Vishal Vasantrao Kumkar (In Jail) vs State Of Maharashtra, Through ...
2017 Latest Caselaw 4358 Bom

 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.

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

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).

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

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

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

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

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

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.

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

Anantram 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

accepted 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,

Radiologist,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 311

of 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

on 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

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.

                               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

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