1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5514 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra .. Applicant Vs Ishan Sanjay Hiwale .. Respondent Mrs. P.H. Kantharia, APP for the State CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ DATE : 19th APRIL, 2010 P.C.: 1. The applicant - State of Maharashtra has preferred this application for leave to file appeal against the judgment and order dated 29.06.2009 passed by the Additional Sessions Judge, Pune in Sessions Case No. 481 of 2006. By the said judgment and order, the respondent i.e original accused came to be acquitted of the offences under section 363, 366-A, 376, 504 and 506 of the I.P.C. 2. The prosecution case briefly stated is that the prosecutrix is a minor girl residing at Hadpsar along with her maternal uncle and his family. She developed intimacy with the accused and the accused agreed to marry her. In April 2006, when the prosecutrix went to the shop of the appln5514-09 2 accused, he took her inside and committed forceful intercourse with her. The prosecutrix did not report the incident to any of her relatives. On 23.04.2006, she went to her parent's house at Ambegaon, therealso she did not reveal anything to her parents about the incident. On 03.05.2006 at about 12.00 pm, when the prosecutrix along with her mother were in their house, the accused came there and had forcibly taken the prosecutrix from the lawful custody of her mother. It is further the case of the prosecutrix that the accused took her to Nasik by enticing her. From there, he took her to Pune on 05.05.2006. There the police took custody of the prosecutrix and the accused came to be arrested. Mother of the prosecutrix i.e Indubai lodged F.I.R. on 03.05.2006 wherein she has stated the allegations referred above relating to date 03.05.2006. After completion of the investigation, charge came to be filed. 3. 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. 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. 4. The specific case of the prosecution is that the appln5514-09 3 prosecutrix was a minor at the time of incident. According to the prosecution, the date of birth of the prosecutrix is 07.11.1990 and the incident had occurred in the month of April,2006. However, it is seen that the prosecution did not adduce any reliable and admissible evidence to prove the date of birth of the prosecutrix. It is noticed that at the fag end of the trial, the prosecution produced a birth certificate issued by Pune Municipal Corporation wherein the date of birth is mentioned as 07.11.1990. Though the birth certificate appears to have been issued by the Pune Municipal Corporation on 17.11.2008, however, the Investigating Officer who was examined on 10.12.2008 did not utter a word in respect of said document. The prosecution has not adduced any evidence to prove the said birth certificate. 5. In the case of Parkash Chander Vs Smt. Paramshewari, AIR 1987 Punjab and Haryana 37, it is held that entry regarding date of birth in the Register of Births is a prima facie piece of evidence. However, such entry does not carry any presumption as regards its correctness in absence of the evidence regarding the person intimating about the birth to the concerned authority. In the case of Harpal Singh Vs State of Himachal Pradesh, AIR 1981 SC 361, the Hon'ble Apex Court observed that it is not in dispute that an entry in a birth register appln5514-09 4 is conclusive proof in respect of date of birth of the person concerned. However, it is obligatory on the part of the prosecution to prove on record that the entry in the birth register is that of the person concerned. In the case of Alekh Prasad Behera Vs State, 1964(2) Cri.L.J. 102, it is observed by the Orissa High Court as under : "A birth register is the conclusive proof of age, but entry does not prove itself and is no proof of age of any particular person unless the persons connected with the entry either by making the entry or giving information come forward and speak regarding the entry and connect it with the individual concerned" 6. In State of M.P. V/s. Kamruddin, AIR 1956, Nagpur 74, it has been held that mere entry in the Birth and Death Register to the effect that child born to the person without any evidence as to the identity of the child is not sufficient to prove birth of particular person. The identity of that person has to be fully established by leading evidence. In the present case, it is seen that no evidence has been led by the prosecution in respect of the birth certificate. It is not established by bringing any evidence on record as to how this certificate was obtained, who has obtained the same and how the entires therein came to be recorded. In such circumstances, taking into account the ratio laid down in the judgments referred to above, the Trial appln5514-09 5 Court was right in observing that the prosecution failed to prove the document i.e birth certificate. 7. It is further pertinent to note that though the prosecutrix has deposed that her date of birth is 07.09.1990, however, the said fact does not find mention in her statement [Exh. 12] referred by the police authorities. Thus, the same is clearly an improvement and cannot be relied upon. 8. In order to prove that the prosecutrix was minor at the time of incident, the prosecution has relied upon the evidence of Dr. Wable (PW3) to show that upon examination, the age of the prosecutrix as on 08.05.2006 was between 14 to 16 years. The said certificate in respect of age of the prosecutrix is at Exh. 10. However, the prosecutrix deposed that she was only examined by a lady doctor and not by a male doctor. Thus, her testimony shows that she was not examined by PW3 Dr. Wable. This renders the testimony of Dr. Wable suspicious and unreliable. 9. It is also to be noted that the prosecutrix has stated that she was admitted in the school at the age of seven years. She left the school when she was in 9th standard and the incident occurred two years after her leaving the school. By simple arithmetical calculation the age of the prosecutrix appln5514-09 6 at the time of the incident, cannot be said to be less than 18 years. The prosecutrix further deposed that Piyush @ Preetam, her brother, who is a year elder than her, was aged about 21 years as on the date of the substantive evidence of the prosecutrix i.e on 23.08.2007. The alleged incident pertains to April-May 2006, when Piyush @ Preetam must have been aged about 20 years and as according to the prosecutrix, she is a year younger to him, she must have been 19 years old at the time of the incident. Thus, it is established from the testimony of the prosecutrix that she was above 18 years when the incident occurred. 10. The prosecutrix has stated that she herself telephoned the accused at Pune and called him at Swargate. The prosecutrix also went to Swargate and thereafter proceeded to Nasik with the accused. The prosecutrix has deposed that she did not raise any alarm nor resisted or opposed the accused when they were proceeding from Swargate to Shivajinagar ST stand and from there to Nasik. She further admitted that during the course of journey, she did not complain in respect of kidnapping to any person. The prosecutrix candidly admitted that she of her own accord went with the accused. Thus, her evidence and the evidence relating to her age do not substantiate the charge of kidnapping. appln5514-09 7 11. As far as charge of kidnapping is concerned, the prosecution has also examined PW2 Indubai who is the mother of the prosecutrix. However, Indubai has not supported the prosecution. She denied that on 03.05.2006, the accused kidnapped the prosecutrix. She has stated that the accused had never been to Ambegaon. She has further stated that it is for the first time in the court, that she saw the accused. Thus, the evidence of prosecutrix as well as Indubai does not make out the case of kidnapping. 12. As far as, the offence of rape is concerned, the prosecutrix was examined by PW1 Dr. Mrs. Phadake on 05.05.2006. The history given to Dr. Phadake by the prosecutrix is that she had sexual intercourse with the accused with her consent. It has come in the testimony of the prosecutrix that she was in love with the accused. She stated that 15 days prior to 03.05.2006, she had been to the shop of the accused to meet him. At that time, the accused took her to the inner room and had sexual intercourse with her. On perusal of the testimony of the prosecutrix, it can be seen that she was a consenting party to the sexual intercourse. The prosecutrix deposed that the accused had sexual intercourse with her at this shop. She admitted that the said shop is a grocery shop in a crowded locality and it is open from 6.00 a.m. to 11.00 p.m. She further admitted appln5514-09 8 that customers are frequently visiting the shop. It has come in her testimony that the shop was open in the afternoon when the alleged incident of rape occurred. The testimony of the prosecutrix is highly inconsistent and contradictory. In one breath, she stated that she had never been to the shop of the accused and in another, she stated that she used to visit the shop frequently. She stated that the accused used to visit her house and immediately she rescinded from her statement. Her testimony is full of improvements and contradictions. This makes her testimony unreliable. 13 As stated above, the story of the prosecution as regards kidnapping is negated by the prosecutrix herself so also by her mother. The prosecutrix had earlier alleged that the accused had forcible sexual intercourse with her 15 days prior to 03.05.2006 and after commission of rape, she willingly accompanied the accused to Nasik. This conduct of the prosecutrix is also highly unnatural. It has already been discussed herein above that the prosecutrix of her own accord left the house of her mother by calling the accused on telephone. She was carrying her clothes, sandal etc in a bag while fleeing with the accused as deposed by her. It is further noticed that till the time of fleeing away with the accused, the prosecutrix did not complain to anybody including her parents in respect of the alleged rape. It is appln5514-09 9 thus, apparent that there was consent on the part of the prosecutrix. 14. The evidence on record shows that the prosecution failed to prove that the prosecutrix was a minor at the time of incident. On the other hand, the evidence shows that the prosecutrix of her own free will left her house and accompanied the accused to Nasik and then Pune. The evidence further shows that sexual intercourse took place with the consent of the prosecutrix. Looking to all these facts, we do not find any error in the conclusion arrived at by the learned Sessions Judge. Hence, 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. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] appln5514-09 10 appln5514-09