Bombay High Court
Badrya Amrrya Barela vs State Of Maharashtra,Thr.Pso.Jalgaon on 23 January, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.220 OF 2002
Badrya Amrrya Barela,
Aged about 25 years,
R/o Wagaon Pathan,
Tq. Jalgaon Jamod,
District Buldana. ....... APPELLANT
...V E R S U S...
The State of Maharashtra,
through P.S.O. Jalgaon Jamod,
Dist. Buldana. ....... RESPONDENT
WITH
CRIMINAL APPEAL NO.212 OF 2002
Mangalsing Khuma Mujalda,
Aged about 42 years,
R/o Wagaon Pathan,
Tq. Jalgaon Jamod,
District Buldana. ....... APPELLANT
...V E R S U S...
The State of Maharashtra,
through P.S.O. Jalgaon Jamod,
Dist. Buldana. ....... RESPONDENT
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None for Appellant.
Shri N.R. Patil, APP for Respondent-State.
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CORAM: ROHIT B. DEO, J.
DATE: rd
23 JANUARY 2018.
ORAL JUDGMENT
1] None present for the appellant. Shri N.R. Patil, the learned Additional Public Prosecutor for the respondent-State. Criminal Appeal 220/2002 is preferred by Badrya Barela challenging the conviction for offence punishable under sections 363, 366 and 376 read with section 34 of the Indian Penal Code and sentence of rigorous imprisonment for three years and payment of fine of Rs.500/- and Criminal Appeal 212/2002 is preferred by accused Mangalsing Mujalda challenging the conviction for offence punishable under sections 363 and 366 read with section 34 of the IPC and sentence of rigorous imprisonment for three years and payment of fine of Rs.500/-, recorded by the 2nd Additional Sessions Judge, Khamgaon in Sessions Trial 47/2001. Since both the appeals seek to assail the same judgment and order impugned, they heard and decided by this common judgment.
::: Uploaded on - 23/01/2018 ::: Downloaded on - 24/01/2018 02:17:03 ::: apeal220.02+.J.odt 3 2] The genesis of the prosecution lies in report dated 25.02.2001 lodged by the brother of the prosecutrix Isram Nihalsing Bilala (P.W.1) the gist of which is that P.W.1 is a resident of Mouza Mendhamari. His younger sister is aged 14 to 15 years approximately and is illiterate. The father and mother of P.W.1 had gone to water the field on 20.02.2001 and the rest of the family members were sleeping in the house. The prosecutrix used to sleep alone in one room. On 21.01.2001 the prosecutrix was missing from the house, the family searched for her and came to know that on 20.02.2001 accused Badrya came to the house of one Dhulsing Adiwasi and left during the night. Inquiries with accused Mangalsing revealed that the whereabouts of Badrya was known to Navalsing Adiwasi. P.W.1 states that he suspected that his younger sister (P.W.2) was kidnapped.
3] On the basis of the oral report offence punishable under section 363 and 366 of IPC was registered against the accused Badrya.
4] Investigation ensued, the statement of the prosecutrix ::: Uploaded on - 23/01/2018 ::: Downloaded on - 24/01/2018 02:17:03 ::: apeal220.02+.J.odt 4 P.W.2 was recorded on 10.03.2001. P.W.2 stated that she was kidnapped by accused Badrya who subjected her to forcibly sexual intercourse with the assistance of accused Navalsing and accused Mangalsing. In view of the said assertion, offence under section 376 of IPC was additionally registered, the victim was medically examined on 10.03.2001, the investigation ensued and charge-sheet under sections 363, 366 and 376 read with section 34 of IPC was submitted in the court of Judicial Magistrate First Class, Jalgaon Jamod who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge under sections 363, 366 and 376 read with section 34 of the IPC. All the accused Badrya Barela, Navalsing Deoda and Mangalsing Mujalda abjured guilt and claimed to be tried in accordance with law. The defence is of total denial. The learned Sessions Judge acquitted accused Navalsing and convicted accused Badrya and accused Mangalsing as afore-stated.
5] Since both the accused were not represented by counsel, with the fair and able assistance of the learned A.P.P. Shri N.R. Patil, I have closely scrutinized the record, and having ::: Uploaded on - 23/01/2018 ::: Downloaded on - 24/01/2018 02:17:03 ::: apeal220.02+.J.odt 5 done so, the conscious of the court is satisfied that both the appeals deserve to be allowed. It is disturbing and indeed painful, that although by order dated 03.05.2002 this court directed that accused Badrya be released on bail, he was not released presumably as the condition of bail could not be fulfilled. Accused Badrya has suffered the sentence in entirety. 6] The evidence on record, which I shall discuss in some detail at a later stage in the judgment, clinchingly establishes that the sexual relationship, if any, between accused Badrya and P.W.2 was consensual. In so far as accused Mangalsing is concerned, his conviction under section 363 and 366 read with section 34 of IPC defies jurisprudential logic, I have searched in vain for the legal evidence which could have persuaded the learned Sessions Judge to convict accused Mangalsing.
7] P.W.1 is the informant Isram Nihalsing Bilala. He states in examination-in-chief is that he asked accused Badrya and others whether they had seen the prosecutrix and the response was negative. P.W.1 states that after police brought ::: Uploaded on - 23/01/2018 ::: Downloaded on - 24/01/2018 02:17:03 ::: apeal220.02+.J.odt 6 accused Badrya and the prosecutrix to the village, the prosecutrix narrated that Badrya gave her something as 'Prasad' and he took her forcibly and she was forced to allow Badrya to have sexual intercourse with her for 15 days since Badrya threatened to kill her and her family with black-magic. Prosecutrix narrated to P.W.2 that she resided with accused Badrya at Burhanpur for eight days and at Raver for eight days. In the cross-examination it is suggested to P.W.1 that prosexutrix was more than 18 years of age, which suggestion is denied.
8] P.W.2 is the prosecutrix who has deposed that on the date of the incident accused Badrya came to her house, asked the prosecutrix to marry him, prosecutrix refused and accused threatened her that he will kill her with black-magic. Accused Badrya took her along with him and both spent the night in Kherda forest and on the next morning went to Burhanpur to the house of the accused where they resided for eight days. The prosecutrix states that during the stay at Burhanpur she permitted accused Badrya to have sexual intercourse since she was threatened. She further states that she was taken to the ::: Uploaded on - 23/01/2018 ::: Downloaded on - 24/01/2018 02:17:03 ::: apeal220.02+.J.odt 7 Burhanpur Court by accused Badrya and accused Mangalsing and some writing was recorded on which accused Badrya forcibly took her thumb impression and then she along with accused Badrya returned to his house at Burhanpur. She has deposed that thereafter she and the accused went to Raver and resided there for eight days during which period she permitted accused to have sexual intercourse since she was threatened with black-magic.
In the cross-examination she denies the suggestion that her age is more than 18 years and that on the fateful night she herself came near the Bawadi (well) of the village.
9] P.W.3 Duglibai Bilala is the mother of the prosecutrix who has deposed that the prosecutrix is 17 years old. Her evidence is recorded on 12.03.2002. She states that she has deposed that eight days after the incident she came to know that the prosecutrix went along with accused Badrya. P.W.3 states that when she met the prosecutrix after she and accused Badrya were brought to Police Station Jalgaon Jamod, the prosecutrix narrated that Badrya took her forcibly and had sexual intercourse with her.
In the cross-examination she admits that the ::: Uploaded on - 23/01/2018 ::: Downloaded on - 24/01/2018 02:17:03 ::: apeal220.02+.J.odt 8 prosecutrix has younger sister Venubai who is 14 years old and that the prosectutrix is elder to Venubai by four years. She admits that the accused Mangalsing and Nihalsing did not play any role in the incident.
10] P.W.4 Bondribai Bilalal is a relative of the prosecutrix. Her evidence is relevant only to the extent she has deposed that she came to know prior to one month of the incident that accused Badrya is interested in the prosecutrix.
11] P.W.5 Baban Aawchar is examined to prove spot panchnama Exh.28 and the seizure panchnama Exhibits 29, 30 and 31.
12] P.W.6 Suresh Thakre has proved the printed F.I.R. Exh.33 and on the basis thereof registered offence under section 376 of IPC.
13] P.W.7 is the Medical Officer who examined the prosecutrix on 10.03.2001 and issued medical certificate Exh.47. ::: Uploaded on - 23/01/2018 ::: Downloaded on - 24/01/2018 02:17:03 ::: apeal220.02+.J.odt 9 He has opined that the age of the prosecutrix is between 16 to 17 years which opinion at Exh.50.
14] The pivotal issue is whether the prosecution has established beyond reasonable doubt that the prosecutrix was less than 16 years old as on the date of the incident to render irrelevant her consent, if any, to sexual intercourse. The evidence of the mother is that the prosecutrix is elder to her younger sister Venubai by four years. The mother (P.W.3) states that the age of the younger sister Venubai is 14 years, which would suggest that the prosecutrix was 18 years old when the evidence of her mother was recorded. The medical evidence does not take the case of the prosecution any further. Exhibit 50 opines that the probable age of the prosecutrix is between 15 to 17 years. It would be apposite to refer to the following observations of the Apex Court in Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and others reported in AIR 1982 SC 1297.
"9. ..... However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."::: Uploaded on - 23/01/2018 ::: Downloaded on - 24/01/2018 02:17:03 ::: apeal220.02+.J.odt 10
In the teeth of the evidence, it must be held that the prosecution has not established that the prosecutrix was less than 16 years of age and her consent is irrelevant.
15] The evidence on record clearly indicates consensual sexual relationship. The version of the prosecutrix that she allowed the accused Badrya to have sexual intercourse for 16 days in view of threat issued of taking recourse to black-magic to harm her family etc. is neither probable nor confidence inspiring. It is not even the case of the prosecution that the prosecutrix was detained against her will or that her movements were forcibly restricted. Au contraire, the evidence is that the prosecutrix went to the Burhanpur Court along with accused Badrya and Mangalsing. The judicial conscious of this court is satisfied that the prosecutrix accompanied Badrya willingly and the sexual relationship, if any, was consensual.
16] The conviction of accused Badrya militates against the weight of evidence on record. It is a travesty of justice that he has undergone the entire punishment. Presumably, he could not ::: Uploaded on - 23/01/2018 ::: Downloaded on - 24/01/2018 02:17:03 ::: apeal220.02+.J.odt 11 fulfill the conditions of bail. It is not clear from the record whether it was brought to the notice of this court, at any point in time, that the bail writ was not complied with in view of the inability of accused Badrya to furnish bail.
17] In so far as accused Mangalsing is concerned, there is no evidence worth the name and as I have already recorded supra, the basis of conviction is an enigma.
18] In the result, both criminal appeal 220/2002 and 212/2002 are allowed. The judgment and order impugned is set aside and the appellant Badrya is acquitted of offence punishable under sections 363, 366 and 376 read with section 34 of IPC and appellant Mangalsingh is acquitted of offence punishable under section 363 and 366 read with section 34 of IPC. 19] The bail bond of the accused shall stand discharged.
JUDGE NSN ::: Uploaded on - 23/01/2018 ::: Downloaded on - 24/01/2018 02:17:03 :::