STATE OF MAHARASTRA Vs. GAJANAN ALIAS HEMNT

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of a learned Single Judge of the Bombay High Court, Nagpur Bench directing acquittal of the respondent by setting aside the conviction as recorded by the learned 2nd Additional Sessions Judge, Amravati. The respondent was convicted for offence punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (in short the IPC) and was sentenced to undergo RI for 5 years, 4 years and 3 years respectively for the three offences along with fine and default stipulation.

(2.) Background facts in a nutshell are as follows : Prosecutrix, who is the daughter of complainant Ambaprasad Mishra, was residing with the family in Mangilal plots, Amravati. The accused-respondent was also the resident of the same locality. The prosecutrix was educated up to 7th stan dard and she had taken her education in Municipal School No. 5 at Amravati. Her date of birth recorded in official documents was 4-6-1976 and the incident of kid napping her by the accused took place on 21-4-1991. As such she was aged 14 years, 10 months and 17 days at the time of the incident. On 21-4-1991, the accused sent a message to prosecutrix through one Sachin and called her to come with a bag at a place near her school. Accordingly, the prosecutrix went at that place. Then the ac cused, prosecutrix and Sachin went by an autorickshaw to Chinchfail area of Amravati where the grandmother of the accused was residing. They reached there at about 1.00 p.m. The accused took his suitcase. Then the accused and prosecutrix who were accompanied by Sachin, arrived by an autorickshaw at Badnera Railway Station. Sachin went back to Amravati from Badnera Railway Station and the accused and prosecutrix arrived at Nagpur by train. They reached Nagpur at about 5.00 p.m. Therefrom they went to Jhansi. They reached Jhansi early in the morning, i.e. at about 4.00 to 5.00 a.m. At Jhansi, they went to the house of the sister of the accused namely Lata. They stayed in one separate room in the house of accuseds sister for about 8 to 10 days. During this period, they used to sleep in that room and the ac cused practically on every night performed sexual intercourse with prosecutrix. Then from Jhansi, the accused and prosecutrix arrived at Bichona and stayed there in the house of one Rajput for about 3-4 days and the accused performed sexual inter course with the prosecutrix twice. Then from Bichona, both of them came to Mundai. They resided at Mundai in the house of one Narmadaprasad for about one and half months. From Mundai, the accused and prosecutrix arrived at Chinchkhed via Nagpur and Amravati and stayed in the house of the sister of the accused for about 4-5 days. Again from Chinchkhed, they went to Nagpur and stayed in the house of one friend of the accused for about 20 days. The accused was working as a labourer during this period. The accused and the prosecutrix then again came back to Chinchkhed, stayed there for one day and then went to Katsoor. They stayed at Katsoor at the house of maternal aunt of the accused for about 4-5 days. Then they came to Paratwada and therefrom went to village Talegaon where they stayed with the aunt of the accused. Then from Talegaon, they went to Delhi. But since the address of the person with whom they were going to stay at that place was not available, they returned back to Talegaon. During all these days, the accused performed sexual intercourse with the prosecutrix. While at Talegaon, the father of the prosecutrix and Rajapeth (Amravati) Police arrived there. The statement of the prosecutrix was recorded and she was taken back. Meanwhile, immediately on the next day of the occurrence, i.e. 22-4-1991, the father of the prosecutrix on coming to know the fact about kidnapping of his daugh ter by the accused, had lodged the report in Police Station Rajapeth, Amravati, on the strength of which the offence under Sections 363 and 366, IPC was registered as Crime No. 184 of 1991. Then on 28-8-1991, the prosecutrix and the accused were traced at Talegaon and accused was arrested. Prosecutrix was referred to Womens Hospital, Amravati, for her medical examination. The Medical Officer concerned examined her and found that her hymen was ruptured, she was habituated to sexual intercourse and she was carrying pregnancy of 4 to 6 weeks. On arrest of the ac cused, he was also referred for medical examination and the Medical Officer con cerned opined that he was capable of committing sexual intercourse. The ossifica tion test of the girl was also carried out and the opinion of the concerned Medical Officer was that the girl was aged about 14 to 16 years. The radiological examina tion of the accused was also performed wherein it was found that he was aged about 20 years. The necessary investigation was conducted and on completion of the same the accused stood charge-sheeted for the offences punishable under Sections 363, 366 and 376, IPC. The case was committed to the Court of Session. Since the respondent pleaded innocence and false implication, the trial was held. The defence of the accused as it is revealed from his examination under Sec tion 313 of the Code of Criminal Procedure, 1973 (in short the Code) is of total denial. He denied to have taken prosecutrix Sharmila and to have committed sexual intercourse with her. It is the contention of the accused that prosecutrix had love affairs with him and her parents came to know about the same. They were about to perform her marriage forcibly with somebody else. They did not like the accused as he belonged to inferior caste, whereas they were belonging to superior caste. So, they involved the accused falsely. Alternatively, it was pleaded that whatever was done had consent of the prosecutrix. The trial Court found that the prosecutrix was aged about 16 years and, therefore, the consent of the prosecutrix was of no consequence. The High Court held that there was consent and additionally, the girl was more than 16 years of age. With reference to the evidence of a doctor (PW-9) it was held that since the medical evi dence shows that the age of the girl was above 14 years and below 16 years with an error margin of one year, the school leaving certificate and the school register were of no consequence. Accordingly, it directed acquittal as noted above.

(3.) Learned counsel for the appellant-State submitted that the conclusions of the High Court are totally erroneous. The High Court came to presumptuous conclusion about the date of birth of the victim.