Mangesh Vitthal Waghmare vs The State of Maharashtra

M.L. Tahaliyani, J.—The appellants have been convicted for the offence punishable u/s 376(2)(g) of the Indian Penal Code and have been sentenced to rigorous imprisonment for ten years each and to pay a fine of Rs. 1,000/- each, in default, to suffer RI for six months by judgment dated 18th March, 2011 passed by the learned Additional Sessions Judge, Washim delivered in Atrocity Case No. 36/2006. The appellants, however, by the same judgment, have been acquitted of the offences punishable u/ss. 506 r/w. 34 of the IPC and section 3(1)(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. The case of the prosecution is that on 26.1.2006, there was a Ramlila at village Inzori, Dist. Washim. The complainant-Ku. Vidya Janrao Augale had gone to attend the said Ramlila along with her brother. There was a separate arrangement for male and female viewers of the Ramlila. Accordingly, the complainant occupied a place in the area meant for the female viewers and her brother had been sitting with male viewers. At about 10.00 p.m. she felt like going for urination. She, therefore, requested a girl sitting beside her to accompany her for urination. The said girl, however, was reluctant to go with her. The complainant, therefore, went alone. It is alleged that the appellants and one Pankaj went near the place where the appellant had gone for urination and forcibly had sexual intercourse with her one-by-one. Her mouth was gagged during the course of intercourse and as such, she could not shout. The place was surrounded by many houses. The Ramlila ground was also not away from the place of the incident. However, the complainant could not cry because her mouth was gagged. She narrated the incident to her mother after returning home. The FIR was lodged at about 12.00 noon on 27.1.2006 at Mangrulpir Police Station of District Washim. Both the appellants were arrested and were subjected to medical examination. The complainant was also sent for medical examination. The Medical Officer had not noticed any external injuries on the person of the complainant. It appears from the Medical report that Medical Officer was not able to give any definite opinion as to whether the complainant was subjected to sexual intercourse. It appears from the medical reports that though ossification test was done for determination of her age, the age had not been mentioned in the medical report. Chemical Analyser''s report revealed that no semen or blood was found on the salwar, kurta and torn panty of the complainant. Neither semen or spermatozoa was detected on the vaginal swab or on the pubic hair of the complainant. After completion of investigation, charge-sheet was filed in the Court.

When the case came up for hearing, the learned trial Judge framed charge against the appellants for the offences punishable u/ss. 376(2)(g), 506 r/w 34 of the IPC and section 3(1)(x) of the Atrocities Act. Both the appellants pleaded not guilty and claimed to be tried. It appears that the boy by name, Pankaj, was placed before the Juvenile Justice Bord.

To prove the charge against the appellants, the prosecution had examined in all six witnesses. PW 1- Prakash Lokhande is the Panch witness, in whose presence the spot panchnama was drawn. No incriminating material was seized from the spot. On the contrary, he had admitted in the cross-examination that the place of the incident was situated at such a location that it could be seen by others also. PW 2-Vidya is the prosecutrix and PW 3- Prakash Bhagat is the Headmaster of the Upper Primary Central School, Inzori, who had produced the Admission Register of the School. The entry No. 4736 in the register was exhibited in the Court as Exh. 65. Date of birth of the complainant, according to said entry, was 14th August, 1991. PW 4-Alka is the mother of PW2-prosecutrix; PW 5 was the Investigating Officer Mr Punjabrao Deshmukh, who was posted as Sub-Divisional Police Officer, Mangrulpir Sub-Division and PW 6-Pratapsing Daberao was the Police Inspector attached to Mangrulpir Police Station.

During the course of trial, the learned Advocate for the appellants had admitted the correctness of spot panchnama and search and seizure panchnama. He had also admitted correctness of medical examination reports of the appellants and the prosecutrix. The defence of the appellants was of total denial.

I have gone through the judgment of the learned trial Court. The reasons given by the learned trial Court do not indicate that the learned trial Court had given any finding with regard to the age of the prosecutrix- PW 2. It appears that the learned trial Judge has accepted that the date of birth of the prosecutrix-PW 2 was 14th August, 1991. As such, the learned trial Judge has accepted that the age of the prosecutrix on the date of incident was less than sixteen years. As such, the question of consent did not arise. The learned trial Judge has accepted the evidence of PW 2 with regard to the alleged incident of sexual intercourse and has, accordingly, convicted the appellants for the offence punishable u/s. 376(2)(g) of the IPC.

Since most of the documents have been admitted by the appellants, the whole case of the prosecution, in fact, rested on the evidence of PW 2 (prosecutrix) and PW 3-Prakash Bhagat. Before I go to the evidence of PW 2, it will be necessary to state here as to whether the prosecution has proved beyond reasonable doubt that the age of the prosecutrix was below 16-years. In this regard, the prosecution has examined only PW 3- Prakash. There is no evidence at all of any nature as to who had granted admission of PW 2 in the school and as to what basis the date of birth of PW 2 was recorded as 14th August, 1991 in the School Admission Register. I have gone through the evidence of PW 3-Prakash Bhagat. His evidence does not indicate that any documents with regard to date of birth were preserved in the records of the school. PW 2 had taken admission in the school in III standard. PW 3 had not stated anything in his examination-in-chief as to on what basis the date of birth was recorded in the School Admission Register. However in cross-examination, he has stated that date of birth was recorded on the basis of School Leaving Certificate issued by the earlier school. The said leaving certificate has not been produced. In my considered opinion, there should have been evidence of parents as on what basis the particular date of birth was stated by them to the school authorities. This may not be an issue in all cases where the question of age has arisen for determination. However, once the age is questioned, there should be evidence which proves the age of the prosecutrix beyond all reasonable doubts. In this regard, I may refer to the judgment of the Hon''ble Supreme Court reported at Satpal Singh Vs. State of Haryana, . The Hon''ble Supreme Court at paragraph 29 has said as under :

In case, the issue is examined in the light of the aforesaid settled legal proposition, there is nothing on record to corroborate the date of birth of the prosecutrix recorded in the school register. It is not possible to ascertain as to who was the person who had given her date of birth as 13.2.1975 at the time of initial admission in the primary school. More so, it cannot be ascertained as who was the person who had recorded her date of birth in the primary school register. More so, the entry in respect of the date of birth of the prosecutrix in the primary school register has not been produced and proved before the trial court. Thus, in view of the above, it cannot be held with certainty that the prosecutrix was a major. Be that as it may, the issue of majority becomes irrelevant if the prosecution successfully establishes that it was not a consent case.

If evidence in the present case is examined in the light of what is stated by the Hon''ble Supreme Court, one can safely come to the conclusion that the evidence in respect of date of birth of the prosecutrix was not sufficient enough to come to the conclusion that her date of birth was 14th August, 1991. Even if it is assumed for the sake of arguments that PW 2 was below 16 years of her age, the prosecution was under obligation to prove that there was a sexual intercourse. Considering the description of spot given by the PW 1 in his cross-examination, in normal course, the incident of rape committed by three persons one after another, would not have gone unnoticed. Secondly PW 4-Alka, mother of the complainant, would not have kept quite for whole night. It is clear from her evidence that the incident was narrated to her by PW 2 on the same night. Her husband, the father of the prosecutrix, was also at home. He was also told about the incident. The inordinate delay has not been properly explained by the prosecution.

Apart from this, the cross-examination of PW 2 in fact, demolishes the whole prosecution case. PW 2 has admitted in her cross-examination that there was a thoroughfare at Ramlila ground and many persons were watching Ramlila from their rooftops. As such, the place of incident was not excluded from the view of the persons who were sitting on the rooftops. What is pertinent to note is that the juvenile in conflict with law by name, Pankaj, who was also accused in gangrape, was very well known to the PW 2 as he was staying in front of their house. The conduct of parents of the prosecutrix is also not free from doubts. If the incident was immediately disclosed to the parents by PW 2, the normal conduct of the parents would have been to visit the house of Pankaj and question his conduct and tell his parents, particularly when the relations between two families were cordial. What is further pertinent to note is that there is no evidence whether the appellants were known to the PW 2 before the incident. If the appellants were known to PW 2 that should have come in her evidence. If they were not known to her, the Investigating Officer was under obligation to hold the identification parade. There is no evidence that the appellants were known to the PW 2 nor any steps were taken by the Investigating Officer to hold identification parade. It is abundantly clear from the discussion of evidence that the prosecution evidence is full of weaknesses and does not inspire confidence. It was not safe on the part of the learned trial Court to convict the appellants for the offences punishable u/s. 376 (2)(g) of the IPC. The said judgment cannot be sustained and therefore, needs to be set aside. Hence I pass the following order:

ORDER:

Both the Appeals are allowed. The judgment of conviction and order of sentence passed by the trial Court is set aside. The appellants are acquitted of the offence punishable u/s. 376(2)(g) of the Indian Penal Code.

Fine, if paid shall be refunded to the appellants.

Bail Bonds of Mangesh Vitthal Waghmare, appellant in Criminal Appeal No. 173/2011 shall stand cancelled.

Devidas Balchandra Rathod, the appellant in Criminal Appeal No. 213/2011, shall be released from prison, if not required in any other case.