Criminal Appeal No.700 of 2008

20th July, 2009

Petitioner Counsel: Mr. J. R. SHAH
Respondent Counsel: Mr. K. S. PATIL

Cases Cited:
Varadarajan Vs. State of Madras, AIR 1965 SC 942 [Para 14]
Sidheswar Ganguly Vs. State of W.B., AIR 1958 SC 143 [Para 14]
1992 Cri.L. J. 4073 [Para 14]

JUDGMENT

JUDGMENT: - This appeal arises out of judgment rendered by learned Adhoc Additional Sessions Judge, Gangakhed, in Sessions Trial No.20/2006 whereby and whereunder the appellant came to be convicted for offences punishable under Sections 363, 366 and 376 of the I.P. Code and is sentenced to suffer rigorous imprisonment for period of five (5) years and seven (7) years, respectively.

2. Background facts leading to the prosecution may be briefly stated in the following way:

Complainant Ashok Chavan and his wife Shobhabai are labourers. They hail from village Seruwadi, Taluka Pusad (District Yeotmal). They were engaged at the material time as labour in Cotton Spinning Mill (Sut Girni) (lqr fxj.kh) situated at Peth-Shivni, Taluka Palam (District Parbhani). The couple has two (2) sons and one daughter. The prosecutrix is their daughter. She was around 15 years of age at the material time. On 12-6-2005, the family members of complainant PW Ashok Chavan were sleeping in their house. The appellant was employed in the same Sut Girni. He used to wink on seeing the prosecutrix. In the wee hours of June 12th June, 2005, Prosecutrix had gone out of the residential house to ease herself. The appellant went behind her and forcibly tied her eyes by means of a piece of cloth. An accomplice of the appellant bolted the door from outside. The appellant gave two (2) tablets and asked the swallow them. He threatened her that if she will not consume the tablets, then he would kill her. Under the threats, she swallowed the tablets and afterwards, became unconscious. The appellant forcibly took her away with him at Guntoor (Andra Pradesh). He took her to house of a friend and thereafter, took her to Chikulpetha. He boarded her in house of his friend for some days and later on, got hired a room. He father lodged F.I.R. on 22nd June, 2005 to the effect that Prosecutrix was taken away and the appellant was also missing from the relevant date. He searched for his daughter at various places. She was not found, however, inspire of search. Her father came to know that the appellant and prosecutrix were residing together at village Chikulpetha. She was found in the company of the appellant at Chikulpetha when her father and police party reached there on 11-4-2006. Thus, for about 10 months or so, she was not allowed to go away from that house by the appellant/accused. She was brought back. She was clinically examined by lady Medical Officer- PW9-A Dr. Shobha. The Medical Officer noticed that prosecutrix was aged about 17 years. The Investigating Officer collected certain material including school leaving certificate and birth certificate of the prosecutrix. The prosecutrix asserted that she was subjected to forcible sexual intercourse by the appellant and during the relevant period of consortium which was against her will and without her consent. The appellant was charge-sheeted for offences punishable under sections 363, 366 and 376 of the I.P. Code.

3. At the trial, in all eleven (11) witnesses were examined in support of the prosecutrix case. The learned Adhoc Additional Sessions Judge came to the conclusion that the prosecution case was duly proved. He therefore, convicted and sentenced the appellant as described hereinbefore.

4. Heard learned advocate Mr. J. R. Shah, who was appointed to represent the appellant, in this appeal coming from jail and learned A.P.P. Mr. K. S. Patil, for the State.

5. The points for determination are:

(i) Whether it is proved beyond reasonable realm of doubt that the prosecutrix was minor at the relevant time and was kidnapped /abducted by the appellant from her guardian, in the wee hours of 12th June, 2005 with intention to forcibly marry her or to derive sexual pleasures from her without her consent and by use of criminal force?

(ii) Where the impugned judgment and order rendered by the learned Adhoc Additional Sessions Judge is legal and proper?

6. Out of the eleven (11) witnesses examined by the prosecution, PW 5 is the prosecutrix and the only eye-witness of the incident. The entire edifice of the prosecution case hinges upon her testimony. The versions of PW 1 Ashok and PW 3 Shobhabai purport to show that the prosecutrix is their daughter and was aged about 15 years at the relevant time. Their versions go to show that they were employed in the common Spinning/Tread Mill - Sut Girni (lqr fxj.kh) at Peth Shivni, Taluka Palam. They had migrated from their native village to earn the livelihood by doing the manual work in the Sut-Girni. Likewise them, the appellant had migrated to village Peth-Shivni and was employed in the Sut-Girni. The version of PW Ashok purports to show that in the early morning of June 12th, 2005, PW 5 was found missing from the house and inspite of searching here and there, he and his relatives could not locate her whereabouts. He lodged F.I.R. (Exh-11) on June 22nd, 2005. He states that he came to know after 5/6 months that the prosecutrix was residing at Guntur. He learnt that the appellant was employed in Krushna Ganga Sut Girni at Chikulpetha (A.P.). He took police help and went to Chikulpetha. The noticed that the prosecutrix and the appellant were residing in a room. The appellant was then arrested and taken to Palam. On inquiry, the prosecutrix narrated to him that marriage between herself and the appellant was performed in a Maroti temple and that both of them had sexual relationship during the relevant period.

7. The defence of the appellant before the Sessions Court was that the prosecutrix was a major girl at the relevant time and was being troubled by her parents. The appellant suggested that the prosecutrix had developed love affairs with him. It was also suggested that due to ill-treatment, the prosecutrix desired to abandon the parental house. She had threatened the appellant that if he will not marry and take her away, then she may commit suicide. Thus, the appellant asserted that at the behest of the prosecutrix and due to her insistence, they had eloped and that there was no element of allurement held out by him. It was also contended that the parents of the prosecutrix later on pressurized her to give false deposition before the police.

8. Nothing of much significance is stated by PW 3 Shobhabai except re-production of the same story as to in what manner, the prosecutrix was found missing since the relevant morning. She also deposed that age of the prosecutrix was 15 years at the relevant time.

9. The version of PW 4 Shankar reveals that he is residing in the neighborhood of the complainant PW Ashok Chavan. His version purports to show that age of the prosecutrix was about 15 years at the relevant time and she was found missing in the wee hours of the relevant morning. He states that the appellant was employed in the same Sut Girni at village Peth-Shivni and was found missing from the relevant morning likewise the prosecutrix. He denied the suggestion that the prosecutrix was about 20 years old.

10. The prosecutrix deposed that she was around 15 years old and was forcibly taken away by the appellant after she had gone out of the residential house to ease herself in the wee hours. She deposed that he had threatened her and had forced her to consume two (2) tablets given by him. She became unconscious after consuming the two (2) tablets. She further narrated that the appellant took her to Chikulpetha and both of them resided together at house of his friend for some period and later on, shifted to a room. According to her version, the appellant used to go out of the house of attending the work. She deposed that he used to forcibly commit sexual intercourse with her during the relevant period of 4/5 months. She had conceived as a result of the sexual intercourse, but was aborted.

11. Whether prosecutrix can be believed is the significant question. Her cross-examination reveals that there are various omissions in her statement before the Court and the statement before the police. She did not state before the Police that she had gone out of the house to ease herself in the relevant morning and the appellant had gone behind her. She did not state before the police that the appellant tied a cloth piece on her eyes and had threatened her to swallow two (2) tablets. She did not state before the police that the appellant used to look at her and make gestures by winking his eyes or always used to take with her and used to urge her to accompany her. It is important to note that the prosecutrix resided with the appellant at Chikulpetha for about 8/9 months. The appellant used to attend his duty at the Sut Girni during relevant period. Thus, the prosecutrix used to remain alone at the house and had fair opportunity to escape. She made no attempt, whatsoever, to escape from Chikulpetha for about 8/9 moths. There is absolutely no medical evidence to show that she was subjected to violence during the relevant period. Nor it is her version that she was beaten up by him. There is no substantial reason to believe that the appellant could have gathered information that the prosecutrix was likely to come out of her residential house in the relevant morning at about 3 a.m. to ease herself. Her father states that she informed him about marriage of herself and the appellant. She told her father that they had married each other in Maroti temple. These circumstances go to show that the prosecutrix was consenting party to the sexual intercourse committed by the appellant and they were willingly residing together at Chikulpetha. It is more probable, therefore, that she left house of parents on her own volition. What transpires from the record is that the prosecutrix and the appellant eloped together in the relevant wee hours of the morning and more probably, after some deliberations on the previous day. The conduct of the prosecutrix is eloquent. She herself left house of her parents under the pretext that she was going out in order to case herself. She made no attempt to contact her parents during the relevant period of 8/9 months thereafter.

12. It is pertinent to note that during cross-examination of PW 7 P.I. Mukund Kewle, various contradictions appearing from the police statement of the prosecutrix and her statement before the Sessions Court were brought on surface of the record. In her police statement, she gave her age as 18 years and the contradiction in this behalf is at Exh-35. In her police statement, she narrated that she and the appellant developed love affair and had decided to marry each other but due to opposition of her father, they decided to flee. She narrated before the police that as per the earlier agreement, she left house of her parents while they were in slumber and met the appellant and thereafter, they went to Nanded and Hyderabad by train. This contradictory statement (Exh-32) seems to be more probable in the circumstances. Her police statement shows that while she was residing with the appellant at Chikulpetha, her father had met her on two (2) occasions by visiting her house. She further narrated before the police that on her own volition, she had eloped with the appellant and had married him and was going to reside with him. This contradictory statement (Exh-34) gives serious jolt to the prosecution story regarding taking away of the prosecutrix by the appellant by use of force or enticing the prosecutrix to go with him.

13. Coming to the question of age of the prosecutrix at the relevant time, it may be gathered that much reliance is placed by the prosecution on the school leaving certificate issued by PW 8 Shri. Maske. He is Head Master of Kendriya Warishtha Prathamik School at Shrirampur (Taluka Pusad). He states that on 6-7-1996, PW Ashok Chavan had filed an affidavit and on that basis, the birth date of the prosecutrix was recorded as 20-7-1990. The version of PW 8 Shri. Maske reveals that name of the prosecutrix was removed from roll of the School w.e.f. 20-7-2002 due to her continuous absence. She left the School while she was in 6th standard. It emerges from the record that the School admission register was not produced before the Sessions Court. The school leaving certificate (Exh-42) indicates that place of birth of the prosecutrix was shown as "Shrirampur" and her birth date was shown as 20th July, 1990 as per affidavit (Exh-43) of PW 1 Ashok Chavan. The subsequent record shows that birth certificate is issued by PW 9 Umesh Borekar. It is the version of PW Umesh that on 12-10-2006, PW Ashok Chavan gave an application to the Gram Panchayat to record the birth date of the prosecutrix. Thereupon, entry was taken in the relevant register and certificate was issued. The certificate dated 17-10-2006 (Exh-48) was corroborated by him. It is pertinent to note that the application dated 12-10-2006 (Exh-49) was submitted by PW Ashok Chavan after he was examined in the session's case. There was no entry about birth of the prosecutrix in the record of village panchayat, Shrirampur. Therefore, the subsequent birth certificate, which was issuedpendente lite, and that too on application of PW Ashok Chavan, is hardly of any evidentiary value.

14. The version of PW 9-A Dr. Shobha reveals that the prosecutrix was clinically examined on 12-4-2006 in the Government hospital at Gangakhed. Her version purports to show that the prosecutrix was found to be habitual to sexual intercourse. She was in her menses at the time of medical examination. The version of PW Dr. Shobha reveals that she recorded age of the prosecutrix as 17 years in the medical certificate (Exh-55) and could not opine whether there was margin of error of two (2) years on either side. Normally, the birth date could be relied upon when the parents give such information. Still, however, in this case, there are certain difficulties in placing implicit reliance on their versions. The parents i.e. PW Ashok Chavan and PW Shobha are illiterate and belong to ilk of manual labours. There is discrepancy about the place of birth of the prosecutrix in the school record and the certificate of birth. The date of birth of the prosecutrix was recorded in the concerned school register on basis of affidavit of PW Ashok Chavan. He did not state the basis of giving such information to the school authorities. The medical evidence about age of the prosecutrix is discrepant with the versions of the parents. The contradiction about age from the police statement of the prosecutrix also goes to show that she could be around 18 years of age when her statement was recorded by the Investigating Officer. In any case, even assuming that she was below 18 years of age at the relevant time, then also, it is explicit that she had been on the verge of attaining majority. In case of "V. Varadarajan Vs. State of Madras" (AIR 1965 SC 942), the Apex Court held that where a college going girl on verge of majority went with the accused and they performed marriage without there being any threat or inducement his part, the offence of kidnapping cannot be held as proved. The view taken in "Sidheswar Ganguly Vs. State of W. B." (AIR 1958 SC 143) is that birth certificate if the girl may be conclusive piece of evidence, but reliable document in this behalf is not ordinarily available. The Court has to base its conclusions upon all facts and circumstances disclosed on examining all the physical features of the person whose age is in question, in conjunction with such oral testimony as may available. In "Chidda Ram Vs. State" (1992 Cri.L.J. 4073), Delhi High Court held that where there was no direct proof about age of the prosecutrix and no reliable evidence was adduced, it was improper to draw conclusion that her age was below 16 years at the time of commission of the offence. In the present case, it is difficult to hold that the prosecutrix was below 16 years of age at the relevant time.

15. Considering the foregoing reasons and the circumstances, I am of the opinion that the impugned judgment of conviction and sentence is unsustainable. The prosecution failed to prove, beyond reasonable realm of doubt, that the prosecutrix was kidnapped or abducted by the appellant from lawful custody of her parents and was ravished by him against her will. It is also not proved that she was minor and, therefore, the sexual intercourse committed with her consent also could be an act of rape for the reason that consent was invalid. Hence, the appeal deserves to be allowed.

16. In the result, the appeal is allowed. The impugned judgment and order of conviction and sentences is set aside. The appellant - Bikasdas alias Golakdas stands acquitted of the offences punishable under sections 363, 366 and 376 of the I.P. Code. The appellant shall be set free immediately, if not required in any other case. The fine amount, if any paid by the appellant, be refunded to him. The property articles, if any, shall be disposed of.

Ordered accordingly.