Kisan Deshrath Tamblle And ... vs The State Of Maharasthra
2021 Latest Caselaw 3753 Bom

           Digitally                                              10-APEAL-365-1998.odt
           signed by
           Shambhavi
Shambhavi N. Shivgan
N. Shivgan Date:
           2021.03.03
           14:36:06
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           +0530              CRIMINAL APPELLATE JURISDICTION

                                       CRIMINAL APPEAL NO.365 OF 1998

                        1 Kisan Dashrath Tambile,
                        age 23 years,
                        R/o. Fund Galli, Karmala

                        2 Digambar Sadhu Bhosale,
                        age 75 years,
                        Both R/o. Wadgaon (South),
                        Tal: Karmala, District: Solapur
                        Both at present in Yerwada
                        Central Prison                         ... Appellants

                                  Vs

                        1 The State of Maharashtra

                        2 Jyoti Tukaram Jagtap,
                        Fund Galli, Karmala,
                        District: Solapur                     ... Respondents
                                                     ...

Mr. Sandeep Salunkhe for the Appellant.

Mr. R.M.Pethe, APP for the Respondent-State.

CORAM : SANDEEP K. SHINDE J.

DATE : 1st March, 2021.

ORAL JUDGMENT :

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This appeal is directed against the judgment and

order dated 20th February, 1998 passed by the II nd

Additional Sessions Judge, Solapur in Sessions Case No.81

of 1996 whereby the appellant no.1 has been convicted of

the ofence punishable under Section 376 of the Indian

Penal Code, 1860 ('IPC' for short) and sentenced to sufer

simple imprisonment for three years and to pay fne of

Rs.2,000/- with default stipulation; AND Appellant No.2 has

been convicted of the ofence punishable under Section

312/511 of the IPC and sentenced to sufer simple

imprisonment for three months and fne of Rs.500/- with

default stipulation.

2 Pending appeal, it is reported that the appellant

no.2-Digambar Sadhu Bhosale, passed way. Appeal thus,

abates, against him.

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3           Brief facts necessary to dispose of this appeal are

that :



 .          Prosecutrix, P.W.1 fell in love with the appellant

no.1 and voluntarily succumbed to his physical desires. As it

appears from her testimony and the complaint that she was

conceived from the appellant no.1 whereafter both

approached, Dr. Saroj Mahajan, for terminating the

pregnancy. Dr. Mahajan admits in evidence, that the

appellant no.1, the victim and her mother had been to her

clinic.

4 Be that as it may, the prosecution evidence has

established that sexual relations were consensual, but at

the material time, the trial Court found the victim was

under 16 years of age and, therefore, consent was not

material.

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5            It seems, prosecutrix could not aford the fees of

Dr. Mahajan and, therefore, victim and the appellant no.1

approached accused/appellant no.2- Digambar Bhosle, who

then had administered 'Deshi Dava' (local traditional

medicines) to abort fetus, which worsened her health

condition. Whereafter, both approached Dr. Mahajan and

thereafter Dr. Deshpande at Barshi. Possibly, Dr.

Deshpande, reported this fact to the police whereupon the

Head-Constable, Tamboli arrested appellant no.2 on 18 th

March, 1996. In the meantime, the statement of the

prosecutrix was recorded whereupon crime under Section

376 of the IPC was registered against appellant no.1 at

Karmala Police Station, Solapur on 6 th January, 1996.

Investigation culminated into fnal report whereupon the

charge was framed under Section 376 of the IPC against the

appellant no.1 and under Section 312 read with Section 511

against appellant no.2.

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                                              10-APEAL-365-1998.odt

6         Upon appreciating the evidence, appellant no.1

has been convicted of the ofence punishable under section

376 of the IPC and sentenced to sufer simple imprisonment

for three years and fne of Rs.2,000/-.

7 Heard learned counsel for the appellant and the

learned Additional Public Prosecutor for the State.

8 Evidence on record leads to inference that

prosecutrix was consenting party. Section 375 of the IPC as

it stood before the Criminal Law (Amendment) 2013 of the

Penal Code, 1860 states:

"375. Rape.- A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:

Sixthly.- With or without her consent, when she is under sixteen years of age."

9 In the light of the aforesaid provision, it is to be

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ascertained whether prosecution has proved at the material

time, prosecutrix was under 16 years of age and thus, her

'consent' was immaterial.

. To prove its case, prosecution has produced

evidence including the school leaving certifcate of the

prosecutrix, which has been proved by Sushila Mohite

(P.W.3), In-charge Head-Mistress of Municipal School No.1,

Karmala. School Leaving Certifcate is marked as Exhibit 14,

which shows, prosecutrix was born on 16 th May, 1982 and at

the relevant date, her age was between 13 to 14 years. This

witness would testify, entries in the school leaving

certifcate, were made on the basis of entries in the school

register no.1. Largely relying on the evidence of this

witness, the Trial Court has held that at the relevant time,

prosecutrix was under 16 years of age and, therefore, her

consent was not consent in eyes of law.

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SUBMISSIONS:



10           The learned counsel for the appellant would

contend that evidence of In-charge Head-Mistress could not

have been relied on by the learned Trial Court in absence

of evidence of a person on whose information date of birth

of the prosecutrix was recorded and mentioned in the

School Register No.1. The contention is that unless a person

on whose information, the date of birth of the prosecutrix

has been recorded in the School Register, is examined, only

production of school leaving certifcate or school register

would not further the prosecution case and, therefore,

evidence of the In-charge Head-Mistress was not sufcient

to prove that at the relevant time, she was under 16 years

of age. In support of the submission, the learned counsel

has taken me through the complaint fled by the

prosecutrix; her evidence and testimony of her father, who

was examined as P.W.2. Besides, learned counsel would also

rely on the evidence of Dr. Mahajan (P.W.4), who had

Shivgan 7/11 10-APEAL-365-1998.odt

examined the victim.

11 Well, Dr. Mahajan in her testimony stated that,

from external appearance, age of the prosecutrix was 15

years and in cross-examination, she would admit that

medical certifcate (Exhibit 17) was issued by her as

directed by the police.

12 Be that as it may, prosecutrix in her complaint,

fled in January, 1996, disclosed her age was 15 years. Her

father would also say that she was 15 years of age.

Moreover, it appears from the evidence of the Investigating

Ofcer that the Constable Tamboli made eforts to obtain

prosecutrix's birth certifcate from the Karmala Municipality

but it was not available. Therefore, in contrast to the

evidence of In-charge Head-Mistress (P.W.3), evidence of

prosecutrix, of her father and of Dr. Mahajan, suggests, at

the material time, she was 15 years. It may also be noted

that Dr. Mahajan, in the certifcate at Exhibit 17 when

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opined that from appearance, age of the prosecutrix was 15

years but advised to ascertain her correct age, from the

Civil Hospital. Admittedly, prosecution has not made any

eforts to determine prosecutrix's age, either by conducting

ossifcation test or otherwise. It is, therefore, to be stated

that there is no defnite evidence on record to hold that at

the relevant time, she was under 16 years of age.

13 Be that as it may, the reliance on the evidence of

the Assistant School Teacher has no sanctity in law

because, a person at whose instance and the information,

prosecutrix's birth date was recorded in the school register,

was not examined. The Apex Court in the case of Birad Mal

Singhvi v. Anand Purohit1 has held in paragraph 17 thus,

"17.......the entries regarding dates of birth contained in the scholar's register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates were mentioned in the school record was examined."

1   1988 Supp SCC 604


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.         As also in the case of Sunil v. State of Haryana 2 the

Hon'ble Supreme Court has held thus,

"26..... In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date."

14 In view of the evidence on record and the rational

in the above mentioned cases, I am of the considered view

that the prosecution has failed to prove beyond reasonable

doubt that the prosecutrix was less than 16 years of age at

the time of the incident.

15 Thus, to be held that she was more than 16 years

of age and was competent to give her consent. In the

circumstances, question of rape does not arise as

consensual sexual intercourse has been proved.

16 In consideration of the facts and in the light of

above discussion, the impugned conviction and sentence 2 (2010) 1 SCC 742 Shivgan

10-APEAL-365-1998.odt

imposed on the appellant no.1 in Sessions Case No.81 of

1996 by the learned II nd Additional Sessions Judge, Solapur

vide judgment and order dated 20th February, 1998 is set

aside.

17 Resultantly, appeal is allowed. Bail bonds of the

appellant no.1 stand cancelled. Sureties are discharged.

Fine amount, if paid, be refunded to the appellant no.1.

18        Appeal is disposed of.



                         (SANDEEP K. SHINDE, J.)




Shivgan