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2019 Supreme(Bom) 924
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
Rohit B. Deo, J.
Ganesh - Appellant
Vs.
State of Maharashtra - Respondent
Criminal Appeal No. 299 of 2019
Decided On : 05-07-2019
R.D. Hazare, Adv., N.B. Jawade, Adv.
The central legal point established in the judgment is the requirement for the prosecution to conclusively establish the victim's age and her inability to consent to the sexual relationship in cases of alleged kidnapping, abduction, and rape.
Headnote:
IPC - Kidnapping, Abduction, and Rape - Section 363, Section 366, Section 376 - The judgment discussed the evidence related to the age of the victim, consent in the sexual relationship, and the evidentiary value of the school record. The court found that the prosecution failed to conclusively establish that the victim was a minor and therefore not in a position to consent to the sexual relationship, leading to the acquittal of the accused.
Fact of the Case:
The victim's father lodged a report alleging that the accused kidnapped the victim with the inducement of marriage. The prosecution presented evidence to prove the charges under Section 363, Section 366, and Section 376 of the IPC. The accused claimed false implication and abjured guilt.
Finding of the Court:
The court found that the sexual relationship was consensual and that the victim accompanied the accused willingly. It also noted that the prosecution failed to conclusively establish the victim's age and her inability to consent to the relationship.
Issues: The key issues revolved around the consent in the sexual relationship, the age of the victim, and the evidentiary value of the school record.
Ratio Decidendi: The court's decision was influenced by the lack of conclusive evidence regarding the victim's age and her consent in the sexual relationship, leading to the benefit of the doubt being given to the accused.
Final Decision: The judgment dated 4.5.2018, rendered by the Additional Sessions Judge, Amravati in Session Trial 102 of 2012 is set aside. The appellant - accused is acquitted of offences punishable under sections 363, 366 and 376 of the Indian Penal Code. Fine paid, if any, be refunded to the accused. The accused shall be released from custody forthwith unless his detention is required in connection with any other crime. Fees of the appointed counsel Shri R.D. Hazare, be paid as per rules.
JUDGMENT :
Rohit B. Deo, J.
This appeal is directed against the judgment dated 4.5.2018 rendered by the Additional Sessions Judge, Amravati in Sessions Trial 102 of 2012 whereby the appellant who shall be referred to as the accused hereinafter, is convicted and sentenced as follows:
Section 363 of the IPC Rigorous Imprisonment for three years and payment of fine of Rs.3,000/-, in default to undergo simple imprisonment for three month.
Section 366 of the IPC Rigorous Imprisonment for seven years and payment of fine of Rs.5,000/-, in default to undergo simple imprisonment for six month.
Section 376 of the IPC Rigorous imprisonment for ten years and payment of fine of Rs.5,000/-, in default to undergo simple imprisonment for one years.
2. The prosecution case:
(i) PW 1 - Rameshwar Jadhav, who is the father of the victim lodged report dated 13.12.2011 (Exh. 21) at Police Station Shirkhed alleging that the accused kidnapped the victim with the inducement of marriage.
(ii) The gist of the report is that PW 1 - Rameshwar Jadhav is residing at village Wagholi with his deaf and dumb wife and three daughters. The eldest daughter is married, the victim is aged 15 years and the youngest daughter is aged 13 years.
(iii) The victim went inside the jungle to collect wood for fuel on 7.12.2011. She did not return home. Search proved futile and on 8.12.2011, a missing report was lodged at Police Station, Shirkhed. After the victim returned home, the deaf and dumb wife of Rameshwar Jadhav communicated by signs that the accused had taken the victim with him. Rajeshwar Jadhav sought police assistance and went to the house of the accused and found the victim staying in the house with the accused. Rameshwar inquired with the victim and was told that the accused induced the victim by promising marriage and on 7.12.2011 at 3.00 p.m. took the victim from Wagholi to Jaltapur. Rameshwar then made the victim and the accused accompany him to Shirpur Police Station.
(iv) On the basis of the report Exh. 21 and the printed First Information Report Exh. 22, offence punishable under section 363 and 366 of the IPC was registered. It appears, that at a subsequent stage, offence punishable under section 376 of the IPC was additionally registered.
(v) API Shri Ganesh Thakre visited the spot and prepared spot panchanama (Exh. 92). PSI Shri Nithale went to Jaltapur and prepared spot panchanama (Exh. 68) of the house where the victim was found with the accused. The clothes of the victim were seized from the said spot vide seizure panchanaa Exh. 69. Statements of witnesses were recorded. The victim was medically examined and the report obtained (Exh. 79). The victim was subjected to the ossification test and the report obtained (Exh. 96). API Ganesh Thakre collected the school record of the victim. The accused was arrested and blood samples, semen samples and pubic heir of the accused were collected and seized. The blood samples, vaginal swab and pubic hair of the victim were collected by lady police constable Netra, sealed and seized vide panchanama Exh. 45. The seized articles were sent for chemical analysis. After the completion of the investigation, the chargesheet was presented in the Court of the jurisdictional magistrate who committed the case to the Sessions Court.
(vi) The learned Sessions Judge framed charge for offence punishable under section 363, 366 and 376 of the IPC. The accused abjured guilt and claimed to be tried in accordance with law.
(vii) Prosecution examined seven witnesses to bring home the charge. The accused claimed false implication. The accused did not step into the witness box nor was any witness examined in defence.
(viii) The reasoning of the learned Sessions Judge may now be noted. The learned Sessions Judge observes that in view of the medical certificate Exh. 78, it is proved that the accused had sexual intercourse with the victim. The evidence of the victim is also considered to support the finding that sexual intercourse took place between the
