Bombay High Court
Madhukar Manaji Athwale (In Jail) vs The State Of Maharashtra, Through ... on 9 February, 2017
Author: B.R. Gavai
Bench: B.R. Gavai
CRI.A 306.15.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.306 OF 2015
Madhukar Manaji Athwale,
Age 60 years,
Occupation-Nil,
R/o. Krushi Nagar, Akola,
At present detained in
Central Jail, Amravati.
(Convict No.C-4635) .. APPELLANT
ig .. VERSUS ..
The State of Maharashtra,
through P.S.O., Police Station,
Civil Lines, Tahsil-Akola,
District-Akola. .. RESPONDENT
..........
None for Appellant,
Shri M.K. Pathan, Additional Public Prosecutor for
Respondent.
..........
CORAM : B.R. GAVAI AND
KUM. INDIRA JAIN, JJ.
DATED : FEBRUARY 09, 2017.
ORAL JUDGMENT : (Per : KUM. INDIRA JAIN, J.)
Being aggrieved by the judgment and order of conviction in Sessions Trial No.10/2013 passed by the learned Additional Sessions Judge, Akola on 29.11.2014, the sole accused has preferred this appeal. By the said judgment and order, appellant has been convicted and ::: Uploaded on - 13/02/2017 ::: Downloaded on - 15/02/2017 00:28:58 ::: CRI.A 306.15.odt 2 sentenced as under :
Sr. Conviction under Punishments
Nos. sections
1. 363, IPC R.I. for 7 years and fine of
Rs.1000/- I/d R.I. for 2 months.
2. 376, IPC R.I. for life and fine of
Rs.1000/- I/d R.I. for 2 months.
3. 506, IPC R.I. for 3 years and fine of
Rs.1000/- I/d R.I. for 2 months.
4. 24 of Juvenile Justice R.I. for 3 years and fine of (Care and Protection Rs.1000/- I/d R.I. for 2 months. of Children)ig Act, 2000.
Accused was however acquitted of the offence punishable under section 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000. The learned Additional Sessions Judge directed all the sentences to run concurrently.
2] Briefly stated, prosecution case is as under :
(a) PW5 Shri Nitin Dhoot, a practicing lawyer at Akola, used to go to his office through Civil Line Square Akola. On 26.9.2012, Advocate Dhoot along with his friend Jaishan Gudadhe was passing through the square. They stopped at a tea-stall for taking tea. They saw victim girl begging. On previous occasions also, Advocate Dhoot used to go to tea-stall for tea and saw victim girl begging there. That day while begging victim went to them. Adv.
Dhoot and his friend noticed from her ::: Uploaded on - 13/02/2017 ::: Downloaded on - 15/02/2017 00:28:58 ::: CRI.A 306.15.odt 3 appearance that she was pregnant and a minor girl. Therefore, they took her to Civil Lines Police Station and asked the police to get her medically examined.
(b) Police recorded statement of minor girl. She disclosed that originally she belongs to Dhamangaon Railway, district-Amravati. She got acquainted with the accused on Gajanan Maharaj Temple at Dhamangaon Railway. She was often going to the temple for taking meals (Bhandara). Accused used to come there.
According to the victim, accused gave her allurement that he would treat her as his own daughter and insisted her to accompany him. Believing the words of accused, victim accompanied him. She was brought to Akola by accused. He compelled her for begging. Many times, he sexually assaulted her as a result of which, she conceived.
(c) On the basis of statement of victim, Crime No.273/2012 was registered against the accused for the offences punishable under sections 376 and 506 of the Indian Penal Code. Victim was sent for medical examination. It was found that she was carrying pregnancy of 24 weeks. Accused was arrested and got medically examined. PW7 API Vishnukant Gutte took over investigation. Spot panchanama was drawn in the presence of panch witnesses.
::: Uploaded on - 13/02/2017 ::: Downloaded on - 15/02/2017 00:28:58 ::: CRI.A 306.15.odt 4(d) The clothes of victim and accused were seized.
Birth certificate of victim girl was collected from Ashram School at Babulgaon. Statement of victim under Section 164, Cr.P.C. was recorded by Child Welfare Committee.
Investigating Officer recorded statements of other witnesses. Seized property was sent to Forensic Science Laboratory. On completing investigation, charge sheet was submitted to the Court of Judicial Magistrate, First Class, Akola, who in turn, committed the case for trial to the Court of Sessions.
3] Charge came to be framed against the accused at Exh.3. He pleaded not guilty and claimed to be tried. His defence was of total denial and false implication.
4] Prosecution examined in all ten witnesses in support of its case. On hearing both the sides and considering the evidence, learned Additional Sessions Judge came to the conclusion that except charge for the offence under Section 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000, all other charges were duly proved by the prosecution. In consequence thereof, appellant was convicted and sentenced as stated in para 1 above.
5] With the assistance of the learned Additional Public Prosecutor, we have gone through the evidence of ::: Uploaded on - 13/02/2017 ::: Downloaded on - 15/02/2017 00:28:58 ::: CRI.A 306.15.odt 5 prosecution witnesses. The learned Additional Public Prosecutor submitted that trial court has evaluated the prosecution case minutely and correct finding of guilt recorded by the trial court needs no interference in the present appeal.
6] The prime question in the case on hand is regarding age of prosecutrix. She was examined in the court as prosecution witness no.2 on 13.3.2014. She stated her age before the court as 15 years. Incident took place between 2011 and 2012. It means prosecutrix ought to have been between age group of 12-13 years. Prosecution has relied upon ossification test report (Exh.29) which indicates the age of prosecutrix above 16 years and below 18 years. PW6 Dr. Kailash Ramteke was the Radiologist at District Womens' Hospital at Akola at the relevant time. He performed ossification test of the victim. From x-ray findings, he opined that prosecutrix was above 16 years and below 18 years of age.
7] In addition to ossification test report, School Leaving Certificate dated 7.12.2012 issued by Headmaster of Ashram School, Babulgaon, Disrict-Yavatmal, showing date of birth of the victim as 1.5.1994 is placed on record.
The certificate is not duly proved as the competent witness ::: Uploaded on - 13/02/2017 ::: Downloaded on - 15/02/2017 00:28:58 ::: CRI.A 306.15.odt 6 from the school has not been examined and no supporting school record has been brought before the court. As the certificate is not legally proved, the same cannot be looked into and has to be kept out of consideration.
8] In the above background only, ossification test report remains on record to prove the age of prosecutrix.
The crucial question then crops up, whether prosecutrix was under age at the time of incident as contended by prosecution. In this connection, learned Additional Public Prosecutor pressed into service decision of the Hon'ble Supreme Court in Mahadeo s/o Kerba Maske .vs. State of Maharashtra and another, (2013) 14 SCC 637) and submitted that scientific examination, such as ossification test, can be relied upon as proof of age of the victim. In the said case, Hon'ble Supreme Court considered the yardstick to be applied for the determination of age of victim/prosecutrix and held that under Rule 12 (3) (b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, it is specifically provided that only in the absence of alternative methods described under Rules 12 (3) (a) (i) to
(iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, the same yardstick can be rightly followed by ::: Uploaded on - 13/02/2017 ::: Downloaded on - 15/02/2017 00:28:58 ::: CRI.A 306.15.odt 7 the courts for the purpose of ascertaining the age of a victim as well.
9] In the case on hand, except ossification test report, nothing is on record to come to a positive conclusion that prosecutrix was minor at the time of incident. As stated above, she was above 16 years and below 18 years of age as per the radiological examination. Being a girl of marginal age, it was incumbent on prosecution to establish age of the prosecutrix beyond doubt and since prosecution did not bother to prove the school leaving certificate of the victim though it was placed on record, benefit of doubt would tilt in favour of the accused.
10] So far as the offences under Sections 363, 376 and 506 of the Indian Penal Code are concerned, it is apparent from the evidence of victim that for many times, accused had sexual intercourse with her. She conceived and was carrying pregnancy of 24 weeks. She did not bother to disclose the act of accused to anyone, though she claims that she had relatives and friends to whom she could have narrated the acts of accused. The pre and post conduct of victim throughout does not rule out the theory of consent.
If she was a minor, consent would be irrelevant but if she was major, her consent would have been a relevant fact. In ::: Uploaded on - 13/02/2017 ::: Downloaded on - 15/02/2017 00:28:58 ::: CRI.A 306.15.odt 8 this peculiar circumstance, it was essential for the prosecution to prove the case beyond reasonable doubt including the age of prosecutrix. Since the prosecution has failed for the same, we find it unsafe to rely upon the solitary testimony of the victim and proceed to pass the following order :
(i) The appeal is allowed.
(ii) The appellant is acquitted of the charges charged
with. He is directed to be released forthwith if not required in any other case.
(iii) The amount of fine, if any paid, be refunded to the appellant.
(Kum. Indira Jain, J.) (B.R. Gavai, J.) .........
Gulande, PA ::: Uploaded on - 13/02/2017 ::: Downloaded on - 15/02/2017 00:28:58 :::