Cri-APPEAL-914-2018.odt

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 914 OF 2018

Satesing @ Aaba Manga Thakare (Bhil)

Age:- 22 years, Occu:- Agril.,

R/o Dongargaon, Tq. Shahada,

Dist. Nandurbar

… Appellant

Versus

The State of Maharashtra and another

… Respondents

.…

Mr. Chaitanya R. Deshpande, Advocate for appellant

Mr. S. P. Sonpawale, APP for respondent No.1 – State

Smt. Sabahat Kazi, Advocate for respondent No.2 (Appointed)

.…

CORAM : R. G. AVACHAT, J.

DATED : 19^th APRIL, 2022

J U D G M E N T :-

.

This is an appeal against conviction and consequential

sentence. Vide judgment and order dated 21.11.2018, passed by the

learned Additional Sessions Judge, Shahada, District Nandurbar in

Sessions Case No.35 of 2015, the appellant has been convicted for

the offence punishable under Section 376 of the Indian Penal Code

and therefore, sentenced to suffer rigorous imprisonment for ten

(10) years and was directed to pay fine of Rs.5000/-, in default, to

suffer rigorous imprisonment for five (5) months.

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2.

The challenge is mainly on the ground of age of the

victim. It is the case of the prosecution that the victim, at the

relevant time, was little over 13 years of age. The appellant, with a

promise of marriage, had sexual intercourse with her. As a result

thereof, she conceived. When her pregnancy became visible, she was

taken to a hospital for medical screening. The same day, she gave her

statement-cum-First Information Report (FIR) (Exh.22), wherein she

attributed someone else to have pregnanted her. 3–4 days thereafter,

she gave additional statement alleging the appellant to have been

responsible for her pregnancy. The appellant was therefore arrested.

Both were medically examined. Their blood samples were obtained

and submitted for DNA profile. The DNA report (Exh.70) indicated

the victim and the appellant to be the biological parents of fetus.

Thereafter, the victim underwent medical termination of pregnancy.

As such, the learned Advocate for the appellant did not dispute

sexual relationship between the appellant and the victim. The

question is whether the victim was below 18 years of age at the

relevant time and her consent therefore was invalid.

3.

Let us therefore appreciate the evidence of the

prosecution in proof of age of the victim at the relevant time. The

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victim – PW1, testified that at the relevant time she was 15 years of

age. She, however, did not give her date of birth. Even if she had

given her date of birth, the same would have been inadmissible

being hearsay.

4.

The second witness is the mother of the victim. It is in

her evidence that by the time of the incident, the victim was 15 years

of age. She, however, did not give date of birth of the victim. On the

contrary, she testified in her cross examination that she could not tell

the exact age of her children. She was also unable to tell year of

their birth/s. She claimed to be unable to read and write Marathi.

She is uneducated. She even went on to state to have lodged the

report against the appellant since he refused to marry the victim. As

such, the evidence of the mother of the victim is also not helpful for

the prosecution to prove the age of the victim.

5.

PW3 – Dr. Yogesh Patil had conducted urine pregnancy

test of the victim and found her to have been pregnant of little over

sixteen (16) weeks. According to him, the victim was 13 years of

age. Admittedly, the victim was subjected to ossification test for

ascertaining her age.

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6.

PW4 – Dr. Shila Bokare, who had also medically

screened the victim and had obtained her blood samples for DNA

profiling, testified the victim was 14 years of age. She gave this

evidence based on the information given by the victim. As such, so

far, there is no concrete evidence about the age of the victim.

7.

The prosecution produced in evidence the school re