10.cr. appln. 3504­10 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3504 OF 2010 The State of Maharashtra .. Applicant Vs Jitendra Vishwanath Devdharkar & Ors .. Respondents Mr. V.B. Konde-Deshmukh, APP for the State Mr. Onkar Warang i/b Mr. Milind Sawant for Respondents CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ DATE : 12th AUGUST, 2010 ORAL ORDER [PER SMT. V.K. TAHILRAMANI,J]: 1. The applicant - State of Maharashtra has preferred this application for leave to file appeal against the judgment and order dated 08.05.2009 passed by the learned Additional Sessions Judge, Solapur in Sessions Case No. 249 of 2007. By the said judgment and order, the respondents i.e original accused nos. 1 to 5 came to be acquitted of the offences under sections 363(a), 376 read with Section 34 of the I.P.C. 2. The prosecution case briefly stated is that one Navnath who is a complainant in the present case is an agriculturist. He had two daughters. His second daughter PW 3 Ujawala is the victim in this case. She appeared for 8th standard but 1 10.cr. appln. 3504­10 failed. Thereafter, PW 2 Navnath sent her to the house of his elder daughter for education in the year 2006. One Prakash respondent no. 4 was the neighbour of elder daughter of Navnath. His brother in law Jitendra is the main accused i.e respondent no. 1 in the present case. Respondent No. 2 is the brother of respondent no. 1. Respondent No. 3 is the wife of respondent no. 2. As stated earlier, respondent no. 4 is the brother in law of respondent no. 1 and respondent no. 5 is the wife of respondent no. 4 and sister of respondent no. 1. On 01.09.2006, Navnath received telephone call that his daughter PW 3 Ujawala had left the house under pretext that she wanted to see Gauri festival and thereafter, she is missing. On getting this message, Navnath lodged missing complaint Exh. 22 at Tembhurni police station. They searched for Ujawala, however, she could not be found. Thereafter, Navnath learnt from one of his relatives that the prosecutrix was seen on motor bike bearing No. MH-06/AD-3290 along with one person. Thereafter, he came to know from his son in law on 26.10.2006 that accused no. 1 along with his motor cycle are also missing from the date Ujawala was found to be missing. Hence, Navnath reached the conclusion that accused no. 1 had kidnapped Ujawala against her wish and without obtaining his consent, hence, he lodged report on 27.10.2006 at Tembhurni Police Station. C.R. No. 142 of 2006 came to be 2 10.cr. appln. 3504­10 registered against the accused persons under Section 363(a) of I.P.C. It is the specific case of the complainant that the prosecutrix was a minor at the time of incident. Thereafter, search was made for the prosecutrix as well as accused no. 1. On 08.05.2007, the complainant i.e Navnath brought the prosecutrix and the accused to the police station. The prosecutrix stated that she was kidnapped by the accused and he promised to marry her and had sexual relations with her. Hence, Section 376 of I.P.C. came to be added. After completion of investigation, charge sheet came to be filed. 3. Charge under Section 363(a) and 376 read with section 34 of IPC came to be framed against the accused persons to which they pleaded not guilty and claimed to be tried. Their defence is that of total denial and false implication. 4. We have heard the learned APP 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 was produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 3 10.cr. appln. 3504­10 5. In order to prove that the prosecutrix was a minor at the time of incident, the prosecution has relied upon the school leaving certificate Exh. 49. In order to prove this certificate, the prosecution has examined PW 6 Younus Mulani who was working as Assistant Teacher in the said school since 1995. He was also holding charge of headmistress in her absence. It is to be noted that this witness has not personally recorded the entries from 862 to 868 in the register. He did not have any personal knowledge about the date of birth of the prosecutrix being 06.06.1992. He is not aware on what basis, the said entry relating to date of birth was recorded in the said register. He has not disclosed the name of the person, who had taken entry in the register. He has also not stated as to who gave the information relating to date of birth, on which basis entry was made in the school register. 6. It is further to be noted that, in the certificate Exh. 79 placed on record by the prosecution, the date of birth is shown as 03.08.1992 and the date of birth mentioned in school leaving certificate is 06.06.1992. Thus, two different dates of birth have come on record. There is no cogent and convincing evidence on record to show that the date of birth disclosed at the time of seeking admission in the school was correct one. Many times, parents do not 4 10.cr. appln. 3504­10 disclose the correct date of birth at the time of seeking admission for their wards. To secure admission in a school, parents may not disclose real date of birth and give some other date due to which it is possible to easily secure admission in the school. Sometimes, parents give approximate date of birth to the school authority either because they are illiterate or they do not know the actual date of birth. The school leaving certificate therefore, unless backed by cogent and reliable evidence cannot be relied upon as the correct proof of the age of the victim. PW 2 who is the father of the prosecutrix had not stated any where in his evidence, on the point of disclosure of the date before the school authority as 06.06.1992 being a correct one. In fact, he does not mention the date of birth of the prosecutrix. The certificate Exh 49 states that the date of birth of prosecutrix is 03.08.1992 which falsifies the date of birth mentioned in the school leaving certificate. In such case both the certificates are not worthy of reliance. 7. On the aspect of age of the prosecutrix, It is interesting to note that in the extract of the school register Exh. 48, the date of birth of the prosecutrix is mentioned as 06.06.1992, whereas the date of birth of Rahul Navnath Khupse who is the brother of prosecutrix is stated to be 17.06.1992. PW 3 Ujawala and Rahul are real brother and 5 10.cr. appln. 3504­10 sister. In such case, it is highly improbable that after the birth of Ujawala, on 06.06.1992, Rahul was born on 17.06.1992. It is not the case of the prosecution that both are twins. Exh. 48 itself goes against the prosecution to support their contention that the birth date of the prosecutrix is 06.06.1992. Thus, the evidence produced by the prosecution cannot be relied upon to support the case of the prosecution that the prosecutrix was a minor at the time of the incident. 8. We may also state that the mother of the prosecutrix has not been examined. It has also come on record in the deposition of PW 3 Ujawala that her age would be about 19 years at the time of the incident. She has stated that there is gap of one year amongst the brothers and sisters. If as per the evidence, the age of the eldest sister of the prosecutrix is considered to be 21 years, Rahul who is older than the prosecutrix would be 20 years old and the age of PW 3 prosecutrix would be 19 years. 9. Thus, the evidence on record does not show that the prosecutrix was a minor at the time of the incident. Then, the only question which arises is whether the prosecutrix was taken away against her wishes and whether sexual intercourse had taken place against her wishes and without her consent. 6 10.cr. appln. 3504­10 At this juncture it is pertinent to note that the prosecutrix herself has admitted that she was in love with accused no. 1. She had received a phone call from accused no. 1 and that she had called accused no. 1 at Upalwate for taking her with him. Accordingly, on 01.09.2006 the prosecutrix waited for him on the street at some distance from her house. She left the house under false pretext that she was going to a neighbor's house. She further stated that accused no. 1 came there and she went with him on his motorbike. Thereafter, they went to Pune. They stayed together for three days at Pune. Accused no. 1 then took a room on rental basis and they stayed there for some days. She further stated that accused no. 1 then took her to Alandi to perform marriage. On 04.09.2006, they visited the temple of Dnyaneshwar Mauli for the purpose of marriage. However, the accused changed his mind and the marriage was not solemnized. They came back to Ganesh Nagar. They stayed together as husband and wife in Ganesh nagar for 7 months. The accused used to say that he wants to marry her. She further stated that one of the friends of accused no. 1 by name Krishna has given assurance to accused no. 1 that he will give him mason work. Therefore, they shifted their residence to Kamoti area in Mumbai. She stayed with accused no. 1 at the said place on the 4th floor. It appears from her version that her sister, brother in law were well aware about the love affair of the 7 10.cr. appln. 3504­10 prosecutrix with accused no. 1. The prosecutrix was therefore, sent back to the village Upalwate from Palspe. She has admitted her love letters filed at Exh, 30, 31 and 32. These love letters addressed by her to accused no. 1 are clearly indicative of the fact that the prosecutrix had fallen in love with accused no. 1 and had developed relations with him. 10. PW 4 Pandit Khupse is a relation of the prosecutrix. He had seen the prosecutrix when she went on motorcycle with accused no. 1. This witness has not stated that the prosecutrix, at that time was trying to escape or was shouting for help or was crying. He also did not notice that she appeared to be in a frightened condition at that time. Had PW 4 seen something out of ordinary, he would have immediately informed the parents of the prosecutrix or the police. From the fact that he ignored the incident and did not report to the complainant or police shows that he did not notice anything out of ordinary. Thus, the evidence of this witness shows that the prosecutrix willingly accompanied accused no. 1. 11. We may reiterate that the prosecutrix herself has admitted that she was in love with accused no. 1. She had received a phone call from accused no. 1 and that she had 8 10.cr. appln. 3504­10 called accused no. 1 at Upalwate for taking her with him. Accordingly, she waited for him on 01.09.2006. Thus, the averments of the prosecutrix show that there was absolutely no misrepresentation made by accused no. 1 due to which the prosecutrix left her parental house. Her evidence shows that she was not at all pressurized by accused no. 1 to leave her parents house. It is clear from her evidence that the prosecutrix left her parental house voluntarily of her own will and of her own accord. She had left her house under a false pretext. She gave a false reason to her mother that she was going to the house of her neighbor and thereafter, she waited on a street at a little distance from her house for accused no. 1 to come and take her. On this point, we would like to refer the case of Shyam Vs State of Maharashtra reported in 1995 Cr.L.J. 3974, wherein it is observed as under: "Prosecutrix not putting up struggle or raising alarm while being taken away by accused and appearing to be willing party to go with accused on her own, accused cannot be convicted for abduction." We may also refer to the decision in the case of Balasaheb Vs State of Maharashtra reported in 1994 Cr.L.J. 3044, wherein it is observed as under: "Prosecutrix going with accused on her own, 9 10.cr. appln. 3504­10 staying with him for two days in his house with his relatives and neither trying to escape nor making any grievance to his relatives, such conduct shows her consent." 12. Thus, from the evidence of the prosecutrix and from the evidence of PW 4, it appears that she was not at all forced by accused no. 1 nor was any misrepresentation made by him, which caused the prosecutrix to leave her house. Neither she was put under pressure by accused no. 1 nor was she threatened by accused no. 1 to leave her house and accompany him. 13. The evidence of the prosecutrix shows that she stayed with accused no.1 for a period of more than 6-7 months. During this time, she stated that accused no.1 had sexual contact with her. If the events were not according to the wishes of the prosecutrix, then during this period, there were numerous opportunities available to her to run away. The fact that she did not do so, speaks for itself. Neither has she shouted for help at any point of time nor has she made any effort to seek help from anyone. The conduct of the prosecutrix thus, shows that she readily and willingly went with accused no. 1 of her own wish and accord and thereafter sexual intercourse which took place between her and accused no. 1 was with her consent. 10 10.cr. appln. 3504­10 14. Another important aspect necessary to mention here is that there is delay in lodging the FIR. The prosecutrix was missing from 01.09.2006. The FIR was lodged on 27.10.2006 and the offence under Section 376 was added only in May 2007. The prosecution has not furnished any reasonable explanation for this delay in lodging the FIR and for adding Section 376 at such a belated stage. 15. As far as accused nos. 2 to 5 are concerned, there is absolutely no evidence against them to show that they made any false representation to the prosecutrix or they had made any misrepresentation to her to marry accused no. 1 and under that pretext, accused no.1 had illicit relations with her. There is absolutely no evidence to show that any of the accused nos. 2 to 5 have any specific role and thereby assisted accused no. 1 in commission of the crime. 16. Looking to the evidence on record, we find that the view taken by the learned Sessions Judge is a reasonable and possible view. In such case, we are not inclined to interfere in the judgment and order of acquittal. In view of the above, leave to file appeal, is refused. Application is rejected. [SMT. V.K. TAHILRAMANI, J.] [SMT. RANJANA DESAI, J.] 11 10.cr. appln. 3504­10 12