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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
K.R. SHRIRAM, J.
The State of Maharashtra - Appellant
Versus
Prashant Baburao Gawand – Respondent
Criminal Appeal No. 762 of 2002
Decided on : 02-12-2019
Indian Penal Code - Section 376 - Amendment Act 22 – First Information Report - For acquitting accused – Re appreciate and reconsider evidence - It is the case of prosecution that prosecutrix was working as a maid in the house of accused. Sometime in month accused asked prosecutrix as to whether she was having physical relations with one to which prosecutrix answered in affirmative. Accused then threatened prosecutrix that he would reveal the fact of her physical relation with to her parents later while the father of accused was sleeping in outside the house and prosecutrix was working in the house, accused took the prosecutrix in the kitchen and threatened her that if she did not allow him to perform sexual intercourse with her, he would reveal her relation with to her mother. Prosecutrix says that accused thereafter performed sexual intercourse with her in the standing position – Held, Strangely, another Medical Officer Civil Hospital after considering same two X-rays which had considered, opines that the approximate age of prosecutrix - When there are two such reports, which are at variance with each other, the onus was on the part of the prosecution to clear the controversy particularly, when the school register indicate the age of the prosecutrix on the date of lodging the FIR to be around 16 years. The prosecution could have brought birth record from to indicate the birth of prosecutrix was on a particular date and corroborate what the school records indicated - Prosecution has done nothing in that regard. In such a situation, how could the court conclude that prosecutrix was below the age of 16 on the date of incident has stated that the date entered in the register is based on what the parents or the family members who accompanied the child informed the school. That does not mean that the date is absolutely correct unless some other evidence is produced. In these circumstances, the age of accused is not proved - Apex Court in Chandrappa & Ors. V/s. State of Karnataka paragraph 42 has laid down the general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal. Paragraph 42 reads as under - From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge - An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded - Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law - There is an acquittal and therefore, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law - Secondly, accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. For acquitting accused, the Sessions Court in Appeal rightly observed that the prosecution had failed to prove its case - Appeal dismissed
JUDGMENT :
1. This is an appeal impugning an order and judgment dated 30-3-2002 passed by the IInd Adhoc Addl. Sessions Judge, Raigad, acquitting respondent Prashant B Gawand (accused) of the offence punishable under Section 376 (Punishment for rape) of the IPC.
2. The alleged offence of rape occurred in December 1999 / January 2000, which means it was prior to the Amendment Act 22 of 2018, which came into effect on 21-4-2018. Relevant provision for this matter in the pre Amendment Act would be Section 376(2)(i) and the same reads as under:
“376(2):- Whoever, ………..
(a) to (h) ………………………..
(i):- Commits rape on a woman when she is under sixteen years of age.
…………………………….”
3. It is the case of prosecution that prosecutrix was working as a maid in the house of accused. Sometime in the month of December 1999, accused asked prosecutrix as to whether she was having physical relations with one Shailesh Vilas Mhatre (Shailesh), to which, prosecutrix answered in the affirmative. Accused then threatened prosecutrix that he would reveal the fact of her physical relation with Shailesh to her parents. 4 or 5 days later at about 4.00 p.m., while the father of accused was sleeping in the verandha outside the house and prosecutrix was working in the house, accused took the prosecutrix in the kitchen and threatened her that if she did not allow him to perform sexual intercourse with her, he would reveal her relation with Shailesh to her mother. Prosecutrix says that accused thereafter performed sexual intercourse with her in the standing position. Accused, it seems had another tryst with prosecutrix in January 2000 when the prosecutrix had gone to the house of accused for preparing food. At about 11.30 / 11.45 a.m., accused again went to her and both of them were alone in the house and when she was preparing food, accused forcibly hugged her and again performed sexual intercourse with her in standing position. Prosecutrix did not disclose any of these to anybody because she was frightened. As rumors started spreading in the village about her pregnancy from Shailesh and her mother also inquired with her she revealed to her mother that she was pregnant since 5 months. According to prosecutrix, accused was aware of her relationship with Shailesh, who had promised to marry her but taking advantage of her being in physical relationship with Shailesh and by threatening her of disclosing that to her parents, accused forcibly had sexual intercourse with her twice. Accordingly, prosecutrix lodged an FIR on 20-8-2000, under Section 376 of the IPC and after necessary investigation the charge sheet against accused was submitted. In due course, the case was committed to the Court of Sessions Judge. The charge was read over to accused who pleaded not guilty and claimed to be tried. The defence of accused, as we can see from the statement recorded under Section 313 of CrPC, is one of total denial and that a false case has been filed against him.
4. To prove its charge, the prosecution led evidence of 4 witnesses, P.W.-1 Harishchandra Gajanan Bhagat, Head Master of Primary School, Dhokawde, P.W.-2 was prosecutrix, P.W.-3 was Smt. Nisha Bhagat, the mother of prosecutrix and P.W.-4 Harishchandra Salunkhe, Investigating Officer. Accused on his part admitted the seizure panchnama (Exhibit-7) of the underwear belonging to accused, spot panchanama (Exhibit-8), seizure panchanama (Exhibit-9) of nicker belonging to prosecutrix, medical examination report (Exhibit -10) of prosecutrix, injury certificate (Exhibit-11) of prosecutrix, injury certificate (Exhibit-13) of accused, letter (Exhibit- 14) written by Medical Officer, Civil Hospital, Alibag giving opinion of age of prosecutrix to PSI Alibag Police station and chemical analysis report (Exhibit-15 to Exhibit 21) under Section 294 of CrPC.
5. The case of the prosecution was that the evidence of prosecutrix is so convincing and proves that accused committed rape on prosecutrix from time to time. Secondly, since the age of pros
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