1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4810 OF 2009 (FOR LEAVE TO FILE APPEAL) IN CRIMINAL APPEAL NO. OF 2009 (Against the order of acquittal) The State of Maharashtra ..Applicant (Bhudargad Police Station) [Ori.Complainant] Vs. Dilip Namdeo Savardekar and Ors. ..Respondents .... Mr. V.B.Konde-Deshmukh APP for the Applicant-State Mr. Shekhar A.Ingavale Adv. for Respondents .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : JUNE 30, 2010 P.C. [PER SMT.V.K.TAHILRAMANI,J.]: 1 The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 27.2.2009 passed by the learned Assistant Sessions Judge, Kolhapur in Sessions Sessions Case No 43 of 2008. 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, 376, 366, 366A, 506 of IPC read with 2 Sections 3 and 10 of the Child Marriage Act. 2 The prosecution case briefly stated is that the prosecutrix and the respondent no.1 are residents of Ambawane, Taluka Bhudargad, Dist. Kolhapur. Respondent no.1 was residing near her house. Respondent nos.2 and 3 are parents of respondent no.1 and respondent nos. 4 and 5 are the maternal uncle and aunt of respondent no.1. At the relevant time, the prosecutrix was studying in 10th standard in a High school at Khanapur. Whenever the prosecutrix used to go to school, respondent no.1 used to follow her and try to talk to her. On 26.6.2001 as usual at about 10 a.m. while she was going to school, respondent no. 1 came infront of her school in rickshaw. He asked her to sit in rickshaw and told her that he was going to marry her. Respondent no.1 forcibly and against her will made her sit in a rickshaw and he took the prosecutrix to Gargoti bus stand. From Gargoti, he took her to Ajra and from Ajra to Panjim in S.T. bus. At Panjim respondent no.1 took the prosecutrix to a lodge. After dinner, the respondent no.1 had forcible sexual relations with her against her will and continued to do so till 30.6.2007. On 1.7.2007, he brought the prosecutrix to Kolvan i.e. to his maternal uncle ’s place to perform marriage with her. After 10 to 12 days, he brought her to Ambawane to his house. They resided there for 3 almost three months. Throughout this period, the respondent no.1 had physical relationship with the prosecutrix against her will. Sometime after coming back to Ambawane, the respondent no. 2 i.e. the father and respondent no.3 the mother of respondent no.1, started illtreating the prosecutrix. As she could not bear the illtreatment, on 16.12.2007, she ran away from the house of the accused to the house of her relative Dinkar Shinde who resided at Gangapur. Dinkar Shinde informed this fact to the father of prosecutrix, The father of the prosecutrix came to Gangapur and took the prosecutrix to his house at Ambawane. Thereafter, FIR came to be registered vide CR No.1 of 2008 under Sections 363, 376, 366, 366A, 506 r.w. Section 109 of IPC and under Sections 3 and 10 of the Child Marriage Act. After completion of investigation, the charge sheet came to be filed against the respondents- accused. 3 We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Assistant 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 Judge does not call for 4 any interference. 4 The star witness in the present case is the prosecutrix who is examined as PW 1. She is also the complainant in the present case. As the prosecution story in para no.1 above, has been reproduced from the evidence of PW 1 Mangal, we do not think it necessary to repeat the same here as it would only overburden this judgment. Suffice to say that the prosecutrix has tried to say that on 26.6.2007 at 10 a.m. while she was going to school, she was forcibly taken away by respondent no.1 to various places and respondent no.1 got married to the prosecutrix against her wishes and he had sexual intercourse with her against her will. 5 In order to prove that the prosecutrix was below 16 years of age at the time of incident, the prosecution has not produced birth certificate of the prosecutrix. However, in order to prove that she was a minor at the time of incident, the prosecution has led evidence of PW 9 who is the father of prosecutrix. PW 9 has stated that at the time of incident, his daughter was studying in 10th standard and her date of birth is 5.7.1991. In this connection, it would also be pertinent to note the evidence of PW 1 Mangal wherein she has stated that had she taken 5 admission at the appropriate time, she would have been in 12th standard at the relevant time instead of 10th standard. This would show that the prosecutrix was almost 18 years of age at the time of incident. It is further noticed that the elder sister of prosecutrix is one year older to her and that this sister is married and has two children. The elder daughter of this sister is five years old, who was born after two years of marriage and the marriage of elder sister of the prosecutrix took place more than six years ago when she had crossed age of 20. Looking to the evidence of the prosecutrix, the prosecutrix cannot be said to be a minor at the time of the incident. 6 As far as the aspect of prosecutrix being a minor at the time of the incident is concerned, PW 10 Dr. Deshmane had an occasion to physically examine the prosecutrix. He referred her for x-ray examination. Dr.Deshmane has stated that as per Radiologist ’s opinion, the girl was between 17 to 18 years of age. It is common knowledge that as far as radiological examination is concerned, there is a margin of error on both sides of two years. This has also been admitted by Dr. Deshmane during his cross-examination. Thus from the evidence on record, it can safely be inferred that prosecutrix was certainly not below 16 years of age at the relevant time. 6 7 As far as Sections 3 and 10 of the Child Marriage Act is concerned, the prosecution has failed to prove that the prosecutrix was a minor at the time of the incident, hence, these Sections would not be attracted. Moreover, as far as performance of marriage by respondent no.1 with the prosecutrix with the help of respondent nos. 4 and 5 as alleged by her, is concerned except her bare statement, there is no iota of evidence on record to show that any such marriage was performed. The Priest who performed marriage ceremony, has not been examined nor has any other evidence been brought on record to establish that marriage took place between the prosecutrix and respondent no.1. 8 According to the prosecutrix, the respondent no.1 came infront of her school gate and took her away forcibly in a rickshaw. At the time of the incident, it was morning time i.e. the school opening time and at that time at the gate there would be a number of students as well as parents of some students. Moreover, the school is situated on the highway. In such case, it appears improbable that any person could forcibly take away a young girl in an auto-rickshaw from the gate of the school in broad-day light. The case of the prosecutrix is that from the school gate, the respondent no.1 took away her to Gargoti bus stand. 7 Obviously, the S.T. stand is also a crowded place, in such case, if she was forcibly taken away, it would have been noticed by other passengers and S.T. employees who are bound to be present at the bus stand. From Gargoti, the respondent no.1 and the prosecutrix travelled to Ajra and from Ajra to Panjim. This entire journey was undertaken in a S.T. bus. At Goa from S.T. stand, they walked down to the lodge where they stayed in one room for a period of 3 to 4 days. There is no evidence that at any point of time, she tried to escape, or sought help from anyone or raised a hue and cry. It is inherently improbable that a young girl of about 16 years is taken away from place to place by S.T. bus and then to a lodge and submitted to forcible sexual intercourse without the girl raising a hue and cry or making any attempt to escape from the clutches of the accused. 9 It is the case of the prosecution that from Goa, respondent no.1 took the prosecutrix to house of his relative at Kolvan. This journey was also not undertaken in a private vehicle. During this journey also, the prosecutrix did not make any attempt to escape or seek help. After residing at Kolvan for some weeks, from Kolvan, the prosecutrix was brought back to village Ambawane i.e. the village where accused no.1 resided with his family. It is pertinent to note that Ambawane is the very 8 same village in which the prosecutrix resided with her parents and other family members. It has come in her evidence that her house was very close to the house of the accused. In fact the house of respondent no. 1 and the house of the prosecutrix is situated only at a distance of 20 feet from each other. She stayed at the house of the accused for a number of months during which time, she used to go to the field for work. We find the evidence of prosecutrix to be inherently unbelievable and improbable. It is absolutely unbelievable that she continued to stay in the house of respondent no.1 which is situated at a distance of just 20 feet from the house of her father, on account of any threat or any force. During the period of three months, the prosecutrix has admitted that she used to go to work daily in the agricultural field. Looking to the fact that the house of respondent no.1 and house of the parents of the prosecutrix were situated only at a distance of 20 feet from each other, in such case, it was very easy for the prosecutrix to run across to the house of her parents' house and escape if she had any wish to do so. The very fact that she did not do so, shows that she willingly and voluntarily opted to go with the accused no.1 from place to place and later to stay at the house of the accused. 10 The further case of the prosecutrix is that as respondent nos. 9 2 and 3 illtreated her, she ran away from the house of respondent nos.1 to 3 at village Ambawane to the house of her relative in another village i.e. Gangapur on 16.12.2007. On reaching the house of her relative Dinkar Shinde, she informed about the incident to her relative. This relative informed her father who brought her back to village Ambawane. If the prosecutrix was in a position to run away from the house of respondent nos.1 to 3 to the house of her relative in another village, she could easily have gone to the house of her parents which was situated only at a distance of 20 feet from the house of respondent nos.1 to 3. Instead of going to the house of her relative, it would have been natural that she would go to her parents house which was almost next door. Thus, the entire story of the prosecutrix appears to be improbable and unbelievable. 11 We may also make a reference to another aspect of this case that is there is considerable delay in lodging the FIR. The FIR has been lodged after a period of almost six months i.e. on 5.1.2008. This fact also raises serious doubt in our mind about the prosecution case as no reasonable and plausible explanation has been furnished for the delay. Even after the prosecutrix was brought back from Gangapur, the FIR was not promptly lodged but it was lodged a few weeks thereafter. 10 12 Looking to the evidence on record, we are of the opinion that the conclusion arrived at the learned Sessions Judge, that the prosecutrix was not a minor at the time of the incident and all the events have taken place with her consent, hence, the accused are entitled to be acquitted, is a reasonable and possible view. 13 Application for leave to file appeal is rejected. Consequently, appeal is dismissed. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]