1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION CRIMINAL APPLN. NO.: 4502 OF 2009 *** THE STATE OF MAH PLICE STATION OFFICER SAILU PARBHANI Vs BHAGWAT MANIKRAO SHINDE BORGAON JAHANGIR SAILU PARBHANI MANIK RAMBHAU SHINDE Age : 45 Sex : M BORGAON (JAHANGIR) TQ. SAILU DIST. PARBHANI MANKARNA MANIKRAO SHINDE Age : 40 Sex : F BORGAON (JAHANGIR) TQ. SAILU DIST. PARBHANI *** CORAM: S. B. DESHMUKH & S. S. SHINDE, JJ. DATED:- 15th JUNE, 2010. ORAL ORDER [Per Deshmukh, J.]: 1. We have heard learned A.P.P. Mr. Godbharle for the Applicant/ State and Advocate Mr. Nirmal for the Respondent Nos.1 to 3. 2. The respondents were accused in Sessions Trial No.70 of 2008. They were charged for 2 the offence under section 376, 417 read with section 3, 323, 506 read with 34 of Indian Penal Code. The trial Court, on trial, acquitted all the accused/ Respondents for the offence punishable under section 376, 417 read with 34 and 323 read 34, 506 read with 34 of Indian Penal Code. Their bail bonds were directed to be cancelled. This order of acquittal was recorded by the trial Court on 16th September, 2009. 3. The case of the prosecution, in brief, before the trial Court, was that the victim was 14 years old at the time of lodging the report with the Selu Police Station on 1st March, 2008. It has been reported by the victim that her marriage was settled by her parents 1-1/2 hears prior to the lodging of the report with Respondent No.1 Bhagwat (original Accused). At the time of settlement of the marriage, villagers from the village and vicinity were present. At the time of settlement, victim was minor and, therefore, it was agreed by the parties i.e. parents of the victim and Respondent Nos.1 to 3 that the marriage to be performed only on attaining 3 majority by the victim. According to victim, after this settlement of marriage of herself with Respondent No.1, the Respondent No.1 started visiting her house. Such visits were kept by the Respondent No.1. He had sexual intercourse with the victim for a period of about six months. According to the victim, threats were extended to her, to have sexual intercourse. Nature of the threat was that in case she refuses to have sexual intercourse, marriage of her, settled with the Respondent No.1, would stand cancelled. In other words, in that circumstance, Respondent No.1 would not perform marriage with the victim. According to victim, on account of such threat, by Respondent No.1, he could have sexual intercourse with the victim. She was pregnant, according to her, from Respondent No.1. After conceivement, she was afraid and disclosed this fact to her parents. Father of victim went to the Respondents along with his younger son Balu. Request was made to perform marriage of victim with Respondent No.1. According to prosecution, Respondent No.1 and his parents i.e. the Respondent Nos.2 and 3 4 insulted father of the victim Manik and younger brother Balu. Both of them were assaulted and driven out of the house. Threat was also given, if they chose to lodge report with the police, they would be killed. Report lodged by the victim is at Exhibit-21. 4. On behalf of the prosecution, seven witnesses were examined before the trial Court. The trial Court acquitted all the Respondents as we have noticed and recorded herein before. Learned A.P.P. Mr. Godbharle points out evidence lead on behalf of the prosecution. According to him, acquittal in favour of the Respondents is per-se illegal. There is no material on record to establish charges with which the Respondent Nos.1 to 3 were tried. 5. Learned counsel Mr. Nirmal for the Respondents, submitted that D.N.A. test, in fact, is a determinative test. With such D.N.A. test, Respondent No.1 can be held to had sexual intercourse and can be saddled with the responsibility of offence under section 376 I.P.C. However, in the absence of such test, according to him, offence under section 5 376 I.P.C. can not be said to have established against Respondent No.1. He supports the judgment of the trial court acquitting all the Respondents. 6. This criminal application, we are hearing for considering grant of leave to appeal against all the Respondents under section 378 of Criminal Procedure Code. Record is available. With the assistance of learned counsel present before the Court, we have seen the evidence of P.W.2 victim. We are not recording name of the victim in view of the amended provision of Indian Penal Code. Suffice to notice that the victim had testified before the trial Court in support of her report which is part of the record. Categorical statement is made by the victim that her marriage was settled with Respondent No.1 in the presence of large number of villagers. Respondent No.1, in view of the settlement of marriage, started visiting her house and in the absence of her parents had sexual intercourse. The circumstances and threat extended by Respondent no.1 have been testified by her. We have also seen the 6 evidence of P.W.3 Mr. Mani, father of the victim. It is necessary to bifurcate the status of the Respondents. Offence under section 376 I.P.C. is allegedly an offence committed by the Respondent No.1. In other words, there are no allegation against Respondent No.2 of commission of offence under section 376 I.P.C. There is no question of charge under section 376 against Respondent NO.3 who herself is a lady person. Offence under section 417 I.P.C. is also considered by us. In fact, ‘cheating’ is an offence defined under section 415 of Indian Penal Code. We have seen the ingredients of section 415 with the assistance of counsel for the parties. In the case on hand, section 415 and 417 can be considered against Respondent Nos.1 to 3. Respondent No.1 is the person alleged with commission of offence under section 376 and Respondent Nos.2 and 3 indisputably are parents of Respondent No.1. Refusal of marriage is alleged against all the Respondents. For this purpose, we have considered the evidence of P.W.2, P.W.3 and independent witness i.e. villager Mr. 7 Babasaheb Shinde (Exhibit-24). He voiced before the Court that he was present at the time of engagement amongst victim and the Respondent No.1. In cross examination, he did categorically state that there was no talk about dowry etc. In our view, leave can be considered for appeal against all the Respondents under section 417 read with 34 of I.P.C. 7. Offence under section 323, 506 (II) read with 34 of I.P.C. is alleged against all the Respondents. From the evidence, it has been pointed out to us that such threat was given by the accused Nos.1 and 2. We do not find any material against Accused No.3 for offence under section 323 read with 34 and 506 (II) read with 34 of I.P.C. 8. Contentious is the issue of alleged offence under section 376. Mr. Nirmal, learned counsel pointed out that D.N.A. test was not carried out. Simplicitor pregnancy of the victim cannot be fastened to the Respondent NO.1 and he, therefore, cannot be convicted for that offence. It is not possible for us to accede to the submission 8 for the reason that victim herself has testified charge under section 376 against the Respondent No.1. We have seen some observations/ finding of the trial Court in concluding paragraph 17 of the judgment. Excerpt is reproduced herein below: “The main question is whether pregnancy of prosecutrix can be attributed to the accused. This could have been proved by the prosecution by referring the prosecutrix for D.N.A. test. No such test has been carried out and, therefore, detail scrutiny of remaining evidence available on record, is not necessary.” In our view, this observation/ finding of the trial court is perverse. Substantive evidence in the case on hand is the evidence of victim herself. Criminology test with the help of electronic gazette and/ or device and any other scientific test can be performed and such evidence can be said to be evidence of expert in the field. Such evidence, if brought on record by any of the party, can be considered under section 45 of the Indian Evidence Act. Such evidence, always, is being considered as corroborative evidence to the 9 substantive evidence, brought on record. It is for the assistance for coming to a conclusion, to be recorded based on substantive evidence. In our view, in the case on hand, leave can be granted to appeal against respondent No.1 for the offence under section 376 of I.P.C. and against Respondent Nos.1 to 3 for the offence punishable under section 417, 506 (II) read with 34 of I.P.C. However, we do not find any case against Respondent No.3 for the offence under section 506 (II) read with 34 of I.P.C. 9. In the result, criminal application is partly allowed. Leave to file appeal against Respondent No.1 under section 376 is granted. Leave to file appeal against Respondent Nos.1 to 3 under section 417, 506 (II), 323 read with 34 of I.P.C. is also granted. However, leave to file appeal against Respondent No.3 for the offence under section 323, 506 (II) read with 34 of I.P.C. stands refused. Criminal Application stands disposed of in above terms. [S. S. SHINDE, J.] [S.B.DESHMUKH, J.] Dated:15/06/2010. ans/4502 10 WRIT PETITION NO.: OF 200 Date of decision: 8th APRIL, 2010. For approval and signature THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. THE HONOURABLE SHRI JUSTICE S. S. SHINDE. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE