Criminal Appeal No.82 of 2016,Criminal Appeal No.387 of 2016

11th July, 2017.

Petitioner Counsel: Mrs. SHILPA GIRATKAR, Shri VISHAL P. MOHOD
Respondent Counsel: Shri A.M. DESHPANDE

Cases Cited:
Sunil Vs. State of Haryana, (2010) 1 SCC 742 [Para 24]
Birad Mal Singhvi Vs. Anand Purohit, 1988 (Supp) SCC 604 [Para 25]
Mahadeo s/o Kerba Maske Vs. State of Maharashtra and another, (2013) 14 SCC 637 [Para 26]
State of Madhya Pradesh Vs. Anoop Singh, 2015 ALL SCR 2553=Cri. Appeal No.442/2010 Dt.3.7.2015 [Para 27]

JUDGMENT

ARUN D. UPADHYE, J. :- Being aggrieved by the Judgment and order dated 08/01/2016 passed by the Special Judge, Khamgaon in Sessions Trial No.76/2013, the appellants have preferred these two appeals.

By the impugned Judgment, the learned Special Judge, Khamgaon has convicted the accused Nos.1 and 2 for the offence punishable under Section 376 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/- (Rs. Five Thousand) each, in default, they shall suffer rigorous imprisonment for one year.

They are further convicted and sentenced for the offence punishable under Sections 323 and 506 of the Indian Penal Code to suffer rigorous imprisonment for one year.

These accused also convicted for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/- (Rs. Five Thousand) each, in default, to suffer rigorous imprisonment for one year.

The brief facts of the case are as under :-

2. The prosecutrix Ku. Poonam Tayade is minor aged about 13 and ½ years at the time of incident. She was residing with her parents, brothers and sister at Rawan Tekdi, Khamgaon. Her grand-mother Sulochana Kisan Tayde is residing at some distance from her house. Her uncle Santosh Tayde is residing at Kundegaon Kodri, Tq. Sangrampur along with his wife and children and he used to come to her house. According to the prosecution, her uncle is working in the Band Company and his friend Raju Dabhade and another person called as Vastad used to come to her house. Her uncle was residing in the house of her grand-mother since last 15 days.

3. According to the prosecution, last year, at the time of Dipawali Holidays, her uncle came to her house at 10.00 a.m. to 11.00 a.m. along with his friends Raju Dabhade and Vastad. The prosecutrix was alone in the house as her parents were went for their work. Her uncle was in drunken condition and therefore, slept in her house. At that time, Raju Dabhade and another person forcibly by pressing mouth taken her to the house of her grand-mother. Her grand-mother was satting in front of house. The another person namely; Vastad put her on the clothes and at that time, Raju Dabhade was went out of house. The said person Vastad removed her clothes and committed forcible intercourse with her. Thereafter, Raju entered in he house and committed forcible intercourse with her and left the house. Again, Vastad came in the house and committed forcible intercourse and went out of the house. Thereafter, again, Raju Dabhade came in the house and committed forcible intercourse with her. They have given threat not to disclose the said incident to anybody otherwise they will kill her. Therefore, she has not disclosed the incident. Due to the said act, blood was oozing from her private part and stomach ache to her.

4. The prosecution further came with case that after 2-3 days, these persons again came to her house at about 12.00 p.m. to 1.00 p.m. when her parents were went out of the house for their work. She was alone in the house. They have taken her to the house of her grand-mother and they have committed forcible intercourse with her twice one after another. They have given threat not to disclose the incident to anybody. It is also case of the prosecution that after 2-3 days, they again came to the house of prosecutrix at 12.30 p.m. to 1.00 p.m. and taken to the house of her grand-mother and committed forcible intercourse twice one after another. After 2-3 days, the person Vastad came to her house and taken to the house of her grand-mother and committed forcible intercourse. He has given threat not to disclose the incident. The prosecutrix has not disclosed the incident to anybody. However, there was omitting to her. Therefore, she was taken to the hospital at Gopalnagar. The M.C. period was also stopped. There was stomachache to her. Thereafter, she realized that she is pregnant. Her grand-mother, thereafter disclosed the said fact of pregnancy to her parents. The prosecutrix then disclosed the incident to her parents about the forcible intercourse committed by Raju Dabhade and another person Vastad.

5. The prosecutrix along with parents, went to the Police Station, Shivaji Nagar, Khamgaon and lodged the report vide Exh.31. The police registered the offence vide Crime No.45/2013 under Sections 376 (g), 323 and 506 of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012. The printed F.I.R. is at Exh.32. The victim was referred to the General Hospital, Khamgaon for medical examination.

6. During the course of investigation, police prepared Spot Panchanama at Exh.35 and seized one gray colour bedsheet from the spot. The victim was carrying 9 month pregnancy and therefore, referred to the Government Medical College, Akola on 13/08/2013. The victim delivered a female child in the hospital. The police collected the medical papers from the hospital.

7. During the course of investigation, the police arrested the accused persons and referred for medical examination. The blood sample of the accused were seized under panchanama. The police has also taken blood sample of born baby and victim girl and seized under panchanama and sent for DNA Test. During the course of investigation, police collected the CA reports, DNA reports and other necessary documents. After completion of the necessary investigation, filed charge sheet against both the accused persons for the offences punishable under Sections 376 (g), 323 and 506 of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012.

8. Both the accused appeared before the Special Judge, Khamgaon and charge came to be framed against them for the aforesaid offences. They pleaded not guilty and claimed to be tried. Their defence is that the victim's uncle Santosh Tayde had taken advance money from Band Party to play music but he did not attend the work nor returned their money and to avoid the liability of repayment of money, the victim girl lodged false report at the instance of her uncle.

9. After recording the evidence in the matter and after hearing both the sides, the learned Special Judge, Khamgaon, by impugned judgment dated 08/01/2016 convicted both the accused for the aforesaid offences accordingly.

10. We have heard Mrs. Shilpa Giratkar and Shri Vishal Mohod, learned counsel for the appellants and Shri Deshpande, learned A.P.P. for the State.

11. Mrs. Shilpa Giratkar, learned counsel for the appellant has submitted that the prosecution has failed to prove the age of the victim by adducing cogent evidence. The evidence produced by the prosecution of Headmaster and school record is not primary evidence to prove the age of Poonam, who is prosecutrix. She further submitted that though prosecution has examined doctor in this case, but no ossification test was taken. The prosecution thus, failed to prove that the prosecutrix was a minor at the time of incident. It is further submitted that the provisions of Protection of Children from Sexual Offences Act, 2012 are not made applicable in this case. There is delay in lodging the report in the Police Station and no explanation is given. The alleged incident is shown to be taken place in last year at the time of Dipawali Holidays and report is lodged on 12/08/2013. The alleged incident is shown in between 13/11/2012 to 12/08/2013. The prosecution thus, failed to prove the offences under Section 376(1) r/w Sections 323 and 506 of the Indian Penal Code. The accused, therefore, be acquitted.

12. Learned A.P.P. has submitted that the prosecutrix was a minor aged about 13 and ½ year at the time of incident. The prosecution has examined PW-11 Ramdas Baliram Shingane, Incharge Headmaster of Maharashtra Vidhyalaya, Khamgaon, who proved the extract register vide Exh.58 and bonafide certificate vide Exh.59. The prosecution thus, proved the fact that the prosecutrix was minor at the time of incident. He further submitted that the prosecutrix was pregnant and delivered a female child. The DNA Test matches the accused No.1 Raju Dabhade was a biological father of the said female child. The prosecution, thus established the guilt of the accused as they committed sexual intercourse with her by giving threat. The learned Sessions Judge has rightly convicted both the accused and therefore, no interference of this Court is called for. The appeal, therefore, be dismissed.

13. Considering the submissions of respective sides with the help of learned counsel for the parties, we have perused the evidence on record. PW-1 Poonam is prosecutrix who lodged the report vide Exh.31 on 12/08/2013 and First Information Report is at Exh.32. In the evidence of prosecutrix, she has deposed that the incident took place at the time of earlier Dipawali of year 2013 and at that time, she was taking education in 6th Standard in Maharashtra Vidyalaya, Khamgaon. She deposed that both the accused were working with her uncle and came to her house and committed forcible intercourse with her repeatedly. Both the accused have given threat to her that if she discloses the incident, they will kill her. Therefore, she has not disclosed the incident. In the evidence, she stated that when she was not feeling well and started omitting, her parents taken her to one doctor at Gopal Nagar and at that time, she realized that she is pregnant. Thereafter, she narrated the incident to her parents and lodged the report in the Police Station. She was cross-examined at length. In the cross-examination, it is brought on record that there are residential houses near her house and she had good relations with neighbour. She was unable to tell the exact date of incident. In her cross-examination, she admitted that she did not raise shout or disclose this incident. It was suggested to her that no such incident took place, but they denied. In the cross-examination, she stated that her uncle had borrowed money from accused persons and therefore, the accused had come to her house to take her uncle. It was suggested to her that on the say of her uncle, she lodged false report, but they denied. If the evidence of the prosecutrix is appreciated in proper perspective, it appears that she has not raised any shout at the time of incident and also not disclosed the same to anybody. It appears that the First Information Report at Exh.32 was lodged by her on 12/08/2013. Her evidence discloses that at the time of filing report, she was pregnant. The police registered the offence and arrested both the accused. The prosecutrix Ku.Poonam was referred for medical examination. The evidence of the doctor is on record. The same will have to be considered.

14. PW-4 Dr. Kavita Yashwant Mali has stated in her deposition that on 13th / 14th August, 2013, the police brought the patient namely; Pooja Arjun Tayade aged about 17 years and she examined her. According to the doctor, patient was pregnant and she accordingly, gave report vide Exh.39. She was cross-examined at length. She has mentioned the age of patient as 13 years as told by the police. In the cross-examination, she stated that the patient delivered a child on 14th August, 2013. From perusal of her evidence, one thing is clear that when the patient was brought, she was pregnant when brought her for examination. As the patient was referred almost after 9 months of the incident, there was no question of other sign of sexual intercourse.

15. PW-10 Dr. Nileshkumar Pralhad Kurhade has deposed that he examined the patient and accordingly issued Medical Certificate at Exh.54. The patient delivered a child on 13/08/2013. In the cross-examination, he stated that Dr.Kavita Mali was serving as Casualty Medical Officer and she came to him for expert opinion. According to the doctor, the possibility of physical contact of patient is in the month of October, 2012. Considering the evidence of doctor, the prosecution has established that the patient was pregnant of 9 months and delivered a child on 13/08/2013 in the hospital. The Certificate at Exh.54 is on record issued by this doctor.

16. The prosecution has relied upon the DNA Test. It appears that the letters vide Exhs.69 and 70 were sent to the Chemical Analyzer along with blood sample of born baby of prosecutrix and both the accused for analysis. PW-14 Dr. Snehal Ashok Deulkar has taken blood sample of these persons. The C.A. report is received in this matter are at Exhs.14 and 15. As per these C.A. reports, Raju Dabhade and Poonam Tayde are concluded to be the biological parent of baby of Poonam Tayde. However, the accused Vastad Gulab Wankhade is excluded to be biological father of baby of Poonam. Thus, it is clear that the accused No.1 is biological father of born baby to the prosecutrix. The prosecution, thus, established that there was sexual intercourse committed by accused with prosecutrix.

17. The prosecution came with case that the prosecutrix was minor at the time of incident. It is, therefore, necessary for the prosecution to establish the exact age of prosecutrix. PW-1 Poonam Tayde in her evidence has not stated that she was minor at the time of incident. However, in the cross-examination, the defence has asked question about her age and she stated that at the time of incident, she was about 13 years and was studying in 6th Standard.

18. The learned A.P.P. for the State has vehemently submitted that when defence has brought on record her age and therefore, the prosecution has proved that she was 13 years old at the time of incident. The learned counsel for the accused, however strongly objected for the same and submitted that the prosecution has failed to prove the age of the prosecutrix at the time of incident. Except the bare word of the prosecutrix there is no other oral evidence on record to show that she was minor at the time of incident and was of 13 years old.

19. The PW-7 Arjun Kisan Tayade is father of the prosecutrix -Poonam. However, there is no whisper from his evidence that at the time of incident, Poonam was minor and aged 13 years. The submission put forth on behalf of prosecution that the prosecution has proved that the prosecutrix was minor and 13 years old at the time of incident proved by oral evidence, cannot be accepted.

20. So far as medical evidence is concerned, PW-4 Dr.Kavita Mali has stated that Pooja Arjun Tayde aged about 17 years was brought to hospital for examination and she examined her and gave report vide Exh.39. As per the report at Exh.39, the age of the prosecutrix was shown as 13 years. In the cross examination, she stated that the age of the prosecutrix Poonam 13 years mentioned in the certificate on the say of police. No Ossification Test was taken by this witness. Her evidence, therefore, cannot be accepted that the prosecutrix was 13 years old when examined by her. On the contrary, her evidence discloses that the age of the prosecutrix was 17 years. Therefore, no reliance could be placed on her evidence so far as age of the prosecutrix is concerned.

21. PW-10 Dr. Nileshkumar Pralhad Kurhade has deposed in his evidence that the patient Poonam was examined by him. According to him, as per the narration by the patient and her relatives, the patient was aged 13 years old. The Medical Certificate issued by him is at Exh.54. He has only given the age 13 years in the certificate. However, no scientific test was taken by him, no ossification test was carried out. The evidence of this witness thus, not cogent on the point of age of the patient. Therefore, no much importance to be given to his evidence.

22. The prosecution has relied upon school record of the prosecutrix to prove her age. The prosecution has examined PW-11 Ramdash Baliram Shingane, Incharge Headmaster of Maharashtra Vidyalaya, Khamgaon. As per his version, Poonam was studying for the year 2013-2014 in 6th Standard and as per the school record, date of birth of Poonam is 20/01/2000. He has proved the Extract Register as well as Bonafide Certificate vide Exhs.58 and 59 respectively. He was cross-examined at length by the accused persons. In the cross-examination, he stated that he has brought the original School Leaving Certificate of Poonam. He stated that he is saying the date of birth of Poonam on the basis of School Leaving Certificate submitted by her in his school. He also stated that he is unable to say whether birth of Poonam mentioned in the School Leaving Certificate of Primary School is true or false. From perusal of evidence of this witness and after going through the Extract Register at Exh.58, it appears that Poonam was admitted in the school of Maharashtra Vidyalaya, Khamgaon on 02/05/2012 and School Leaving Certificate was given to her on 01/10/2014. As per the extract, her date of birth is showing as 20/01/2000, the Bonafide Certificate is at Exh.59 issued on 08/10/2013. As per the said certificate, the date of birth of Poonam is shown as 20/01/2000. The prosecution did not file the School Leaving Certificate of previous school, though was with Headmaster. The prosecution has not produced the documents of school where Poonam was studying upto 5th Standard. As per the extract at Ext.58, Poonam was studying previously in Nagar Parishad Prathmik Shala, Khamgaon. No explanation was given by the prosecution why school record of previous school was not produced. The prosecution has not examined who has given information at the time of admission of the prosecutrix in 1st Standard to ascertain her exact date of birth. The school record produced by the prosecution is of 02/05/2012 where she has taken admission in 6th Standard. Therefore, school record produced by the prosecution is not primary evidence of the fact of her age and this cannot be relied upon.

23. PW-11 - Ramdas Shingane, Incharge Headmaster has also stated that he is unable to say whether the date of birth of Poonam mentioned in School Leaving Certificate of Primary School is true or false. Thus, the documentary evidence relied upon by the prosecution is not cogent and also cannot be accepted for establishing the exact age of the prosecutrix Poonam. The submission put forth on behalf of prosecution that the prosecution has proved the age of Poonam by adducing documentary evidence, therefore, cannot be accepted.

24. Mrs. Shilpa Giratkar, learned counsel for the appellant has relied upon ruling in the case of Sunil Vrs. State of Haryana, reported in (2010) 1 SCC 742. In the above ruling, the Hon'ble Apex Court has held that in allegation of rape of minor prosecution not conducting examination by Dental Surgeon or Radiologist on prosecutrix. In spite of being referred to for such examination by doctor, School Leaving Certificate produced showing attendance of only 100 days. Prosecutrix being admitted and leaving school in mid session, said certificate being obtained after commission of offence and prosecution failed to produce any admission form of the school. The said School Leaving Certificate on facts held not reliable. Considering the ratio laid down in the above ruling and facts of the present case, we are of the considered view that the above ruling is squarely made applicable in the case at hand. In this case, the prosecutrix was referred for medical examination. However, no Ossification Test was conducted. The school record produced was of another school where she was admitted on 02/05/2012 prior to 6 months of the incident. No primary evidence is adduced by the prosecution. No informant who has given information to the school in primary school is examined. School record produced by the prosecution thus, not reliable and cannot be accepted.

25. The learned counsel for the appellant also relied upon the ruling in the case of Birad Mal Singhvi Vrs. Anand Purohit, reported in 1988 (Supp) SCC 604. In the above ruling, the Hon'ble Apex Court in para 17 clearly observed that the documentary evidence vide Exhs.8, 9, 10, 11 and 12. Those relative entries regarding date of birth contained in the scholar's register and secondary school examination have no probative value, as no person on whose information the dates of birth of aforesaid candidates was mentioned in the school record was examined. Considering the ratio laid down by the Hon'ble Apex Court, we are of the considered view that the above ruling is made applicable in the present case. The prosecution has not examined the informant who has given information of the date of birth of the prosecutrix and no probative value is attached to the school record produced by the prosecution.

26. Shri Deshpande, learned A.P.P. has relied upon the ruling in the case of Mahadeo s/o Kerba Maske Vrs. State of Maharashtra and another, reported in (2013) 14 SCC 637, certificate of age from school or local authorities can be proved and in the absence of such document, medical opinion can be sought for. The reliance placed upon the certificate to arrive at age of prosecutrix to be below 18 years was perfectly justified. One cannot dispute that in the absence of alternative methods described under Rule 12(3)(a) (i) (ii) (iii) of Rules of Juvenile Justice (Care and Protection of Children) Rules, 2007, the medical opinion can be sought. The evidence relied by the prosecution a school certificate vide Exhs.58 and 59 cannot be accepted, as the same are not primary evidence of the age of the prosecutrix. No informant was examined who informed the age of the prosecutrix at the time of admission in 1st Standard and therefore, this ruling will not be helpful to the prosecution that the prosecution has established the age of the prosecutrix by adducing documentary evidence of school record and no necessity of Ossification Test.

27. Shri Deshpande, learned A.P.P. also relied upon the Judgment of Hon'ble Apex Court in Criminal Appeal No.442/2010 : [2015 ALL SCR 2553] (State of Madhya Pradesh Vrs. Anoop Singh). We have perused the Judgment of the Hon'ble Apex Court. Their Lordships have held that as per Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, the age of the victim of rape could be determined.

i) The matriculation or equivalent certificates, if available; and in the absence whereof;

ii) The date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

iii) The birth certificate given by a corporation or a municipal authority or a panchayat.

The date of birth certificate from school (other than play school) first attended and in the absence thereof, the birth certificate given by corporation or municipal authority or Panchayat and only in the absence of either (i), (ii) or (iii) of Clause (a), the medical opinion can be sought from the duly constituted Medical Board. So far as clauses (i) and (iii) are not made applicable as there is no matriculation or equivalent certificate or certificate from Corporation or Municipal Council or Panchayat produced in this case. So far as clause (ii) is concerned, the birth certificate from the school issued in this case is concerned, the same is not proved by the prosecution by adducing cogent evidence and therefore, this ruling is not helpful to the prosecution.

28. Considering the evidence produced by the prosecution in this case and after hearing learned counsel for the defence and learned A.P.P., we are of the considered view that the prosecution has failed to prove the fact that the prosecutrix was minor at the time of incident. The defence is able to create reasonable doubt about the age of the prosecutrix Poonam. The benefit of doubt goes to the accused. The Special Judge has not considered the evidence on record in proper perspective and wrongly held that prosecutrix was minor at the time of incident. The fact that the accused No.1 and prosecutrix are biological father of baby of prosecutrix Poonam itself is not sufficient to convict the accused for the offence charged.

29. The learned A.P.P. for the State has vehemently submitted that the accused at least be convicted under Section 376 of the Indian Penal Code as the rape was committed by the accused by giving threat. The said submission also without substance. The prosecutrix did not disclose the incident till filing report in the police station on 12/08/2013. The alleged incident took place at the time of Dipawali earlier of year 2013. The learned A.P.P. has submitted that the alleged incident must have been in the month of November, 2012 as Dipawali was in the said month. No disclosure by the prosecutrix about the incident to anybody or at least her parents for long time of 9 months. She realized that she became pregnant and waited upto her delivery. As per the record, she delivered a female child on 13/08/2013 after one day of lodging the report. The submission put forth on behalf of learned A.P.P. that there is no suggestion to the prosecutrix that she was consenting party and therefore, the offence under Section 376 is made out, also cannot be accepted. It is to be noted that initial burden on the prosecution to establish the guilt of the accused beyond any reasonable doubt and same never shifts on the accused. The fact that the accused have not taken any defence does not mean that they are not entitled for benefit of doubt. The prosecution, thus miserably failed to prove that the accused forcibly committed intercourse with her and she was miner at the time of incident. The offence charged against the accused persons are not established.

30. The learned Special Judge, Khamgaon has wrongly convicted the accused for the offence charged. Both the accused are entitled for acquittal for the offence punishable under Sections 376, 323, 506 of the Indian Penal Code as well as for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012. The appeals filed by the accused persons deserve to be allowed. Hence, we pass the following order.

ORDER

I) Criminal Appeal Nos.82/2016 and 387/2016 are allowed. The impugned Judgment and order dated 08/01/2016 passed by the Special Judge, Khamgaon in S.T.No.76/2013 is hereby quashed and set aside.

II) Both the accused are acquitted under Section 235(1) of Cr.P.C. of the offence punishable under Sections 376, 323 and 506 of the Indian Penal Code and of the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012.

III) Both the accused are in jail. They be released forthwith, if not required in any other case.

IV) Fine amount, if paid, be refunded to them.

V) Muddemal property being worthless, be destroyed after the appeal period is over.

VI) The fees of Mrs. Shilpa Giratkar and Shri Vishal P. Mohod, Advocates (Appointed) are quantified at Rs.5,000/- each.

VII) Record and Proceedings be sent to the concerned Court.

Appeals allowed.