Bombay High Court
The State Of Mah vs Lingabai Maroti Sahane And Anr on 15 January, 2018
Bench: T.V. Nalawade
(1) Cri.Appeal No. 397/2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 397/2009
The State of Maharashtra
Through Public Prosecutor,
High Court, Bench at Aurangabad. Appellant.
Versus
1. Lingabai w/o Maroti Sahane
Age : 35 yrs, occu. : labourer
R/o Patel Nagar, Kanheri Road,
Latur.
2. Palan s/o Gyanba Kamble
Age : 20 yrs, occu.: labourer
R/o Koli Nagar Zopadpatti,
Latur. Respondents.
(Original accused)
***
Mr. A.V. Deshmukh, A.P.P. for the Appellant/State.
Mr. P.M. Gaikwad, Advocate for the respondents/accused.
***
CORAM : T.V. NALAWADE &
SUNIL K. KOTWAL,JJ.
Date : 15.01.2018.
JUDGMENT : (PER SUNIL K. KOTWAL,J.)
1. This appeal is directed against the judgment of
acquittal of the offences punishable under Sections 363, 366-A
(2) Cri.Appeal No. 397/2009
read with Section 34 and under Section 376 of the Indian Penal
Code ("I.P.C." for short), passed by 2nd Ad hoc Sessions Judge,
Latur in Sessions Case No.2/2008.
2. Respondent Nos.1 and are the original accused
Nos.1 and 2 respectively.
3. Facts leading to institution of this appeal are that
accused Nos.1 and 2 were prosecuted for the offences
punishable under Sections 363, 366-A read with Section 34 and
accused No.2 is prosecuted for the offence punishable under
Section 376 of I.P.C. Prosecution case in brief is that informant
Shantabai Kisan Kadam (PW-1) used to reside at Patel Nagar,
Kanheri road, Latur with her handicapped husband, three
daughters and two sons. At the time of occurrence the daughter
of the informant was only 16 years old (hereinafter daughter is
referred as "victim"). Accused No.1 Lingabai used to live in the
same lane where the informant Shantabai resided. Accused
No.2 namely Palan Gyanba Kamble was the niece of accused
No.1 and he frequently visited the house of accused No.1.
Accused No.1 insisted the victim to marry with accused No.2.
(3) Cri.Appeal No. 397/2009
On that count understanding was given to accused Nos.1 and 2
by the local leader Shri Ajgar Patel.
4. On 23.09.2007, when the informant Shantabai
(PW-1) returned to her residence from the work at about 7.00
p.m., she came to know that her daughter-victim was not
present in the house. On inquiry with her son Vishal, she came
to know that on that day at about 5.00 p.m. accused No.1 took
the victim with her under the pretext of attending call of the
nature. When the informant visited the house of accused No.1,
she found that it was in locked condition. Therefore, on
suspicion on 24.09.2007, the informant Shantabai (PW-1)
lodged report (Exh.15) to Police Station, Latur. In the result,
offence was registered against accused Nos.1 and 2 under
Sections 363, 366-A of I.P.C.
5. On 25.09.2007, accused No.2 and the victim, on
their own, visited the Police Station. After recording statement
of the victim and accused No.2, they were referred for medical
examination. Their clothes were seized and were sent to the
(4) Cri.Appeal No. 397/2009
Chemical Analyst. After medical examination the victim was
sent to Remand Home as per the order of the Court. Section
376 of I.P.C. was added subsequently with the permission of the
Court. After completion of investigation, charge-sheet was
submitted in the Court against accused Nos.1 and 2 for
commission of offence punishable under Sections 363 and 366-
A read with Section 34 and under Section 376 of I.P.C.
5. The offences punishable under Section 366-A and
376 of I.P.C. being exclusively triable by the Court of Session,
this case was committed to Sessions Court, Latur.
6. The then Additional Sessions Judge, Latur framed
charge (Exh.9) against accused Nos.1 and 2 for the offences
punishable under Sections 363 and 366-A read with Section 34
of I.P.C. and against accused No.2 under Section 376 of I.P.C.
Accused pleaded not guilty and claimed trial.
7. Prosecution examined total 8 witnesses. After
considering the oral and documentary evidence placed on
record by prosecution, the learned trial Court pleased to acquit
(5) Cri.Appeal No. 397/2009
both the accused of the offences punishable under Sections 363
and 366-A read with Section 34 and accused No.2 for the
offence punishable under Section 376 of I.P.C. Against that
judgment the State of Maharashtra preferred this appeal.
8. Learned A.P.P. for the State submitted that the victim
(PW-4) has fully corroborated the version of informant (PW-1)
regarding kidnapping and commission of rape by accused No.2
on victim. According to A.P.P., at the relevant time of the
occurrence, the age of the victim was below 16 years, and
therefore, consent of the victim for sexual intercourse is
immaterial. According to A.P.P., in view of the testimony of
Medical Officer Dr. Vaishali Mohite (PW-5), at the time of the
offence, age of the victim was between 15 to 17 years and
hymen of the victim had old rupture. According to A.P.P., old
rupture of hymen together with the testimony of the victim
(PW-4) that accused No.2 had forcible sexual intercourse with
her is sufficient to establish guilt of the accused.
9. In reply, learned defence Counsel submitted that Dr.
(6) Cri.Appeal No. 397/2009
Vaishali Mohite (PW-5) has admitted in her cross-examination
that there is error of margin of two years plus-minus regarding
the age of the victim which is shown in the certificate (Exh.25).
Dr. Vaishali Mohite (PW-5) has also admitted that the victim was
habituated to sexual intercourse. The learned defence Counsel
submitted that when there was error of margin of two years
plus-minus regarding the age of victim, the prosecution cannot
establish that at the time of occurrence the victim was below the
age of 16 years. He submits that as the victim and accused No.2
appeared at Police Station on their own and as no signs of
violence were noticed on the body of the victim, it was the case
of sexual intercourse with consent of the victim, who was above
16 years of age. Therefore, no offence of rape is made out.
10. His next submission is that no evidence is available
on record which is sufficient to establish that the victim was
enticed or forcibly taken away from the custody of her guardian.
Therefore, no case of kidnapping is made out.
11. As both the accused are charged for kidnapping
(7) Cri.Appeal No. 397/2009
punishable under Section 363 of I.P.C., the burden lies on the
prosecution to prove that when the victim was taken away from
the custody of lawful guardian, she was below the age of 18
years. If the prosecution can establish that at the time of sexual
intercourse with the victim by accused No.2 the victim was
below the age of 16 years, then the prosecution can establish
the offence of commission of rape, provided that the testimony
of the victim is reliable.
12. Shantabai (PW-1) is the mother of victim. From her
testimony it emerges that accused No.1 used to insist the victim
to marry with accused No.2 and on the date of incident in
absence of Shantabai (PW-1), the victim left her house
alongwith accused No.1. This incident occurred on 23.09.2007
at about 5.00 p.m. and as the victim was not found, on
24.09.2007 Shantabai (PW-1) lodged F.I.R. (Exh.15) to Rural
Police Station, Latur. However, from the recitals of F.I.R.
(Exh.15) and the testimony of Shantabai (PW-1) as well as her
son Vishal (PW-2), it becomes clear that prior to occurrence of
the incident, the victim used to pay visit to the house of accused
(8) Cri.Appeal No. 397/2009
No.1 as she was nearby resident. Even on the date of the
incident at about 4.00 p.m. the victim left her house alongwith
accused No.1 under the pretext for going to answer call of
nature. It means that the victim was not taken away from the
house of the informant under any type of pressure or force.
Even when the victim (PW-4) stepped in witness box, she has
only deposed that prior to one day of the incident, accused No.1
asked the victim to perform the marriage with accused No.2 and
that she will support them. However, making such offer by
accused No.1 to the victim does not amount to any offence.
Even such offer cannot be treated as enticing the victim to leave
house of her parents.
13. Another aspect is that, though the victim (PW-4)
deposed on oath that on the date of the incident at about 4.00
p.m. accused No.1 took the victim with her under the pretext of
going to latrine and later on took her to L.I.C. Colony and
forced her to sit in Sumo jeep alongwith accused No.2, this
version does not inspire confidence because the victim (PW-4)
nowhere deposes that when she was forced to sit in the Sumo
jeep that time she resisted in any manner or she shouted for any
(9) Cri.Appeal No. 397/2009
help from the other citizens. It is hard to accept in a broad
daylight the victim would be forcibly kidnapped by compelling
her to sit in the jeep and that is without any resistance from the
victim. Though the victim narrated the further occurrence of
rape by accused No.2 at one house in the village Chanai, the
said version of victim (PW-4) is proved as a material omission.
The entire story narrated by victim (PW-4) regarding
commission of rape by accused No.2 is nothing but a material
improvement. In the statement before police victim (PW-4)
nowhere uttered single word regarding her forcible kidnapping
and commission of rape on her by accused No.2 against her will.
14. On the other hand, from the testimony of
Investigating Officer P.S.I. Sonar (PW-8) it emerges that F.I.R.
(Exh.15) was lodged on 24.09.2007 and on the next date i.e. on
25.09.2007 victim and accused No.2 visited the Police Station.
These circumstances clearly indicate that the victim left the
house of her parents on her own and for entire one day she
willingly stayed with accused No.2 and thereafter alongwith
accused No.2 on her own she appeared before the Investigating
Officer at Police Station, Latur. Even Investigating Officer P.S.I.
(10) Cri.Appeal No. 397/2009
Sonar (PW-8) has admitted in his cross-examination that the
victim never made statement that accused No.1 forcibly made
the victim to sit in the jeep and accused No.2 committed rape
on the victim. Thus, the above circumstances on record clearly
indicate that on the date of the occurrence, the victim (PW-4)
willingly left her house and she willingly stayed with accused
No.2. No doubt, C.A. Report (Exh.50) shows that blood group
of the victim is 'A' and C.A. Report (Exh.49) shows that even the
blood group of accused No.2 is also 'A'. Therefore, only because
as per C.A. Report (Exh.48) on the Saree and Petticoat of the
victim blood stains of blood group 'A' were found and on
Petticoat semen of blood group 'A' was found a conclusion
cannot be drawn that accused No.2 had sexual intercourse with
the victim without her consent.
15. The victim (PW-4) was medical examined by Dr.
Vaishali Mohite (PW-5), who also obtained x-ray of the right
wrist elbow and pelvis of the victim. Dr. Vaishali Mohite (PW-5)
deposes that as per the opinion of Radiologist the age of the
victim was 15 to 17 years at the time of the occurrence. This
witness has also admitted in her cross-examination that there is
(11) Cri.Appeal No. 397/2009
error of margin of two years plus-minus, regarding the age
shown in the certificate (Exh.25). It means that as per the
medical evidence, age of the victim was in between 15 to 19
years. Thus, in any case the prosecution cannot prove that on
the date of the occurrence of the incident the victim was below
the age of 16 years or below the age of 18 years. Dr. Vaishali
Mohite (PW-5) has also admitted in her cross-examination that
the victim was habituated to sexual intercourse as her hymen
had rupture and vagina admit two fingers. No signs of violence
were noticed on the body of victim by Dr. Vaishali Mohite (PW-
5). In the circumstances only because the Medical Officer found
old rupture in the hymen of the victim, inference cannot be
drawn that accused No.2 had sexual intercourse with the victim
against her will or without her consent.
16. On the other hand, overall circumstances of the case
indicate that the probability cannot be ruled out that the victim
left the house of her parents on her own accord and she had
sexual intercourse with accused No.2 with her full consent when
she was above the age of 18 years. Therefore, neither the case
of kidnapping can be established nor the case of rape.
(12) Cri.Appeal No. 397/2009
17. The learned trial Court has carefully considered all
these circumstances and rightly acquitted accused Nos.1 and 2
of the offences punishable under Sections 363 and 366-A read
with Section 34 and rightly acquitted accused No.2 of the
offence punishable under Section 376 of I.P.C. The view taken
by the trial Court while acquitting the accused is not impossible
view. Therefore, we hold that this Court need not interfere the
judgment of acquittal passed by Ad hoc Additional Sessions
Judge, Latur in Sessions Case No.2/2008.
18. It follows that this appeal being devoid of merits,
deserves to be dismissed.
19. Hence, the following order
ORDER
1. Criminal Appeal No.397/2009 is dismissed.
2. The bail bonds of the respondents /accused
shall stand cancelled.
( SUNIL K. KOTWAL) ( T.V. NALAWADE)
JUDGE JUDGE
vdd/
