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1993 Supreme(Bom) 203
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
W.M. Sambre B.U. Wahane, JJ.
Yograj alias Yogesh s/o Laxman Gakhare.... Appellant.
Versus
The State of Maharashtra ....Respondent.
Criminal Appeal No. 198 of 1989, decided on 23-4-1993.
Advocates appeared :
Anand Manchar Parchure, for the appellant.
G.C. Mishra, A.P.P., for respondent.
In cases of rape, the prosecution must prove beyond reasonable doubt that the victim was a minor at the time of the alleged offense. Medical evidence alone cannot be conclusive in determining the age of the victim, especially when there is a margin of error.
Headnote:
RAPE - SECTION 376 IPC - AGE OF PROSECUTRIX - MEDICAL EVIDENCE - INTERPRETATION - BENEFIT OF DOUBT:
Fact of the Case:
Appellant was convicted under Section 376 of the Indian Penal Code for raping the prosecutrix, a minor girl. He challenged the conviction on the grounds that the prosecutrix was a consenting adult and that the medical evidence was inconclusive regarding her age.
Finding of the Court:
The court found that the evidence regarding the prosecutrix's age was inconclusive. The school record showed her date of birth as 12-3-1972, which would have made her a minor at the time of the alleged rape. However, the medical evidence suggested that her age could be between 14 to 16 years or even 17 to 25 years. The court also noted that the prosecutrix and the accused had married and were living together, and that the accused had transferred certain property in her name.
Issues: 1. Whether the prosecutrix was a minor at the time of the alleged rape. 2. Whether the medical evidence was conclusive regarding the prosecutrix's age. 3. Whether the accused was entitled to the benefit of doubt.
Ratio Decidendi: The court held that the medical evidence was inconclusive regarding the prosecutrix's age. The ossification test, which was used to determine her age, had a margin of error of 1 or 1½ years on either side. The court also noted that the school record was not reliable as it had been tampered with. Therefore, the court concluded that the prosecution had failed to prove beyond reasonable doubt that the prosecutrix was a minor at the time of the alleged rape.
Final Decision: The court allowed the appeal, quashed the conviction, and set aside the sentence. The accused was acquitted and his bail bonds were cancelled.
2. Appellant's main contention is that he has been implicated merely on the evidence of interested witnesses. Moreover the complaint lodged by the villagers wherein it has been alleged that the prosecutrix and her mother are of bad character has not been properly investigated. It has also been contended that the sexual intercourse committed by the accused was with the consent of the prosecutrix who was a major girl of above 16 years age. It has been further contended that even the medical report shows that the prosecutrix was more than 17 years of age.
3. Facts of the case are that the prosecutrix Jijabai (P.W. 2) is resident of village Khapari (Barokar) in Katol tahsil of district Nagpur. Appellant/accused is the son of the Police Patil of the same village. The appellant/accused used to visit the house of the prosecutrix invariably. He also used to engage the prosecutrix as a labourer in his filed. The accused and the prosecutrix developed illicit relations and they used to have sexual intercourse in the river bed which resulted in the pregnancy of the prosecutrix from the appellant. It is further alleged that the accused had assured the prosecutrix to marry her and on this assurance the prosecutrix allowed the accused to have sexual intercourse with her. When the prosecutrix informed the fact of pregnancy to the accused, he refused to marry her and on the other hand he lodged a complaint with the police about her and her mother's bad character. It is stated that this complaint was lodged by near about 30 villagers. This complaint was investigated by the police and it was found that the said complaint is having no substance. It was also revealed that this complaint has been deliberately lodged to malign the status of the prosecutrix and her mother. Therefore on this report , which proved to be a false one, police lodged the F.I.R. vide Ex. 24. After completing the due investigation, the charge-sheet came to be filed against the accused in the Court of J.M.F.C. Katol, who committed the case of the accused to the Court of Sessions, Nagpur, for trial.
4. Charge under section 376 of Indian Penal Code was framed against the accused which was read over and explained to him and he pleaded not guilty to the same. In all eight witnesses were examined on behalf of the prosecution. Gunwant (P.W. 1) the Head Master of Khapri Primary School, has produced the school register. Gunwant (P.W. 1) has stated that as per the school record the date of birth of prosecutrix Jija is 12-3-1972. This witness has also stated that the father of the prosecutrix has stated the date of birth of Jija as 12-3-1972 on affidavit. The certificate regarding date of birth of Jijabai issued by the Head Master Gunwant (P.W. 1) is at Ex. 12.
5. Prosecutrix Jijabai (P.W. 2) has stated in her evidence that she was engaged by the accused as a labourer in his field and he used to have sexual intercourse with her in the river bed on the assurance that he would marry her. She further stated that he and the accused belong to same caste and, therefore, on the assurance given by the accused she allowed him to have sexual intercourse with her. As regards the complaint lodged by the villagers against her and her mother, the prosecutrix stated that the said report is false for the reason that the father of the accused, who is the Police Patil, and his elder brother Vasant have manipulated the said complaint with a definite intention that she and her mother would leave the village and the accused, who had assured to marry her, will be relieved of marrying this prosecutrix.
6. The prosecutrix has also
