1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRI. APPLICATION (APPA) NO.180 OF 2011. (STATE OF MAHARASHTRA..VS.. KAMLAKAR BHAURAO JUMNAKE.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mrs. K.S.Joshi, APP for Appellant/ State. CORAM : MRS. V.K. TAHILRAMANI AND M.L.TAHALIYANI, JJ. DATE : APRIL 11, 2011. Heard learned A.P.P. for appellant/ State. 2. The applicant-State of Maharashtra has preferred this application for leave to file appeal against acquittal of the respondent/ original accused. By judgment and order dated 24.11.2010 in Sessions Trial No.30 of 2010 the learned Sessions Judge, Chandrapur acquitted the respondent/ accused of the offences punishable under Sections 341 and 376 of the Indian Penal Code. 3. The prosecution case briefly stated as under : The prosecutrix (P.W.1) was residing along with her family at Lakhmapur. It is the prosecution case that at the relevant time she was about 14 years of age and studying in 8th standard. Her parents and elder sister was working as labourers. The respondent-accused was residing in the neighbourhood of the prosecutrix. On 12.12.2009 at about 8.00 p.m. P.W. 3 Mamta friend of the prosecutrix came to her house and requested the prosecutrix to accompany her for natures call at the outskirts of the village. The prosecutrix accompanied Mamta. Mamta went to attend natures call 2 beside a tree and the prosecutrix stood at the side of the road. Accused came near the prosecutrix and asked her to accompany him. The prosecutrix refused to go with him, thereupon the accused dragged her to the field of one Subhash Yete and committed rape on her. By that time it was about 12.00 midnight. The prosecutrix returned home and she narrated the incident to her parents. On the next day the prosecutrix went with her parents to the Police Station and lodged complaint (Exh.10) with the Police against the accused. Thereafter investigation commenced. The prosecutrix was sent for medical examination. The medical examination shows that hymen was torn. In the opinion of the Doctor the victim was subjected to sexual intercourse. The injuries on the private part as well as other parts of the body of the prosecutrix were within 24 hours. After completion of the investigation chargesheet came to be filed. 4. We have heard the learned A.P.P. for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Sessions Judge. We have also perused the evidence which have been produced before us by the learned A.P.P. After carefully considering the matter, we are of the opinion that no case is made out for interference. 5. The prosecution is mainly dependent on the evidence of the prosecutrix (P.W.1). The learned APP submitted that even if it is a case of consent, as held by the trial Court, consent cannot be taken into consideration, as at the relevant time the prosecutrix was 14 years of age. As the prosecutrix was below 16 years of age a clear case of rape is made out. In view of this contention, we have carefully 3 perused the evidence to see whether the prosecution has indeed proved that the prosecutrix was below 16 years of age at the time of the incident. 6. In order to prove the age of the prosecutrix evidence of the prosecutrix is relied upon, wherein she has stated that her date of birth is 01.08.1995. The learned A.P.P. submitted that as the incident has taken place on 12.12.2009, thus, if the date of birth of the prosecutrix is 01.08.1995, the prosecutrix was 14 years of age at the time of incident. It is pertinent to note that the prosecution has not produced the birth certificate of the prosecutrix. The prosecution has also not examined the parents of the prosecutrix who would have thrown light on the aspect of her date of birth. The prosecution is relying on the testimony of P.W. 5 Smt. Sunita Ughade who is Headmistress of Zilla Parishad Primary School, Lakhmapur. She has stated that the prosecutrix was admitted in the school on 02.07.1999. As per register maintained by her school the date of birth is mentioned as 01.08.1995 and it is also mentioned that the said date is entered on the basis of the birth certificate produced by the father of the prosecutrix. In the cross-examination P.W. 5 has squarely admitted that it is not mentioned in the register that the date of birth of the prosecutrix was recorded on the basis of the birth certificate issued by the Gram Panchayat. As far as certificate being issued by the Gram Panchayat office is concerned it is to be noted that there is no evidence on record to show that the parents of the prosecutrix had informed the date of birth of their daughter to the Gram Panchayat. Significantly the prosecution has failed to produce the record maintained by the Gram Panchayat in order to prove the exact date of birth of the prosecutrix. 4 7. In the case of Birad Mal Singhvi Vs. Anand Purohit, reported in AIR 1988 SC 1796 = 1988 (Supp) SCC 604 the Supreme Court has observed that the date of birth mentioned in the school register or school leaving certificate has no probative value unless either the parents are examined or the persons who have such knowledge of date of birth of the person and on whose information the entry has been made have been examined. 8. The learned APP has also relied on the evidence of P.W. 6 Dr. Patil who has conducted ossification test of the prosecutrix. According to Dr. Patil, on the basis of the x-ray she opined that the prosecutrix appears to be 14 to 15 years of age. It is well known that as far as ossification test is concerned there is margin of error of at least two years on either side. In such case, possibility of the prosecutrix being more than 16 years of age at the time of incident cannot be negatived. 9. In order to show that the prosecutrix is below 16 years of age, the learned A.P.P. drew our attention to the fact that the pubic hair were not developed. On this aspect, we may refer to the evidence of P.W. 2 Dr. Nagrale. In the cross- examination P.W. 2 Dr. Nagrale stated that by mentioning pubic hair were not developed, it means pubic hair were absent. Thus there is possibility of shaving the pubic hair by the prosecutrix. P.W. 2 has not stated that pubic hair were scanty. Thus the evidence of Dr. Nagrale is not of much help to the prosecution on this aspect. 5 10. In the cross-examination the prosecutrix has stated that her sister Ku. Asha (PW-4) is one year older than her. Ku. Asha while deposing before the Court informed her age as 19 years old. It indicates that on the date of alleged incident, which took place one year prior to her deposing before the Court, Ku. Asha was 18 years old. In view of this, it is amply clear that the prosecutrix was not below the age of 16 years at the relevant time. 11. No doubt, the prosecutrix has stated that on 12.12.2009 the accused dragged her to the field of Subhash Yete and committed rape on her. In the cross-examination the prosecutrix has admitted that she was on talking terms with the accused. She has also admitted that one month prior to the incident there was Hanuman Jatra at Rampur. She along with some ladies attended the Jatra and in the evening while returning from the Jatra she came to the village on the bicycle of the accused. The prosecutrix had admitted that she and accused used to meet each other. Thus, the evidence of the prosecutrix makes it clear that since at last one month prior to the incident the prosecutrix used to meet the accused and they were on friendly terms with each other. Looking to the admission given by the prosecutrix it appears that it was pre-decided between the prosecutrix and the accused to meet on the day of the incident. This becomes even more apparent from the fact that the prosecutrix has stated that P.W. 3 Mamta came to her house and requested the prosecutrix to accompany her to attend the call of nature at the outskirts of the village. In this connection it is pertinent to note that P.W. 1 had admitted that the house of Mamta is situated near the place where ladies of the village used to go to attend the call of nature. She has further 6 admitted that the distance between her house and house of Mamta is about 15 minutes walk. It is not clear that as to why Mamta would come to the house of the prosecutrix, which is at longer distance from the place where the ladies used to go to attend call of nature and why the prosecutrix will go with her to attend natures call at a longer distance. If at all Mamta wanted to attend the natures call the place where the other ladies of the village used to go for such purpose was situated near her house. In such case Mamta's going to prosecutrix's house which is at a distance of 15 minutes walk for requesting the prosecutrix to come with her to attend natures call is doubtful especially so, as for this purpose Mamta would have to walk for at least a distance of 30 minutes. It is also pertinent to note that the prosecutrix had admitted that Mamta did not come to her house with water container to attend the call of nature. Thus, the entire reason which the prosecutrix has stated about Mamta requesting her to accompany her appears to be a pre-decided plan on the part of the prosecutrix. 12. We would also like to advert to the conduct of the prosecutrix. It is her case that when Mamta was attending call of nature behind a tree, the accused came and dragged her to the field of Subhash Yete and committed rape on her. It is not the case of the prosecutrix that when the accused tried to drag her she raised any shouts. According to the prosecutrix the distance between herself and Mamta was just 15 feet and Mamta could hear her voice. If at all the prosecutrix would have shouted and / or asked for help Mamta certainly could have heard her voice and come to her rescue. It is significant to note that the prosecutrix had not shouted or cried for help when she was allegedly dragged by 7 the accused to the field of Subhash Yete. It is clear that the prosecutrix did not resist the act of the accused when he dragged her to the field of Subhash Yete. The fact that she did not put up any resistance when the accused dragged her to the field of Subhash Yete, shows that whatever happened thereafter, happened with her consent. 13. The learned A.P.P. pointed out that at the spot of incident a chunni, a hair pin, pieces of bangles, a comb, white metal payal and other articles were found, this according to her shows that it is a case of rape. On this aspect Govardhan (P.W.8) panch witness was examined. This witness has clearly admitted that all the articles were kept on the table in the Police Station. He further admitted that those articles were taken charge of by the police and the police asked him to sign on the panchnama and he accordingly signed it. The evidence of this witness does not inspire any confidence. His evidence does not reliably show that such articles were indeed found on the spot. 14. The learned Sessions Judge has considered all the above aspects and he has held that the prosecution has failed to prove beyond reasonable doubt that the prosecutrix was below the age of 16 years at the time of the incident. It is also held that it is a case of consent. Looking to the evidence on record we find that the view taken by the trial Court is reasonable and possible view. 15. We may make useful reference to the decision of the Supreme Court in State of Uttar Pradesh Vs. Dinesh, reported at (2009) 3 Scale, 345, wherein in a case of appeal against acquittal it was held that if two reasonable 8 conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. The Supreme Court in C. Anthony Vs. K.G. Raghavan Nair, reported in (2003) 1 SCC 1 has observed that when two views are possible and when the view taken by the trial Court is a reasonable and possible view, the High Court can not in an appeal substitute its findings merely because another contrary opinion was possible on the basis of the material on record. It is further observed that if two reasonable conclusions can be reached on the basis of the evidence on record, appellate Court should not disturb the findings of the trial Court. Looking to the evidence on record, we find that the view taken by the trial Court is a reasonable and possible view. In view of above, no case is made out for interference. The application is rejected, consequently the appeal is dismissed. JUDGE JUDGE RR..