Bombay High Court
Jagannath Bhika Patil vs State Of Maharashtra on 13 March, 1979
Author: P.B. Sawant
Bench: P.B. Sawant
JUDGMENT P.B. Sawant, J.
1. The accused has preferred this appeal against the order of conviction and sentence passed against him under section 363 of the Indian Penal Code.
2. According to the prosecution, the accused was working as a peon in the Gram Panchayat Office of Chunchale Gram Panchayat, Taluka Yawal, District Jalgaon. The mother of the prosecutrix , Lilabai (P.W. 1) was also working in the same Gram Panchayat Office as a Gramsevika. Lilabai was residing with the prosecutrix, her husband and four sons just opposite the office of the Gram Panchayat. The relations between the accused and the family of Lilabai were cordial and the accused was on visiting terms with Lilabai. It thus appeared that Lilabai had no reason to distrust the accused at any time prior to the date of the incident, which was the 18th February, 1978. On that day, Lilabai had left her house with her husband for marketing at about 10 hours in the morning, leaving behind the prosecutrix and one of her sons Gautam, who was sick. The accused went to the house of Lilabai at about 1.30 p.m,. and represented to the prosecutrix Sindhubai that her mother had asked him to tell her that her betrothal ceremony was to be performed at Untawad another village about 5 kms. from Chunchale and that the was directed to take her there. The accused thereafter collected Sindhubai's clothes and asked her to follow him. Both of them then went to another village Kingaon. The accused told her at Kingaon that her mother had also directed him to take her to Kingaon hospital for treatment. The accused, accordingly, took the prosecutrix to Kingaon dispensary. It was, however, closed and thereafter the accused told her that they should now proceed to Untawad. When they came on the road they found a motor truck standing there. The accused had some talk with the driver of the truck and thereafter he asked Sindhubai to get in the truck. Sindhubai sat in the rear of the truck and the accused sat with the driver in the cabin of the truck. The truck then proceeded. When the truck passed Untawad village. Sindhubai started shouting. Sometime thereafter the truck stopped. The accused came behind, took Sindhubai from the rear and made her sit with him in the front seat. Then the truck again proceeded and stopped at Amalner railways station, where both of them got down. Sindhubai asked the accused as to why she was brought there, but at that time the accused threatened her to keep mum. Sindhubai had Rs. 100/- with her. The accused took away that amount from her and with that money purchased two tickets for Surat. Both of them then boarded the train and went to Udhna, a suburn of Surat. At Udhna they went to the house of one Indubai (P.W. 3), who is the daughter of Gayabai, a resident of Chunchale village, Gayabai was also a member of the Chunchale Panchayat. Both the accused and Sindhubai stayed with Indubai for about 4 to 5 days. Thereafter, Indubai's mother Gayabai came there and she informed both the accused and Sindhubai that Lilabai, the mother of Sindhubai had set the police machinery in motion and a warrant was issued against both the accused and Sindhubai. Gayabai also told the accused to take away Sindhubai. Therefore, the accused took Sindhubai and went to take away Sindhubai. Therefore, the accused took Sindhubai and went to the railway station and asked her to sit at the railway station. He then represented to her that he would return within a short time, but he never returned thereafter. Sindhubai was waiting on the platform of the station for about 5/6 hours and was weeping. There she met witness Madhukar Tayade (P.W. 5), who asked her about her whereabouts. On learning that she was from Chunchale where he had his relations, he told her that he was also from a nearby village and his relations came from Chunchale. Sindhubai told Tayade about the entire episode and how she was left thereby the accused and then requested him to take her to Chunchale. Tayade then took Sindhubai to his aunt's house at Surat. There Sindhubai stayed for about two days. After Tayade made arrangements for railway fare, he took her to Chaunchale and gave her in the custody of her parents.
3. It appears that when Lilabai returned home on the 13th February, 1978, at about 4 or 5 p.m. She found Sindhubai missing. On inquiries with the neighbours, including Phundabai (P.W. 2), she learnt that Sindhubai had left in the company of the accused. She made inquiries at Untawad and found that Sindhubai was not there as well. Hence, on the next morning she went to the Yawal Police Station and gave information about Sindhubai's absconcion. However, the police asked her to make search for another two days and then lodge a complaint. Accordingly, Lilabai visited different villages and made search for Sindhubai there. The search having proved futile she then ledged her complaint on 21st February, 1978, which complaint is the First Information Report Exhibit A on record. It appears from the First Information Report that the betrothal of Sindhubai was fixed on 21st February, 1978. On the 15th February, 1978, Gayabai had expresses doubts to her i.e. Lilabai's husband whether the betrothal fixed on 21st February would at all come about. At that time Lilabai thought that probably the bridegroom's party was not satisfied with what was being given to them as per the terms of settlement of the marriage and had hoped that she would have to give more to appease them and to bring about the marriage. This information disclosed in the First Information Report was relevant since she had entertained doubt about the complicity of Gayabai in the kidnapping of Sindhubai.
4. Pursuant to this complaint, the investigation commenced and the accused was apprehended on 11th March, 1978 at Surat where he was serving in a cycle factory and then was brought to the Police Station of Yawal and formally arrested. Thereafter, he was charge-sheeted for the offences under sections 363 and 366 of the Indian Penal Code before the Judicial Magistrate, First Class, Yawal, who committed the accused to the Court of Sessions, Jalgaon.
5. On behalf of the prosecution, among others, the following witnesses were examined : (1) Lilabai (P.W. 1), the mother of the prosecutrix Sindhubai (2) Sindhubai (P.W. 4); (3) Phundabai (P.W. 2), a neighbour of Lilabai who gave information that Sindhubai had left the village in the company of the accused; (4) Indubai (P.W. 3), who was residing at Udhana and at whose place both the accused and Sindhubai had gone after they left the village Chunchali and where they stayed for about 4/5 days till Gayabai gave them information about the issuance of warrants against them; (5) Madhukar Tayade (P.W. 5), who met Sindhubai at the Udhna Railway Station and had reached her to her parents place at Chunchali; (6) Dr. Revati Palshikar (P.W. 6) a Medical Officer attached to the Civil Hospital, Jalgaon, who had issued two certificates (i) Exhibit 15 being the certificates showing that Sindubhai, the prosecutrix had no sexual intercourse and (ii) Exhibit 16 being the certificate showing the approximate age of the prosecutrix; (7) Akbar (P.W. 7) a member of the Chunchale Gram Panchayat who was a panch for the scene of offence panchanama, namely, the house from which the accused had carried Sindhubai to Udhna; (8) Police Head Constable Tukaram Bornare (P.W. 8); and P.S.I. Somnath (P.W. 9), the Police Officer connected with the investigation of the said offence. The accused pleaded not guilty and claimed to be tried. He, however, did not lead any evidence in support of his case that it was Lilabai who had asked him to take the prosecutrix to Surat as he was going there in search of a better employment. According to the accused, Lilabai had asked him to find out a match for Sindhubai and that is why she had asked him to take Sindhubai with him. He had not kidnapped Sindhubai as alleged by the prosecution.
6. On the basis of the prosecution evidence, the learned Sessions Judge came to the conclusion that the prosecution had proved that Sindhubai was below 18 years of age and that she was enticed away by the accused from the lawful custody of her parents to Udhna. The learned Judge, therefore, held that the prosecution had succeeded in proving beyond reasonable doubt the offence under section 363 of the Indian Penal Code and, therefore, convicted the accused and sentenced him to undergone rigorous imprisonment for one year and to pay a fine of Rs. 25/- and in default to undergo simple imprisonment for severe days. He, however, acquitted the accused of the offence under section 366 of the Indian Penal Code since it was not proved that the kidnapping had taken places with the intention of inducing Sindhubai to compel her to marry him or to seduce her to illicit intercourse. It is aggrieved by this order of conviction that the accused has filed the present appeal.
7. I am of the view that in the present case the prosecution has not proved beyond reasonable doubt that Sindhubai was under the age of 18 and hence the accused will be entitled to an acquittal. It is for this reason that it will not be necessary to discuss the other evidence produced by the prosecution to prove the guilt of the accused. Admittedly, the only pieces of evidence produced by the prosecution to prove the age of Sindhubai are the oral testimony of her mother Lilabai (P.W. 1), a school leaving certificate Exhibit 24 and the medical evidence consisting of the deposition of Dr. Palshikar (P.W. 6) and the certificate issued by her being Exhibit 16 on record. As regards the oral testimony of Lilabai, she has stated that Sindhubai was born on 5-5-1962 and that is the age she has given in the First Information Report Exhibit 8. In support of her case she relied upon the school leaving certificate Exhibit 24, which showed the birth-date of Sindhubai on 1st October, 1962. She tried to explain these differences in the dates by stating that the date shown in the school leaving certificate was given to the school authorities by her husband. In other words, she admitted that there was differences in the opinion of her husband and herself with regard to the exact date of birth of Sindhubai. In her cross -examination she was pointedly asked about the definiteness of her knowledge with regard to the birth date of Sindhubai. She admitted that Sindhubai was born at Samner Taluka Pachora that there was a Gram Panchayat Office at Samner. She also further admitted that Sindhubai's birth-date was entered in the Panchayat Office at Samner. Admittedly no extract from the birth register maintained by the Gram Panchayat, Samner was produced on record. The school leaving certificate which has been produced has not been proved as required by law. Even if it was proved, all that it could have shown was that the date mentioned therein was entered at the instance of the party, who gave the said date at the time when Sindhubai was admitted to the school. That by itself will not prove the correctness of the birth-date of Sindhubai. As has been pointed out earlier, there was a difference of opinion on the point between the mother and father of Sindhubai herself. In the circumstances, neither the oral testimony nor the so called documentary evidence purported to be tendered in the form of the said school leaving certificate can be relied upon as a conclusive evidence with regard to the age of Sindhubai. If the entry with regard to the birth-date admittedly made in the Gram Panchayat Office of Samner was produced and proved, that would have been more credit worthy evidence in favour of the prosecution. However, it is not known as to why this piece of evidence although available was not produced by the prosecution in support of their case that Sindhubai was born on a particular date and that she was below the age of 18. The unreliable nature of the secondary evidence sought to be produced by way of the said school leaving certificate, the uncertain information possessed by Lilabai and the omission to produce the entry from the birth register of the Gram Panchayat Office are factors against the prosecution on this point. The only other piece of evidence relied upon by the prosecution, namely, the medical evidence is neither here nor there and in fact it supports the defence case that Sindhubai was about 18 years of age. Dr. Reveti Palshilkar (P.W. 6) has stated that she had examined Sindhubai clinically as well as the radiologically and after the said examination she came to the conclusion that Sindhubai's age was approximately 16 to 18 years. She produced the X-ray photographs which showed that in the X-ray of the wrist joint, both the epiphyses of the radius and ulna were fused with the shaft. According to her the epiphyses of the radius unites at the age of 19 and that of ulna at the age of 17 years. In the cross-examination she admitted that the age of the girl can be 19. She also stated that the opinion about the age given by her was considering the margin of error. In the certificate Exhibit 16, she has mention Sindhubai's age as being approximately between 16 to 18 years. Thus the defence case that the age of Sindhubai can be above 18 years and that it has not been conclusively proved that she was below 18 years, cannot be said to be without substance. As stated earlier, the medical evidence thus substantiates the defence version that Sindhubai cannot be said to be below 18 years in the circumstances of the case.
8. The learned Sessions Judge on this point has chosen to rely upon the evidence of Lilabai on the ground, firstly that Lilabai was to some extent was a literate woman and being a public servant was well conversant with wordly affair. He has also held that it was natural for her to remember and recollect the date of the birth of Sindhubai and that she had given 5th May, 1962 as her birth date in the First Information Report itself. He has also relied upon the fact that the variation between the age given by her and that mentioned in the school leaving certificate was properly explained by her by stating that the age given in the school leaving certificate was given by her husband. The learned Sessions Judge has also held that the medical evidence, instead of creating a doubt with regard to the exact age of Sindhubai, reinforced the prosecution version that her age was below 18 years. For reasons stated earlier by me, I am unable to accept any of the grounds given by the learned Sessions Judge for coming to the conclusion that the prosecution had established beyond reasonable doubt that the age of the girl was below 18 years. It is unnecessary to make detailed comments upon the reason given by the learned Sessions Judge to come to the contrary conclusion. Suffice it to say that in the circumstances of the case, the said reasons are far from satisfactory. Since I have come to the conclusion that the prosecution has not established beyond reasonable doubt that the age of the girl was below 18 years the accused will have to be given a benefit of doubt even assuming that all other circumstances are held to be proved against him.
9. For these reasons, I allow the appeal, set aside both the conviction and sentence of the accused and acquit him of the said offence.
10. The accused who is not on bail to be released forthwith and fine, if any, paid by him to be refund to him.