Allowed

Sunil Baban Gadhave and Ors. v. the State of Maharashtra

Bombay HC7 Jan 2016APEAL/92/2015

Case brief

AI extract

What is this about?

The High Court at Bombay acquitted appellants in two child sexual assault appeals. The court held that doubts regarding the victim's age due to medical test errors and inconsistencies in the prosecution's narrative created reasonable doubt, necessitating acquittal.

What did the court decide?

Impugned judgment setting aside and appellants acquitted of offences under IPC 376 and POCSO Act sections 4 and 17. Appellant Amol released on bail.

Sunil Baban Gadhave and Ors. Vs the State of… — Child Sexual Offences (POCSO) | Bombay HC (2016)

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1 crappeal92-2015 and anr.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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CRIMINAL APPEAL NO.92 OF 2015

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1] Sunil Baban Gadhave,

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age : 28 years, Occu: Labour,
R/o. Ter,

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Tq. and Dist. Osmanabad

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2]Saw. Sarika Sunil Gadhave,
age : 21 years, Occu.: Labour,
R/o.: As above

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3]Rekha Bachu Kembari,
age : 35 years, Occu.:Labour,
R/o.: Pastepada, Tq. Wada,
Dist. Thane..APPELLANTS

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VERSUS

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The State of Maharashtra ..RESPONDENT

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WITH

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CRIMINAL APPEAL NO. 293 OF 2015

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Amol Dattu Jadhav,
age : 25 years,
Occu.: Private Service
R/o.: Ramwadi,
Tq. & Dist. Osmanabad..APPELLANT

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VERSUS

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The State of Maharashtra..RESPONDENT

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2 crappeal92-2015 and anr.odt

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Mr.A.S.More, advocate for appellants in both the
appeals

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Mr.A.R.Kale, A.P.P. for respondent/State, in both
the appeals

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CORAM : M.T. JOSHI, J.
DATE : JANUARY 07, 2016

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ORAL JUDGMENT :

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Heard Both sides.

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2]Present appeals are filed by the accused who
are convicted by learned Special Judge, Osmanabad

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in Spl. (Child Sex) Case No.23 of 2014 for
different offences. Appellant – Amol in Criminal
Appeal No.293 of 2015/original accused no.1 was
convicted for the offences punishable under
section 376 of the Indian Penal Code and section 4
of the Protection of Children from Sexual Offences
Act and sentenced to suffer rigorous imprisonment
for seven years and to pay fine of Rs.5000/-.

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3 crappeal92-2015 and anr.odt

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.The appellants in Criminal Appeal No.92 of
2015/Original accused nos.2, 4 and 7 were
convicted for the offences punishable under
section 6 punishable under section 17 of the
Protection of Children from Sexual Offences Act

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and sentenced to suffer rigorous imprisonment for
seven years and to pay fine of Rs.2000/- each.

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3]The prosecution case, in short, is as under :-

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.That PW 1 – victim of offence, who was 16

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years old at the time of occurrence, was residing
at village Panwadi along with her parents and a
brother. On one day, while PW 1 – victim was
working with her brother in the field, original
accused no.2 - Sarika came to there. Accused
Sarika was working in the neighborhood field.

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They were introduced to each other. The intimacy
grown and accused Sarika told the victim that she
liked the nature of the victim. Even mobile

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numbers were also exchanged between them.

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Ultimately, Sarika's husband i.e. appellant/
original accused no.2 – Sunil even snapped a
photograph of the victim on his mobile and in the

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said evening, accused Sarika made a phone call to
the victim and inquired as to whether, marriage of
the victim was arranged. Accused Sarika asked as
to whether, the victim wanted to marry and even
accused Sarika gave a proposal for marriage with
her cousin i.e. accused no.1 – Amol. She further
asked the victim to visit her house so that
detailed conversation on the subject can be held.

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.On the next date, the victim received a phone

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call from an unknown number. The caller introduced
himself as accused Amol. He also proposed the
victim for marriage and asked whether, she was
ready to marry with him. Upon that, the victim
told that she was not ready to marry with him.
Accused Amol, however, asked her to meet in the

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evening. On the same day i.e. on 25th March, 2014,

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accused Amol again made a phone call to her and
told that he would come with accused Sarika to
have a talk. Thereafter, in the night, the victim
received a phone call from accused Amol. He told

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her that he would come to her house at 12:00 in
the midnight on a motorcycle and further asked her
to wait for him outside her house. Lateron, again
a message was sent on the mobile phone by accused
Amol asking the victim, whether she would come
with him. Upon that, the victim answered in the
affirmative.

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.After some time, in the midnight accused Amol

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came near the house of the victim and made a phone
call to her on mobile phone and told that she
should come outside the house. The victim,
therefore, met accused Amol. He told her that his
cousin sister i.e. accused Sarika was waiting at
some distance and asked the victim to accompany

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him on the motorcycle. He then took her to accused

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Sarika's house at village Ter. At that time,
accused Sarika and her uncle Hanumant (original
accused no.3) was present there. All of them told
the victim that she should not return to her house
and should accompany accused Amol. Accused Sarika
gave an amount of Rs.5000/- to Amol and
thereafter, Amol and the victim proceeded on the
motorcycle to Osmanabad. Accused Sunil and his
uncle accompanied them by another motorcycle till
Osmanabad. Thereafter, accused Sunil and his
uncle returned back to the village on both the
motorcycles.

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.From Osmanabad, accused Amol and the victim
went to Tuljapur by a bus of M.S.R.T.C. They
further went to Pune via Solapur at about 9:00
a.m. Accused Amol took the victim to his friend's

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house at Mosi, Pune. However, at that time, said
friend i.e. accused Vishal Wakure, received

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certain message and refused to give shelter to the

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couple. Thereafter, the couple went to village
Kudus via Bhiwandi and Kalyan. At Kudus, accused
Amol took the victim to the house of one unknown
lady (who was lateron disclosed as accused no.7 –
Rekha) on 26th March, 2014 at about 7:00 p.m.

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.In the night, while the family members of
accused no.7 – Rekha slept in one hall, accused
Amol and the victim slept in a separate bed room.
In the night, accused Amol gagged mouth of the
victim, took out her dress and though the victim
refused, committed forcible sexual intercourse
with her. The couple slept for whole of the night.
In the morning, the victim told accused Rekha
about the forcible sexual intercourse committed by
accused Amol. Upon that, accused Rekha told that

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the day the victim has accompanied accused Amol,
marriage is assumed to have been performed between
them and therefore, she should be ready for sexual
intercourse with Amol.

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.In the second, third and fourth night, similar
forcible sexual intercourse was committed by
accused Amol on the victim. In the fifth night
when accused Amol tried to have sexual intercourse
with the victim, she told that she has met the
menstrual cycle and therefore, no sexual
intercourse took place between them.

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.By that time, Vishal Wakure, friend of accused

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Amol, on phone, told accused Amol that the parents
of the victim were about to file a complaint with
the police station and the couple should return to
village. Therefore, the couple returned to the
village and whereupon, the complaint of the victim
was recorded on 31st March, 2015.

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.Necessary investigation was carried by PW 13
PSI – Suresh Shejwal. He conducted panchnama
regarding seizure of clothes of the victim and

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conducted panchnama as regards the spot of
occurrence. He also recorded statements of the
neighbors of accused Rekha. He collected the
school record of the victim. The victim was
referred for the medical examination whereat, PW 3
– Dr.Sujit examined her. He found injuries near
her private part. He opined that the age of the
victim was between 16 and 17 years. Necessary
articles were sent to the Chemical Analyst and the
charge sheet came to be filed.

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4]Before the learned Special Judge, in all
thirteen witnesses were examined. PW 1 is the

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victim. PW 2 is mother of the victim and PW 3 –
Dr.Sujit Magar is the Medical Officer. PW 4 –
Police Head Constable Khamruddin Shaikh recorded
the FIR. PW 5 to PW 8 are the panch witneses as
regards seizure of the clothes, vehicles and
panchnama of spot of occurrence etc. PW 9 –
Shantaram Paste and PW 10 – Dhyaneshwar Paste were

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residing in the neighborhood of accused Rekha. PW

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11 - Vasant Jadhav is the Headmaster of the school
where the victim was taking education and he has
proved the school record. PW 12 – Digambar Shinde

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A.P.I., recorded the panchnama of spot of

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occurrence and recorded narration of the victim.
PW 13 – Suresh Shejwal, conducted investigation in
the matter.

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5]The defence of the appellants/accused was that
of total denial. In the alternative, it was
submitted by them that in fact, the prosecution
case that the victim was only 16 years old at the
time of the occurrence, was not proved and hence,
they claimed acquittal.

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6]Learned Special Judge, however, came to the
conclusion that the evidence on record would prove
that the victim was only 16 years old at the time
of the occurrence. The medical evidence would

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corroborate the statement of the victim that

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forcible sexual intercourse was committed with her
by accused Amol. It was further found that present
appellants in Criminal Appeal No.92 of 2015 have
actively abetted commission of the offence and
therefore, conviction and sentence, as detailed
supra, came to be recorded against the appellants.

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7]Mr.More, learned counsel for the appellants,
took me through the material on record. He
submitted that the entire prosecution case is
improbable and unnatural. The prosecution case
would show that the victim girl was residing with

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her parents and brother. According to the
prosecution, when accused Amol had asked over
mobile phone, as to whether the victim was ready

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to marry with him, she had refused for the same.

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According to the prosecution, the couple had not
seen each other. Further, though the victim had
refused to marry with accused Amol, when he asked

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her to meet him in the night, she became ready.

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Not only this, when accused Amol made a phone call
and asked the victim whether she was ready to
elope with him, she became ready for that. Even
this was confirmed by him by sending SMS over the

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mobile phone of the victim. The victim replied the
said SMS in the affirmative and thereafter, she
went away in the midnight with accused Amol, who

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was not even known to her by that time.

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Thereafter, the victim accompanied accused Amol at
various places viz. Ter, Osmanabad, Pune, Kalyan
and ultimately, at village Kudus. At village
Kudus, they went to the house of accused Rekha.
Thereat, while the family members of Rekha slept
in one hall, the victim even became ready to sleep
in a separate bed room with accused Amol.

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8]Mr.More further submitted that the evidence of

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the Medical Officer would show that the victim was
between 16 and 17 years of age at the time of the

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occurrence. However, this conclusion was based on

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the ossification test and in that test error
margin of at least two years is required to be
taken into consideration as per the settled law.

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.As regards the school record, he submitted

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that the statement of PW 11 - Vasant Jadhav,
Headmaster of the school, would show that the
birth date of the victim recorded in the school

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record is 14th June, 1998. The same was, however,
recorded on the basis of the oral statement made

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by the mother of the victim. He further points

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out that the said witness admitted that every
year, the Headmaster of the school used to bring a

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list of the eligible students from Anganwadi of
the village and details of birth date, caste etc.

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of the students as detailed in the list, are
entered in the school record. He, therefore,
submitted that there is no clinching evidence

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regarding the date of birth of the victim. He

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further submitted that the circumstances found

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from the prosecution case, would suggest that it
was a case of consensual eloping by the victim and
thereafter, consensual intercourse at village
Kudus. He, therefore, submitted that benefit of
doubt may be extended to the appellants and they
may be acquitted.

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9]Learned A.P.P. submitted that the material on
record would clearly show that the victim was
below 18 years of age at the time of the
occurrence. Even otherwise, the medical evidence
would show that there were injuries near the
private part of the victim. Therefore, he submits
that relying on the ratio laid down in the cases

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(i) of Balam @ Ankush Anil Chavan Vs. State of
Maharashtra, 2015(3) LJSOFT 139; (ii) Mahesh s/o.

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Tarachand Suryawanshi Vs. State of Maharashtra,

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2014(1) LJSOFT 154, no interference in the
findings of learned Special Judge is called for.

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10]On the basis of this material, following
points arise for my determination :-

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A]Whether the prosecution has proved
that in the night between of 25th March,
2014 and 26thMarch, 2014, present

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appellants in furtherance of their common
intention, had kidnapped the victim from
her lawful guardianship ?

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B]Whether the prosecution has further
proved that the victim was kidnapped with
a common intention or knowledge that she

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may be compelled to marry with
appellant/accused Amol or forced to have
sexual intercourse with him ?

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C]Whether the prosecution has further
proved that the present appellant/accused
Amol has committed rape on the victim

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between 26th March, 2014 and 29th March,
2014 at village Kudus, Dist.thane ?

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D]Whether the appellants in Criminal
Appeal No.92 of 2015 have abetted
commission of the above offence ?

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E]What order ?

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.My findings to the above points are in the

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negative. Both the appeals are, therefore, allowed

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and the appellants in both the appeals are hereby
acquitted of all the offences, for the reasons to
follow.

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R E A S O N S

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11]PW 1 – victim and PW 2 – mother of the victim

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deposed on the lines of the prosecution. The
cross-examination of the victim would show that

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17 crappeal92-2015 and anr.odt

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she had not objected for snapping any photograph.
It would further show that all the family members
of the victim were sleeping in a common bedroom
when she went away with accused Amol. The victim
at the time of going away with accused Amol did
not inform about the same to any of her family
members. Further, she admitted the suggestion that

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when they proceeded from Osmanabad to Pune via
Tuljapur, Solapur etc., many persons were present
either at the bus stand or in the bus from which
they travelled. Thereafter, when they proceeded to
Kudus via Bhiwandi and Kalyan, she did not raise
any objection for accompanying the accused Amol.
According to her, her marriage was already settled
by her parents and dowry of the same was also paid
by them.

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12]The mother of the victim i.e. PW 2 admitted
that marriage of the victim was already arranged
with one person from village Devlali, Dist.

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18 crappeal92-2015 and
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Osmanabad. She, however, denied that, the victim
did not want to marry with the said person, as he
was not of her choice; she was pressing her
parents for settling her marriage with accused
Amol; and that a false complaint was filed against
accused Amol and other accused persons.

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13]The very fact that the victim, without
intimating her parents in the night, went away
with accused Amol on a motorcycle leaving behind
her parents, would clearly show the prosecution
case, that accused Amol and the victim were not
knowing each other, is unreliable. The entire
prosecution case itself would suggest that accused
Amol and the victim were knowing each other very
well.

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14]It is obvious that the entire journey from
Osmanabad to Pune and thereafter to Kudus, would
not have been possible without the consent of the

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victim. Not only this, the victim has clearly
stated in her FIR that while the family members of
accused Rekha had slept in one common hall, she
slept with accused Amol in a separate room. The
story of the victim that thereafter, however,
forcible sexual intercourse was committed on her
by accused Amol, appears to be improbable and
unreliable.

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15]It however can not be disputed that sexual
intercourse with her was committed. The issue,
therefore, is as to whether, the prosecution has
proved that during the period of occurrence, the
victim was below 18 years of age.

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.In the F.I.R., the victim has informed about
her age as 16 years. The medical evidence is that
upon examination of the victim, PW 3 - Dr.Sujit
Magar, Medical Officer, opined that the victim was
between 16 and 17 year of age. The deposition of

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PW 11 – Vasant Jadhav, Headmaster of the school
couple with the certificate at Exhibit 18, would
show that the victim was born on 14th June, 1998.
Thus, at the time of occurrence, the victim would
be below 18 years of age.

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16]The matter, however, does not rest here. It is
an established fact that the medical opinion is
based on ossification test and a margin of error
of two years will have to be assumed while
calculating the age. In the circumstances, the
medical evidence would show that the victim might
be 19 years old at the time of the occurrence.

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17]As regards the school record, copy of which is

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placed at Exhibit 18, it would show that on the
statement of mother of the victim, the then
Headmaster of the school had entered the date of
birth of the victim as 14th June, 1998. The
Headmaster has deposed that the it is the practice

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¶138

that the list of the eligible students is brought
from the Anganwadi (Kindergarten) and whatever
information was given in the list including the
date of birth, is included in the school record.

¶139

18]Learned A.P.P. for the State has relied upon
the ratio laid down in the case of Mahesh
Suryawanshi (cited supra). In that case also, it
has been highlighted by this court that the entry
in the register of date of birth would be a
reliable piece of evidence, but the entry made in
the school record cannot form sole clinching
factor for determining the age.

¶140

19]In the present case, we have already found
that the medical evidence would show that the

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victim might be 19 years old at the time of the
occurrence. There is no other evidence to show
that she was below 18 years of age than the school
record, which cannot form sole clinching proof to

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¶143

determine the age. Thus, it cannot be proved

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beyond the reasonable doubt that the victim was
below 18 years of age.

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20]Last of the circumstances is that PW 3 – Dr.

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Sunil Magar found abrasions of small size on the
thigh of the victim. Her hymen was ruptured. The
Medical Officer, however, did not opine whether

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the tear of hymen was fresh or old. Since there
was no injury to the actual organ of the private
part, one cannot jump to the conclusion that minor
abrasions found on the thigh, was sure indication

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of forcible sexual intercourse. If all these
factors are taken into consideration, in my view,
learned Special Judge has not appreciated the
evidence on record in its right perspectives. The

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very improbabilities rampant in the prosecution

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case, as highlighted supra, ought to have been
taken into consideration by learned Special Judge
as regards the actual allegations of the forcible

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¶152

sexual intercourse and taking away of the victim.
Further, learned Special Judge has relied solely
on the school record and did not take into
consideration the fact that the medical evidence
is based on ossification test and a margin of
error of two years will have to be assumed.

¶153

21]Learned A.P.P. on the strength of the
provisions of Section 114-A of the Evidence Act
highlighted in the case of Mahesh Suryawanshi
(Cited supra), submits that when the prosecutrix
stated that sexual intercourse has occurred
against her will, the court is required to presume
the said fact.

¶154

.The said presumption can be rebutted if the
material is brought on record, which would show

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that the prosecution case is not probable. In the
present case, therefore, the ratio laid down in

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the case of Mahesh Suryawanshi (Cited supra) has

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¶158

no application for the reasons cited supra. In

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the circumstances, therefore, all the appellants

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deserve to be acquitted of all the offences.

¶161

22]Hence, the following order :-

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A]Both Criminal Appeals are hereby allowed.

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B]Impugned judgment and order dated 22nd January,
2015 passed by learned Special Judge, Osmanabad in
Spl.(Child Sex) Case No.23 of 2014, thereby
convicting the present appellant in Criminal
Appeal No. 293 of 2015/original accused no.1 for
the offences punishable under section 376 of
Indian Penal Code and section 4 of Protection of
Children from Sexual Offences Act, sentencing him
to suffer rigorous imprisonment for seven years
and to pay fine of Rs.5000/-; and further
convicting the appellants in Criminal Appeal No.92
of 2015/Original accused nos.2, 4 and 7 for the

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offences punishable under section 16 punishable
under section 17 of Protection of Children from
Sexual Offences Act and thereby sentencing them to
suffer rigorous imprisonment for seven years and
to pay fine of Rs.2000/- each, is hereby set
aside.

¶166

.Instead, the appellants in both the appeals
are hereby acquitted of the above offences.

¶167

C]Appellant - Amol in Criminal Appeal No. 293 of
2015, who is in jail, be released forthwith, if
not required in any other offence.

¶168

D]Bail bonds of the appellants shall stand

¶169

cancelled.

¶170

 Sd/-
[M.T. JOSHI, J.]

¶171

kbp

Sunil Baban Gadhave and Ors. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Sunil Baban Gadhave and Ors. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

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