CRIMINAL APPEAL NO. 724 OF 2016

23rd September 2019

Petitioner Counsel: Mr. Ganesh Gole Mr. Ritesh Ratnam Mr. Bhavin Jain
Respondent Counsel: Mr. A.R.Kapadnis
Act Name: Indian Penal Code, 1860 Code of Criminal Procedure, 1973 Indian Evidence Act, 1872 Juvenile Justice (Care and Protection of Children) Rules, 2007

Section :
Section 109 Indian Penal Code, 1860 Section 363 Indian Penal Code, 1860 Section 376 Indian Penal Code, 1860 Section 391 Code of Criminal Procedure, 1973 Section 35 Indian Evidence Act, 1872 Section 101 Indian Evidence Act, 1872 Section 114(g) Indian Evidence Act, 1872

Cases Cited :
Para 6: Mahadeo S/o Kerba Maske Vs. State of Maharashtra and Anr., (2013) 14 SCC 637
Para 7: Umesh Chandra Vs. State of Rajasthan, (1982) 2 Supreme Court Cases 202
Para 7: Bhupatbhai Somabhai Sardiya Vs. State of Gujarat, LAWS (GJH)-2012-3-24
Para 7: State of Madhya Pradesh Vs. Munna, (2016) 1 SCC 696
Para 7: Sunil Vs. State of Haryana, (2010) 1 SCC 742

JUDGEMENT

1. By this appeal, the appellant/accused Imran Gani Mujavar is challenging the judgment and order dated 6th May 2016 passed by the learned Additional Sessions Judge & Special Judge under the Protection of Child Rights Act, 2005, Ichalkaranji, Kolhapur, in Sessions Case No.36 of 2012, thereby convicting him of offences punishable under Sections 363 and 376 of the Indian Penal Code. On the first count, the appellant/accused is sentenced to suffer rigorous imprisonment for 3 years apart from direction to pay fine of Rs.5,000/- and to undergo simple imprisonment for 3 months, in the event of default to pay the fine. On the second count, he is sentenced to suffer rigorous imprisonment for 10 years apart from direction to pay fine of Rs.25,000/- and in default, to undergo simple imprisonment for 1 year. Substantive sentences were directed to run concurrently.

2. Facts, in brief, leading to the prosecution and the resultant conviction of the appellant/accused, can be summarized thus :
(a) First Informant/PW2 Mahadev was resident of Datt Nagar locality in Village Kabnur of Ichalkaranji Taluka in District Kolhapur. The alleged victim of the crime in question is his daughter, who is examined as PW1 by the prosecution. It is case of the prosecution that the victim/PW1 was born on 11th December 1997 and she was taking education in 9th Standard at Dr.Bapuji Salunkhe High School, Ichalkaranji.
(b) Appellant/accused no.1 Imran Mujavar used to reside in neighbourhood of the victim/PW1. Acquitted accused Dilshad Bairagdar was also residing near the house of the victim/PW1. Juvenile in conflict with law Samir Gavandi and Aakash Aamne were friends of the appellant/accused Imran Mujavar.
(c) According to the prosecution case, acquitted accused Dilshad Bairagdar along with juvenile in conflict with law intentionally aided the appellant/accused and abetted him to kidnap the victim/PW1 on 28th April 2012. She was then taken to several places, and lastly, to Surat. There, at the house of maternal uncle of juvenile in conflict with law Samir Gavandi, the appellant/accused had committed sexual intercourse with the victim/PW1. Parental relatives of the victim/PW1 came to know that she is at Surat in company of the appellant/accused. Thereafter, mother and cousin of juvenile in conflict with law Samir Gavandi advised them to return to their native place. They all, then, came back to Kolhapur. However, from Kolhapur, the appellant/accused and the victim/PW1 decided to go to Miraj. Then from Miraj, they went to Village Jamkhind. Ultimately, on 4th May 2012, the appellant/accused brought the victim/PW1 to Ichalkaranji. That is how, the appellant/accused came to be arrested by police, in pursuant to the First Information Report (FIR) Exhibit 39 lodged by PW2 Mahadev – father of the victim/PW1 on 30th April 2012. The victim/PW1 was then referred to the CPR Hospital of Kolhapur where she was examined by PW6 Dr.Jyotsna Deshmukh. Routine investigation followed and ultimately, the appellant/accused along with co-accused Dilshad Bairagdar came to be chargesheeted.
(d) The learned trial court framed Charge for offences punishable under Sections 363 and 376 of the Indian Penal Code against the appellant/accused. Co-accused Dilshad Bairagdar was charged for the offence punishable under Section 109 read with Section 376 of the Indian Penal Code. The appellant/accused as well as the co-accused pleaded not guilty and claimed to be tried.
(e) In order to bring home the guilt to the appellant/accused, the prosecution has examined in all eight witnesses including the victim/PW1 as well as her father PW2 Mahadev and Medical Officer PW6 Dr.Jyotsna Deshmukh. Defence of the appellant/accused as well as the co-accused was that of total denial. However, they did not enter in the defence.
(f) After hearing the parties, the learned trial court was pleased to acquit co-accused Dilshad Bairagdar. However, the appellant/accused came to be convicted and sentenced, as indicated in the opening paragraph of this judgment, by holding that he had kidnapped the victim/PW1, who was below 18 years of age and had committed rape on her.

3. I have heard the learned advocate appearing for the appellant/accused. He argued that the learned trial court concluded that the victim/PW1, at the time of the alleged offence, was below 18 years of age, merely on the basis of oral evidence of PW2 Mahadev – father. In submission of the learned advocate for the appellant/accused, this course of action adopted by the learned trial court was not proper. Evidence on record shows that the victim/PW1 had taken education in several schools, and as such, her recorded date of birth in the school records ought to have been brought on record by the prosecution, in order to show that she was not of consenting age. It is further argued that entire evidence of the victim/PW1 shows that she was consenting party to the incident and as her age is not proved by the prosecution, the appellant/accused is entitled for acquittal.

4. The learned APP argued that he is going to file an application under Section 391 of the Code of Criminal Procedure for adducing additional evidence. It is further argued that evidence of the victim/PW1 inspires confidence and the same shows that the appellant/accused had committed sexual intercourse with her, when she was not of consenting age. The learned APP strenuously urged that evidence of PW2 Mahadev, who happens to be father of the victim/PW1, in respect of date of birth of the victim/PW1 is not at all challenged in the crossexamination and therefore, such unchallenged evidence in respect of age of the victim/PW1 needs to be accepted. With this, it is argued that the appeal deserves to be dismissed.

5. I have carefully considered the submissions so advanced and also perused the record and proceedings including oral as well as documentary evidence adduced by the prosecution. The Charge held to be proved against the appellant/accused is for offences punishable under Sections 363 and 376 of the Indian Penal Code. For making out the offence punishable under Section 363 of the Indian Penal Code, the prosecution is enjoined to establish that the victim/PW1, at the time of commission of the offence, was under 18 years of age. The offence allegedly took place in April 2012 i.e. prior to 3rd February 2013 and therefore the prosecution, in order to make out the Charge, was duty bound to establish that the victim/PW1 was below 16 years of age, for ruling out the theory of consent. Let us, therefore, examine what evidence is adduced by the prosecution to establish age of the victim/PW1.

6. Evidence of the victim/PW1 shows that at the time of the incident, she was studying in 9th Standard in Dr.Bapuji Salunkhe High School, Ichalkaranji. She has not deposed about her date of birth. Her father i.e. PW2 Mahadev has deposed that date of birth of the victim/PW1 is 11th December 1997. He further deposed that in the year 2012, his daughter i.e. the victim/PW1 was taking education in 9th Standard at Dr.Bapuji Salunkhe High School, Ichalkaranji. Material elicited from cross-examination of the victim/PW1 points out that she had taken school education from 1st to 3rd Standard in a school at Ganesh Nagar of Ichalkaranji. Thereafter, she took school education from 4th to 5th Standard at Vidya Mandir School of Daulatwadi, at Kagal in Kolhapur District. She was then admitted to the Vidya Mandir School of Dattawadi, Kabnur in 6th Standard. She passed examination of 7th Standard from the very same school. However, thereafter, she had taken school education at Dr.Bapuji Salunkhe High School of Ichalkaranji. It is, thus, clear that, the victim/PW1 had taken school education at different schools in Kolhapur District. Logical corollary of this fact is that the prosecution could have collected General Register maintained by the schools reflecting date of birth of the victim/PW1. However, for the reasons best known to it, the prosecution has failed to collect the General Register of the schools where the victim/PW1 had taken education right from 1st Standard up to 9th Standard, in order to prove her age and to show that she had not attained the consenting age. Apart from bare statement of her father PW2 Mahadev to the effect that the victim/PW1 was born on 11th December 1997, there is no other material to support his version and to establish age of the victim/PW1. The Hon'ble Supreme Court in the case of Mahadeo S/o Kerba Maske Vs. State of Maharashtra and Anr., (2013) 14 SCC 637 has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape. Rule 12(3) reads as under:
“Rule 12(3) : In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining –
(a)(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;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii),
(iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.”
The Hon'ble Supreme Court further held in paragraph 12 of Mahadeo S/ o Kerba Maske (supra) as under:
“12 ….........Under Rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of the ascertaining the age of a victim as well.
(Emphasis supplied)”

7. It is, thus, clear that, in a case concerning a child, the court is required to look at the Date of Birth Certificate issued by the school first attended by the child or in absence thereof, the Birth Certificate given by the Municipal authority or Panchayat can be looked into. Undisputedly, in the case in hand, school record of the schools at Kolhapur District was very well available and the prosecution could have brought the same before this court. This was not done. At this juncture, it is apposite to quote observations of the Hon'ble Apex Court in the matter of Umesh Chandra vs. State of Rajasthan, (1982) 2 Supreme Court Cases 202. In that matter, the accused had raised a plea that he is a “child” as contemplated by Rajasthan Children Act, 1970. The High Court had reappraised evidence and concluded that the appellant Umesh Chandra, at the time of the offence, was 16 years 5 months and 20 days old and his date of birth was September 22nd 1956. The Hon'ble Apex Court allowed the appeal. It is held by the Hon'ble Apex Court that ordinarily the oral evidence can hardly be useful to determine the correct age of a person. It is further held by the Hon'ble Apex Court that in villages people are not very vigilant in reporting either births or deaths. Section 35 of the Evidence Act was pressed into service and it was held that there is no legal requirement that the public or other official book should be kept only by a Public Officer but all that is required is that it should be regularly kept in discharge of the official duty. An entry of date of birth in the School Register was held reliable by the Hon'ble Supreme Court in the said matter. Similarly, in the matter of Bhupatbhai Somabhai Sardiya vs. State of Gujarat, LAWS (GJH)-2012-3-24 relied by the learned advocate for the appellant/accused, the Division Bench of Gujarat High Court has noted down that in absence of Certificate of Registration of Birth, oral evidence of father of the prosecutrix regarding age of the prosecutrix cannot be relied. In yet another matter of State of Madhya Pradesh vs. Munna, (2016) 1 SCC 696 the Hon'ble Apex Court had relied on its judgment in the matter of Sunil vs. State of Haryana, (2010) 1 SCC 742 and held that in a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record.

8. Reverting back to the facts of the case in hand, though evidence regarding age of the victim/PW1 could have been produced by the prosecution by collecting General Register of schools where she took school education up to 9th Standard, the same is not forthcoming. This requires drawing of adverse inference by this court in view of Illustration (g) of Section 114 of the Evidence Act. So far as age of the victim/PW1 is concerned, the learned trial court has erroneously held that it was on the part of the defence to bring the document on record to show the actual birth date of the victim/PW1. Thus, the learned trial court had ignored provisions of Section 101 of the Evidence Act. Burden of proving age of the victim/PW1 was certainly on the prosecution and the appellant/accused was in no manner required to bring on record the document showing actual birth date of the victim/PW1.

9. With this, it is concluded that the prosecution has failed to establish that the victim/PW1 was below 18 or 16 years of age, at the time of commission of the alleged offence.

10. Now let us examine whether the appellant/accused had committed rape on the victim/PW1 after enticing her, thereby requiring her to leave the lawful guardianship of her father. It is in evidence of the victim/PW1 that the appellant/accused used to reside in her neighbourhood, so also acquitted accused Dilshad Bairagdar. The victim/PW1 stated that the appellant/ accused used to talk with her and he started loving her. He as well as acquitted accused Dilshad Bairagdar used to advise her to elope with the appellant/accused. As stated by the victim/PW1, on 28th April 2012, on advise of acquitted accused Dilshad Bairagdar, she eloped with appellant/accused Imran Mujavar and at that time, they were accompanied by acquitted accused Dilshad Bairagdar as well as juvenile in conflict with law Samir Gavandi and Aakash Aamne. By auto rickshaw of PW3 Balaji Alage, from Kabnur they went to Ruiphata. Thereafter, acquitted accused Dilshad Bairagdar returned, whereas they proceeded by bus to Kolhapur. Her evidence reveals that from Kolhapur they went to Mumbai by train. Thereafter, by train they all went to Surat and stayed there at the house of maternal uncle of juvenile in conflict with law Samir Gavandi. During the one day stay at the said house, in the night, the appellant /accused committed sexual intercourse with her. The victim/ PW1 further deposed that on the next day, the mother as well as cousin of Samir Gavandi advised them to return and they took all of them to Kolhapur. The victim/PW1 further deposed that from Kolhapur she as well as the appellant/accused went to Miraj and from Miraj they went to Jamkhind. In crossexamination, the victim/PW1 had not denied that she had love relation with appellant/accused Imran Mujavar. To a suggestion that she disclosed to police that she had love relation with the appellant/accused, the victim/PW1 conveniently stated that she is not remembering the said fact. She admitted that the appellant/accused was unmarried. She admitted that she did not disclose proposal of eloping given by appellant/accused Imran Mujavar to anybody else. The victim/PW1 further stated that she slept with the appellant/accused in a room, in the house of maternal uncle of juvenile in conflict with law Samir Gavandi and she did not shout at the time of commission of “rape” by the appellant/accused. Though several persons were sleeping in that house, the victim/PW1 did not make any hue and cry, when, allegedly, the appellant/accused had committed sexual intercourse with her, against her will and without her consent. The fact that the victim/PW1 stealthily left the company of her parents and had joined the company of the appellant/accused and his associates, roamed with him at several places, stayed voluntarily with him in a room in the house of maternal uncle of juvenile in conflict with law Samir Gavandi, unerringly shows that the victim/PW1 was a consenting party to the sexual intercourse committed on her by the appellant/accused. The prosecution has failed to establish that the victim/PW1 was not of consenting age at the time of commission of this act by the appellant/accused.

11. Evidence of PW2 Mahadev – father of the victim/PW1 shows that when the victim/PW1 had eloped with the appellant/ accused, he was looking for a suitable match for her and a few proposals were pending. Cross-examination of PW2 Mahadev further shows that he had, infact, decided to marry the victim/PW1 with his relative named Vijay at that time and it is seen from evidence of the prosecution that when evidence of the victim/PW1 was being recorded, she was married to said Vijay. On this backdrop, it was suggested to the victim/PW1 that as her father was settling her marriage, she insisted the appellant/accused to marry her and threatened to commit suicide. Though these suggestions are denied by the victim/PW1, her chief-examination itself shows that the appellant/accused used to talk with her and started loving her. The next step of eloping with the appellant/accused makes it clear that the victim/PW1 was also in love with the appellant/accused. In this fact situation, it cannot be said that the victim/PW1 was subjected to rape by the appellant/accused by having forcible sexual intercourse with her at Surat, in the house of maternal uncle of juvenile in conflict with law Samir Gavandi.

12. Evidence of PW3 Balaji Alage – auto rickshaw driver shows that the victim/PW1 had voluntarily accompanied the appellant/accused and his friend from Village Kabnur to Ruiphata and from there to Kolhapur.

13. In the result, it needs to be held that the prosecution has failed to establish that the appellant/accused had enticed the victim/PW1, and at the relevant time she was below 18 years of age and then committed rape on her. The appellant/accused is certainly entitled for benefit of doubt, in the wake of this evidence adduced by the prosecution. Therefore, the following order :

ORDER
i) The appeal is allowed.
ii) The impugned judgment and order dated 6th May 2016 passed by the learned Additional Sessions Judge & Special Judge under the Protection of Child Rights Act, 2005, Ichalkaranji, Kolhapur, in Sessions Case No.36 of 2012, thereby convicting the appellant/accused of offences punishable under Sections 363 and 376 of the Indian Penal Code and sentencing him accordingly is quashed and set aside.
iii) The appellant/accused is acquitted of the charges leveled against him.
iv) He be set at liberty if not required in any other case.
v) Fine amount, if any, paid by him, be refunded to him.
vi) The appeal stands disposed off accordingly.
vii) In view of disposal of the appeal, pending Criminal Application No.577 of 2017 also stands disposed off.