High Court

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CriAppeal-688-2002-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 688 OF 2002Limbaji Gokul Kopanbaine,Age : 18 yrs, Occu. Labour,R/o. Asrachiwadi, Tal. Renapur,Dist. Latur.… Appellant[Orig. accused no.2]VersusState of Maharashtra… Respondent…..Mr. V. D. Gunale, Advocate for the Appellant.Mr. N. D. Batule, APP for the Respondent-State...... CORAM :ABHAY S. WAGHWASE, J. Reserved on: 14.02.2024Pronounced on: 21.02.2024JUDGMENT : 1.Convict for offence punishable under Section 366-A of theIndian Penal Code [IPC] is taking exception to the judgment andorder passed by learned Additional Sessions Judge Udgir dated30.10.2002 in Sessions Case No. 149 of 2001 which was tried for theoffences punishable under Sections 366-A, 376 r/w 34 of IPC. CriAppeal-688-2002-2- IN BRIEF CASE OF PROSECUTION IN TRIAL COURT IS AS UNDER:2.Victim, a minor studying in 8th standard, was put up with herelder sister on account of pregnancy and delivery of her sister atBhutekarwadi. Complainant father of victim was residing at AsrachiWadi. On 10.03.2001, father-in-law of sister of victim came andinformed father of victim that in the intervening night of 09.03.2001and 10.03.2001, Limbaji and Ashruba, both residents of Asrachi Wadi,had come to Bhutekarwadi and abducted victim inducing her bypromise of marriage and therefore, father approached police stationand gave report. on the strength of report lodged by father, crime no. 42 of 2001was registered and investigation was completed by PW8 ASISuryawanshi, who chargesheeted both accused, Ashruba as well asLimbaji and they were made to face trial before Additional SessionsJudge, Udgir, who on appreciation of evidence, convicted presentappellant Limbaji for offence punishable under Section 366-A of IPCbut acquitted him for offence under Section 376 of IPC. Even accusedAshruba was acquitted from offence under Section 376 of IPC. Consequently, conviction for offence under Section 366-A ofIPC is now assailed before this Court by filing instant appeal. CriAppeal-688-2002-3- SUBMISSIONS3.Learned counsel for the appellant would point out that there isapparently false implication. He pointed out that main charge is ofSection 376 IPC, that too, against main accused no.1 Ashruba, but oncomplete appreciation, learned trial court has acquitted main accusedfrom said charge. However, present appellant-accused no.2 is aloneheld guilty for offence under Section 366-A of IPC and that too,without any concrete, reliable and trustworthy evidence.4.Learned counsel also questioned the prosecution case byadvancing argument that, at the first count, there is no convincingevidence about victim to be minor. He further submitted that evenotherwise, there is no direct evidence on the point of victim beingabducted from her house. Father has apparently lodged report onreceipt of information from father-in-law of sister of victim andtherefore, FIR is on hearsay information. 5.He took this court through the testimony of PW2 victim and hersister PW5 and other witnesses and submitted that requiredingredients for attracting Section 366-A are patently missing.Therefore, evidence on behalf of prosecution as regards involvement CriAppeal-688-2002-4- of appellant being very weak, conviction ought not to have beenrecorded. Resultantly, it is his submission that conviction on improperappreciation cannot be allowed to be sustained and hence, he prays toallow the appeal.6.While opposing and refuting the above submissions, learnedAPP pointed out that victim is shown to be a minor. Her date of birthis 17.04.1986. She was abducted on 09.03.2001. Therefore,apparently at such time, victim was minor. Then learned APP tookthis Court through the evidence of victim and answers given by her incross and pointed out that her evidence alone clearly shows thatvictim was taken on promise of marriage. Victim has also deposedabout she being taken to a temple and some rituals being performedthere. Therefore, role of appellant is explicit and hence, he justifiesand supports guilt recorded by learned trial Judge and prays todismiss the appeal for want of merits.7.Apparently, present appellant is original accused no.2, who waschargesheeted for commission of offence punishable under Sections366-A and 376 r/w 34 of IPC. Charge is at Exhibit 4. However, he isconvicted only for offence under Section 366-A of IPC, whichprovision reads as under : CriAppeal-688-2002-5- “366-A. Procuration of minor girl. - Whoever, by anymeans whatsoever, induces any minor girl under the ageof eighteen years to go from any place or to do any actwith intent that such girl may be, or knowing that it islikely that she well be, forced or seduced to illicitintercourse with another person shall be punishable withimprisonment which mahy extend to ten years, and shallalso be liable to fine.”8.Before adverting to the merits of the evidence on this count, itis also desirable to deal with the settled legal position which is foundin following pronouncements of the Hon’ble Apex Court.In Ramesh v. The State of Maharashtra AIR 1962 SC 1908, theHon’ble Supreme Court has in para 7 observed thus:“7.…… There are three principal ingredients of theoffence.(a) That a minor girl below the age of 18 years is inducedby the accused,(b) that she is induced to go from any place or to do anyact, and (c) that she is so induced with intent that she may be orknowing that it is likely that she will be forced or seducedto illicit intercourse with another person.”Law to this extent is also dealt in Mohammed Nisar Riyaz Khanand Etc. v. State of Maharashtra 2007 CriLJ 562 (Bom); Sat Parkashv. State of Haryana and another ABC 2016 (I) 180 SC and Iqbal v.State of Kerala (2007) 2 SCC 724. CriAppeal-688-2002-6- 9.Keeping above legal requirements into consideration, if theevidence of the victim PW2 is subjected to scrutiny, it is emerging thatPW2, who gave her age as 14 years and spoke about studying in 8thstandard, stated that she had been to her sister on account of herdelivery. That, delivery of her sister was performed and on the 8th dayof delivery, she deposed that, Limbaji came to the house atBhutekarwadi at around 13.00 hours and told her that there ismarriage in the relation and asked her to come for attending the saidmarriage upon which she replied that nobody was in the house, buthe told that he had met her grand-parents at Hipparga and that theyhad told him to bring her. Therefore, after taking meals at her sister’splace, she accompanied him and they came to Ahmedpur and fromthere she was taken to Latur. She deposed that Ashruba was presentat ST stand Latur. Then she was taken to Tuljapur. Ashrubapurchased tickets for himself, Limbaji as well as for her and she wastaken to the land where there was Akhada of one Muslim person. Shestated that she was kept there for five to six days and during suchperiod, Ashruba raped her and had sexual intercourse with heragainst her will and in spite of her resistance. After 8 to 9 days, Gokuland Sandipan came to Tuljapur and they all brought her to the landof Ashruba and there also Ashruba raped her against her will. Shedeposed that Limbaji told her at Bhutekarwadi that her marriage was CriAppeal-688-2002-7- to be performed with Ashruba and asked her to accompany him.Thereafter she was brought to police station and was subjected tomedical examination. 10.Above witness is subjected to extensive cross and the relevantcross is in para 4 where she has answered about reaching Hippargaaround 2.30 to 3.00 p.m. and there to be bus for Asrachi Wadi fromKajal Hipparga at around 4.00 p.m.. She stated that she resisted toaccompany Limbaji to Ahmedpur but he told that her marriage is tobe performed with Ashruba and asked her to come. He did not allowher to run away. She deposed that they reached at Latur at 4.30 p.m.She stated that Gokul, Limbaji showed her knife and threatened to killher if she informs anybody. She answered that they reached atTuljapur around 11.30 p.m. and stayed at Devi Temple and she wascompelled to bow before the Goddess and that she did not voluntarilybowed. She named Ashruba, Limbaji and Gokul to be with her at thetemple. She admitted that she did not attempt to run. She stated thatwhenever she went to answer call of nature, Limbaji and Ashrubawere guarding her. Omission is brought to the extent of Ashrubahaving intercourse with her against her will. But she has volunteered,on which learned trial court has noted as “witness volunteered thatshe was threatened by accused not to state so”. CriAppeal-688-2002-8- 11.PW4 Shahanur Inamdar seems to be the agricultural landowner. According to him, both accused came with one girl and thataccused Ashruba introduced the girl to be his wife and had soughtwork and therefore, he engaged Ashruba and the girl for labour work.He deposed that they stayed for three days in the land itself and afterthree days, police came and took the boy and the girl. He identifiedvictim in the court.12.PW5 sister stated that after meals when her family had been tocourt for attending date at Ahmedpur, she went to sleep and that shedoes not know when both, Limbaji and her younger sister left thehouse. When she woke up, she found both of them not in the house. In cross, she answered that Limbaji had come to the house ataround 2.00 to 3.00 p.m. That, after meals, she slept and woke uparound 5.00 p.m but no person was around.13.PW6 is the father, who lodged FIR.14.On critical analysis of above evidence, here, victim is found tobe stating that present appellant accused Limbaji came to her sister’splace and told her that there is marriage in their relation and as beng CriAppeal-688-2002-9- told by her grand-parents, he asked her to accompany him andbrought her to Ahmedpur and from there to Latur, Tuljapur andabout staying in the land of PW4. There she alleged rape but at thehands of accused Ashruba. Her examination-in-chief does not showthat she was taken from house of her sister under the pretext ofperforming her marriage with Ashruba. She does not utter aboutinducement or forced to join. She seems to have deposed aboutnobody to be in the house. However, surprisingly the sister, at whoseplace victim was staying, apparently seems to be sleeping but shedoes not know on what pretext Limbaji took her younger sister. 15.Regarding marriage ceremony, victim is apparently found to bemerely deposing that in the temple at Tuljapur, they were there atabout 11.30 p.m. She merely spoke about being compelled to bowbefore the Goddess. Therefore, no necessary ceremony or rituals seemto have been performed. 16.Even as stated above, victim has stated about she being takenby Limbaji alleging some marriage of relative. She is not taken onassurance of marriage with Ashruba. If the legal requirementsattracting Section 366-A IPC are taken into consideration, theessential ingredients apparently seem to be missing. Resultantly, in CriAppeal-688-2002-10- the considered opinion of this Court, when accused no.1, who wasindicted for rape, is already acquitted for want of evidence and therebeing no convincing evidence except that of victim, which too isambiguous about being taken for marriage with Ashruba, guilt foroffence under Section 366-A of IPC seems to be unwarranted.17.After considering the observations of learned trial Judge, thereis apparently improper appreciation. Legal requirements have beenlost sight of while holding accused appellant guilty. Therefore,intervention at the hands of this Court is necessary. Accordingly, Iproceed to pass the following order:ORDERI.The criminal appeal is allowed.II.The conviction of appellant Limbaji Gokul Kopanbainefor offence under Section 366-A of IPC awarded bylearned Additional Sessions Judge, Udgir in SessionsCase No. 149 of 2001 on 30.10.2002, is hereby quashedand set aside.III.The appellant is acquitted of the offence punishableunder Section 366-A of IPC. CriAppeal-688-2002-11- IV.Bail Bonds of the appellant stand cancelled.V.Fine amount deposited, if any, be refunded to theappellant after the statutory period.VI.There is no change in the order of the trial court asregards muddemal is concerned. [ABHAY S. WAGHWASE, J.]vre