Bombay High Court

Bhausaheb Ranganath Virkar vs State Of Maha on 14 October, 2024

2024:BHC-AUG:24855




                                                 (1)                 {crap94.04}


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD


                            CRIMINAL APPEAL NO. 94 OF 2004


           Bhausaheb Ranganath Virkar                           ..      Appellant
           Age. 23 years, Occ. Agriculturist,                           [original
           R/o. Dhangarwadi, Taluka Nagar,                              accused]
           Dist. Ahmednagar.

                                                Versus

           The State of Maharashtra                             ..      Respondent


           Mr.D.R. Kale a/w. Mr. Y.H. Lagad Patil, Advocate for the appellant.
           Smt. Ashlesha S. Deshmukh, APP for the respondent-State.


                                      CORAM         : KISHORE C. SANT, J.
                                      RESERVED ON   : 20.08.2024
                                      PRONOUNCED ON : 14.10.2024


           J U D G M E N T :

01. Present appeal arises out of judgment and order dated

23.01.2004 passed by the learned Ist Adhoc Additional Sessions Judge,

Ahmednagar, in Sessions Case No. 4 of 2003. The appellant-accused is

held guilty of the offences punishable under Sections 363, 366 and 376

of the Indian Penal Code (for short "IPC") and sentenced as follows :-

(2) {crap94.04}

Sections Period of Rigorous Amount of Sentence in default Imprisonment Fine of fine.

363 of IPC 3 years Rs.500/- RI for 3 months.

366 of IPC 5 years Rs.500/- RI for 3 months.

376 of IPC 7 years Rs.1000/- RI for 3 months.

02. The prosecution started on lodging of the FIR on 25.09.2002

by one Arjun Haribhau Shikare with MIDC Police Station, Ahmednagar.

He informed that the prosecutrix i.e. his daughter, studying in 9 th

standard, went out for urine on 23.09.2002 at 11.00 p.m. in the night.

He saw 4-5 persons suddenly came there. On one motor-cycle present

accused was seen. On another motor-cycle, other accused persons,

namely, Arun Mhaske, Jagannath Virkar and Bhausaheb Shikare were

sitting. The prosecutrix was on the motor-cycle of the present appellant.

One Raghunath was also riding on the same motor-cycle. They took the

prosecutrix along with them and since then the prosecutrix was not

found.

03. On the basis of this complaint, the police made investigation

and filed charge-sheet against five persons. The Trial Court on recording

evidence and conducting trial found only present appellant-Bhausaheb

guilty of the offences. The Trial Court acquitted other four accused

persons. Against the conviction, present appellant has approached this (3) {crap94.04}

Court. During the trial, the applicant was on bail. After filing of the

appeal, presently also the appellant is on bail in view of order dated

09.03.2004 passed by this Court.

04. To prove the guilt, the prosecution examined 12 witnesses, in

support of its case.

05. P.W.1-Arjun Haribhau Shikare is the informant - father of the

prosecutrix. In his evidence, he gave details of the alleged incident. He

stated that accused-Bhausaheb always used to harass the prosecutrix

while going to school and coming back, on S.T. bus stand. He, therefore,

withdrew the prosecutrix from the school. He knows the accused

persons as all are from Dhangarwadi. After the appellant took

prosecutrix with him, the informant and his family members went to the

house of accused-appellant and told his father about the incident of

kidnapping. The father of the accused told that the prosecutrix will return

home in the morning. However, the prosecutrix did not come back and

was not found, thereafter the complaint was lodged.

. In the cross-examination, various omissions are taken on

record. He denied the suggestion that there was talk of marriage of the (4) {crap94.04}

prosecutrix with the appellant. Further, it is taken that even after lodging

the complaint, when the accused persons were in jail, he again lodged

one more complaint of kidnapping of the prosecutrix against one Baban

Virkar and two others. He accepted that even those persons were

arrested by the police. That time though police asked him to take

custody of the prosecutrix, he refused to take custody of prosecutrix. He

volunteered that it was due to fear of the accused persons. It was

suggested that because of the fear, the prosecutrix went with the

accused persons. This witness proved the FIR.

06. P.W.Nos. 2,3 and 4 are the panch witnesses, who did not

support the prosecution.

07. P.W.5-Chandrakant Gangaram Pansare, who acted as panch,

stated about seizure panchanama of the clothes of the prosecutrix. He

proved the spot panchanama.

08. P.W.6-Bhagirath Tukaram Jagtap was working as Head

Constable, at the relevant time, with MIDC Police Station, Ahmednagar,

who recorded the FIR. In the cross-examination, it is stated that the

informant had not stated about withdrawing his daughter from school as (5) {crap94.04}

the accused-appellant was harassing her. It was also not stated that the

accused persons came on two motor-cycles.

09. P.W.7 is the prosecutrix. She stated about her schooling.

About the incident, she stated that she had gone for passing urine out of

the house. At that time, accused-Bhausaheb and other persons came on

motor-cycle. She was not knowing other persons. The accused persons

took her on the motor-cycle to the house of accused-Bhausaheb. She

identified other accused persons in the Court. She was not knowing their

names. She further stated that by keeping motor-cycle at the house of

accused-Bhausaheb, they went to some other place and stayed there till

morning. In the morning they went to the house of cousin of appellant.

As she was having pains in the stomach, they went to one Hospital.

From there, they went to Pune and thereafter from Pune they went to

Alandi and performed marriage. Though she was not willing to marry,

however, later on she agreed to marry. They stayed at Alandi for 2-4

days. During said stay, the accused-Bhausaheb established sexual

contact with the prosecutrix against her will. They again came back to

Nagar. At Nagar they went to MIDC Police Station, where parents of the

prosecutrix came there. From MIDC Police Station, she went with her

parents.

                                          (6)                  {crap94.04}




.             In    the   cross-examination,   she    accepted    that   she   was

withdrawn from school before two years of the incident. Thereafter, she

used to assist her mother and aunt in household work. She was

receiving marriage proposals. It is the parents and uncles, who were

searching for suitable bridegroom. To one such proposal she responded

positively. Omissions are taken on record about taking the prosecutrix

forcibly. She accepted that she had not stated this before police.

However, she volunteered that she was warned by the appellant not to

disclose to police, therefore, she did not state that she was forcibly taken

by the accused.

10. P.W.8-Dr. Bharti Shahaji Peche is a Doctor working at Civil

Hospital, Ahmednagar at the relevant time, who examined the

prosecutrix. The prosecutrix narrated her history of sexual intercourse

for four to five times. She opined that hymen was not intact. She

further stated that the victim had told her that she had consented for

sexual intercourse. She also stated that there were no external injuries

on other parts of body including genitals. The findings confirmed sexual

intercourse. She proved medical certificate.

                                     (7)                  {crap94.04}


11.         P.W.9-Jaysing   Narayan   Murkute    was    working   as     head

constable at MIDC Police Station. The prosecutrix and accused-appellant

had been to police station on their own. He recorded statement of both

of them. It revealed that the accused seduced the prosecutrix and had

intercourse with her. He sent the prosecutrix for medical examination.

Thereafter, they were brought back to police station.

. In the cross-examination, the witness accepted that the

accused and the prosecutrix had voluntarily come to the police station.

12. P.W.10-Ramesh Ratan Patil is the Investigating Officer. He

was Police Station In-charge of MIDC Police Station, he conducted

investigation. He stated about part of the investigation. He accepted

that there was no panchanama prepared of the arrest of the accused. He

proved the panchanama, birth certificate and other relevant documents.

13. P.W.11-Suha Keshav Raskar is In-charge Headmistress in

Zilla Parishad School. She proved date of birth of the prosecutrix as per

school record. She accepted in her cross-examination that there was

scoring in the name of father of the prosecutrix in the school record.

(8) {crap94.04}

14. P.W.12-Karbhari Sahebrao Aware is Headmaster of Adarsh

Kanya Vidyalaya, Jeur, where the prosecutrix was taking education till 9 th

standard. He proved the school register showing entry of the prosecutrix

in the school record.

15. On this evidence, the Trial Court proceeded and accepted that

the prosecution has proved guilt of the appellant. So far other accused

persons are concerned, they came to be acquitted. Learned Advocate Mr.

Kale for the appellant submits that in the present case there is no

evidence to prove charges under sections 363 and 366 of the IPC. So far

as offence under section 376 of the IPC is concerned, he submits that it

has clearly come on record that the prosecutrix had willingly given

consent for sexual intercourse. She voluntarily stayed with appellant at

his house and thereafter at Pune and Alandi. Thereafter, she even

performed a marriage. The father of the prosecutrix did not like his

daughter to marry with the appellant and it is only for this reason the

complaint was lodged. The father wanted to get her married to some

other person. The fact that the prosecutrix went on motor-cycle of the

accused-appellant shows that there was no force used while taking the

prosecutrix with the appellant. There is no clear evidence about the age

of the prosecutrix being below 16 years of age. From the evidence of In-

(9) {crap94.04}

charge Headmistress of the primary school, it has come on record that

there is scoring in the name of the father of the prosecutrix, making the

record doubtful. There is also one other girl studying in the same school

and same class, namely, Shital, whose father's name was different, which

is matching with the name of the prosecutrix, therefore, scoring was

done. Such certificate cannot be relied upon and cannot be accepted as

a proof of age. The contents of vital documents are not proved.

Ossification test of the prosecutrix was conducted. The test certificate

Exh.73 shows the age of the girl between 16 to 18 years. He, thus,

submits that in any case benefit needs to be given to the accused, when

there is no exact proof of age of the prosecutrix, showing that she is

below 16 years of age. He submits that the Trial Court has failed to

consider this aspect and has held the accused guilty. He submits that

when other accused were given benefit, accused No.1-appellant also

ought to have been acquitted. He, thus, prays for allowing the appeal.

16. Learned APP vehemently opposed the appeal. She submits

that there is clear evidence on record to show that accused persons took

the prosecutrix with them. Father of the prosecutrix and the prosecutrix

herself have stated about the fact of taking her with the accused. The

evidence of the father is duly corroborated by the prosecutrix. There is ( 10 ) {crap94.04}

medical evidence to prove that there was sexual intercourse. The Doctor

has clearly opined and has also proved medical certificate. So far as age

is concerned, she submits that the documents are from school and need

not be doubted. The learned APP thus submits that the appeal deserves

to be dismissed.

17. On going through the evidence it is seen that all the facts are

proved by the prosecution. However, the question as to whether all the

facts taken to have been proved, make out case under sections 363, 366

and 376 of the IPC. From the evidence of the prosecutrix what is clearly

seen is that she went with the accused. She did not raise any hue and

cry. She accompanied present appellant to Alandi. At no point of time

she offered any resistance. There is nothing on record to show that any

point of time, she tried to rescue herself. Though it is stated that she

married with the accused against her wish and that thereafter the

accused had sexual relationship with her, however, conduct of the

prosecutrix does not support her version. The fact that she stayed with

the accused without any resistance shows that she voluntarily

accompanied the appellant. The conduct of the appellant also needs to

be considered. He on his own came to the police station with the

prosecutrix. This fact indicates that it was accused who was ( 11 ) {crap94.04}

apprehending some danger to his life at the hands of the relatives of the

prosecutrix and therefore he went directly to the police station. Had

there been any intention,he would not have voluntarily come to police

station. It has also come on record that father lodged a complaint

against present appellant and other accused persons. Within few days

he lodged one more complaint against some other accused persons and

those persons were also arrested. This shows that the father had not

only filed complaint against present appellant, but had also filed

complaint against other persons as well. This Court after considering all

the facts finds that the conduct of the prosecutrix is decisive factor.

Though in the evidence she stated that the because of fear she did not

depose against the accused, however, that appears to be a lame excuse,

in the background of her conduct that she accompanied the accused, she

stayed with the accused and even after so called sexual relationship, she

did not try to raise any shouts or tried to rescue herself. This all leads to

a conclusion that the prosecutrix voluntarily went along with the accused.

18. To make out a case under section 376 of the IPC, it was

necessary for the prosecution to strictly prove the age of the prosecutrix

to be below 16. It has come in the evidence of witnesses i.e.

headmistress of the school that the name of the father of the prosecutrix ( 12 ) {crap94.04}

in the school registered was scored out. The defense of the accused

appears to be material that there were two girls with the same name

and surname. Only there was change in the name of fathers and it is

therefore to show that the prosecutrix is below 16 years, in the school

authenticity of the entry in the school register. In such circumstances to

determine the age, only material available on record is the oscification

test, which shows the age of the prosecutrix between 16 to 18 years.

Thus, age of the prosecutrix is certainly more than 16. In any case

benefit of will have to be given to the accused of the result of osficiation

test by concluding that the age of the prosecutrix was more than 16

years. Further facts show that on knowing that the prosecutrix is taken

by the appellant with him, father of the relatives and relatives went to

the house of the accused and met father of accused. Father of the

appellant told that the prosecutrix would come back only next day

morning. On that father without going for further search of the daughter,

went back to his home, without informing anything to police and filed

complaint after two days, Only because the daughter did not come back

to home immediately next day, he filed complaint.

19. These facts are important in this case as taking the facts to ( 13 ) {crap94.04}

have been proved as it is, still this Court finds that no case is made out

to convict the accused. Learned Trial Court has believed in the evidence

of the prosecution as has taken the age of the prosecutrix below 16

years. The Trial Court has not properly considered the conduct of the

prosecutrix and even of the father of the prosecutrix.

20. Taking all these things together a case is made out to give

benefit of doubt to the appellant-accused. In view of the same, this

Court has no hesitation in holding that the conviction and sentence

imposed by the Trial Court deserves to be quashed and set aside by

acquitting the accused. Hence, the following order :-

ORDER

(i) Criminal Appeal is allowed.

(ii) The judgment and order dated 23.01.2004 passed by the learned Ist Adhoc Additional Sessions Judge, Ahmednagar, in Sessions Case No. 4 of 2003 is quashed and set aside.

(iii) The appellant-accused - Bhausaheb Ranganath Virkar is acquitted of the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code.