CRIMINAL APPEAL NO. 446 OF 2015

21st February 2019

Petitioner Counsel: Shri D. A. Sonwane Shri R. M. Daruvala Shri R. R. Gour Mrs. S. P. Giratkar
Respondent Counsel: Mrs. S. V. Kolhe
Act Name: Indian Penal Code, 1860 Child Marriage Restraint Act, 1929

HeadLine : Kidnapping and child marriage – Victim girl not proved to be minor – She voluntarily went to accused and stayed with him for two weeks – Conviction set aside.

Section :
Section 34 Indian Penal Code, 1860 Section 363 Indian Penal Code, 1860 Section 366 Indian Penal Code, 1860 Section 376(2)(f) Indian Penal Code, 1860 Section 4 Child Marriage Restraint Act, 1929 Section 6 Child Marriage Restraint Act, 1929

Cases Cited :

JUDGEMENT

1. These appeals are taken up simultaneously for hearing and they are disposed of by this common judgment since these appeals arise out of judgment and order of conviction dated 5.12.2014 passed by learned Sessions Judge, Chandrapur in Sessions Case No.104/2012.

2. By the impugned judgment and order of conviction, these appellants are convicted for offence under Section 363 read with Section 34 of the Indian Penal Code and they are directed to suffer rigorous imprisonment for 3 years.

The appellants, in Criminal Appeal Nos.446, 447, and 448/2015, are convicted for offence under Section 366 read with Section 34 of the Indian Penal Code and they are directed to suffer rigorous imprisonment for 3 years.
The appellant, in Criminal Appeal No.75/2017, is convicted for offence under Section 376(2)(f) of the Indian Penal Code and he is directed to suffer rigorous imprisonment for 7 years and to pay a fine of Rs.1000/­ and in default of payment of the fine amount to suffer rigorous imprisonment for 3 months. He is also convicted for offence under Section 4 of the Child Marriage Restraint Act, 1929 and he is directed to suffer simple imprisonment for 1 month and to pay a fine of Rs.500/­ and in default of payment of the fine amount to suffer simple imprisonment for 7 days.
The appellants, in Criminal Appeal Nos.446, 447, and 448/2015, are convicted for offence under Section 6 of the Child Marriage Restraint Act, 1929. However, though on that count no jail sentence is imposed on them, they were directed to pay a fine of Rs.200/­ and default of payment of the fine amount to suffer simple imprisonment for 5 days.
Learned Judge of the Court below directed that all the sentences shall run concurrently.

3. Criminal Appeal No.446/2015 is filed by Smt.Shashikala w/o Babanrao Nikhade who is accused No.3 and she is represented by learned counsel Shri D.A.Sonwane appointed through the High Court Legal Services Sub Committee at Nagpur.

Criminal Appeal No.447/2015 is filed by Kalpana Surendra Karwatkar who is accused No.2 and she is represented by learned counsel Shri R.M.Daruwala appointed through the said Committee.
Criminal Appeal No.448/2015 is filed by Smt.Maya w/o Jayraj Patil who is accused No.1 and she is represented by learned counsel Shri R.R.Gour appointed through the said Committee.
Criminal Appeal No.75/2017 is filed by Samarth s/o Ramchandra Solanki who is accused No.4 and he is represented by learned counsel Mrs.S.P.Giratkar appointed through the said Committee.
The State is represented by learned Additional Public Prosecutor Mrs.S.V.Kolhe in these appeals.

4. The appellants will be referred to by their original position as found in charge (Exhibit 23) in Sessions Case No.104/2012.

5. Heard respective learned counsel for the respective appellants and learned Additional Public Prosecutor Mrs.S.V.Kolhe for the State. With their able assistance, I have gone through original record and proceedings of cases since vide order dated 5.4.2017 passed by this Court (Coram : P.N.Deshmukh, J.) filing of paper­book was dispensed with.

6. First Information Report is lodged by Smt.Laxmibai wd/o Mallesh Irwaina (PW1). Her oral report is dated 17.5.2012. The said oral report is at Exhibit 44. It was lodged with Ballarsha Police Station, District Chandrapur. On the basis of the said oral report, an offence was registered vide Crime No.85/2012 for offences under Sections 363 and 366 read with Section 34 of the Indian Penal Code. Printed First Information Report is at Exhibit 45.

7. As per the oral report (Exhibit 44), first informant Laxmibai is having two daughters. Elder daughter was already married and younger daughter whose age is disclosed as 15 years stays with her. Occupation of the first informant is begging. It is stated that victim (PW2) is taking education in 6th Std.. It is reported that prior to two weeks of lodging of the report, accused Nos.1 to 3 came to her house and requested to send the victim along with them for work of cooking and washing utensils. The request was not accepted by the first informant. It was stated by these accused persons that her daughter will get Rs.200/­ for the work. It is further reported that in spite of her refusal, they took the victim forcibly and though two weeks are lapsed, her daughter has not returned and, therefore, she went to house of accused Nos.1 to 3. However, they were also not found present in their houses. On this assertion, the first informant asked for suitable action against accused Nos.1 to 3.

8. After registration of the crime, Police Inspector Vasant s/o Vishwanath Mohurle (PW7) attached to Ballarsha Police Station, took investigation. He visited spot of occurrence namely place of house of the first informant and panchnama (Exhibit 69) was drawn in presence of two panchas. He also recorded statements of witnesses at various stages of investigation. He arrested accused No.1 to 3 under arrest memos (Exhibit 76 to 78).

9. On 17.5.2012 itself, the victim (PW2) appeared in the Ballarsha Police Station. Police Inspector Mohurle (PW7) recorded her statement and from the statement of the victim, role of accused No.4 was revealed. Therefore, the Investigating Officer took search of accused No.4 at his native place at village Hidi (M.P.), however, he was not found. Accused No.4 was absconding. After completion of the investigation, chargesheet was filed. On 11.9.2012, during the pendency of the Trial, accused was arrested under arrest memo (Exhibit 79).

10. Learned Sessions Judge, Chandrapur framed charge against all the accused persons for offence under Section 363 read with Section 34 of the Indian Penal Code.

Charge was framed only against accused Nos.1 to 3 for offence under Section 366 read with Section 34 of the Indian Penal Code.
Whereas, charge was framed against accused No.4 alone for offence under Section 376(2)(f) of the Indian Penal Code. Similarly, charge was also framed against him alone for offence under Section 4 of the Child Marriage Restraint Act. Whereas, charge was framed against accused Nos.1 to 3 for offence under Section 6 of the Child Marriage Restraint Act.

11. In order to prove the charge, the prosecution examined in all 7 witnesses and also relied upon various documents duly proved during the course of the Trial. After a full fledged Trial, learned Judge of the Court below passed the judgment and order of conviction, which is impugned in the present appeals.

12. Crucial question in these appeals is regarding age of the victim (PW2) since respective learned counsel for the respective appellants vehemently submitted that the prosecution has not proved its case that the victim was minor or below age of 18 years of age and, therefore, was unable to extend consent.

13. Learned Additional Public Prosecutor Mrs.S.V.Kolhe for the State submitted that date of birth of the victim (PW2) is 15.6.2001 and the said is duly proved by Punjaram s/o Bapuji Walde (PW3), headmaster of Janta Highschool Depot Branch Ballarpur. She submitted that date of the occurrence is two weeks prior to 17.5.2012 and, therefore, the victim was minor one.

14. Let us scrutinize and evaluate the prosecution case as to whether the prosecution proved age of the victim (PW2) beyond reasonable doubt.

15. The mother of the victim and first informant Laxmibai (PW1) is having two daughters. The victim is her younger daughter and elder daughter is already married. Her husband has expired prior to 5 years. In the First Information Report as well as during her deposition, Laxmibai did not disclose date of birth of the victim (PW2). However, she claimed that her age was 15 years. From her evidence, it is clear that the victim is not illiterate and she was admitted in the school.

Similarly, the victim (PW2) also silent about her date of birth.

16. Punjaram s/o Bapuji Walde (PW3) is headmaster of Janta Highschool Depot Branch Ballarpur. As per his evidence, his school maintains admission and discharger register in respect of students of the school. As per his evidence, the victim (PW2) was admitted in the school in 5th Std.. Entry in respect of her admission was taken in the school register. He brought original admission and discharge register before the Court and produced verified copy of extract of the register. As per evidence of Punjaram, as per extract of the admission register (Exhibit 53), name of the victim is found at entry No.8689 and date of birth is shown as 15.6.2001. Relevant portion of the said entry shows that she was admitted on 13.7.2011 in 5th Std.. His evidence shows that entry in respect of date of birth of the victim was taken in the register on the basis of transfer certificate issued by Hakimuddin Javeri Girls Primary School (Marathi), Ballarpur, District Chandrapur. He produced photocopy of the original transfer certificate of Hakimuddin Javeri Girls Primary School (Marathi), Ballarpur, District Chandrapur in the Court. The said photocopy of the transfer certificate is at Exhibit 54. Also, he produced bona fide certificate (Exhibit 55) of the school to show that date of birth of the victim is 15.6.2001.

Even, according to Punjaram, entry in the admission and discharge register, in respect of date of birth of the victim, was taken on the basis of date of birth as mentioned in the transfer certificate issued by the school in which previously the victim was taking her education.

17. From the above, Exhibit 53 cannot be the primary evidence. Primary evidence would be the transfer certificate (Exhibit 54) issued by the previous school of the victim (PW2) on the basis of which entry at Exhibit 53 is taken. However, the transfer certificate (Exhibit 54) of the earlier school though it is exhibited, contents of the said certificate are remained to be proved for want of examination of author of the said document.

18. Further, if evidence of the mother of the victim and first informant Laxmibai (PW1) is perused, there is an ample room for raising suspicion over authenticity of Exhibit 53. Examination of document Exhibit 53 shows that the said is silent about the name of previous school where the victim used to take education. Therefore, Court will have to fall back on the evidence of Punjaram (PW3) who stated that the entry at Exhibit 53 was taken on the basis of the transfer certificate (Exhibit 54) issued by the previous school of the victim.

In that behalf, the victim (PW2) herself stated as under:
“It is true to say that I took education from 1st standard to 4th standard in Mahatma Jyotiba Fuley Primary School near old bus stand, Ballarshah.”

19. Thus, the victim (PW2) is not supporting the prosecution version that prior to her admission at Janta Highschool Depot Branch Ballarpur, she was taking education at Hakimuddin Javeri Girls Primary School (Marathi), Ballarpur, District Chandrapur.

20. Further, if Exhibit 53 is minutely perused or examined, it will show that at entry No.8689 though name of the victim (PW2) is written, her name, name of her father, and surname are found to be written in different ink. Not only the said are written in different ink but also type and manner of handwriting are also different.

21. In view of the aforesaid, it would be very difficult to accept the evidence of Punjaram Walde (PW3), the headmaster of Janta Highschool Depot Branch Ballarpur and Exhibit 53 to show that date of birth of the victim (PW2) was 15.6.2001.

22. For kidnapping, age is most crucial. Since the prosecution has not proved the date of birth of the victim (PW2) and since neither the mother of the victim nor the victim disclosed the date of birth of the victim in their substantive evidence, in my view, the prosecution has not proved its case beyond reasonable doubt regarding the fact that the victim was minor at the time of the incident.

23. As per the oral report Exhibit 44, it is claimed by the mother of the victim and the first informant Laxmibai (PW1) that though she refused to give permission to take her daughter, accused Nos.1 to 3 by applying force took the victim (PW2). However, substantive evidence of Laxmibai is silent about use of the force. Her evidence shows that when she came back to her house, she found the victim was not present and upon enquiry, she gathered information that accused Nos.1 to 3 took away her daughter.

24. The victim (PW2) is blissfully silent in her evidence that accused Nos.1 to 3 applied any force. Her evidence does not show that any kind of fraud or deceit was played or practised upon her by accused Nos.1 to 3. According to her, accused Nos.1 to 3 took her to Ballarsha Railway Station and took her to Ujjen by train. Thereafter, they took her to house of accused No.4 at his village.

During the course of the journey from Ballarsha to house of accused No.4, it is not the claim of the victim (PW2) that at any point of time she was under any threat or she was under any fear from accused Nos.1 to 3. Therefore, necessarily it will have to be recorded that with her consent she went along with accused Nos.1 to 3 at village of accused No.4.

25. Obviously, there is a delay in lodging the First Information Report. Merely because there is a delay, the case of the prosecution cannot be thrown out only on that count.

However, the prosecution is required to offer explanation. It is unnatural that the mother may be living by means of begging will keep mum for a period of 2 weeks though her daughter is taken away by accused Nos.1 to 3 by applying force. Interestingly, on the day of lodging of the First Information Report, the victim (PW2) appeared in the Ballarsha Police Station. According to Police Inspector Vasant Mohurle (PW7), the victim appeared in the police station between 7:00 p.m. and 8:00 p.m. on 17.5.2012. According to the victim, accused Nos.1 to 3 came to the house of accused No.4 and told that her mother lodged report and, therefore, she claimed that accused Nos.1 to 3 told her that they would reach her to the house of her mother.
The aforesaid particular version of the victim (PW2) shows that she is not telling the truth to the Court.

26. Admittedly, the victim was residing with accused No.4 in Madhya Pradesh. Nowhere the victim (PW2) claimed that she received any information prior to alleged visit at the house of accused No.4 and factum of disclosure of the report. Further, there is nothing on record to show that accused Nos.1 to 3 were knowing lodgment of the First Information Report at the hands of Laxmibai (PW1). There was no reason for accused Nos.1 to 3 to go to Madhya Pradesh to disclose the fact of lodging of the report by Laxmibai (PW1). The said shows that the victim suppressed material facts from the Court.

27. As per the claim of the victim (PW2), her marriage was performed with accused No.4. Since the prosecution utterly failed to prove that the victim was minor at the time of the incident, the provisions of the Child Marriage Restraint Act, 1929 cannot be applied.

28. On 18.5.2012, Dr.Anjali d/o Premlal Meshram examined the victim (PW2), as per requisition (Exhibit 65) given to her by the Investigating Officer. Exhibit 66 is medical certificate. Her evidence and Exhibit 66 show that the victim was habituated to sexual intercourse. Even otherwise, according to the victim, she stayed with accused no.4 for a period of 2 weeks till 17.5.2012.

No doubt true that she stayed with accused No.4 against her wish. Accused No.4 committed sexual intercourse with her. However, the said not disclosed at all by the victim (PW2) to anyone though it appears that she was having an opportunity.

29. On re­appreciation of the entire prosecution case, I am of the view that the prosecution has not proved that the victim (PW2) was minor at the time of the incident. The circumstances and the evidence as available on record clearly show that the victim was consenting party and on her own she went to the house of accused No.4. Therefore, in my view learned Judge of the Court below committed an error in convicting the accused persons. That leads me to pass following order:

ORDER
(i) The criminal appeals are allowed.
(ii) Judgment and order of conviction dated 5.12.2014 passed by learned Sessions Judge, Chandrapur in Sessions Case No.104/2012 is hereby quashed and set aside.
(iii) The accused are acquitted of offences for which they are charged.
(iv) Accused Nos.1 to 3 are on bail. Their Bail Bonds stand cancelled.
(v) Accused No.4, appellant in Criminal Appeal No.75/2017, was in jail. However, today learned Additional Public Prosecutor Mrs.S.V.Kolhe for the State on written instructions from the Superintendent, Nagpur Central Prison made a statement that after completion of jail sentence inclusive of period of remission he has already released from the Central Prison. The statement is accepted.
(vi) Fees payable to learned counsel Shri D.A.Sonwane; Shri R.M.Daruvala; Shri R.R.Gour, and Shri Mrs.S.P.Giratkar, who are appointed through the High Court Legal Services Sub Committee at Nagpur to represent their respective appellants, are quantified at Rs.5000/­ each.

Appeals allowed