Bombay High Court
State Of Maharashtra vs Ramesh Babulal Rawatkar on 30 March, 2017
Bench: B.P. Dharmadhikari
Judgment apeal202.03
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL No. 202 OF 2003.
The State of Maharashtra,
through Police Station Officer,
Kalmna, Nagpur. ....APPELLANT.
VERSUS
Ramesh Babulal Rewatkar,
Aged about 25 years, Resident of
Pardi, Bhandewadi, P.S. Kalmna,
Nagpur. ....RESPONDENT
.
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Mr. M.J. Khan, Addl. P.P. for the Appellant- State.
None for Respondent - Accused.
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CORAM : B. P. DHARMADHIKARI
& V.M. DESHPANDE, JJ.
DATED : MARCH 30, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
By this appeal under Section 378 of Criminal Procedure Code, the
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respondent State questions judgment dated 23.12.2012 delivered in Sessions
Case No. 408/2001 by the 7th Adhoc Sessions Judge, Nagpur acquitting
respondent for offence punishable under Sections 363, 366 and 376 of
Indian Penal Code.
2. We have heard Shri M.J. Khan, learned A.P.P. for the appellant -
State. Shri A.M. Gedam, learned Counsel appointed for the respondent is
not available.
3. Learned A.P.P. submits that because of alleged failure of
prosecution to prove age of victim, the trial Court has dismissed the Sessions
Case and acquitted the respondent/accused. He contends that accused, a
major person has lured the victim, a minor, and committed these offences.
As school certificate has been produced on record and 10.05.1986 is proved
as date of birth, on the date of commission of offence i.e. 31.03.2001, the
victim was minor and hence, there was no question of her consent. She was
hardly 15 years old at that time, therefore, offence under Section 376 of
Indian Penal Code has been established. Consequently, conviction for
offence under Sections 366 and 363 is also warranted. He has taken us
through relevant records for this purpose.
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4. We have perused papers with the assistance of learned A.P.P.
Charge has been framed vide Exh.2. Date of incident is 30.03.2001 from 12
O'clock to 31.03.2001 till 11 O'clock. In charge, age of victim is shown to be
15 years.
5. In the course of judgment the Trial Court has in paragraph no.4
framed points for determination. First point is - Whether victim was under
16 years of age or under 18 years of age ? This has been answered in
negative. Point No.2 is about lawful custody of victim with her mother and
that also has been answered in negative. Vide point no.3, taking away or
enticing the victim out of that custody by accused, is also answered in
negative. Vide point nos. 4 and 5 taking away or enticing without consent of
mother or intention or knowledge of illicit intercourse are also answered in
negative. While answering point no.6, the trial Court has found that the
prosecution could not establish sexual intercourse with Anita. It appears
that while answering all these questions, the trial Court has also looked into
the evidence regarding date of birth of victim. In paragraph no.18, the Trial
Court has found that seizure of clothes on person of victim has not been
established. Neither the Panch, nor the investigating officer deposed
anything about it and hence, seizure of those clothes was itself found to be
doubtful. In this situation, though report of Chemical Analyzer shows stains
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of blood and semen on clothes, the Trial Court has not relied upon it. It
appears from the statement of victim and Dr. Minal Holkar, that in night
time the respondent had sexual intercourse with victim and her hymen got
ruptured and had fresh lacerations. All these findings by the trial Court are
eclipsed by its finding that the prosecution could not establish her age to be
16 years. Discussion in paragraph no.15 of the judgment reveals that the
trial Court found that the victim with consent went with the accused out of
her free will.
6. The prosecution has relied upon the evidence of P.W.3 Keshaorao
Chaple, who happens to be headmaster of a Secondary School where the
victim was studying. Her name was removed from school records on
31.03.2000. This person issued school leaving certificate. He proved that
school leaving certificate at Exh.31 and deposed that as per school records,
date of birth of victim was 10.05.1986. Before Court, he also produced
original admission register i.e. Dakhal Kharij Register of the school and
proved entries regarding admission of victim at Exh.32. His cross
examination shows that his school was not taking entry of date of birth on
the say of guardian. He was not in the school in 1996 when victim took
admission. He denied that entry of date of birth in school records was not
on the strength of any document. He stated that school had taken that entry
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on the basis of a certificate of standard IV.
7. This evidence of P.W. 3 Keshav, therefore, shows that entry in
dakhal kharij register (Exh.32), was taken on the basis of the school leaving
certificate issued by the primary school. This fact appears recorded against
name of victim. She had taken admission in 5th standard and left school
when she was taking admission in 9th standard. Her date of birth
mentioned in Exh.32 is 10.05.1986. On the basis of this material in dakhal
kharij register, P.W.3 issued school leaving certificate at Exh.31.
8. Thus, Exh.32 does not contain record of date of birth reported on
the first occasion. It derives that information from certificate issued by the
primary school. Moreover, when entries at Exh.32 were taken, P.W.3 was
not in the school. Thus, he is not the person who has taken those entries.
Exh.31 is the school leaving certificate issued by P.W 3 and it contains data
as per Exh.32. Thus, no body has proved correctness of data contained in
Exh.32. School leaving certificate of primary school has not been produced
before the Court.
9. Precisely for this reason the trial Court has found that the
prosecution could not establish the status of victim as a minor.
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10. Similar controversy has been looked into by this Court in a
judgment reported at 2011 All MR (Cri) 538 = 2011 (4) LJSoft 184
(shaikh Feroz Shaikh Jainoddin .vrs. State of Maharashtra and another).
There such a later school leaving certificate has not been relief upon as proof
of date of birth. Division Bench of this Court in judgment reported at 2014
All MR (Cri) 1169 = 2014 (4) LJ Soft 78 (Sandeep Kisan Waghe .vrs.
State of Maharashtra), found that the evidence of date with school first
attended must be brought on record in such matters. We are in full
agreement with this view. Date of birth as recorded initially must be proved
and could have been proved by the prosecution. That has not been done in
the present matter.
11. In absence of evidence of date of birth, it is clear that commission
of offence under Section 376 of Indian Penal Code in present matter has not
been established. The finding that victim was a consenting party and went
with the accused on her own free will and stayed with him does not appear
to be erroneous or perverse. No case is therefore, made out for intervention
of this Court. Learned Trial Court has taken a possible view and it is neither
erroneous nor perverse. We therefore, proceed to pass the following order.
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(i) Criminal Appeal No.202/2003 is
dismissed.
(ii) Judgment and order dated 23.12.2002 in
Sessions Case no.408/2001 delivered by
the 7th Adhoc Asstt. Sessions Judge,
Nagpur is maintained.
(iii) Muddemal property be dealt with as
directed by the trial Court after the appeal
period is over.
JUDGE JUDGE
Rgd.
