Bombay High Court
Kisna S/O Shriram Nehare vs State Of Mah.Thr.The Pso.Kalamb on 14 March, 2016
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 130 of 2002
Kisana son of Shriram Nehare,
aged about 24 years,
occupation Labourer,
resident of Dattapur, Police Station,
Kalamb, Distt. Yavatmal. ..... Appellant.
ig Org. Accused.
Versus
State of Maharashtra,
through Police Station
Officer, Police Station,
Kalamb, Distt. Yavatmal. .... Respondent.
*****
Mr. Amol Mardikar, Adv., for the Appellant.
Mr. A.V. Palshikar, Addl. Public Prosecutor for the respondent-
State.
*****
CORAM : V.M. DESHPANDE, J.
Date : 14th June, 2016
ORAL JUDGMENT :
01. Being aggrieved by the Judgment and Order of conviction
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passed by learned Second Ad Hoc Assistant Sessions Judge, Yavatmal,
dated 5th February, 2002, in Sessions Case No. 65 of 2000, whereby
the appellant is convicted of the offence punishable under Section 363,
Indian Penal Code, and sentenced to suffer Rigorous Imprisonment for
three years and to pay a fine of Rs. 1,000/-, in default, to suffer Simple
Imprisonment for three months, the appellant - accused is before this
Court.
The prosecution case is as under:-
02. The prosecutrix is the daughter of Ramkrushna Nehare [PW
2]. At the time of incident, she was unmarried. He lodged a written
report with Police Station, Kalamb. The said is at Exh.27. The said
written report recites that on 7th December, 1999, first informant and
his wife, Sau. Laxmibai, had been to Kalamb Bazar and after returning
from the Bazar at 7.00 O'clock in the evening, they noticed that the
prosecutrix is not present in the house. Therefore, they searched for
her around. It is further stated in the said report that previously the
appellant gave threat that he will kidnap the prosecutrix. Therefore, a
suspicion was raised against him that either he has enticed the
complainant's daughter on the pretext of marriage and/or by force, he
has taken her away.
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Sukhlal [PW 3], who was Head Constable, registered the
offence on the basis of the written report lodged by Ramkrushna [PW
2] vide Crime No. 160/99, for the offences punishable under Sections
363 and 366 of Indian Penal Code.
Charge-sheet was filed against the appellant. The learned
Judicial Magistrate First Class, Kalamb, passed an order of committal
on 22nd March, 2000 and the case was committed to the Court of
Sessions. It was registered as Sessions Case No. 65/2000.
03. The charge was framed against the appellant. He denied
the charge and claimed for his trial.
04. In order to substantiate the charge against the appellant,
during the course of trial, the prosecution has examined four
witnesses. They are [1] the Prosecutrix [PW 1], [2] Ramkrushna
Nehare [PW 2], [3] Sukhalal, Head Constable [PW 3] who registered the
offence, and [4] Avinash Onkar [PW 4], the Headmaster of Primary
School, Kalamb.
05. Heard Mr. Amol Mardikar, the learned counsel for the
appellant, and Mr. A.V. Palshikar, learned Addl. Public Prosecutor for
the State. With their able assistance, I have gone through the record
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and proceedings.
06. Mr. Mardikar relied upon the reported case of Hon'ble Apex
Court in S. Varadrajan Vs. State of Madras [AIR 1965 SC 942], to
buttress his point that on the day of the incident, the prosecutrix was
on the verge of attaining the majority.
07.
Avinash Onkar [PW 4] was serving as an In-charge
Headmaster at Primary School in Hirdi, Tq. Kalamb. He received a
letter from the Police Station Officer, Kalamb, for issuance of
Certificate of Birth of the prosecutrix, vide request letter [Exh.25].
Prosecutrix was taking education in the Primary School. The Date of
Birth of the prosecutrix is entered in the register maintained by the
school. The said register was brought by Avinash Onkar in its original
form. As per the said register, the date of birth of the prosecutrix is
10th December, 1981, and accordingly, he issued a Certificate
[Exh.34] and proved the same. Thus, the date of birth of the
prosecutrix is brought on record as 10th December, 1981.
The incident, in question, according to the First Information
Report, is of 7th December, 1999. Thus, on the day of commission of
the offence, the prosecutrix was 17 years, 11 months and 28 days.
Thus, she was short of two days of attaining the age of majority, i.e.,
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18 years.
08. In the context of aforesaid, let us scrutinize the evidence of
the prosecutrix. Her evidence would show that she was having a love
affair with the appellant. She has further stated that she on her own
accompanied the appellant to village Amti and thereafter she
solemnized her marriage with the appellant in presence of Police Patil
and other persons, in a temple. Thereafter, they started residing as
husband and wife. She further stated in her evidence that after one
month of the marriage, police came to village Amti where she was
residing with the appellant and brought her and the appellant in the
Police Station, Kalamb, where the appellant was arrested. The
prosecutrix was not declared hostile, nor she was cross-examined by
the learned APP. However, in the cross-examination by the appellant,
she has stated that she still resides with the appellant and during the
wedlock, one female child is begotten to her.
09. In the light of the Birth Certificate which gives the date of
birth of the prosecutrix as 10th December, 1981 and the fact that on
the day of the incident, her age was 17 years, 11 months and 28 days,
it is crystal clear that the prosecutrix has attained the age of
understanding and even according to the prosecutrix, she left the
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house on her own and she married the appellant and was leading a
happy married life with the appellant. In that view of the matter, I am
of the view that the appeal deserves to be allowed and accordingly it is
allowed by passing the following order:-
ORDER
[a] Criminal Appeal No. 130 of 2002 is allowed.
[b] The Judgment and Order of conviction passed by
the Second Ad Hoc Assistant Sessions Judge,
Yavatmal, on 05th February, 2002 in Sessions Trial
No. 65 of 2000, convicting the appellant of the
offence punishable under Section 363, Indian
Penal Code, is hereby set aside.
[c] The Bail Bonds stand cancelled.
[d] The fine amount, if paid by the appellant, be
refunded to him.
Judge
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