1 crapl338.99 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 338 OF 1999 Bhima s/o Goroba Sontakke, Age: 26 years, Occ: Agriculture, R/o. Dapegaon, Tq. Ausa, District Latur. .. APPELLANT Versus The State of Maharashtra. .. RESPONDENT ..... Mr. A.R. Borulkar, Advocate for the Appellant. Mr. V.D. Rakh, A.P.P. for Respondent/State. ...... CORAM : S. S. SHINDE, J. DATE : 25/28TH FEBRUARY,2011. ORAL JUDGMENT : This appeal is filed by the accused- appellant herein, challenging the judgment and order dated 30-08-1999 passed by the learned Extra Joint Sessions Judge, Latur in Sessions Case No. 132 of 1998. 2 crapl338.99 2. One Mr. Sudhakar Kishanrao Lohgaonkar, resident of Dapegaon, Taluka Ausa, District Latur lodged the complaint on 24-11-1997 with Killari Police Station stating therein that he is presently residing at village Dapegaon for his service purpose. His elder daughter Saraswati is studying in 10th Standard in Vidya Niketan Middle School at Jawalga (Pomadevi). It was further stated in the complaint that, one Bhima Goroba Sontakke and his parents, one Ramabai Tukaram Kamble, all residents of Dapegaon have kidnapped his daughter Saraswati with intent to perform her marriage with Bhima. His daughter was induced and enticed under the pretext of marriage while taking her out of his legal guardianship. The complainant tried to search for his daughter but he could not trace out her. On 23-11-1997 he came to know that his daughter Saraswati and Bhima have returned to 3 crapl338.99 village. The complainant avoided to lodge the complaint since the date of occurrence 14-10-1997, to avoid defamation in the society. He sought legal action against all the above named persons. 3. On the basis of the complaint lodged by the complainant, offence as Crime No.117/97 under Section 363, 366, 376 read with Section 34 of the Indian Penal Code came to be registered with Police Station, Killari and the investigation was set in motion. During the course of investigation, the Investigating Officer visited the spot, prepared spot panchnama and apprehended Bhima and Saraswati at the house of Bhima. Both were referred to medical examination. Statement of material witnesses were recorded. Clothes on the person of Bhima and Saraswati were attached. The Investigating Officer arrested remaining accused. After completion of the investigation, he filed charge sheet against accused Nos.1 to 4 in the Court of the Judicial Magistrate, First Class, 4 crapl338.99 Ausa. Since the offence was exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Ausa committed the case to the Sessions Court. The trial Court framed charge against the accused. Particulars of the charge were read over and explained to the accused. All the accused pleaded not guilty and claimed to be tried. The defence of the accused is that, parents of Saraswati were intending to perform her marriage with accused No.1 Bhima. But due to legal proceedings initiated by Bhima's first wife Sangita, Bhima's marriage could not be performed with Saraswati. Therefore, false complaint is lodged against the accused, to harass them. 4. The prosecution has examined in all ten witnesses. P.W. 1 Dr. Tadwalkar, whose evidence is at Exhibit-13, has examined Bhima and Saraswati on 25-11-1997 and issued medical certificates at Exhibits-16 and 17. P.W. 2 Sudhakar KIshanrao 5 crapl338.99 Lohgaonkar is the complainant and father of the prosecutrix, whose evidence is at Exhibit-18. P.W. 3 is the prosecutrix, whose evidence is at Exhibit-20. P.W. 4 Haridas Khanda Waghe is the panch witness, turned hostile. P.W.5 Mujim Gafur Shaikh is another panch witness on seizure of clothes of Saraswati. P.W. 6 Rekhabai Mahadeo Sontakke is the neighbour of the accused. P.W. 7 Gayabai Sudhakar Lohgaonkar is the mother of prosecutrix. P.W. 8 Bhagwat Sopan Sagar is the panch witness. P.W. 9 Vinayak Sopanrao Gude, Gramsevak of village Dapeaon is the witness to prove birth date entry in the Grampanchayat record in respect of prosecutrix Saraswati. P.W. 10 A.P.I. Ingewad is the Investigating Officer, who investigated the matter. The trial Court, after recording the evidence and after examining the witnesses and after appreciating rival submissions, convicted the appellant-accused for the offence punishable 6 crapl338.99 under Section 366 of the Indian Penal Code and sentenced to suffer R.I. for four years and to pay fine of Rs.2000/-, in default of payment of fine, to suffer R.I. for six months. He is further convicted for the offence punishable under Section 363 of the Indian Penal Code and sentenced to suffer R.I. for three years and to pay a fine of Rs.2000/-, in default of payment of fine to suffer R.I. for six months. He is also convicted for the offence punishable under Section 376 of the Indian Penal Code and sentenced to suffer R.I. for five years and to pay fine of Rs.3000/-, in default of payment of fine, to suffer R.I. for six months. However, accused No. 2 Goroba Vithoba Sontakke, accused No.3 Sarubai Goroba Sontakke, and accused No. 4 Ramabai Tukaram Kawale are acquitted of the offence punishable under Section 363, 366, 376 read with Section 34 of the Indian Penal Code. Hence, this appeal is filed by the appellant- accused in the year 1999. During pendency of this appeal, the appellant is enlarged on bail. Today, 7 crapl338.99 the matter is finally heard. 5. Learned Counsel for the appellant submitted that the evidence of the prosecutrix is not trustworthy and unless the evidence is trustworthy, no conviction can be passed or sustained only on the basis of the evidence of prosecutrix. In order to support his contention, learned Counsel for the appellant-accused invited my attention to the evidence of prosecutrix and submitted that, from reading the evidence of the prosecutrix in its entirety, it does not inspire the confidence. Even after knowing that the appellant is married, she willingly accompanied the appellant to various places. Even it has come in her deposition that she has stayed with the appellant-accused for couple of days. It is further submitted that if the prosecution case is that, the appellant and prosecutrix stayed at Bhivandi for couple of days, no any independent witness has been examined or there is no any other 8 crapl338.99 evidence brought on record by the prosecution to support the case of the prosecution that the appellant alongwith prosecutrix went to Bhivandi and they stayed there and further, the appellant- accused committed intercourse with the prosecutrix. Learned Counsel further submitted that the prosecutrix was not sent for ossification test. Said test was not conducted and in absence of the said test, it cannot be said that the prosecutrix was below the age of 16 years. Learned Counsel invited my attention to the evidence of Medical Officer, in which, he has stated that radiological test is required to be taken to ascertain the age of the patient. Radiological test is the correct method in that regard. Learned Counsel for the appellant further submits that, from the evidence of Medical Officer it is clear that there are no signs of any injuries on the private part of the prosecutrix or there is 9 crapl338.99 nothing brought on record through medical examination of the prosecutrix, which would support the prosecution story so far allegation of intercourse with the prosecutrix by the appellant is concerned. Therefore, learned Counsel would submit that when the medical evidence does not support the prosecution case, relying on the statement of the prosecutrix, that too, when it does not inspires the confidence, it is not possible to sustain conviction of the appellant- accused for the offence punishable under Section 376 of the Indian Penal Code. 6. Learned Counsel for the appellant further submitted that if according to the prosecution, the alleged incident had taken place on 14-10-1997, then reasons are not forthcoming why the complaint was lodged on 24-11-1997. If the complainant or prosecutrix were aggrieved by the act of accused, in that case, immediately the complaint should have been lodged. Learned 10 crapl338.99 Counsel would submit that it is not the case of the prosecutrix that she was forcibly taken away from her house or from the custody of her parents or there is nothing on record to show that the prosecutrix was taken away from her home at all. Therefore, learned Counsel would submit that in the instance case, offence under Section 366 of the Indian Penal Code is not made out against the appellant. Admission of the prosecutrix in her examination in chief itself shows that she was made aware of the marriage of the appellant by Ramabai and after that also, according to the prosecution, the prosecutrix accompanied the appellant-accused to go to Bhivandi. It has also come record that said Ramabai paid Rs.300/- to them and then they went to Bhivandi. If the prosecution asserts that the prosecutrix accompanied the appellant, without admitting but assuming that she accompanied to the appellant and appellant had taken her to Bhivandi, even in that case, no offence under Section 366 of the Indian 11 crapl338.99 Penal Code is made out, since the prosecutrix even as per prosecution story, has accompanied the appellant-accused on her own. Learned Counsel, at the cost of repetition, submitted that the evidence of the prosecutrix is not trustworthy at all and therefore, conviction cannot be based on such evidence which is full of infirmities, contradictions, omissions and improvements. 7. Learned Counsel for the appellant further submitted that other evidence brought on record by the prosecution in the nature of C.A. report cannot be relied, in view of the statement of prosecutrix before the Court that after alleged intercourse, she washed her clothes, therefore, if the clothes were washed, there was no question of having any blood stains or semen stains on the said clothes, which would give any result as stated in the Chemical Analyser's report. Learned Counsel submitted that though there is evidence of the complainant and mother of the prosecutrix, 12 crapl338.99 they are the interested witnesses and they are bound to support the evidence of the prosecution. Learned Counsel further submitted that since the prosecutrix was not referred to ossification test, and medical officer has stated in his evidence that she was not sent for radiological test, in that case, the benefit of doubt should be given to the appellant-accused. Learned Counsel for the appellant further submitted that, without admitting but assuming that the age of prosecutrix was nearing 16 years, in that case also the accused could not have been convicted. In support of his contention, he placed reliance on Para-7 of the reported judgment of the Hon'ble Supreme Court in the case of S. Varadarajan vs. State of Madras, reported in AIR 1965 SC 942. Relying on Para-7 of the said judgment, learned Counsel for the appellant would submit 13 crapl338.99 that, even in the instant case, if the prosecution case is taken as it is, the prosecutrix at the relevant time was on the verge of attaining majority, on her own, she came to the house of Ramabai, who is immediate neighbour of the appellant, that itself shows that she was not taken by force or by any inducement and therefore, ingredients under Section 366 of the Indian Penal Code are not fulfilled. Even in the present case, the deposition of prosecutrix makes it clear that she was not taken by force or by any inducement by the appellant-accused either from the custody of the appellant or from any other place. Therefore, Counsel wold submit that the appeal deserves to be allowed. Learned Counsel for the appellant further submitted that this Court in the case of Peter Fernandes vs. The State reported in 1997(1) B.Cr.C.636, held though corroboration in a rape case is not a sin qua non for conviction in rape 14 crapl338.99 case. But, where the version of prosecutrix is discredited in cross examination and medical evidence does not help the prosecution case to connect the accused with the offence, her solitary version cannot be relied upon, conviction and sentence in such cases, cannot be sustained. Learned Counsel further invited my attention to Paras-10 and 11 of the said judgment and relying on the said judgment, learned Counsel would submit that, the facts of this case are similar to the aforesaid two judgments cited supra. The benefit of doubt should go to the appellant. His conviction cannot be sustained. Learned Counsel for the appellant taken me through the grounds taken in appeal memo and also other evidence brought on record by the prosecution to show that the evidence brought on record by the prosecution does not inspire confidence and therefore, he prayed that the appeal be allowed. He would submit that the 15 crapl338.99 lenient view may be taken and benefit of doubt be given to the appellant. 8. On the other hand, learned A.P.P. invited my attention to the evidence of prosecution witnesses and submitted that the evidence of prosecutrix in the present case itself is sufficient to sustain conviction of the appellant under Sections 363, 366 and also under Section 376 of the Indian Penal Code. He further submitted that the evidence of prosecutrix is supported by evidence of complainant P.W.2 and also her mother and other evidence brought on record by the prosecution. Even Medical Officer has stated in his evidence that hymen of the prosecutrix was ruptured. He further submitted that on clinical examination, the Medical Officer found that age of the prosecutrix is in between 15 to 16 years. He further invited my attention to the C.A. report and submitted that even C.A. report corroborates the version of the prosecutrix. He further 16 crapl338.99 invited my attention to the evidence of the Investigating Officer, in which he has in details, stated about the evidence collected by him, steps taken by him and the fact that the clothes of the prosecutrix and also the appellant were sent to C.A. for the examination. He further invited my attention to the findings recorded by the trial Court and in particular, Para-20 of the impugned judgment and thereafter following Paragraphs in the impugned judgment. He further invited my attention to Para-24 where the trial Court has observed about the overtact of accused No.1 Bhima. He further invited my attention to the rest of the judgment of the trial Court and relying on the findings recorded by the trial Court and evidence brought on record, by the prosecution, he would submit that the appeal is devoid of any merits and therefore, same may be dismissed. 9. I have given due consideration to the submission of the learned Counsel for the 17 crapl338.99 appellant and learned A.P.P. for the State. I have also perused the impugned judgment and order passed by the trial Court and also original Record and Proceedings made available for the perusal. 10. At this juncture, it would be appropriate to refer to the evidence of P.W.3 Saraswati which is at Exhibit-20. She has stated in her examination in chief that on 14-10-1997 the incident occurred. She further stated that at the relevant time, she was school going girl in Vidya Vardhani High School at Jawalga (Umadevi) and studying in 10th Standard. Said school was 4 kms. away from her village. She further stated that her father was at Belkund for his service. Her mother, two sisters and brother were residing at Dapegaon. She has identified the accused before the Court. She has further stated that Bhima was working in the flour mill run by Chandrakant Nimbalkar. She was knowing him because of his job. She used to go to that mill for grinding 18 crapl338.99 grains. They had love affairs. On one occasion, Bhima visited her house. The prosecutrix was not knowing that accused Bhima was already married. She came to know about it later on. She has further stated that the name of wife of accused is Sangita and he had no issue from Sangita. She has further stated that from the day on which, she came to know about the same, she stopped talking with the appellant and further avoided to go to the flour mill. She has admitted in her evidence that Ramabai is their neighbour. One day, Ramabai called her. She told her to marry with Bhima because his wife could not conceive a child. However, she refused to do so. After 7 to 8 days thereafter, Ramabai again called her to her house. She offered a cup of tea. Ramabai paid Rs.300/- to her and told her that she should marry with Bhima and asked her to go with Bhima. When Bhima and this witness were inside the house, Ramabai closed the door and latched it from outside. Bhima had tighten her both hands. He had forcible 19 crapl338.99 sexual intercourse with her. Accused Nos.2 and 3 Goroba and Sarubai were knowing their love affairs. Accused Sarubai had talk with her and she told that she should marry with Bhima. 2 to 4 days thereafter her parents came to know about the incident. Therefore, her father had warned accused Bhima. Her father had beaten her. Bhima, alongwith his father, mother, brother and sister was living jointly. 11. The prosecutrix has further stated that again on one day, accused Ramabai called her at her house. She told prosecutrix and Bhima to go to Bhivandi at her brother's house Gopinath. She gave address of her brother to the prosecutrix and thereafter, prosecutrix and Bhima went to Bhivandi. They left village Dapegaon on 14th. She further stated that they resided at the house of Gopinath for 4 to 5 days. Then they hired a room on rent in his neighbourhood. For about 12 to 13 days they stayed there. During that span, 20 crapl338.99 Bhima behaved with her as husband. During that span, the prosecutrix and Bhima behaed with each other as husband and wife. They had sexual intercourse. The prosecutrix has stated that, he had sexual intercourse with her forcibly. She further stated that Bhima had taken her alongwith him by saying that he will marry with the prosecutrix. Whenever, she used to ask about marriage, accused No.1 Bhima used to reply that why there should be hurry for marriage. She further stated that after 13 to 14 days, one Vithal Surwase from Chincholi came and informed that Sangita - wife of accused, had lodged complaint against accused Bhima and his parents. The prosecutrix, Bhima and Vithal came to Chincholi. They resided at Chincholi for about 8 days. Village Chincholi is in Ausa Tahsil, District Latur. She further stated that thereafter, she resided at Dapegaon at the house of accused Bhima for about 8 days. During that period, accused Goroba and Sarubai were saying the 21 crapl338.99 prosecutrix that she should go to her father as he had not given money to them. Therefore, the entire evidence of the prosecutrix P.W. 3 Saraswati before the Court, is as stated above. 12. The important aspect in this matter is about the age of the prosecutrix at the relevant period and time. P.W. 3 prosecutrix in her examination in chief before the Court has stated that, her date of birth is 29-01-1982. Her birth took place at Dapegaon. There is entry of her birth date in Grampanchayat at Dapegaon. During the course of recording her evidence in examination in chief, P.W. 3 did produce birth extract issued by the Grampanchayat. 13. P.W. 2 Sudhakar is the father of prosecutrix P.W. 3 Saraswati. In his evidence, he has stated that, at the relevant time, he was working as a Peon in Animal Husbandry Department, Zilla Parishad, Latur. P.W.3 Saraswati was taking 22 crapl338.99 education in 10th Standard at village Jawalga (Umadevi). So far date of birth of the P.W.3 Saraswati is concerned, he has stated thus: "The date of birth of Saraswatibai is 29-01-1982. I have noted the birth date of my all children. Her date of birth is recorded in the Gram Panchayat office, Birth & Death Register, Dapegaon." During his cross examination before the Court, he has specifically denied the suggestion that the date of birth of P.W. 3 Saraswati is not as stated by P.W.3 Saraswati in her evidence. So far date of birth is concerned, the evidence of P.W.9 Vinayak Sopanrao Gude assumes importance. His evidence is at Exhibit-33. He has stated that, since May 1996 he is attached to Grampanchayat Dapegaon as Gramsevak. He specifically stated that, the said Grampanchayat 23 crapl338.99 has maintained the register about birth and death entries. He has brought register for the year 1982. Gramsevak is required to maintain this register. The entries in the register are effected on the basis of information given by concerned persons or on the basis of information given by servant of Grampanchayat. He further stated that, separate register is maintained for each calender year. He specifically stated that, the register of the year 1982 is verified by competent officer, as it used to be the practice that the register maintained by the Grampanchayat is verified by the Extension Officer, Health Department, Panchayat Samiti. He specifically deposed that, as per the entries in the register, it reveals that a female child was born at the house of Sudhakar Kishan Lohgave on 29-01-2982. The entry shows that it was first child to Sudhakar. The said entry is taken by the then Gramsevak. 24 crapl338.99 14. Therefore, there is evidence of P.W.3 Saraswati, P.W. 2 Sudhakar, father of P.W.3 and entry in the Grampanchayat register about birth of P.W.3. Same has been proved by the prosecution by examining P.W. 9 Mr. Vinayak Gude. There is specific evidence about the date of birth of P.W. 3 and therefore, in my opinion, the trial Court after appreciation of the evidence brought on record by the prosecution in respect of the date of birth of P.W. 3, has rightly concluded in Para-20 of the impugned judgment that date of birth is 29-01-1982. The trial Court has taken into account Exhibits-34,25 and 36 and confirmed beyond reasonable doubt that the date of birth of P.W. 3 is 29-01-1982. It is pertinent to note that, Exhibit-36 is the certificate issued by Grampanchayat on 23-07-1999 which was placed on record by the defence Counsel. During cross examination of P.W.9 Gramsevak, certificate at Exhibit-36 i.e. copy of 25 crapl338.99 the birth certificate of P.W. 3 shows her date of birth as 29-01-1982. There is also opinion of the Medical Officer who has stated that on clinical examination, he found that the age of P.W. 3 is between 15 to 16 years. Therefore, merely because the Medical Officer has stated in his evidence that radiological test is required to be taken to ascertain the age of patient would not nullify the aforesaid evidence brought on record by the prosecution, which has established beyond reasonable doubt the fact that date of birth of P.W. 3 is 29-01-1982. Therefore, in my opinion, the first contention of the Counsel of the appellant that unless radiological test is carried out, no age can be ascertained, is devoid of any merits and same stands rejected. There is evidence of P.W. 3 Saraswati, P.W.2 Sudhakar, P.W. 9 Vinayak, which is supported by the evidence of Medical Officer that on the basis of clinical examination, he found the age of 26 crapl338.99 P.W.3 Saraswati is between 15 to 16 years. Therefore, on the basis of this concrete evidence of date of birth of P.W.3 Saraswati, there is no manner of doubt that, on the date of incident P.W.3 was minor. 15. The appellant-accused is convicted for the offence punishable under Sections 363, 366 and 376 read with Section 34 of the Indian Penal Code. However, since other accused are acquitted, case of the appellant is considered by the trial Court on the basis of evidence brought on record. The contention of the Counsel for the appellant- accused that there was no question of forcibly taking away P.W.3 Saraswati from the lawful custody of her parents or there was no any inducement as such. Therefore, the Counsel would submit that, if the entire evidence of P.W.3 and P.W.2 is considered, it unequivocally indicates