Kailas vs State of Maharashtra

V.M. Deshpande, J.—The present appeal is against the judgment and order of conviction dated 22nd /23rd July 2013 passed by the Ad hoc Assistant Sessions Judge, Buldana in Sessions Case No. 140 of 2011. By the said, appellant is convicted for the offence punishable under Section 363 of the Indian Penal Code and is directed to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/- and in default of payment of fine, to suffer further RI for one and half years.

Appellant is also convicted for the offence punishable under Section 366 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- and in default of payment of fine, to suffer further RI for two and half years.

Appellant is convicted for the offence punishable under Section 376 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- and in default of payment of fine, to suffer further RI for two and half years.

All the sentences were directed to run concurrently.

FACTUAL MATRIX

Police Inspector Suryakant Patil who was examined as prosecution witness no. 9 during trial, was attached to Police Station, Deulgaon (Raja) from 7.7.2010 till 11.4.2011.

When he was present in the Police Station on 11.3.2011, prosecutrix (PW 1), her husband and other relatives reached to the said Police Station. Grand-mother of the prosecutrix was also called. Suryakant Patil made enquiries with the prosecutrix. She made allegations of kidnapping and rape against the appellant. The complaint was recorded (exhibit 20). Crime was registered vide Crime No. 18/2011. Printed First Information Report is at exhibit 21.

Appellant was brought to the Police Station by the prosecutrix, her husband and other relatives. He was arrested under arrest panchanama (exhibit 42).

Suryakant Patil thereafter referred the prosecutrix and appellant for medical examination. Requisition for examination of the prosecutrix is at exhibit 33 whereas in respect of appellant, it is at exhibit 36.

Clothes of the prosecutrix were seized under seizure memo (exhibit 43). Clothes of the appellant were also seized under seizure memo (exhibit 44).

He also attached samples of the prosecutrix which were collected by the Medical Officer and produced before him by Lady Police Constable under recovery panchanama (exhibit 45). Similarly, he attached samples of the appellant collected by the Medical Officer which were produced before him under panchanama (exhibit 46).

Suryakant Patil (PW 9) recorded statements of witnesses. Motor-cycle of the appellant was also seized.

He also collected school leaving certificate of the prosecutrix. The maiden name of the prosecutrix was Pooja daughter of Vishnu Gadhwe. After completion of other usual investigation, challan was presented by him since according to him, sufficient evidence was collected to send the appellant for trial.

After committal, the learned Court below framed charge under exhibit 2 in Sessions Case No. 140 of 2011 for the offences punishable under Sections 363 , 366 and 376 of the Indian Penal Code. The appellant denied the charge and claimed for his trial.

In order to bring home the guilt of the appellant, prosecution examined in all nine witnesses and also relied upon other documents proved during the course of trial. The defence of the appellant was false implication.

After a full dress trial, the learned Judge of the Court below recorded a finding that the prosecution has successfully brought home the guilt of the appellant and accordingly, he was convicted and sentenced, as aforesaid. Hence, this appeal.

SUBMISSIONS

Heard Mr. A.J. Thakkar, learned counsel for the appellant and Mr. V.A. Thakare, learned Additional Public Prosecutor for respondent-State in extenso. With their able assistance, the record & proceedings were also gone into by this Court.

According to learned counsel for the appellant, the evidence of the prosecution is not sufficient to record a finding of guilt as recorded by the Court below.

It is his submission that the prosecution has not proved the age of the prosecutrix beyond reasonable doubt. He further submitted that the transfer certificate (exhibit 39) showing the date of birth of Pooja Vishnu Gadhwe as 14.11.1994 cannot be relied upon in absence of basic evidence brought on record.

He further submitted that the ossification test shows that the prosecutrix was major.

It is also his contention that the evidence of the prosecutrix is untrustworthy and, therefore, cannot be relied upon. He placed reliance on following two authoritative pronouncements of the Apex Court :

(1) S. Varadarajan Vs. State of Madras,

(2) Alamelu and Another Vs. State represented by Inspector of Police,

He prayed that the appellant be acquitted.

Per contra, Mr. V.A. Thakare, learned Additional Public Prosecutor submitted that the learned Judge of the Court below was right in convicting the appellant. He submitted that the evidence of the prosecutrix is clinching one which clearly shows that she was subjected to rape and she was removed from the lawful guardianship of her husband. He, therefore, prayed for dismissal of appeal.

EVALUATION OF THE PROSECUTION CASE

The entire case of the prosecution revolves around the testimony of the prosecutrix who was examined as prosecution witness no. 1.

In order to bring home the case under Sections 363 and 366 of the Indian Penal Code, the prosecution is duty-bound to adduce clinching and doubt-free evidence about the age of the prosecutrix.

AGE

In order to prove the age of the prosecutrix, following evidence is available in the prosecution case.

(i) Evidence of Sunil Ghodke (PW 8).

(ii) School Leaving Certificate (exhibit 39).

(iii) Certificate given by doctor about the radiological age (exhibit 31).

(iv) Evidence of Dr Dhananjay Pawar (PW 5).

As per the version of prosecutrix (PW 1), her maiden name was Pooja daughter of Vishnu Gadhwe and Ashabai Bibe (PW 2) is her grand-mother.

The first information report lodged by the prosecutrix discloses her caste as "Dhangar".

In that backdrop, School Leaving Certificate (exhibit 39) shows the caste of Pooja Vishnu Gadhwe as "Maratha". Caste "Dhangar" and caste "Maratha" are altogether two different castes.

The Investigating officer PW 9 Suryakant Patil has admitted that he has not collected any documentary evidence to prove that the father''s name of prosecutrix is Vishnu Gadhwe.

Further, Ashabai Bibe (PW 2), grand-mother of prosecutrix, though has stated in her evidence that the name of father of prosecutrix was Vishnu Gadhwe, the said statement was not appearing in her police statement and the said is duly proved by the Investigating Officer.

Sunil Ghodke (PW 8) has proved exhibit 39. He is a clerk at Shivaji High School, Deulgaon (Raja). He claims that the date of birth was recorded on the basis of school leaving certificate issued by Primary School after passing of 4th standard. Thus, the date of birth was taken on the basis of School Leaving Certificate issued by the Primary School. Curiously enough, though the prosecution witness claims that the said school leaving certificate was brought by him, for the reasons best known to the prosecution, the said is not placed on record nor the evidence of Sunil Ghodke (PW 8) reflects that the learned Judge who recorded the evidence had seen in the said school leaving certificate.

Similar is the case about the School Admission Register.

Thus, the primary evidence in respect of date of birth is withheld from the Court. In addition to that, the caste of the student whose name is appearing in exhibit 39 is shown as "Maratha" and PW 8 Sunil Ghodke has admitted that caste "Dhangar" and caste "Maratha" are two different castes.

Prosecutrix was referred to Dr Dhananjay Pawar (PW 5) for her medical examination. She was brought before him by Lady Police Constable. His evidence shows that her body was well developed; external genetiles were well developed; pubic hair were also developed. He suggested for X-Ray test of the prosecutrix.

This witness has proved the report given by Radiologist (exhibit 31). It shows radiological age of the prosecutrix between 17 to 19 years. This prosecution witness has stated in his evidence as under :-

"It is true to say that in my opinion, the victim Pooja was a major girl and was having capacity of understanding."

In view of the aforesaid nature of the evidence, the doubt is crept in in the mind of the Court as to whether really exhibit 39 School Leaving Certificate was in respect of the prosecutrix alone. Further, from the radiological age coupled with the evidence of Dr Dhananjay Pawar (PW 5), it is clear that at the time of incident, the prosecutrix was major and has reached the age of understanding.

SEXUAL INTERCOURSE

Dr Dhananjay Pawar (PW 5) in clear words has stated at the time of proving the medical certificate of the prosecutrix (exhibit 13) that there is evidence of penetration. From the medical evidence in the nature of exhibits and 30 and 34, one cannot deny that there was sexual intercourse with the prosecutrix.

Now, the question is, whether the appellant can be held responsible for the same ?

Evidence of the prosecutrix shows that her mother performed her first marriage when she was aged about 12 years. However, name of the said person has not established on record. Thus, the husband of the prosecutrix at the time of the incident was her second husband.

The prosecutrix used to reside with her grand-mother at Deulgaon (Raja). According to the prosecutrix, she used to do labour work at the Ginning Factory at the said place and she was acquainted with the appellant. According to the evidence of the prosecutrix, appellant used to chase her, use to trouble her and before four months of her marriage when she was alone, a forcible sexual intercourse was committed with her and later on also, appellant committed sexual intercourse with her on 3-4 occasions. However, worth to mention here that the appellant was not charged for those incidents.

The charge against the appellant is that on 10.3.2011 at about 05.00 pm, the appellant kidnapped the prosecutrix and then has committed sexual intercourse in between 10.3.2011 and 11.3.2011.

As per the version of the prosecutrix, her marriage took place with Santosh Thomane on 8.3.2011 in the temple of Lord Mahadeo at Chandan Zira, Jalna. She joined the company of her husband. Sister of her husband and her husband were residing in the same house. The husband of the prosecutrix is a tractor driver and used to leave hom at 08.00 am and used to return at 08.00 pm.

According to the evidence of prosecutrix, on 10.3.2011 at about 04.30 pm when she was alone in the house at Jalna, appellant came there. He informed that her grand-mother is ill and he suggested that she should accompany him. Upon that, prosecutrix refused. That time, she was slapped by him. He came there on motor-cycle. He made prosecutrix sit on his motor-cycle and brought her at Deulgaon (Raja). He brought her to Giroli Road and took her at the cottage of the neighbour of his field.

Prosecutrix claims in her evidence that at that time, appellant told her that he will call his mother and thereafter they will be visiting her grand-mother. Then appellant left for his mother. He came back at 08.30 pm, however, without his mother. Thereafter prosecutrix suggested him that she should be dropped to her grand-mother''s house. However, appellant refused. Thereafter they halted in the said cottage during night time. There, the sexual intercourse took place. In the morning, appellant and prosecutrix sat in an auto-rickshaw to visit to her grand-mother. That time, prosecutrix''s husband caught them near Sindhkhedraja and they were brought to the Police Station.

The conviction can be recorded on the sole testimony of the victim in rape cases provided it does not suffer from any basic infirmity or improbability which would render it unworthy of credence.

Keeping in mind the aforesaid principle, we have to evaluate the evidence of the prosecutrix. As per the claim of the prosecutrix, on 10.3.2011 appellant came at Jalna on his motor-cycle and asked her to accompany him to see the grand-mother of prosecutrix. Said was resisted. That time, he slapped. Naturally, the reaction of a woman who is forced to leave her matrimonial house would be to raise hue and cry, especially when she was slapped. However, the prosecutrix failed to do so and that aspect she has admitted in her cross-examination. Further, when she was travelling on motor-cycle of the appellant, that time also, she did not resist or made any attempt for any external help. It is brought on record through her cross-examination that so many houses are located in Jaiswal Layout on approach road of Giroli. She has admitted that there is a Bus Stop and so many persons were at the Bus Stop. However, she did not raise any shout for help. It is also admitted by her that she did not give any intimation to anybody about her departure from Jalna.

In so far as her conduct at the cottage is concerned, it is to be noted that she has admitted that there are houses of so many other persons adjacent to the cottage. She has admitted that farmers and labours return to their houses in between 06.00-06.30 pm. Inspite of that, she did not make any attempt for any help nor she tried to leave that cottage. On the contrary, she has admitted that she was waiting for appellant in the cottage. She has admitted in her cross-examination that when she was in auto-rickshaw, appellant was driving the said auto-rickshaw and that time, her husband caught them. She has also admitted that her husband, his sister and brother-in-law were blaming her. She has admitted that they were caught in between 09.00-09.30 am. It is also admitted by her that till evening she was scolded by her relations. It is to be mentioned here that the First Information Report was lodged at 18.50 hours i.e. in the evening of 11.3.2011. What prevented the prosecutrix or her husband to lodge the report immediately, is not coming on record. In that view of the matter, the defence of the appellant as appearing in his statement recorded under Section 313 Cr. P. C. that on 11.3.2011 in the morning he was driving his auto-rickshaw and that time, the prosecutrix stopped the said auto-rickshaw; asked him to take his auto-rickshaw towards Sindhkhedraja; as a commuter he took the prosecutrix in auto-rickshaw and on their way, auto-rickshaw was intercepted by the relatives of the prosecutrix and he is falsely implicated, appears to be not improbable.

It is thus noticed by the Court that inspite of opportunity being available to her, the prosecutrix failed to avail of the same. Further, though she has claimed that even prior to the date of incident she was subjected to physical assault, she has admitted that the said fact was not disclosed to anybody nor there is any charge of the same against the appellant. Thus, in my view, the evidence of the prosecutrix failed to inspire confidence. Hence, it is a fit case to extend benefit of doubt. That leads me to pass the following order :-

(i) Criminal Appeal No. 437/2013 is allowed.

(ii) Judgment and order dated 22-23/07.2013 in Sessions Case No. 140/2011 passed by Ad-hoc Assistant Sessions Judge, Buldana, thereby convicting the appellant Kailas Sarjerao Nannaware for the offence punishable under Section 363 IPC and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/-, in default, to suffer rigorous imprisonment for 1 1/2 years; for an offence punishable under Section 366 IPC and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/-, in default, to suffer rigorous imprisonment for 2 1/2 years; for an offence punishable under Section 376 of IPC and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/-, in default, to suffer rigorous imprisonment for 2 1/2 years is hereby quashed and set aside.

(iii) The appellant Kailas Sarjerao Nannaware is acquitted of the offence punishable under Sections 363 , 366 and of the Indian Penal Code.

(iv) The appellant, who is in jail, shall be released forthwith, if not required in any other case.

(v) Fine amount, if any paid by the appellant, shall be refunded to him.