Allowed

Dhondu Maruti Zapade v. the State of Maharashtra

Bombay HC24 Sept 2019APEAL/483/2016

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal and acquitted the appellant. The judgment held that the prosecution failed to prove the victim was under 16 years of age. Furthermore, the DNA report excluded the appellant as the biological father of the child, casting doubt on the victim's testimony and leading to the appellant's acquittal.

What did the court decide?

The appeal allowed; impugned judgment and order quashed; appellant acquitted of charges; appellant set at liberty; fine refunded.

Dhondu Maruti Zapade Vs the State of Maharashtra — Bombay HC (2019) — LawSathi Research

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.483 OF 2016

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DHONDU MARUTI ZAPADE

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Age 30 years, Occupation:Labour reisidng at Kopare, Malechiwadi Ta-Junnar, District-Pune, (at present in Yerwada Jail)

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….. APPELLANT.

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V/s.

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STATE OF MAHARASHTRA (Through Otur Police Station) ..... RESPONDENT.

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Mr.Vikas Singh, appointed Advocate for Appellant. Mr.A.R.Kapadnis, APP for State.

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CORAM : A. M. BADAR, J. DATE : 24^th SEPTEMBER 2019.

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ORAL JUDGMENT :

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1 By this Appeal, the Appellant/accused, is challenging Judgment and Order dated 27.05.2015, passed by the learned Additional Sessions Judge, Khed-Rajgurunagar, District-Pune, in Sessions Case No.215/2014, thereby convicting him of ofences punishable under section 376t and 506t of the Indian Penal Code. On frst count, the appellant/accused is

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sentenced to sufer rigorous imprisonment for 10 years apart from direction to pay fne of Rs.5,000/-, in default to undergo rigorous imprisonment for one year. On other count, he is sentenced to sufer rigorous imprisonment for two years apart from direction to pay fne of Rs.1,000/-, in default to sufer rigorous imprisonment for three months. Learned trial court further directed that substantive sentences shall run concurrently.

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Facts in brief leading to prosecution and resultant conviction of applicant/accused can be summarized thus;

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a) PW 1 is the alleged victim of the crime in question. She used to reside at Kopare, Malechiwadi, in Taluka-Junnar of District-Pune alongwith her parents, brothers and sisters. Her parents used to work as labourer. She studied upto 5^th standard.

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b) According to the prosecution case, six months prior to lodgement of the F.I.R. dated 09.04.2013 by the victim/PW 1, the appellant/accused committed rape on her while she was in feld. Four-fve days

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after this frst incident, against the appellant accused committed rape on her in the feld. This incident was again followed after 2 or 3 days when the appellant/accused again committed rape on her in the feld. The appellant/accused, as per the case of the prosecution had threatened the victim/PW 1 not to disclose the incident to her parents. Therefore, she did not disclose the incident to anybody else.

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c) Indabai Chindhu Dighe is sister of father of victim/ PW 1. Marriage of daughter of Indabai was to be solemnized on 02.04.2013 at village Satewadi. Hence, the victim/PW 1 accompanied by her parents and cousin Kalu Mali had gone to the village Satewadi. At that time, Indabai noticed the fact that victim/PW 1 became fat. She told this fact to PW 2 Govind Mali - father of victim/PW 1. Upon being asked by him as well as Kalu Mali, the victim/PW 1 disclosed the incident of commission of rape by appellant/accused. She was then taken to Dr.Joshi of Otur town. Doctor informed them that, the victim/

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PW 1 is carrying pregnancy of 6t months. Therefore, on 09.04.2013, the victim/PW 1, claiming to be 15 years old, lodged Report (Exhibit 30) against appellant/accused which resulted in registration of Crime No.25/2013 with Police Station-Otur, DistrictPune.

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d) Routine investigation followed. Spot was inspected. The victim/PW 1 was sent for medical examination to Sasoon Hospital, Pune where she was examined by Dr.Daksha Mrutunjaya Bilgi, Medical Officer, a Resident Doctor. Ossifcation test was conducted. Samples of blood of victim/PW 1, her baby as well as appellant/accused came to be collected and those were sent for D.N.A. Finger Printing Test. On completion of routine investigation, the appellant/accused came to be chargesheeted.

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Learned trial court framed and explained the Charge for ofences punishable under section 376t and 506t of the Indian Penal Code to Appellant/accused. He abjured guilty and

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claimed trial.

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In order to bring home guilt to appellant/accused, prosecution has examined in all 4 witnesses. The victim came to be examined as PW 1. Her father Govind Mali is examined as PW 2, Dr. Daksha Mrutunjaya Bilgi, Resident Doctor, Sasoon Hospital, Pune is examined as PW 3, Investigating Officer, Rohidas Harichandra Chikate-API is examined as PW 4.

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Defence of appellant/accused was that of total denial.

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6t. According to him, he is falsely implicated in the case because there was quarrel between his sister and brother of victim/PW 1. According to the defence, victim/PW 1 was having illicit relations with other persons and as his sister had noticed the victim/PW 1, in compromising position with other person, the appellant/accused is falsely implicated in this case.

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After hearing the parties, by impugned Judgment and

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order, the learned trial court was pleased to convict and sentence the appellant/accused as indicated in the opening para of this Judgment.

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I heard Mr.Vikas Singh, learned Advocate appointed to represent appellant/accused. He vehemently argued that prosecution had given a notice to admit School Leaving Certifcate of victim/PW 1 by resorting to Section 294 of the Criminal Procedure Code. The defence had not admitted that School Leaving Certifcate of victim/PW 1. Evidence of victim/ PW 1 shows that, she had taken School education. However, prosecution has failed to produce any documentary evidence for proving age of victim. Report of Ossifcation test is also not proved by prosecution.

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Learned Advocate for appellant/accused further argued that the victim/PW 1 is not witness of truth. She has deposed about forcible sexual intercourse by appellant/accused leading to her pregnancy. But ultimately it was found that she was impregnated by somebody else. Conduct of victim in keeping mum for months together cast a shadow of doubt on

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the case of the prosecution.

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Learned APP supported impugned Judgment and Order by contending that broader probabilities of case of prosecution are required to be considered in matters of sexual ofences and in case in hand, the victim/PW 1 has named appellant/accused as perpetrator of crime.

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I have carefully considered the submissions so advanced and also perused the record and proceeding including oral as well as documentary evidence adduced by the prosecution.

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The incident in question was reported by the victim/PW 1 after six months of its happening and that too when pregnancy of victim/PW 1 was detected from her appearance by her maternal Ant Indabai. Though, victim/PW 1 has alleged that she was subjected to rape thrice by the appellant/accused, six months before lodging the F.I.R. dated 09.04.2013, even according to prosecution case, this fact was not disclosed by the victim/PW 1 during the long span of more than six months. This fact assumes overbearing

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importance, in view of the fact that the appellant/accused is relative of victim/PW 1, as disclosed by her father, PW 2- Govind. As all these aspects are indicating consensual sex. Even if case set out by prosecution is accepted, for the sake of argument then, one will have to examine whether, the victim/PW 1 had attained consenting age at the time of incident, in question. Prosecution was enjoined to establish by adducing cogent evidence that, the victim had not attained consenting age at the time of commission of the crime in question. The incident allegedly took place in November 2012, and as such, as per the law prevailing at that time, it was for the prosecution to establish the victim/PW 1 was below 16t years of age in November 2012.

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Undisputedly, prosecution itself had given notice under Section 294 of Criminal Procedure C ode asking defence to admit School Leaving Certifcate of victim/PW 1, in order to prove her age. The defence has declined to admit that document. Despite this, the prosecution has not chosen to prove the School Leaving Certifcate of the victim/PW 1 by examining appropriate witness from School, in order to prove

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age of the victim. Evidence of victim/PW 1 makes it clear that she has taken School education upto 5^th Standard. Learned trial court has adopted a strange course of action by exhibiting Report of Ossifcation test conducted on the victim through evidence of PW 4 API-Rohidas Harichandra Chikate who had conducted the investigation. Though, marked as Exhibit 45, this Report of Ossifcation test, can not be held to be a proved document. Even if, same is looked into, it shows that, the victim/PW 1 was above 14 years of age and below 16t years of age. In the matter of Jayamala Vs. Home Secretary, Government of Jammu & Kashmir & Others ,¹ the Apex Court held that, there is always error of two years on plus and minus side in determining bony age of a person. Thus, even if, this unproved document is considered, then also, the victim may be of 18 years of age at the time of incident and as such, she had attained the age of consent, at the time of incident.

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Evidence of PW 2-Govind Mali, father of the victim/PW 1,

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shows that, date of birth of victim was recorded in the record of Grampanchayat. No eforts were taken by the prosecution

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1 (1982) 2SCC 538

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to place on record Certifcate of birth of victim/PW 1, issued under provisions of Registration of Birth and Death Act, 196t7.

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In the light of these reasons, it needs to be held that the prosecution has failed to establish that, the victim/PW 1 was below 16t years of age, at the time of commission alleged incident of rape on her, in November 2012.

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16t. Now let us examine whether, the prosecution has proved the fact of commission of forcible sexual intercourse on the victim/PW 1 by appellant/accused. The victim/PW 1 was very candid in narrating before the Court that it was appellant/accused who had committed forcible sexual intercourse with her thrice in the feld, in the month of November 2012, resulting in her pregnancy. She had candidly denied the suggestions by the defence that, she was having illicit relations with her cousins Kalu and Bhima. She denied that she had such relations with Shantaram Varefriend of her cousin. She further denied the suggestion that sister of appellant/accused found her in compromising position with Kalu Mali, resulting in quarrel between them.

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When such evidence of victim/PW 1 is tested by comparing it with the result of DNA Finger Printing Test, produced by prosecution on record then, it becomes clear that the appellant/accused, might not have had any forcible sexual intercourse with the victim/PW 1. The DNA Report exclude him to be biological father of the baby of victim/PW 1. In the light of fndings given in the DNA Report, by the Forensic Scientifc Laboratory, it can not be said that the victim/PW 1 is a witness of truth, in order to place explicit reliance on her testimony without seeking corroboration thereto in material particulars.

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Perusal of entire evidence adduced by prosecution on record, nowhere shows any material to corroborate testimony of victim/PW 1, in respect of alleged forcible sexual intercourse on her by appellant/accused. She is found to be lying in material particulars in the light of DNA Report placed on record by prosecution. In such situation, appellant/accused is certainly entitled to beneft of doubt. It can not be said that prosecution has established guilt of the accused beyond reasonable doubt. The victim/PW 1 had kept

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mum for six months after alleged sexual molestation by the appellant/accused, despite the fact that he was her relative and she was staying with her family members. Though she had sensation of vomiting, she never disclosed the incident to her parents till detection of her pregnancy by her maternal Aunt.

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18. In the result, I proceed to pass following order.

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ORDER

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i) The Appeal is allowed.

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ii) Impugned Judgment and Order dated 27.05.2015 passed by the learned Additional Sessions Judge, Khed-Rajgurunagar, District-Pune, in Sessions Case No.215/2014, convicting the appellant/accused of the ofences punishable under Section 376t and 506t of the Indian Penal Code, resultantly imposing sentence on him, is quashed and set aside.

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Iii) The Appellant is acquitted of the ofences with which he was charged.

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iv) The Appellant be set at liberty if not required in any other case.

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v) Fine amount if any, paid by the Appellant be refunded to him.

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vi) Criminal Appeal No.483/2016t is disposed of accordingly.

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(A. M. BADAR, J.)

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Dhondu Maruti Zapade v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Dhondu Maruti Zapade v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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