Bombay High Court
Yogesh Laxmanrao Naukarkar vs State Of Mah.Thr.P.S.O.Malkapur on 29 September, 2017
Bench: Swapna Joshi
CRI.APPEAL.287.03+
1
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+
2
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.
CRI.APPEAL.287.03+
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
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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
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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
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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
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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
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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
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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
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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
