Bombay High Court
Dnyaneshwar Maroti Sable vs State Of Maharshtra on 31 January, 2024
2024:BHC-AUG:2054
{1} CRI APPEAL 732 OF 2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 732 OF 2002
Dnyaneshwar s/o Maroti Sable
Age: 25 years, Occu.: Private Driver,
R/o. Shengaon (Khodke),
Tal.Shengaoon, Dist.Hingoli. ....Appellant
Versus
State Of Maharashtra
Through Police Station Officer,
Police Station, Goregaon,
Tal. Shengaon, Dist.Hingoli. .....Respondent
.....
Advocate for Appellant : Mr.S.R.Kedar h/f. Mr. P.R.Patil
APP for Respondent: Mr.N.D.Batule
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 25 JANUARY, 2024
PRONOUNCED ON : 31 JANUARY, 2024
JUDGMENT :
-
1. By instant appeal, convict for offence under Sections 363, 366
and 376 of the Indian Penal Code (IPC) is taking exception to
judgment and order passed by Additional Sessions Judge, Hingoli
dated 12-12-2002 in S.T.No.16 of 2002.
{2} CRI APPEAL 732 OF 2002
CASE OF PROSECUTION IN NUTSHELL
2. Appellant was chargesheeted by Goregaon Police Station,
Taluka and District Hingoli on the allegations that victim, a minor,
was residing with her parents and she had taken education up to 7 th
standard. Accused was employed as a Driver on the Tractor owned
by her paternal uncle. Houses of father of victim and his brother
were adjacent to each other, as a result of which, appellant was on
talking and visiting terms to the house of victim. Once accused sent
a chit to the victim through his master's son. Therefore, accused was
reprimanded. However, accused continued to make gestures to the
victim.
On 26-11-2001, victim went towards the river with her
younger sister for washing clothes and from there, victim parted
company of her sister for answering call of nature. According to
victim, accused caught hold of her hand. Her attempt to get free
went futile and he threatened to kill her if she does not accompany
him. According to victim, because of the threats, she accompanied
him and he took her to his land and beneath a Neem tree committed
rape on her. He also offered to marry her saying that he has left his
wife.
That meanwhile, father of victim lodged complaint on the
{3} CRI APPEAL 732 OF 2002
strength of which Police registered crime against accused.
According to prosecution, accused compelled victim to
accompany him to various places named by victim in her statement.
Finally, their location was traced by Police machinery and they were
both taken in custody and brought from Nashik. Accused was
arrested. Victim was subjected to medical examination. Their clothes
were seized by Investigating Officer. Documents of age of victim
were collected by the Investigating Officer and finally accused were
chargesheeted for offence punishable under Sections 363, 366 and
376 of the IPC.
At trial, on appreciation of oral and documentary evidence
adduced by the prosecution, learned Additional Sessions Judge,
Hingoli accepted the case of prosecution as proved and recorded
guilt, which is now assailed before this Court by filing appeal.
SUBMISSIONS
On behalf of appellant :
3. Learned Counsel for the appellant launched criticism about the
age of the victim. He submitted that there is no full proof conclusive
evidence about age of the victim to be below 15 years of age. He
took this Court through the evidence of victim as well as her father
{4} CRI APPEAL 732 OF 2002
and even Investigating Officer and would submit that there is no
legally acceptable proof of age. According to him, school authority
had issued certificate only on demand and there is no foundation
regarding age of victim. He submitted that school authority
produced application / admission form, but the same is in different
ink and so possibility of fabrication cannot be ruled out. Thus, he
questions victim to be a minor.
4. He further pointed out that victim's own evidence suggests that
she had willingly herself eloped from her house and had
accompanied accused to numerous places and had spent a month or
so in his company without resisting or raising alarm. The allegation
of threats to kill are false and afterthought. That inspite of having
travelled with accused at several places, at no point of time during
journey, she has raised alarm or alerted fellow passengers. He
pointed out that there were several opportunities to make her escape
good, but no opportunity to that extent is deliberately availed by her
and thus it is his submission that it is not open for prosecution, more
particularly, in view of admissions given by her in cross-examination,
that there was any force exerted on her.
5. It is further pointed out that apart from failure to prove age of
{5} CRI APPEAL 732 OF 2002
victim and kidnapping, even prosecution failed to establish
commission of offence under Section 366 of the IPC. That there is
even no supportive medical evidence and thereby it is his submission
that prosecution has miserably failed to establish the charges beyond
reasonable doubt and for such reason, he prays to set aside the
judgment under challenge by branding it to be perverse and illegal.
On behalf of State :
6. Learned APP also placed on record notes of arguments and he
justified the conviction by submitting that there is not only
overwhelming, clinching evidence regarding commission of
kidnapping a minor and on threats, compelling her accompany him
to his field, raping her and thereafter, further threatening her and
taking her to various places. According to learned APP, very victim
has given detailed account of the acts and deeds of accused. That her
testimony has remained unshaken and moreover, is inspiring
confidence. That there is full proof evidence about her age. That
court has examined Head Master of the Zilla Parishad School,
Shegaon by exercising powers under Section 311 of the Cr.P.C. That
date of birth of victim is proved. That school register and record has
been furnished, which clearly establishes her to be a minor.
{6} CRI APPEAL 732 OF 2002
According to him, deposition of victim about she repeatedly raped in
the night, itself is sufficient to fasten the guilt and hence, it is
submitted that no fault can be found whatsoever in the impugned
judgment.
Learned Counsel for the victim also adopted the above
submissions and supported the findings about victim to be a minor,
she to be kidnapped from lawful custody of parents, she being raped.
Thus, learned Counsel also prays to dismiss the appeal for want of
merits.
7. After hearing submissions advanced as narrated above and on
re-examination, re-analysis and re-appreciation of prosecution
evidence, here it is seen that in support of its charge, prosecution has
examined in all following eight witnesses and has also sought
reliance on several other documentary evidence.
PROSECUTION WITNESSES
PW1 Father of victim. His evidence is at exh.22.
PW2 Babu Shinde is pancha to seizure panchanama of clothes of
victim. His evidence is at exh.24.
PW3 Dr.Mrunal Umrikar, Medical Officer, who examined victim. Her
evidence is at exh.33.
{7} CRI APPEAL 732 OF 2002
PW4 Uttam Gaikwad is pancha to seizure of clothes of accused. His
evidence is at exh.35. His evidence is at exh.22.
PW5 is Victim. Her evidence is at exh.37.
PW6 Santosh Mantari is Kirana shop owner. His evidence is at
exh.40.
PW7 is paternal uncle of victim. His evidence is at exh.41.
Accused refused and denied to lead any evidence.
Learned trial Judge seems to have examined Head Master of
the School where victim studied, as a Court witness and his
testimony is at exh.46.
ANALYSIS
8. The fundamental ground raised before this Court is that
prosecution failed to establish victim to be a minor. Therefore, it is
desirable, at the threshold, to deal with such objection.
On scrutiny of PW5 victim's evidence, we find her giving her
age in the witness box as 15 years. She has deposed about studying
up to 7th standard. In her examination-in-chief, she has not given
the date of birth, but while under cross, she gave her date of birth as
06-01-1987. Her father PW1, in his evidence at exh.22, stated that
his daughter has studied up to 7th Standard and for want of facility of
{8} CRI APPEAL 732 OF 2002
further education, she stopped her education. Neither in
examination-in-chief nor in cross-examination there is any
questioning about date of birth of victim.
PW3 Dr.Umrikar, who is examined at exh.33, deposed about
examining victim aged 15 years brought by Police. However, Doctor
seems to have deposed about opining about age on the basis of
clinical examination. Such evidence is of no avail to determine the
age. No ossification test has apparently been carried out.
9. In the light of such evidence emerging from prosecution side,
learned trial Judge seems to have examined Head Master of Zilla
Parishad Primary School, Shegaon by exercising powers under
Section 311 of the Cr.P.C. and his evidence is at exh.46. On carefully
analyzing his evidence, he seems to have carried School Admission
Register and prescribed printed application form. He deposed on
seeing the record of the victim that she was no more in the school
and she has studied only up to 7th standard in 2000. According
to him, as per School Admission Register, her date of birth is
06-01-1987 and she was admitted in the School on 08-07-1992.
Victim had collected her T.C. He narrated serial number of entry
pertaining to the victim in the register.
{9} CRI APPEAL 732 OF 2002
Above witness is subjected to extensive cross-examination on
the points of admission application form, the colour of the ink over it,
required procedure for taking entries and maintaining record. He
has candidly admitted that father of the victim did not produce birth
certificate from Gram Panchayat.
Above is the only evidence as regards to age of victim is
concerned. Defence came with a case that prosecution has failed to
establish that victim was a minor or below 15 years of age.
10. On appreciating above available evidence, it would be fruitful
to deal with settled legal position while appreciating or determining
age of a person.
In case of Ashwani Kumar Saxena v. State of Madhya Pradesh,
(2012) 9 SCC 750, in paragraph 43, the Hon'ble Apex Court has
observed as under :
"43. We are of the view that admission register in the school in which
the candidate first attended is a relevant piece of evidence of the date
of birth. The reasoning that the parents could have entered a wrong
date of birth in the admission register hence not a correct date of
birth is equal to thinking that parents would do so in anticipation that
child would commit a crime in future and, in that situation, they
could successfully raise a claim of juvenility."
{10} CRI APPEAL 732 OF 2002
In the case of Jarnail Singh v. State of Haryana, (2013) 7 SCC
263 the Hon'ble Apex Court has held that age of the prosecutrix
should be determined on the following grounds :
"a) (i) the matriculation or equivalent certificates, if available; and in
the absence whereof;
(ii) the date of birth certificate from the school (other than a play
school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a)
above, the medical opinion will be sought from a duly constituted
Medical Board, which will declare the age of juvenile or child. In case
exact assessment of the age cannot be done, the Court or the board or,
as the case may be, the Committee, for the reasons to be recorded by
them, may, if considered necessary, given benefit to the child or
juvenile by considering his/her age on lower side within the margin of
one year."
Very recently in the case of P. Yuvaprakash v. State Rep. By
Inspector of Police, AIR 2023 Supreme Court 3525 , as regards to
computation of age, Section 34 of the POCSO Act is discussed and
following nature of evidence is considered relevant for determination
of age;
"13. It is evident from conjoint reading of the above provisions that
wherever the dispute with respect to the age of a person arises in the
context of her or him being a victim under the POCSO Act, the courts
have to take recourse to the steps indicated in Section 94 of the JJ
Act. The three documents in order of which the Juvenile Justice Act
{11} CRI APPEAL 732 OF 2002
requires consideration is that the concerned court has to determine
the age by considering the following documents:
"(i) the date of birth certificate from the school, or the matriculation
or equivalent certificate from the concerned examination Board, if
available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical age
determination test conducted on the orders of the Committee or the
Board"."
11. Keeping the above legal requirements and position in mind and
on appreciating the evidence adduced by prosecution in this
case, there is school record, which carries date of birth of victim as
06-01-1987. In the case of Ashwani Kumar Saxena (supra) the
Hon'ble Apex Court held that Admission Register of School in which
a candidate first attended, is a relevant piece of evidence for
determining the date of birth. Court Witness, who is a Head Master,
has placed extract of Admission Register on record wherein date of
birth is reflected as 06-01-1987. Further in view of ruling of Hon'ble
Apex Court in the case of Jarnail Singh (supra) and P. Yuvaprakash
(supra), prosecution can establish age by three modes spelt out in
aforesaid paragraph and clause (i) deals with "the date of birth
certificate from the school, or the matriculation or equivalent
{12} CRI APPEAL 732 OF 2002
certificate". Section 35 of the Indian Evidence Act recognizes school
record as a public document. Further victim narrated herself giving
the date of birth, more particularly, in her cross-examination at the
hands of learned Counsel for accused. Resultantly, in the light of
above quality of evidence on the age, there is no reason to doubt the
date of birth of victim. Hence it can safely be held that at the time of
incident, victim was 13 years and 10 months of age and hence a
minor.
12. Age of victim having being established, now it is to be seen
whether offences punishable under Sections 363, 366 and 376 of the
IPC are proved and established.
Essential ingredients of Sections 363 and 366 are as under:
Section 363 :
Kidnapping from India -
(1) The victim kidnapped was residing in India at the time of offence;
(2) Accused committed offence of enticing the person kidnapped;
(3) The kidnapping was without the consent of the victim or of
someone legally authorised to give the consent.
Kidnapping from lawful guardianship -
(1) The victim kidnapped was a minor being below 16, if male, or
below 18, if female;
(2) The victim kidnapped was in the keeping of a lawful guardian;
(3) Accused took or enticed away the victim from such keeping of the
lawful guardian;
{13} CRI APPEAL 732 OF 2002
(4) Accused did so without the consent of the lawful guardian."
Section 366 :
(1) Kidnapping or abducting any woman;
(2) Such kidnapping or abducting must be -
(a) with intent that she may be compelled or knowing it to be
likely that she will be compelled to marry any person against
her will; or
(b) in order that she may be forced or seduced to illicit
intercourse or knowing it to be likely that she will be forced or
seduced to illicit intercourse.
The second part of the section requires two things -
(1) by criminal intimidation or abuse of authority or by compulsion
inducing any woman to go from any place; and
(2) such going must be with the intent that she may be or with
knowledge that it is likely that she will be forced or seduced to illicit
intercourse with some person
(3) for 'abduction' use of force or deception is essential
(i) Kidnapping/abduction of a girl
(ii) Inducing/compelling by force to marry/to have sexual
intercourse against her will."
13. Obviously, here again evidence of PW5 victim is crucial. On re-
appreciating her evidence, it is emerging that appellant came in
contact with victim by virtue of his employment with her paternal
uncle. Her evidence suggests that he was interested in her, and has
also proposed her to accompany him by assuring to marry her. He
allegedly disclosed her that he has left his wife. Such material shows
that at that point of time, accused was a matured person and
{14} CRI APPEAL 732 OF 2002
moreover, a married man.
14. No doubt victim had left the house for washing clothes with
her sister and from there, she went to answer call of nature. In
paragraph 2 of her examination-in-chief, she states that while she
was returning accused met her, caught hold of her hand saying that
he wanted to talk to her, she claims that she attempted to release
herself from his clutches, but he threatened her and out of fear she
accompanied him. She categorically deposed about she been raped
beneath Neem tree and suggested that she should come with him as
he wants to marry with her. She claims that due to threat she was
compelled to go with him and he took her to Shengaon and to
various place till being brought by Police.
15. Here victim is already shown to be a minor. When parents'
consent has not been obtained and she having been removed from
lawful custody of her parents, offence of kidnapping is squarely
attracted. Considering her age, she having deposed about forcibly
caught hold of her and taken away, the offence is complete. Legal
consequences follow once victim deposes that she was taken away by
issuing threats. Therefore, her evidence to that extent clearly brings
{15} CRI APPEAL 732 OF 2002
home the charge of kidnapping.
16. Victim has categorically deposed about offer and promise of
marriage. In view of provisions of Section 366 of the IPC, and taking
into account above discussed testimony of victim that after first
episode, he offered to marry her and then took her to several places
and on same assurance, she claims that he used to rape her.
Resultantly, even necessary ingredients of Section 366 are very much
existing in her testimony.
CONCLUSION
17. Victim deposed that accused raped her after issuing threats. It
is settled legal position that sole testimony of prosecutrix, if inspires
confidence, is sufficient to fasten the guilt. Here, unfortunately
physical examination of victim has done at a belated stage in view of
peculiar circumstances dealt above. Even otherwise, absence of
injuries, is itself not sufficient to hold that offence of rape has not
been made out. Victim has not at one place but at several places
deposed that after taking her forcibly, he raped her. The phraseology
used by her, clearly indicates that offence of rape has been committed
by him. Even otherwise, she being shown to be a minor, question of
her passive submission or not putting up resistance or even
{16} CRI APPEAL 732 OF 2002
according consent, is insignificant and law to that extent is loud and
clear. Even this Court is convinced that by promising to marry, she
was removed from her parents' lawful custody and guardianship and
taken to various places and physical contact is maintained with her.
Victim's evidence shows that accused was already married, still he
has indulged in above relations. Hence, all charges for which the
appellant was chargesheeted stand proved. None of the points raised
in appeal has merit or substance so as to interfere in the findings and
conclusion reached at by the trial Judge.
18. Perusal of the impugned judgment shows that all aspects are
considered and appreciated in the light of legal requirements. No
perversity or illegality is brought to the notice of this Court so as to
cause interference. Finding no merits in the appeal, I proceed to pass
following order :
ORDER
Criminal Appeal No.732 of 2002 stands
dismissed.
( ABHAY S. WAGHWASE )
JUDGE
SPT
