Ravindra S/O Ganesh Lekurwale vs State Of Maharashtra, Through ...
2017 Latest Caselaw 4359 Bom

Judgment

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR

                   CRIMINAL APPEAL NO.445 OF 2015

Ravindra s/o Ganesh Lekurwale,
Aged about 23 years, Occupation Labour,
R/o Mandwa Forest, Taluka Mehkar,
District Buldana.                                             ..... Appellant.

                                 ::   VERSUS   ::

State of Maharashtra, through
the PSO Janefal, Taluka Mehkar,
District Buldana.                                              ..... Respondent.

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          Shri D.A. Sonwane, Counsel appointed for the appellant.
          Shri N.B. Jawade, Addl.P.P. for the respondent/State.
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                                CORAM : V.M. DESHPANDE, J.

                                DATE    : JULY 12, 2017.

ORAL JUDGMENT

1. The present appeal is directed by original accused

No.1 against his conviction by learned Ad hoc Assistant

Sessions Judge, Buldana in Sessions Case No.151 of 2011 dated

31.12.2012 for the offence punishable under Section 376 of the

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Indian Penal Code and is directed to suffer rigorous

imprisonment for 10 years and to pay a fine of Rs.1,00,000/-

and in default of payment of fine amount to suffer further

rigorous imprisonment for 2 and 1/2 years.

2. I have heard learned counsel Shri D.A. Sonwane

appointed for the appellant by the High Court Legal Services

Sub Committee at Nagpur to give assistance to the appellant

since the appellant was not in a position to engage services of

a private lawyer.

3. Learned Judge of the Court below framed a charge

against the appellant for the offence punishable under Section

376 of the Indian Penal Code. Also, learned Judge of the

Court below framed a charge against the appellant and his

parents Ganesh Lekurwale, Sau. Suman Ganesh Lekurwale,

and Police Patil Atmaram Raoji Lekurwale for the offences

punishable under Sections 363 and 366A read with Section 34

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of the Indian Penal Code.

In order to bring home the guilt of the accused

persons, the prosecution has examined in all 14 witnesses.

After a full dressed Trial, learned Judge of the Court below

acquitted accused Nos.1 to 4 of the offences punishable under

Section 363 and 366A read with Section 34 of the Indian Penal

Code. However, learned Judge of the Court below convicted

appellant accused No.1 for the offence punishable under

Section 376 of the Indian Penal Code.

4. Learned counsel Shri D.A. Sonwane appointed for

the appellant strenuously urged before me that though it was

the duty of prosecution to prove age of prosecutrix,

prosecution has utterly failed to prove that at the relevant

time prosecutrix was below age of 16 years since the case is

governed prior to amendment of section 375 of the Indian

Penal Code. He submits that prosecution has not placed on

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record either School Record or Grampanchayat Record duly

issued by the Authorities under the Act to prove date of birth

of prosecutrix. He also submits that ossification test was also

not conducted by the prosecution. He submits that in Exhibit

34, which is a transfer certificate showing date of birth is

mentioned, cannot be taken into account since entries in that

are not proved in accordance with Section 35 of the Evidence

Act. He relied on authorities of the Apex Court in that

behalf. He submits that from reading of evidences, it is clear

that prosecutrix was consenting party.

5. Per contra, learned Additional Public Prosecutor

Shri N.B. Jawade for the respondent/State submits that guilt

of the appellant is proved. He also invited my attention to the

application moved by the prosecution before this Court

pointing out that after conviction, DNA profile of the

appellant shows that he is putative father of the child born to

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prosecutrix.

6. Against acquittal of all the accused persons

including appellant for the offences punishable under

Sections 363 and 366A read with Section 34 of the Indian

Penal Code, the appeal is not preferred by the State. Thus,

their acquittal to that extent has attained finality.

7. As per the evidence of PW11 Dr. Bramanand

Chavan, who has examined prosecutrix, when he was medical

officer at Buldana on 23.9.2011, he noticed that she was

carrying pregnancy of 30 weeks. He has proved medical

certificate Exhibit 63.

8. Though prosecution has examined 14 witnesses,

evidences of PW1 prosecutrix, PW5 Chandrabhan Maruti

Lathad, PW11 Dr. Bramanand Chavan, and PW14 Assistant

Police Inspector Ramrao Wagh are only relevant for decision

of the present appeal.

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PW2 Ashruba Shinde is a pancha on the spot

panchanama Exhibit 36. PWs 3, 4, 6 to 9 have turned hostile.

They have not supported the prosecution case at all. PW10 Sk.

Mohammad is on memorandum statement of the appellant

and consequent recovery at Exhibits 54 and 55 by which

clothes purchased for the prosecutrix at the behest of

appellant were seized. PW12 police head constable Ayubkhan

Banekhan has drawn spot inspection panchanama Exhibit 58.

9. Oral report Exhibit 32 was lodged by the

prosecutrix herself. It is dated 23.9.2011. On the basis of the

oral report, Crime No.46 of 2011 was registered against the

appellant and others by PW14 Assistant Police Inspector

Ramrao Wagh. According to the prosecution, consent was

obtained from the prosecutrix on the pretext of marriage. The

evidence of prosecutrix shows that though having an

opportunity to her, she never disclosed the fact of physical

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contacts with appellant except when she became pregnant

from the appellant. Before medical examination, PW11 Dr.

Bramanand Chavan put questions to the prosecutrix and he

has noticed in Exhibit 63 that physical contacts were

established in the house of prosecutrix herself.

10. Since it is the case of the prosecution that the

prosecutrix was below age of 16 years, it is bounden duty of

the prosecution to prove date of birth and age of the

prosecutrix. No attempt is made by the prosecution to prove

the age by ossification test. Even, School Record or

Grampanchayat Record, which will be primary document to

show date of birth, is not placed on record. No doubt, in

Exhibit 34 the date of birth of the prosecutrix is mentioned.

11. It would be useful to refer to paragraph no.15 of

the authoritative pronouncement of the Hon'ble Apex Court in

Birad Mal Singhvi vs. Anand Purohit, reported in AIR 1988

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SC page 1796 and, it is quoted as under : 3

"15. The High Court held that in view of the

entries contained in the Ex. 8, 9, 10, 11 and 12

proved by Anantram Sharma PW 3 and

Kailash Chandra Taparia PW 5, the date of

birth of Hukmichand and Suraj Prakash

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 by 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, firstly,

entry that is relied on must be one in a public

or other official book, register or record,

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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 & 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

the age of the plaintiff was made. The

principle so laid down has been accepted by

almost all the High Courts in the country, see

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Jagan Nath v. Moti Ram Moti Ram & Ors.,

[1951] Punjab 377; Sakhi Ram & Ors. v.

Presiding Officer, Labour Court, North

Bihar, Muzzafarpur & Ors., [1966] Patna 459;

Ghanchi Vora Samsuddish Isabhai v.

State of Gujarat,[1970] Gujarat 178 and

Radha Kishan Tickoo & Anr. v. Bhushan Lal

Tickoo & Anr., [1971] J & K 62. In addition to

these decisions the High Courts of Allahabed,

Bombay, Madras 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 scholar;s register or

secondary school certificate has no probative

value unless either the parents are examined

or the person on whose information the entry

may have been made, is examined,see

Jagdamba prasad v. Sri Jagannath Prasad &

Ors., 42 ELR 465; K. Paramalali v. L.M.

Alangam & Anr., 31 ELR 401 and Krishna

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Rao Maharu Patil v. Onkar Narayan Wagh,

14ELR 386."

12. Also, I would like to refer to paragraph 38 of the

authoritative pronouncement of Alamelu and anr. vs. State,

reported in AIR 2011 SC 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, Ex.P4

and Ex.P5. Undoubtedly, the transfer

certificate, Ex.P16 indicates 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

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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 would

have no evidentiary value unless the person,

who made the 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 Cr.P.C. seeking permission

to produce the transfer certificate and to

recall PW2. This petition was allowed. She

was actually recalled and her examination

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was continued on 26th April, 2000. The

transfer certificate was marked as Ex.P16 at

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."

13. In view of the law laid down by the Honourable

Apex Court in above two judgments it is clear there is no

evidence to vouchsafe for the truth of facts in the school

leaving certificate Exhibit 34.

14. Once the exact age is not proved, on the available

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evidence as brought on record the defence of the appellant

that prosecutrix was a consenting party is not completely

ruled out. Therefore, in my view, even DNA report will not be

helpful to the prosecution. The appellant is in jail since

3.10.2011. Thus, he has already undergone period of about 6

years. Once it is noticed that age of the prosecutrix is not

duly proved and when learned Judge of the Court below has

already acquitted the appellant for the offences punishable

under Sections 363 and 366-A read with Section 34 of the

Indian Penal Code, I am of the view that, benefit should be

extended in favour of the appellant. Hence, the following

order:

ORDER

1) Criminal appeal is allowed.

2) Judgment and order of conviction dated

31.12.2012 in Sessions Case No.151 of 2011 is

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hereby set aside.

3) The appellant is acquitted of the offence

punishable under Section 376 of the Indian Penal

Code.

4) The appellant be released, if he is not required

for any other case.

5) The High Court Legal Services Sub Committee

at Nagpur is directed to pay Rs.5,000/- (rupees five

thousand only) to learned counsel Shri D.A.

Sonwane appointed for the appellant towards his

professional fees.

6) In view of disposal of the criminal appeal, Criminal

Application No.507 of 2017 also stands disposed of.

JUDGE

!! BRW !!

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