a.m. to meet her. PW2 however admitted that she used to meet Yogesh-accused No.2.
11. On careful scrutiny of testimony of PW2 it appears that there was a love affair between prosecutrix (PW 2) and accused no.2-Yogesh and they used to meet each other. From the testimony, it also appears that they decided to meet at about 1.30 a.m. on 29.3.2001 and accordingly accused no.2-Yogesh met with the prosecutrix at that time. It further appears that the prosecutrix consented to go with accused no.2 from the house of her maternal uncle up to the Railway bridge. It appears that at that place she was standing alone and when accused no.2 had gone near the house of ::: Uploaded on - 12/10/2017 ::: Downloaded on - 12/10/2017 23:41:06 ::: CRI.APPEAL.287.03+ 8 PW1-Pramod to collect his friend and bring him near Railway bridge, the police came and apprehended the prosecutrix as well as accused-Yogesh. Thus, it appears that the prosecutrix on her own accord, accompanied the accused Yogesh from the place of her maternal uncle till the Railway bridge.
12. So far the role of accused no.1-Prashant is concerned, according to PW2 she had for the first time seen him with accused-Yogesh. So far as his role is concerned, he simply accompanied the accused up to the house of the maternal uncle of PW2. There is nothing to doubt the testimony of PW2.
13. At this stage, it would be appropriate to verify whether the prosecutrix was below the age of 18 years at the time of the alleged incident. In this regard, the prosecution has examined PW8-Ramesh Bijewar, who is the teacher of Navyuvak Prathmik Mulodhyog School, Mahal, Nagpur. He deposed that at the time of admission, the school authority used to receive application form for admission and proof if any regarding the birth of the pupil. If the admission to the pupil is given an entry in that regard used to be taken in Dhakil Kharij register and the school authority used to issue school leaving certificate on the basis of said register. According to PW8 as per the entry in the register, the prosecutrix was admitted in first standard on 9.5.1991 and her date of birth is 10.11.1985 as per the said register.
14. PW8-Ramesh Bijekar deposed that the date of birth of prosecutrix was recorded as documentary proof was produced. PW8 however stated that he had not brought the original birth certificate of the prosecutrix, which was produced in the school while the prosecutrix was admitted in the school. He further deposed that there ::: Uploaded on - 12/10/2017 ::: Downloaded on - 12/10/2017 23:41:06 ::: CRI.APPEAL.287.03+ 9 is no reference about the documentary proof regarding the date of birth of the prosecutrix. It is not clear from the testimony of PW8 as on what basis the date of birth of the prosecutrix was recorded in the school register. Thus the extract of the school register is not found to be a authenticated document, with regard to the proof of date of birth of the prosecutrix and no reliance can be placed on extract of school register. In view of this, it is held that at the relevant time the prosecutrix was not below the age of 18 years of her age.
15. The testimony of PW2 indicates that there was a love affair between the prosecutrix and accused no.2-Yogesh. It was decided that accused no.2-Yogesh would meet the prosecutrix at Malkapur in front of the house of her maternal uncle PW1 and accordingly accused no.2-Yogesh came to that place during the odd hours. The prosecutrix appears to be on the verge of attaining majority having full understanding of the good and bad things and she met accused no.2 at her own accord. The prosecutrix then voluntarily accompanied the accused-Yogesh from the house of her maternal uncle upto Malkapur Railway Station and when accused no.2- Yogesh went to pick up his friend, the police noticed her standing alone near the Railway station at odd hours, the police enquired with her and came to know that she come to that place alongwith accused no.2-Yogesh. So far as the role the accused no. 1-Prasant is concerned, the prosecutrix has not identified him and even if he is found with accused no.2-Yogesh, apart from accompanying the accused no.2 he had no role to play in the alleged offence. Thus the prosecution has miserably failed to prove its case beyond reasonable doubt.
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16. In the case of S.Vardarajan vs. State of Madras, reported in AIR 1965 SC 942, the Hon'ble Supreme Court observed in para no.9 as under:-
" 9. There is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous through we would lime to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian."
17. There is no evidence on record that the accused had enticed the prosecutrix or had taken her from custody of her lawful guardianship and kidnapped her. The prosecutrix was on the verge of attaining majority. She herself accompanied the accused from the house of her maternal uncle to the Railway Station during odd hours at night.
18. In view of the facts and circumstances it is noticed that the learned trial Judge has not considered the evidence led by the prosecution in its its right perspective. Hence the judgment and order needs to be quashed and set aside. Hence ::: Uploaded on - 12/10/2017 ::: Downloaded on - 12/10/2017 23:41:06 ::: CRI.APPEAL.287.03+ 11 the order.
ORDER
(a) Both the appeals are allowed.
(b) The judgment and order passed by learned Ad-hoc Additional Sessions Judge,
Buldana in Sessions Case No. 64/2001 on 22nd April,2003 convicting both the
appellants for offence punishable u/s. 363 read with Section 34 of the IPC is set aside.
(c) The appellants are acquitted of the offence punsihable u/s 363 r/ws.34 of the IPC.
(d) The bail bonds of the appellants shall stand cancelled.
JUDGE sahare ::: Uploaded on - 12/10/2017 ::: Downloaded on - 12/10/2017 23:41:06 :::