1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.549 OF 2009 1. Prakash Dnyandeo Gaikwad Age : 26 years, 2. Somnath Dnyandeo Gaikwad Age : 28 years, Both R/o Miri, Tq. Pathardi, Dist. Ahmednagar. 3. Ramesh Motiram Kale Age : 27 years, 4. Kishor Motiram Kale Age : 33 years, Both R/o Bhenda, Tq. Newasa, Dist. Ahmednagar. ..APPELLANTS -VERSUS- The State of Maharashtra (Copy to be served on A.P.P. High Court of Bombay Bench at Aurangabad) ..RESPONDENT ......... Mr. N.C. Garud, advocate for appellants. Mrs. B.R. Khekale, A.P.P. for respondent. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 27 th September, 2010. ORAL JUDGMENT : 1. Challenge in this appeal is to the judgment and order rendered by the learned Sessions Judge, Ahmednagar in Sessions Case No.165/2007, whereby and whereunder, the appellant 2 no.1 is convicted for the offence punishable under Sections 363, 366, 366-A and 376 of the Indian Penal Code, the appellant no.2 has been convicted for the offence punishable under Section 366 and 366-A of the Indian Penal Code, the appellant no.3 has been convicted for the offence punishable under Section 342 and 366 of the Indian Penal Code, the appellant no.4 has been convicted for the offence punishable under Sections 342 and 366 of the Indian Penal Code and all of them have been sentenced for various terms along with payment of fine. They are the original accused nos.1, 2, 5 and 7 respectively. 2. The prosecution case, as unfolded during the course of trial, is that the prosecutrix was minor at the relevant time. She was residing with her father and other family members. She was married to one Nanaji Digambar Chaure. She resided with her husband in the matrimonial home at village Manjari (District Pune). That marriage lived only for short period. She was subjected to matrimonial cruelty in the house of said Nanaji Digambar Chaure. She came in contact of appellant no.1-Prakash during the relevant period while she was attending manual work in a local dairy farm. He developed intimacy with her. He allured her that he will marry with her. He took her with him to village Miri under Pathardi Tahsil. She resided with him for about 3 to 4 months. His brother i.e. 3 original accused no.2-Somnath suggested that she could be used for the business of prostitution. Thereupon, appellant no.1-Prakash picked up a quarrel with his brother Somnath. He took her to Chakan. They resided in an agricultural land and worked as farm labourers for about six months. She conceived due to their live-in- relationship. Subsequently, appellant no.2-Somnath came there and took them back to village Miri. They resided in that village for about four (4)months. She delivered a female child. The appellant nos.1 and 2 thereafter troubled her. They asked her to leave their house. The appellant no.1 though desired to marry her yet he was sent out of the house by his parents due to social problems because prosecutrix had delivered a female child, which could be the talk amongst the relatives and community members. It is further alleged that she was beaten up and the female child was snatched away from her. Thereafter, the appellants got her forcibly married to the appellant no.4 in a temple. That marriage was performed against her will. She lodged a report with the Police after fleeing from house of the appellant no.4. On basis of material gathered during the course of investigation, the appellants along with other five co-accused were jointly charge sheeted for various offences including the offence of kidnapping, rape, attempt to use the prosecutrix for the purpose of prostitution, so on and so forth. The appellants and other co-accused denied the truth in to the 4 charges framed for the offences under Sections 363, 366 r/w 34 of the Indian Penal Code and under Section 5(b) of Immoral Traffic (Prevention) Act, 1956. 3. The prosecution examined in all seven witnesses in support of its case. It also placed on record various documents. The learned Sessions Judge came to the conclusion that the prosecution failed to prove that the prosecutirx was subjected to exploitation for the purpose of prostitution. All the nine accused were therefore acquitted for the offence punishable under Section 5(2) of the Immoral Traffic (Prevention) Act, 1956. While other five co-accused were acquitted of all the charges, the appellants were convicted for the offence as indicated at the outset. The appellant no.1 has been sentenced to suffer rigorous imprisonment for seven years under Section 363 of the Indian Penal Code and to pay fine of Rs.1000/-, in default, to suffer further rigorous imprisonment for one month. He has been further sentenced to suffer rigorous imprisonment for ten years under Section 366 of the Indian Penal Code and to pay fine of Rs.1000/-, in default, to suffer further rigorous imprisonment for one month. He is further sentenced to suffer rigorous imprisonment for ten years under Section 366-A and to pay fine of Rs.1000/-, in default, to suffer further rigorous imprisonment for one month. He has been 5 sentenced to suffer rigorous imprisonment for ten years under Section 376 and to pay fine of Rs.1000/-, in default, to suffer further rigorous imprisonment for one month. The appellant no.2 is sentenced to suffer rigorous imprisonment for ten years under Section 366 and to pay fine of Rs.1000/-, in default to suffer, further rigorous imprisonment for one month. He is further sentenced to suffer rigorous imprisonment for ten years under Section 366-A of the Indian Penal Code and to pay fine of Rs.1000/-, in default, to suffer further rigorous imprisonment for one month. The appellant no.3 is sentenced to suffer simple imprisonment for one year under Section 342 of the Indian Penal Code and to pay fine of Rs.1000/-, in default, to suffer further simple imprisonment for one month. He has been further sentenced to suffer rigorous imprisonment for ten years under Section 366 of the Indian Penal Code and to pay fine of Rs.1000/-, in default, to suffer further rigorous imprisonment for one month. The appellant no.4 is also awarded the identical sentences for the offence under Section 342 and 366 of the Indian Penal Code likewise the appellant no.3. 4. The learned Sessions Judge came to the conclusion, on basis of available material, that the prosecutrix was minor at the relevant time and was kidnapped from lawful guardianship of her father with a view to compel her to marry. The learned Sessions 6 Judge also came to the conclusion that the appellant nos.1 and 2 sold her to the appellant no.4 and got performed her marriage by force with him. The learned Sessions Judge held that she was wrongfully confined between 9th to 18th April, 2007 in house of the appellant no.4 at village Bhenda under Newasa Tahsil. It was further held that the appellant no.1 committed sexual intercourse with the prosecutrix under the pretext that he will marry her. 5. The material points involved in this appeal are thus : (i) Whether it is duly proved that the prosecutrix was minor at the relevant time, and therefore, her consent for sexual intercourse was immaterial ? (ii) Whether it is proved that the prosecutrix was kidnapped/abducted from the lawful guardianship of her father with the intention that she could be compelled to marry the appellant no.1 or any other person ? (iii) Whether it is proved that the prosecutrix was subjected to forcible marriage with the appellant no.4 with a view that she shall be forced to have illicit sexual intercourse with him ? 7 (iv) Whether the appellants shared common intention during the relevant period ? If yes, to what extent ? 6. Before I proceed to scrutinise the prosecution evidence, it may be mentioned at the outset that the prosecution evidence regarding the age of the prosecutrix is rather shaky. The prosecution relied on the extract of School Leaving Certificate (Exh.87). The version of P.W. 3 Ravikant, who is the employee of New English School, Bijalinagar, Chinchwad, Pune corroborates the entries in the school leaving certificates (Exh. 85 and Exh. 86). He corroborates the certificate (Exh.87). His version would make it clear that the entries in the school leaving certificate (Exh. 87) are founded on the entries in the school leaving certificate issued by Kalawati Kotwal School. He has no knowledge whether the entries recorded in the said School are correct or were improperly taken. He has no knowledge about the correctness of the entries in the school record taken at the time of induction of prosecutrix in the primary school. He does not know on what basis entries in the school leaving record of Kalawati Kotwal School were taken. In other words, the source of entries in the school leaving record (Exh. 87) is not at all clear. It is important to note that the original entries in the admission register of the school, when the 8 prosecutrix was admitted in the school for the first time, are not made part of the present record. 7. In the context, another important aspect is that the prosecutrix was admittedly married to one Tanaji @ Nana Digambar Choure when for the first time she came in contact with the appellant no.1 at village Manjari. She was employed in a dairy farm. Her version purports to show that her first husband Tanaji @ Nana treated her well for a period of about six months. Thereafter, he started to illtreat her. She used to confide in the appellant no.1. She used to ventilate about her plight in the matrimonial life to him. Needless to say, after about more than 8 to 9 months of the marriage, she eloped with the appellant no.1 from village Manjari. The recitals of the F.I.R. go to show that she gave her age to the Police Officer as 18 years. The statement in the F.I.R. could not have been lightly brushed aside by the learned Sessions Judge unless there was substantial reason to infer that the prosecutrix gave such incorrect information on basis of some misconception of the facts. The prosecutrix was not clinically examined. No attempt was made to obtain opinion of the Radiologist on basis of ossification test. Under these circumstances, the learned Sessions Judge appears to have committed patent error while recording the finding that the prosecutrix was minor girl below 16 years old at the 9 relevant time. 8. Coming to the version of P.W. 2 (prosecutrix), it appears that she deposed that while she was residing with her husband by name Tanaji Digambar Chaure the appellant no.1 allured her to go with him. This part of her statement made in examination in chief is contrary to the recitals of the F.I.R. The recitals of the F.I.R. purport to show that she was resident of village Shevalwadi at that time. She narrated that her husband i.e. Tanaji Chaure started giving her ill-treatment during the period of cohabitation at village Manjari. She narrated further that she ventilated her plight to the appellant no.1 during the relevant period of her acquaintance with him. In other words, she told him her complaints about the ill-treatment given by the husband. Thus, it is explicit that she had developed intimacy with the appellant no.1. It was so much so that she reposed confidence in him for the purposes of narrating the domestic matters to him. Her entire testimony shows that she went with the appellant no.1 to village Miri and resided with him for about three months. She became pregnant due to the sexual relationship with the appellant no.1. For a long drawn period, she made no complaint against him or his brother. It is important to notice that the F.I.R. was lodged after about one and half year (1 1/2) of the prosecutrix and the appellant 10 no.1 going together to village Miri. Their sexual relationship was by consent. As stated earlier, she is not proved to be minor during the relevant period. There is no tangible evidence to infer that the appellant gave utterly false promises to marry her while taking her with him to village Miri. What appears from the record is that he assured her to keep her with him and to rescue her from the trouble caused by her previous husband i.e. Nana @ Tanaji Chaure. 9. The prosecutrix states that the appellant no.1 and his family members troubled her and used to beat her. They used to tell her to go out of the house, but she was not in a position to leave their house because her parents are poor. Her evidence shows that during absence of the appellant no.1, the other two appellants took away her female child on 06.04.2007. Except her bald version, there is no corroboration to such an incident. She narrated that on 17.04.2007, they got performed her marriage with appellant no.4-Kishor at Khandeshwari Temple. She further narrated that the said marriage was performed against her wish. It is difficult to appreciate as to how inspite of such absence of her willingness, she kept silence for long period and lodged the F.I.R. only on 25th April, 2007. The long delay is not duly explained. 11 10. Conduct of the prosecutrix is not free from doubt. She corroborated the recitals of the F.I.R. (Exh.78). Her evidence purports to show that she approached the Police along with Smt.Anjali Shinde and Girish Kulkarni, who is social worker. She admits that initially her relations with husband by name Tanaji @ Nanaji were cordial and they used to love each other. Her version reveals that though the appellant no.1-Prakash did not marry her yet she did not make any attempt to return to the house of her parents. Her admission further shows that her birth date is recorded in the office of Gram Panchayat at village Shewalwadi. The Gram Panchayat record was not produced by the prosecution. She admits that she was annoyed because the appellant no.1- Prakash refused to marry her. 11. Once it is found that there is no satisfactory evidence to show that the prosecutrix was minor at the relevant time, it is difficult to say that she was kidnapped by taking her out of the custody of her lawful guardian. Her ex-husband Tanaji was, infact, her lawful guardian in the eye of law. He did not file any complaint about her missing from matrimonial home. He never filed complaint against the present appellants that they had abducted his wife with ill intention to exploit her for sexual relationship and for forcing her to marry the appellant no.4. The cross examination of the 12 prosecutrix reveals that she had gone back to the father after filing of the F.I.R. It appears that she was working with Advocate Smt.Nirmala Chaudhari during the intervening period i.e. from filing of the F.I.R. till she went back to her father. Her cross examination further shows that her husband by name Tanaji had filed the missing report. She admits that she had left house of Tanaji on her own accord. The version of the prosecutrix appears to be rather shaky and unacceptable. No attempt was made by her to go away from the house of the appellant no.1. On the other hand, she states that though the appellant no.1 and his brother were asking her go out of their house, she did not do so and remained there inspite of the alleged ill-treatment. 12. The remaining evidence given by the prosecution need not be discussed with all the details. The testimony of P.W. 1- Kalabai Kale reveals that she was annoyed with the appellant because of quarrel between her son's on one hand and the appellant nos.3 and 4 on the other hand. It appears that she is the sister of the deceased Savitri who happened to be the mother of the appellant nos.3 and 4. Nothing of much importance is stated by her. She was declared hostile by the prosecution. 13. So far as the other witnesses are concerned, it may be stated that they are the police officers, who conducted the investigation 13 at various stages. The version of PW4 Abdul Kalim is of formal character. He registered the FIR. The version of PW5 Dilip is also of formal character. He sent the seized articles to office of the Chemical Analyser. It appears that PW6 PSI Bhausaheb conducted major part of the investigation. He corroborated the spot panchanama (Exh-60). He admits that though certain articles were seized from the spot where the infant female child was alleged abandoned, yet, the infant was not located during course of investigation. The investigation thus did not show as to who was the custodian of the infant. There is no tangible evidence to infer that the infant was snatched away from custody of the prosecutrix and was kept by the appellants with them. From cross- examination of PW6 Bhausaheb, the concerned P.S.I., it is amply clear that the prosecutrix had been back to house of her parents before about eight (8) days of the alleged incident. Still, however, no complaint was filed by her or her parents. No investigation was made as regards employment of the appellant No. 1 in the Dairy Farm. Nor it was found that the appellant No.1 had taken away the prosecutrix from the Dairy Farm situated at Chakan. The prosecutrix was in the custody of Newasa Police Station between 17th April, 2007 and 24th April, 2007 and had fled away from there. It is further admitted by P.S.I. PW6 Bhausaheb that the temple of Godess Khandeshwari is of big size and there are houses around the temple. He did not record statement of the priest of the temple. No attempt was made to ascertain from the neighbouring dwellers of the locality as regards the alleged marriage between the prosecutrix and the appellant No. 4. The statement of 14 PW7 Ashok is of formal nature. 14. The Apex Court in "Sunil vs. State of Haryana" 2010 (1) SCC 742, held that where there was dispute as regards minority of the prosecutrix at the time of alleged incident, the clinical examination of the prosecutrix for verification of her age could be more relevant. The omission to get verification from Dental Surgeon and Radiologist was held as a serious flaw in the prosecution version. So also, in case of "S. Varadarajan vs. State of Madras" 1965 AIR (SC) 942, the Apex Court held that where the girl herself had been telephoning the accused and accompanied him, then it could not be treated as case of abduction. It was held that when the girl was on the verge of attaining majority, she could have been considered as having proper age of understanding. 15. It is not necessary to elaborately discuss the other aspects when it is found that the prosecutrix was not definitely proved to be minor at the relevant time and could have taken her own decision to go with the appellant No. 1 and that they had developed intimacy to flee together. Under these circumstances, the Sessions Court committed patent error while accepting the uncorroborated version of the prosecutrix. The impugned judgement is, therefore, unsustainable. Hence, the appeal is allowed. The impugned judgement and order of conviction and sentence, rendered by the learned Sessions Judge, Ahmednagar, is set aside. The appellants are acquitted of the charges 15 levelled against them. They are directed to be set free immediately, if not required in any other case. The property articles shall be disposed of as directed under the impugned judgement. [V.R. KINGAONKAR] JUDGE GAS/cria549.09