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Cri.Appeal.254.2006-1-IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 254 OF 2006Naresh S/o. Malakhe Dhurmekar,Age : 23 years, Occu. : Labourer,R/o. Veer Savarkar Road, In front of Bhide Bag, Old locality Deopur, Dhule… Appellant (Orig. Accused)VersusThe State of Maharashtra… Respondent. (Orig. Complainant)…..Mr. Laxman V. Sangit, Advocate for Appellant.Mr. V. M. Chate, APP for Respondent - State.…..CORAM :ABHAY S. WAGHWASE, J.RESERVED ON :10 FEBRUARY 2025PRONOUNCED ON :18 FEBRUARY 2025JUDGMENT : 1.In this appeal, there is challenge to the judgment andorder of conviction dated 27.02.2006 passed by learned III Ad-hocAdditional Sessions Judge, Dhule recording guilt of the appellant foroffence punishable under sections 363, 366 and 376 of Indian PenalCode.FACTUAL MATRIX2.PW1 informant father approached Deopur police on04.05.2004 and lodged missing report of his daughter. On05.06.2004, he lodged further report that appellant lured his minor Cri.Appeal.254.2006-2-daughter on the promise of marriage and kidnapped her. On abovereport, crime was registered. On completion of investigation and ongathering evidence, PW5 P.I. Borase charge-sheeted accused. Trialwas conducted by learned Ad-hoc Additional Sessions Judge, Dhule,who after appreciating the oral and documentary evidence adducedby prosecution vide judgment and order dated 27.02.2006 heldappellant guilty for offence punishable under sections 363, 366 and376 of IPC. Feeling aggrieved by the above judgment and order ofconviction, instant appeal has been preferred.SUBMISSIONS On behalf of Appellant : 3.Pleading innocence and false implication learned counselfor appellant forcefully submitted that in this case at the outsetprosecution has utterly failed to demonstrate and establish age of thealleged victim. He pointed out that, informant father has admittedthat his marriage is 22 years old and therefore going by such yearand his admission that victim daughter was born one year aftermarriage, his eldest daughter victim has to be definitely above 18years of age. He pointed out that, there is no school record. That,Investigating Officer has merely collected birth certificate ofmunicipal corporation and taken on record i.e. without examining
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Cri.Appeal.254.2006-3-authorities, who prepared and issued said birth certificate. He alsospecifically pointed out that, informant father was in the very serviceof municipal corporation and therefore there is every chance ofcreation of document to falsely sue prosecution case. He pointed outthat, even Investigating Officer has in cross-examination admittedthat he did not verify the original record. He also pointed out that,medical examiner also admitted about not ascertaining ordetermining the age of the victim and the date given by police wasnoted. For above reasons, learned counsel questions the veryassertion of prosecution that victim was below 18 years of age.4.It is his next submission that, victim’s own testimonyclearly shows that there was no participation of appellant in makingvictim escape from the custody of her parents. Learned counsel tookthis court through her testimony and pointed out that she has herselfleft her parent’s house on her own accord. Therefore, learnedcounsel submits that, there was no question of invoking section 363IPC and it is apparently misplaced. He also pointed out that victimhas in her evidence admitted about she writing love letters to theappellant. Learned counsel submitted that, there was long stay ofvictim with appellant and it was further on her own accord. Theyhave together moved to various places. That, at no point of time therewas any attempt to raise alarm. He pointed out that though she Cri.Appeal.254.2006-4-deposed under pressure of parents regarding physical relations, shehas herself never stated that she has forced upon. Thus, according tolearned counsel, with such evidence of very victim, learned trialcourt ought not to have accepted the prosecution story of commissionoffence under section 376 IPC. He also pointed out that, there is weakor no evidence on the point of section 366 IPC. That, medicalevidence does not corroborate offence of rape and for all abovereasons, learned counsel blames the manner of appreciation, thefindings and reasons and he seeks indulgence by allowing the appeal. In support of above contentions, learned counsel seeksreliance on following rulings :-(i)Md. Ali @ Guddu v. State of U.P., Criminal Appeal No.2238of 2010 (Supreme Court);(ii)Alamelu and Anr. v. State represented by Inspector ofPolice, (2011) 2 SCC 385.On behalf of Respondent - State : 5.Resisting the appeal, learned APP pointed out that,prosecution has proved the charges by adducing overwhelmingevidence. That, victim was minor. Her birth certificate is a strongproof in that regard. That, once prosecution discharges the burden ofproving victim to be minor, learned APP submitted that, theory put-forth about consent or love relations does not survive. That, victim Cri.Appeal.254.2006-5-has also testified. That, informant father lends corroboration. That,Investigating Officer had gathered credible evidence and prosecutionhaving succeeded in establishing the charges, learned APP submittedthat there is no infirmity on the part of learned trial Judge inaccepting prosecution case. For all above reasons, he prays to dismissthe appeal. In support of his contentions, learned APP seeks relianceon following rulings :- (i)Mahesh S/o. Tarachand Surywanshi v. State ofMaharashtra, 2013 CRI. L.J. 4557 (Bombay High Court,Aurangabad Bench)(ii)Harpal Singh and Anr. v. State of H.P. , 1981 CRI. L.J. 1(Supreme Court)(iii)State of Chhattisgarh v. Lekhram, AIR 2006 SC 1746EVIDENCE BEFORE TRIAL COURT6.The prosecution has examined following 5 witnesses insupport of its case. Their role and status are as under :-PW1informant father, who set law into motion vide Exh.36.PW2is the victim. Her testimony is at Exh.64.PW3ASI Pawar, Police Official, who recorded the complaintand registered Crime No.57/2004.PW4Dr. Pallavi Shaha is the Medical Officer.PW5P.I. Ashok Borase is the Investigating Officer. Cri.Appeal.254.2006-6-7.For proper appreciation and comprehension, it wouldfruitful to reproduce the very testimonies of relevant witnesses i.e.PW1 father, PW2 victim and PW4 doctor in verbatim as has beenstated in witness box in trial court.8.PW1 informant is the father of victim. In his testimony atExh.35 he deposed as under :- 1.In the month of June 2004 I was serving as a Watchman inSamabhaji Garden. At that time I was residing in the SambhajiGarden. My wife, my daughter xyz and my sons were residingwith me. At that time xyz was studying in 8th standard in JijamataHigh School, Dhule. I do not remember her birth date. I do notremember year of her birth. 2. In the year 2004 I had gone to my office. My wife sentmessage to me that my wife was washing clothes, at that time ourdaughter victim went away. I searched victim here and there andwith my relatives, xyz did not found us. So I gave missing reportof xyz to Deopur police station. Now my report is shown to me. Itbears my signature. It's contents are true and correct. It is atExh.No.36. Then after 8 to 15 days I came to know that accusedpresent before Court Naresh Malkhe Dhurmekar induced xyz andhe kidnapped her from my lawful guardianship. So I gavecomplaint against the accused in Deopur police station on5/6/2004. I told birth date of xyz to police as 19/1/1987. Saidbirth date is correct. I also gave birth certificate of xyz to police.Now my complaint is shown to me. It bears my signature. It'scontents are true and correct. It is at Exh. No.37. Now birth Cri.Appeal.254.2006-7-certificate of xyz shown to me. It is at Exh. No.38. Then after onemonth to one and one fourth month xyz returned to our house. Atthat time father of accused by name Malkhe left xyz to our house.I inquired with xyz. xyz told to me that accused present beforecourt induced xyz to marry with her and he took her to Bhusaval,Akola and other 4 to 5 villages. xyz told to me that accusedpresent before court forcibly did sexual intercourses with her atabove said places. I took xyz in Deopur police station. Policerecorded our statements. Police sent xyz to hospital for medicalexamination. While under cross, he answered that, he served inmunicipal corporation and that his daughter studied only up to 8thstandard. He answered that, he does not remember date, month andyear of his marriage, but answered that, it took place 22 years back.He has registered his marriage in Dhule, but he was not carrying saiddocument. He answered that, after one year of his marriage, his wifegave birth to victim. He also answered that her birth in the hospitalof the then municipal council. He is unable to state why portionmarked ‘A’ is missing from his complaint. He admitted that, at thetime of incident engagement of his daughter was done andbridegroom was from Jalgaon. He admitted his daughter authoringthe cheat Exh.41. He further admitted how portion marked ‘B’ wasappearing in his statement. Rest is all denial.9.The second witness on behalf of prosecution is victimherself (PW2). In her testimony at Exh.64 she deposed as under :- Cri.Appeal.254.2006-8-1. On 2/1/2005 my marriage took place along with SubashThapa at Jalgaon. Prior to that my name was xyz xyz xyz. On23/4/2004 I was residing along with my parents at Dhule. I knowaccused present before Court Naresh Malkhe Dhurmekar. I havestudied up to 8th standard. I do not remember what happened on19/4/04. I do not remember what happened on 23/4/2004. When II was studying in school, since that time accused Naresh presentbefore Court used to come to my back. Accused Naresh presentbefore court used to say that he used to laove me. Accused usedto come to my back on each day. Accused used to say to me that Ishould marry with him. I used to refuse to do so and I used toavoid accused. On one day accused took me forcibly throughrickshaw at Nagaonbari. Then after accused left me to my house.Then after I left my education then after my father admitted me inJijamata School. 2.On the day of incident, I had worn Saree. My mother waswashing clothes in front of my house. My house My mother toldto me that my brother Virendra was not in out house. So I shouldsearch him, so I went to Panzara river to search my brotherVirendra. Accused present before Court and other two personstook me forcibly through rickshaw form river. Accused andothers stopped rickshaw at backside of Ahilyadevi School. Thenafter accused and other took said rickshaw further. Then afteraccused and others stopped said rickshaw at some distance.Accused put sindoor on my forehead. Accused put Mangalsutraat my neck. Then after accused took me at Akola - Then afteraccused took room at Akola on rent. I and accused resided insaid room for 15 to 20 days. During above said 15 to 20 days didnot happen anything. I am again saying that during above said15 to 20 days accused forcibly wihout my consent committed Cri.Appeal.254.2006-9-sexual intercourses with me. Accused committed above sexualintercourses with me without my consents for 4 to 5 times. Thenafter accused left said room, Accused took me to house of hisfriend at Akola. Accused and resided in house of said friend ofaccused for 15 to 20 days. A Accused got service at Akola.Accused took one room on rent. Accused took me in said room. Iand accused resided in said room for one month. Then afteraccused took me to the house of his maternal aunt at Bhusawal. Iand accused resided in said house of maternal aunt of accused atBhusawal for 7 to 8 days. Then after accused took me to thehouse of his relative at Savada. Then after I and accused residedat said house at Savada for 3 to 4 days. Then after accused tookme at house of his relative at Dharangaon I and accused residedat that house at Dharangaon for 2 to 4 days. Father of accusedcame at said house at Dharangaon and he brought me at Dhuleand he left me to the house of my father. Prior to that father ofaccused took me to office of advocate at Dhule. At that timemother of accused was also along with father of accused. At timebrother of accused was also along with parents of accused.Accused was also along with us. Said advocate took signatures ofmy self and accused on blank paper. Said advocate did not askme anything. Then after father of accused left me in the house ofmy parents. My father inquired with me. I told above said allfacts to my father. Then after my father took me to Deopur PoliceStation. My father gave complaint against the accused to policeand police recorded my statement. Police sent me to CivilHospital Dhule for my medical examination. Lady doctorexamined me. Police seized my nicker and peticoate. Now seizedarticle No.1 petticoat and article No.2 nicker are shown to me.They are of mine. Cri.Appeal.254.2006-10- While under cross, she answered that, she is the eldestdaughter and her parents had three sons after her. She admittedwriting letters in Exhs.41 to 62 and its contents to be true andcorrect, which are love letters. She admitted that she did not informpolice that accused forced her to write letters. She denied thecontents of portion marked ‘A’ to ‘G’ to be correct and is unable toassign why the same are appearing in her statement.10.Paragraph 6 of her cross examination carries omissionsabout accused following her; asking her to marry him; she avoidinghim; accused and two other persons coming in a rickshaw andforcibly taking her; accused applying sindur on her forehead; accusedhaving forceful sexual intercourse for 4 to 5 times; she and accusedresiding in a rented room; they moving to Akola, Dharangaon andDhule; staying there and she being brought back to police station. She admitted in paragraph 7 that when accused used togo for work, she used to chat with neighbours; she admitted about notattempting at any time to come back to the home of her father, whenaccused went for work. Rest is all denial. 11.PW4 Dr. Pallavi Shaha is the Medical Officer. In hertestimony at Exh.72 she deposed as under :- Cri.Appeal.254.2006-11-1. On 6/7/2004 I was on duty as a lecturer in HireGovernment Medical College, Dhule in GynecologistDepartment. On that day police constable of Deopur PoliceStation brought xyz xyz xyz in hospital along with letter of PoliceInspector of medical examination. Office copy of said letter bearssignature of A.G. Pathak. Said copy is at Exh. No.73. I identifythe signature of Pathak. I examined xyz xyz xyz. On examinationI noticed that hymen of victim was ruptured and it admitted twofingers easily. Accordingly I issued Medical certificate of xyz xyzxyz. Now, I am submitting said certificate. It bears my signature.Its contents are true and correct. It is at Exh. No. 74. It bears mysignature in carbon on back page. Now second copy of saidcertificate given by my to police shown to me. Said copy is atExh. No.74-A. On the back page of said copy my originalsignature is on it. Contents of both Exh. Nos. 74 and 74-A aretrue and correct. While under cross, she admitted in cross about notconducting ossification test of the victim and that she wrote the ageon the basis of police papers.APPRECIATION OF EVIDENCE AND ITS ANALYSIS12.Here, principal ground of challenge seems to be the age ofvictim. Learned counsel has seriously challenged prosecution’s casethat victim was below 18 years of age. He questions the very validityof birth certificate on the ground of not getting it proved as perEvidence Act. His specific accusation is that birth certificate is Cri.Appeal.254.2006-12-manufactured one as father informant himself was in municipalcorporation. Learned APP would counter by submitting that it is apublic document and can be straightaway led and even read inevidence.13.In the light of above assertions and accusation ofmanufacturing of document, as pointed out, father has indeed incross examination admitted that he was married 22 years back andbirth of the eldest girl child i.e. victim was after one year of themarriage. He has admitted that he was in municipal corporation. It isto be noted that, in his substantive evidence itself, he speaks of hiswife giving delivery in the hospital of the then municipal council, butExh.38 is apparently issued by municipal corporation and notmunicipal council. It is apparently issued on 07.07.2004 i.e. duringinvestigation. Investigating Officer in cross examination candidlyadmitted that he did not obtain school leaving certificate of thevictim; did not verify register of birth maintained by municipalcouncil; did not record statement of concerned clerk of municipalcouncil and also admitted about not inquiring whether birth of victimtook place in the house or hospital.14.Therefore, above discussion clearly shows that, marriageof informant is 22 years prior to the occurrence. He having admitted Cri.Appeal.254.2006-13-his wife giving birth to victim after one year of marriage, inferencecan be drawn that victim was over 18 years of age. Birth of victim isshown to have taken place in hospital of municipal council, butapparently Exh.38 is issued by municipal corporation, which cameinto existence at subsequent point of time. Under suchcircumstances, it was expected of Investigating Officer to not tomerely tender birth certificate on record. Supportive or foundationalextract of birth register would have fortified the credibility of Exh.38which apparently is issued during investigation. Again birthcertificate is not admitted by defence as there is no remark to thatextent. Resultantly, taking into account the cross examination offather and very Investigation Officer, there is substance in the doubtraised by learned counsel for appellant regarding the credibility ofbirth certificate and manner of its procuring. No doubt, document canbe taken on record and even read in evidence, if it is produced andexhibited in accordance with the rules and principles laid down.Even otherwise, admission of document in evidence is different fromproof of its contents and admission of genuineness is not the sameand legal position is fairly settled to that extent. Thus, merelybecause documents are tendered and the same are public document,in view of specific objection raised, its manner of procurement andthe foundational material drawing for birth certificate not being Cri.Appeal.254.2006-14-gathered by Investigating Officer, it is difficult to accept the datereflected over it straightaway to be correct one. Therefore, here in this case, valid doubt has been raisedabout credibility of very birth certificate for above reason.15.Now as regards to other offences are concerned, evidenceof victim itself is crucial. Though in examination-in-chief she statedas above, in cross she has admitted that there was love relations andshe wrote several letters and even her father informant admits thathis daughter had written it i.e. Exhs. 41 to 62. She is unable to statewhy portion marked ‘A’ to ‘G ‘is appearing in her statement. Answersgiven by her in paragraph 6 are apparently material omissions,which categorically go to show that whatever stated in chief is notfinding place in her statement to police. Therefore, for above reasons,her evidence comes under shadow of doubt. She has candidlyadmitted her love relations and she herself seems to have been leftthe house as there is nothing to show that accused kidnapped her orlured her. She has accompanied him at various places and stayed forconsiderable period, but in spite of several opportunities, she has notreturned home to her parents. Only on her custody being handedover by father of accused, she seems to have accompanied her fatherto police. Cri.Appeal.254.2006-15-16.Though medical expert is examined and said medicalexpert PW4 Dr. Shaha has examined the victim on 06.07.2004,opinion issued is “possibility of sexual assault”.17.As stated above, there is long stay for months togetherwith accused due to admitted love relations. While in witness box shetoo stated that now she is married. This court has already doubtedthe claim of prosecution about victim to be minor. Mere testimony atsubsequent point of time about forcible sexual intercourse and stillcontinuing stay with the accused till being brought back createsdoubt about the credit worthiness of her statement of forceful sexualintercourse. 18.To sum up, here, prosecution failed to establish very ageof victim. Birth certificate though brought on record, there areseveral reasons to question its contents for reasons stated above.Love relations and physical relations resulting into the same are writlarge from the very evidence of victim.19.Learned trial Judge has straightaway accepted the birthcertificate holding prosecution proving victim to be minor. Answersgiven by father and Investigating Officer in cross examination arelost sight of, more particularly, on the point of age and manner ofacquisition of birth certificate. Answers given by very victim in Cri.Appeal.254.2006-16-examination-in-chief as well as cross examination are also notapparently taken into account and not correctly appreciated.Therefore, interference is called for. Hence, I proceed to pass thefollowing order :- ORDER(I)Criminal Appeal stands allowed.(II)The conviction awarded to appellant Naresh S/o. MalakheDhurmekar in Sessions Case No. 76 of 2004 by the learnedIII Ad-hoc Additional Sessions Judge, Dhule on 27.02.2006for the offence punishable under sections 363, 366 and 376of Indian Penal Code, stands quashed and set aside.(III)The appellant stands acquitted of the offence punishableunder sections 363, 366 and 376 of Indian Penal Code.(IV)The bail bonds of the appellant stand cancelled.(V)The fine amount deposited, if any, be refunded to theappellant after the statutory period.VI)It is clarified that there is no change as regards the order inrespect of disposal of muddemal. (ABHAY S. WAGHWASE, J.) Tandale