BOMBAY HIGH COURT
Vibha Kankanwadi, J.
Lahu Bhausaheb Sonwane —Appellant
versus
State of Maharashtra and Anr. —Respondents
Criminal Appeal No.263 of 2016
Decided on 9.3.2020

IMPORTANT POINT
Where the minor leaves her father’s protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

Headnote:

Indian Penal Code, 1860—Section 363, 366A and 376—Kidnapping and sexual intercourse with minor aged about 15 years—Appeal against conviction—Victim, who had studied only upto 5th class, residing with her brother was taken away by accused and both stayed together for two days and accused had sexual intercourse with victim—Victim stated in evidence that accused told her that he would marry her and they both would run away and evidence showed that she voluntarily left the house—School leaving certificate of victim showing her date of birth though a public document, was not exhibited during trial—Trial Judge ought not to have read if in evidence—Doctor Radiologist assessed age of victim between 16 to 18 years—No authentic document produced by prosecution to prove that victim was below 18 years of age—Conviction was liable to be set aside.

Held: PW 1 is the informant, but as aforesaid, as per the contents of the First Information Report as well as his testimony, he was not even at Taklibhan on the day of incident. Therefore, his testimony is based on the information supplied to him, firstly by his elder brother and secondly by the victim after she was brought back. He has also stated that the lady in the neighbourhood by name Mathurabai had given information that the victim had gone along with the accused. Said Mathurabai had not been examined by the prosecution for the reasons best known to it. How Mathurabai got the information or whether she had seen personally victim going along with accused, is a question. It could not also give indication, whether victim had gone voluntarily or was forced by the accused to go along with him. Thereafter, he says that after the sister was brought, upon inquiry she said, that accused had shown willingness to marry and then kidnapped her. But in the cross-examination he has admitted that the sister had gone along with the accused willingly. Accused belongs to their community and they are the relatives and then he has also stated, that due to misunderstanding he had lodged the report against the accused. The said admission ought to have been considered by the learned Trial Judge. Further, in his examination-inchief itself it has come on record, that the victim is married and has two children. There was no attempt, on the part of the prosecution, to bring it on record as to when she got married and what are the age of her children. The incident had taken place between intervening night of 13.03.2011 to 14.03.2011 and PW 1 was examined on 19.04.2014. We can not infer that within the span of about three years she got married and had two children. It was also not extracted from PW 1, as to what was the age of the victim when she got married. Therefore, opportunity to bring her age on record through PW 1 was not taken by the prosecution. Since even PW 1 is elder to victim, he would have been in better position to say about the age of the victim.

PW 2 is the victim. She has stated that her parents had died and therefore, she was living with her brothers. At the time of incident she was with one brother and as her sister-in-law had gone for delivery, she used to cook food for the brother. Accused used to come to the house of one Nandabai and said Nandabai had introduced the accused to her. Accused had told her that he would marry her and they both would run away, and therefore, she and the accused went to village Zolegaon. They went to Sandip Dhaba, stayed there for a night, where the accused had sexual intercourse with her. From Zolegaon they went to the house of maternal uncle of accused, where they stayed and also at that place the accused had sexual intercourse with her, and thereafter, the brother of the accused had brought them to Police Station, Shrirampur. Thus, it is to be noted that she had not even stated, that any force was applied by the accused on her. It was his simple statement that they would run away. But since the promise to marry was given, it appears that she voluntarily left. She has stated that her date of birth is 22.03.1995. In her cross-examination she had stated that she had studied up to 5th standard and thereafter left the school about 10-15 years prior to her deposition, which was recorded on 20.04.2014. If we get the calculation about the same, then she would definitely be major on the date of incident. Her School Leaving Certificate was not procured by the Investigating Officer. The testimony of PW 7, PSI Kshatriya, who has done the investigation, is silent on the point, as to why he had not collected any evidence regarding her birth date from school record. At this stage itself, the birth certificate, which is on record, is required to be considered, which has been marked as Article “H”. This birth certificate is issued by Rui Grampanchayat, Tq. Kopargaon, Dist. Ahmednagar. Name of the child born on 22.07.1995 is stated. Name of the child is mentioned and name of the parents is also mentioned (That name is not reproduced here with intention that it should not disclose her identity). However, there is difference in the name of father given by PW 1 to 3 with the said certificate and none of them have stated about the name of her mother. None of them have given that place of birth of victim is Rui, Tq. Kopargaon. This Court does not agree with the submission on behalf of the appellant that birth certificate is not a public document. In fact, it is a public document, which is the extract of the register maintained under the provisions of Birth and Death Registration Act, which is always maintained by the Government servant under the Act. However, as regards present case is concerned, since basic information to connect the said certificate with the victim have not been adduced, it cannot be accepted that the said birth certificate is in respect of the victim. The birth date mentioned by the victim in her examination-in-chief is also different than it has been mentioned in Article “H”. The learned Trial Judge has not exhibited the said document. The reasons for non-exhibition of the said document cannot be gathered from the impugned Judgment. But when it was not exhibited then the learned Judge ought not to have read it in evidence. Opportunity to cross examine the concerned person as well as the Investigating Officer has not been properly then given to the accused, when during the evidence it is marked as Article and then it is read in evidence at the time of writing Judgment. Therefore, we cannot consider that document to be a conclusive proof regarding the date of birth of the victim, so as to hold that she was minor, aged around 15, at the time of incident.

As regards document Exh.65, it says that the age of the victim was between 16 to 18 years. Though PW 5 Dr. Chhatwani has been examined, Radiologist was different and document Exh.65 was not even referred in the testimony of PW 5 Dr. Chhatwani. From the said document it is absolutely not clear, as to how the said document came to be exhibited. PW 7, PSI Kshatriya was the last witness, examined at Exh.41. The roznama dated 25.09.2014 says that Exh.64 is given to medical certificate and Judgment is at Exh.65. Yet, the document which has the heading ‘District Hospital, Ahmednagar’ report of medical officer on examination of injuries dated 22.03.2012 has been given Exh.65. That means, Exh.65 is repeated and Exh.64 is given is the MLC document (OPD registration charges), which is generally given at the stage of admission to any patient. Therefore, the procedure adopted by the learned Trial Judge while exhibiting these documents is absolutely illegal and the said document without examining any medical officer, who was either the author or any way connected to the tests conducted. It ought not to have been read in evidence. Thus, there is no authentic document produced by the prosecution to prove that victim was below 18 years of age, on the day of incident. Rather the admissions, that she is married and has two children would show, that she was major or near about 18 when the incident took place. Even if for the sake of convenience we accept that Exh.65 report can be considered, it says that the age of the victim was between 16 to 18 years and there would be then margin of plus as well as minus two and then when it comes to giving benefit to the accused taken as plus two, therefore, she was having sufficient understanding capacity on the day of incident.

Taking into consideration the said law laid down and for the above discussion this Court comes to the conclusion, that the learned Trial Judge totally erred in convicting the accused by holding that he has committed offence punishable under Section 363, 366-A, 376 of the Indian Penal Code. The said conviction as well as the order of the payment of compensation under Section 357 of Cr.P.C. deserves to be set aside. It will have to be observed, taking into consideration the admissions, those were given and basic documents regarding proof of the age of the victim were not coming forward and also the fact that without any evidence being led and without giving any opportunity to the accused, certain documents have been exhibited behind the back of the accused by the learned Trial Judge, the entire approach of the learned Trial Judge is perverse. Appeal, therefore, deserves to be allowed and following order is passed. (Paras 9, 11, 12 and 14)

Result: Appeal allowed.