The State of Maharashtra v. Jitendra Vishwanath Devdharkar and Ors.

Bombay HC12 Aug 2010APPLN/3504/2010

Case brief

AI extract

What is this about?

In this criminal application, the State sought leave to appeal an acquittal of respondents charged under IPC Sections 363, 376, and 34. The High Court held that evidence failed to prove the victim was a minor, the victim voluntarily accompanied the accused, and there was substantial delay in lodging the FIR. The court refused leave to appeal.

What did the court decide?

Leave to file appeal is refused. Application is rejected.

The State of Maharashtra Vs Jitendra Vishwanath… — Criminal Trial and Appeal | Bombay HC (2010)

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10.cr. appln. 3504-10

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rma

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO. 3504 OF 2010

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The State of Maharashtra

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.. Applicant

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Vs

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Jitendra Vishwanath Devdharkar & Ors.. Respondents

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Mr. V.B. Konde-Deshmukh, APP for the State

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Mr. Onkar Warang i/b Mr. Milind Sawant for Respondents

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CORAM : SMT. RANJANA DESAI &

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 SMT. V.K. TAHILRAMANI, JJ
DATE : 12th AUGUST, 2010

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ORAL ORDER [PER SMT. V.K. TAHILRAMANI,J]:

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1.The applicant - State of Maharashtra has preferred this
application for leave to file appeal against the judgment and
order dated 08.05.2009 passed by the learned Additional
Sessions Judge, Solapur in Sessions Case No. 249 of 2007. By
the said judgment and order, the respondents i.e original
accused nos. 1 to 5 came to be acquitted of the offences
under sections 363(a), 376 read with Section 34 of the
I.P.C.

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2.The prosecution case briefly stated is that one Navnath
who is a complainant in the present case is an agriculturist.
He had two daughters. His second daughter PW 3 Ujawala is
the victim in this case. She appeared for 8th standard but

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failed. Thereafter, PW 2 Navnath sent her to the house of
his elder daughter for education in the year 2006. One
Prakash respondent no. 4 was the neighbour of elder daughter
of Navnath. His brother in law Jitendra is the main accused
i.e respondent no. 1 in the present case. Respondent No. 2
is the brother of respondent no. 1. Respondent No. 3 is the
wife of respondent no. 2. As stated earlier, respondent no.
4 is the brother in law of respondent no. 1 and respondent
no. 5 is the wife of respondent no. 4 and sister of
respondent no. 1.

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On 01.09.2006, Navnath received telephone call that his
daughter PW 3 Ujawala had left the house under pretext that
she wanted to see Gauri festival and thereafter, she is
missing. On getting this message, Navnath lodged missing
complaint Exh. 22 at Tembhurni police station. They searched
for Ujawala, however, she could not be found. Thereafter,
Navnath learnt from one of his relatives that the prosecutrix
was seen on motor bike bearing No. MH-06/AD-3290 along with
one person. Thereafter, he came to know from his son in law
on 26.10.2006 that accused no. 1 along with his motor cycle
are also missing from the date Ujawala was found to be
missing. Hence, Navnath reached the conclusion that accused
no. 1 had kidnapped Ujawala against her wish and without
obtaining his consent, hence, he lodged report on 27.10.2006
at Tembhurni Police Station. C.R. No. 142 of 2006 came to be

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registered against the accused persons under Section 363(a)
of I.P.C. It is the specific case of the complainant that
the prosecutrix was a minor at the time of incident.
Thereafter, search was made for the prosecutrix as well as
accused no. 1. On 08.05.2007, the complainant i.e Navnath
brought the prosecutrix and the accused to the police
station. The prosecutrix stated that she was kidnapped by
the accused and he promised to marry her and had sexual
relations with her. Hence, Section 376 of I.P.C. came to be
added. After completion of investigation, charge sheet came
to be filed.

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3.Charge under Section 363(a) and 376 read with section
34 of IPC came to be framed against the accused persons to
which they pleaded not guilty and claimed to be tried. Their
defence is that of total denial and false implication.

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4.We have heard the learned APP for the applicant-State
of Maharashtra. We have perused the judgment and order
passed by the learned Sessions Judge. We have also perused
the evidence which was produced by the learned APP. After
carefully considering the matter, for the reasons stated
herein below, we are of the opinion that the judgment and
order passed by the learned Sessions Judge does not call for
any interference.

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5.In order to prove that the prosecutrix was a minor at
the time of incident, the prosecution has relied upon the
school leaving certificate Exh. 49. In order to prove this
certificate, the prosecution has examined PW 6 Younus Mulani
who was working as Assistant Teacher in the said school since
1995. He was also holding charge of headmistress in her
absence. It is to be noted that this witness has not
personally recorded the entries from 862 to 868 in the
register. He did not have any personal knowledge about the
date of birth of the prosecutrix being 06.06.1992. He is not
aware on what basis, the said entry relating to date of birth
was recorded in the said register. He has not disclosed the
name of the person, who had taken entry in the register. He
has also not stated as to who gave the information relating
to date of birth, on which basis entry was made in the school
register.

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6.It is further to be noted that, in the certificate
Exh. 79 placed on record by the prosecution, the date of
birth is shown as 03.08.1992 and the date of birth mentioned
in school leaving certificate is 06.06.1992. Thus, two
different dates of birth have come on record. There is no
cogent and convincing evidence on record to show that the
date of birth disclosed at the time of seeking admission in
the school was correct one. Many times, parents do not

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disclose the correct date of birth at the time of seeking
admission for their wards. To secure admission in a school,
parents may not disclose real date of birth and give some
other date due to which it is possible to easily secure
admission in the school. Sometimes, parents give approximate
date of birth to the school authority either because they are
illiterate or they do not know the actual date of birth. The
school leaving certificate therefore, unless backed by cogent
and reliable evidence cannot be relied upon as the correct
proof of the age of the victim. PW 2 who is the father of
the prosecutrix had not stated any where in his evidence, on
the point of disclosure of the date before the school
authority as 06.06.1992 being a correct one. In fact, he does
not mention the date of birth of the prosecutrix. The
certificate Exh 49 states that the date of birth of
prosecutrix is 03.08.1992 which falsifies the date of birth
mentioned in the school leaving certificate. In such case
both the certificates are not worthy of reliance.

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7.On the aspect of age of the prosecutrix, It is
interesting to note that in the extract of the school
register Exh. 48, the date of birth of the prosecutrix is
mentioned as 06.06.1992, whereas the date of birth of Rahul
Navnath Khupse who is the brother of prosecutrix is stated to
be 17.06.1992. PW 3 Ujawala and Rahul are real brother and

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sister. In such case, it is highly improbable that after the
birth of Ujawala, on 06.06.1992, Rahul was born on
17.06.1992. It is not the case of the prosecution that both
are twins. Exh. 48 itself goes against the prosecution to
support their contention that the birth date of the
prosecutrix is 06.06.1992. Thus, the evidence produced by
the prosecution cannot be relied upon to support the case of
the prosecution that the prosecutrix was a minor at the time
of the incident.

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8.We may also state that the mother of the prosecutrix
has not been examined. It has also come on record in the
deposition of PW 3 Ujawala that her age would be about 19
years at the time of the incident. She has stated that there
is gap of one year amongst the brothers and sisters. If as
per the evidence, the age of the eldest sister of the
prosecutrix is considered to be 21 years, Rahul who is older
than the prosecutrix would be 20 years old and the age of PW
3 prosecutrix would be 19 years.

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9.Thus, the evidence on record does not show that the
prosecutrix was a minor at the time of the incident. Then,
the only question which arises is whether the prosecutrix was
taken away against her wishes and whether sexual intercourse
had taken place against her wishes and without her consent.

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At this juncture it is pertinent to note that the prosecutrix
herself has admitted that she was in love with accused no. 1.
She had received a phone call from accused no. 1 and that she
had called accused no. 1 at Upalwate for taking her with
him. Accordingly, on 01.09.2006 the prosecutrix waited for
him on the street at some distance from her house. She left
the house under false pretext that she was going to a
neighbor's house. She further stated that accused no. 1 came
there and she went with him on his motorbike. Thereafter,
they went to Pune. They stayed together for three days at
Pune. Accused no. 1 then took a room on rental basis and

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they stayed there for some days. She further stated that
accused no. 1 then took her to Alandi to perform marriage.
On 04.09.2006, they visited the temple of Dnyaneshwar Mauli
for the purpose of marriage. However, the accused changed
his mind and the marriage was not solemnized. They came back
to Ganesh Nagar. They stayed together as husband and wife in
Ganesh nagar for 7 months. The accused used to say that he
wants to marry her. She further stated that one of the
friends of accused no. 1 by name Krishna has given assurance

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to accused no. 1 that he will give him mason work.
Therefore, they shifted their residence to Kamoti area in
Mumbai. She stayed with accused no. 1 at the said place on
the 4th floor. It appears from her version that her sister,
brother in law were well aware about the love affair of the

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prosecutrix with accused no. 1. The prosecutrix was
therefore, sent back to the village Upalwate from Palspe.
She has admitted her love letters filed at Exh, 30, 31 and
32. These love letters addressed by her to accused no. 1 are
clearly indicative of the fact that the prosecutrix had
fallen in love with accused no. 1 and had developed relations
with him.

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10.PW 4 Pandit Khupse is a relation of the prosecutrix.
He had seen the prosecutrix when she went on motorcycle with
accused no. 1. This witness has not stated that the
prosecutrix, at that time was trying to escape or was
shouting for help or was crying. He also did not notice that
she appeared to be in a frightened condition at that time.
Had PW 4 seen something out of ordinary, he would have
immediately informed the parents of the prosecutrix or the
police. From the fact that he ignored the incident and did
not report to the complainant or police shows that he did not
notice anything out of ordinary. Thus, the evidence of this
witness shows that the prosecutrix willingly accompanied
accused no. 1.

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11.We may reiterate that the prosecutrix herself has
admitted that she was in love with accused no. 1. She had
received a phone call from accused no. 1 and that she had

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called accused no. 1 at Upalwate for taking her with him.
Accordingly, she waited for him on 01.09.2006. Thus, the
averments of the prosecutrix show that there was absolutely
no misrepresentation made by accused no. 1 due to which the
prosecutrix left her parental house. Her evidence shows that
she was not at all pressurized by accused no. 1 to leave her
parents house. It is clear from her evidence that the
prosecutrix left her parental house voluntarily of her own
will and of her own accord. She had left her house under a
false pretext. She gave a false reason to her mother that
she was going to the house of her neighbor and thereafter,
she waited on a street at a little distance from her house
for accused no. 1 to come and take her. On this point, we
would like to refer the case of Shyam Vs State of Maharashtra
reported in 1995 Cr.L.J. 3974, wherein it is observed as
under:

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"Prosecutrix not putting up struggle or raising
alarm while being taken away by accused and
appearing to be willing party to go with accused
on her own, accused cannot be convicted for
abduction."

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We may also refer to the decision in the case of
Balasaheb Vs State of Maharashtra reported in 1994 Cr.L.J.
3044, wherein it is observed as under:

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"Prosecutrix going with accused on her own,

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staying with him for two days in his house with
his relatives and neither trying to escape nor
making any grievance to his relatives, such
conduct shows her consent."

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12.Thus, from the evidence of the prosecutrix and from the
evidence of PW 4, it appears that she was not at all forced
by accused no. 1 nor was any misrepresentation made by him,
which caused the prosecutrix to leave her house. Neither she
was put under pressure by accused no. 1 nor was she
threatened by accused no. 1 to leave her house and accompany
him.

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13.The evidence of the prosecutrix shows that she stayed
with accused no.1 for a period of more than 6-7 months.
During this time, she stated that accused no.1 had sexual
contact with her. If the events were not according to the
wishes of the prosecutrix, then during this period, there
were numerous opportunities available to her to run away.
The fact that she did not do so, speaks for itself. Neither
has she shouted for help at any point of time nor has she
made any effort to seek help from anyone. The conduct of the
prosecutrix thus, shows that she readily and willingly went
with accused no. 1 of her own wish and accord and thereafter
sexual intercourse which took place between her and accused
no. 1 was with her consent.

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14.Another important aspect necessary to mention here is
that there is delay in lodging the FIR. The prosecutrix was
missing from 01.09.2006. The FIR was lodged on 27.10.2006
and the offence under Section 376 was added only in May 2007.
The prosecution has not furnished any reasonable explanation
for this delay in lodging the FIR and for adding Section 376
at such a belated stage.

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15.As far as accused nos. 2 to 5 are concerned, there is
absolutely no evidence against them to show that they made
any false representation to the prosecutrix or they had made
any misrepresentation to her to marry accused no. 1 and under
that pretext, accused no.1 had illicit relations with her.

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There is absolutely no evidence to show that any of the
accused nos. 2 to 5 have any specific role and thereby
assisted accused no. 1 in commission of the crime.

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16.Looking to the evidence on record, we find that the
view taken by the learned Sessions Judge is a reasonable and
possible view. In such case, we are not inclined to
interfere in the judgment and order of acquittal. In view of
the above, leave to file appeal, is refused. Application is
rejected.

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[SMT. V.K. TAHILRAMANI, J.] [SMT. RANJANA DESAI, J.]

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The State of Maharashtra v. Jitendra Vishwanath Devdharkar and Ors.

Case brief

What is this about?

What did the court decide?

The State of Maharashtra v. Jitendra Vishwanath Devdharkar and Ors.

Case brief

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