The learned APP submits that the offence committed by the accused appellant
would be a statutory rape since the girl was hardly 14 years old at the
time of the incident and that her consent cannot be taken into consideration. The
learned APP rightly submits that the accused was a married man having two
children. He was residing in the close neighhbourhood of the house of the victim.
He could not have married the victim. He was aware that the victim is a minor
and could not have kept the victim along with him at Baramati. The learned APP
submits that the deposition of defence witness No.1 cannot be taken into
consideration as DW-1 happens to be the wife of the accused and she has deposed
accordingly only to save her husband. It is further submitted by the learned APP
that the history given by the victim to the doctor cannot be taken into
consideration for acquitting the accused for the simple reason that the victim has
stated that she was acquainted with the accused, but he had not travelled to Nagar
with her.
In any case, the fact that the consent of the minor cannot be taken into
consideration, the appeal deserves to be dismissed.
The learned Sessions Court has appreciated the evidence in its proper
perspective. The appellant was a married man and a father of two children, a
daughter of 4 years and a son aged 2 years at the time of incident. The appellant
had obtaiend consent under the pretext of marriage. Implicit reliance can be
placed upon the sterling testimony of the victim. The Court cannot be oblivious
of the fact that the victim was found in the custody of the appellant. According to
the appellant, he is falsely implicated, which is far from truth.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 934 OF 2009
Mahadeo @ Bapu Hanumant Pol
vs.
State of Maharashtra .
CORAM: SMT.SADHANA S.JADHAV,J.
JUDGMENT PRONOUNCED: 24.02.2014.
Read original judgment here;click here
1. The appellant herein is convicted for the offence punishable under
Sections 363 of the Indian Penal Code and sentence to suffer R.I. for two years
and to pay fine of Rs.1000/- in default of payment of fine to suffer R.I. for one
month. He is also convicted for the offence punishable under Section 366 of IPC
and sentenced to suffer R.I. for two years and to pay fine of Rs.1,000/- in default
of payment of fine to suffer R.I. for one month. He is also convicted for the
offence punishable under Section 376 of IPC and sentenced to suffer R.I. for
seven years and to pay fine of Rs.3,000/- in default of payment of fine to suffer
R.I. for three months. The appellant is also convicted for the offence punishable
under Sectioon 506(2) of the Indian Penal Code and sentenced to suffer R.I. for
two years and to pay fine of Rs.1,000/- in default of payment of fine to suffer R.I.
for one month in Sessions Case No.207 of 2008 by the Addl. Sessions Judge,
Pune, vide judgment and order dated 21.7.2009. Hence, this appeal.
2. Such of the facts, which are necessary for the decision of this appeal,
are as follows :-
On 2.11.2007, Jaibai Popat Adasul lodged a report at Uruli Kanchan
Police outpost informing the police that her daughter is missing from 23.10.2007.
She had disclosed to the police that on 23.10.2007, she had scolded her daughter,
which was not liked by her and hence she had left the house by informing at
home that she was going to the house of her grandmother. The missing girl was
searched by her parents and only when she could not be found, a report was
lodged which was registered as Missing Report No.121/2007 dated 3.11.2007.
On 28.11.2007, at about 8 p.m., the missing girl Poonam (hereinafter referred to
as the victim) gave a telephone call toher mother that one Bapu Pol, resident of
Golewasti had kidnapped her on 23.10.2007 and she was confined in a room at
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Khandoba Nagar, Baramati. She had also informed her mother that Bapu was
insisting upon her to get married to him and, therefore, she was constrained to
lodge a report. The complainant immediately approached the police outpost and
lodged a report. She went to Baramati along with police and found her daughter
along with Bapu Pol at Khandoba Nagar, Baramati. Upon enquiry, the victim had
informed her mother that on 23.10.2007, Bapu had taken her in a truck to
Baramati by giving her false promise of marriage and had committed sexual
intercourse with her. She had also informed her mother that she was threatened
by Bapu with dire consequences. On 29.11.2007, Crime No.393 of 2007 was
registered against the accused for the offences punishable under Sections 363,
366, 376 and 506 of IPC. The victim was subjected to medical examination and
ossification test. The accused was arrested on 29.11.2007. After completion of
investigation, charge sheet was filed on 25.2.2008. The case was committed to
the Court of Sessions and registered as Sessions Case No.207 of 2008. The
prosecution examined nine witnesses to bring home guilt of the accused.
3. PW-1 Jaibai Popat Adasul is the complainant who happens to be the
mother of the victim. She has deposed before the Court that the date of birth of
her daughter is 8.6.1993. At the time of incident, she was studying in 7th Std. in
Mahatma Gandhi Vidyalaya. She has substantiated her allegations in the missing
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complaint and the first information report which she lodged on 29.11.2007. The
first information report is marked at Exhibit 14. It is elicited in the crossexamination
that the accused resides at a walking distance of half an hour from
the house of the complainant. However, the complainant was not acquainted with
any family members of the house of the accused. It is further elicited that after 15
days of lodging of the missing complaint, the complainant learnt that the accused
was a married man. It is admitted by her in the cross-examination that on the date
of the incident, the victim had left the house without intimating her mother. The
parents had enquired in the school about her. They were informed that she had
not attended the school on that day. PW-1 has deposed before the Court that the
place from where her daughter and the accused were taken into custody consisted
of about five rooms. There was no one else in the house. Her daughter had
shown her the injuries on her head. The head injury was not bleeding. It is
admitted by PW-1 that during the pendency of the trial, her daughter is married.
4. PW-2 Balu Ghadge , who was a panch has resiled from his earlier
statement and has been declared hostile.
5. PW-3 Poonam is the victim who was about 16 years old at the time
of recording of evidence. She has deposed before the Court that on the date of
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incident, she was proceeding towards the house of her maternal uncle at Tambe
Vasti to bring her notebook. She was crying on the road. The accused met her
and enquired with her the reason for crying. The accused then asked her to sit on
his motorcycle, initially she had reused, but when the accused threatened her
that he would kill her brother and therefore, she accompanied him on the
motorcycle. The accused had taken her to Gole Vasti and kept her in a bungalow
behind poultry farm and tied her hands and legs. On the same day in the
evening, the accused had taken her to Nagar. Since she was crying, he took her
to Khandoba Nagar at Baramati. At Khandoba Nagar, the accused had forcible
sexual intercourse with her. One day when the accused was not at home she
made a telephone call to her mother and informed her about the same.
Thereafter, her mother had come to Khandoba Nagar along with the police and
had taken her custody. She has identified the clothes which were seized from her.
In the cross-examination, she has admitted that Gole Vasti is at a distance of one
km. From her house. It is elicited that on 23.10.2007, she had been beaten by her
mother for not doing the work. She has also admited that she used to quarrel with
her mother quite often. She has denied the suggestion that her mother had
refused to take her back. The victim has further admitted that there were many
houses around the place where they stayed at Baramati. She has admitted that she
had not raised any hue or cry nor had called anybody for help. According to her,
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her hands and mouth were tied while she was being taken from one place to
another . It is elicited in the cross-examination that at Nagar, they used to cook
food in the house and eat and at that time she had not made grievance about it to
anybody. It is also admitted by the victim that from 23.10.2007 to 28.11.2007,
she had made no attempt to contact anyone. Even hen she was taken to the doctor,
according to her mother had given the information.
6. The victim has been confronted with her previous statement and the
contradictions are marked at portion marked “A” and “B”. She has denied to
have stated to the police that the accused had told her that he likes her and that he
would divorce his wife and children as he earns Rs.500/- per day by doing mason
work and that he would keep her happy and give her gifts.
7. There are material omissions in respect of the prelude to the incident
when she had sexual intercourse with the accused. The manner in which she
informed her mother about the appellant is also recorded as an omission. She has
admitted that on the first day when they were together, the accused did not have
any physical relation with her. Only after 5 – 6 days he had physical relations
with her. She has also admitted that only when they went to Nagar, they had
physical relations. They have stayed at Nagar for 5 – 6 days. It is also admitted
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that during the period 23.10.2007 to 28.11.2007, the accused had intercourse with
her for 3 – 4 times. It is pertinent to note that she has deposed before the Court
that the clothes seized by the police were not blood stained. Her marriage was
performed just 6 – 7 months prior to recording her evidence. She has admitted
that her mother and uncle had not informed her husband that she was below the
age of eligibility at the time of marriage as she had not completed 18 years.
8. PW-4 Dr. Shailendra Pawar was attached to Sassoon Hospital, Pune
in November 2007. On 30.11.2007, the victim was examined by him. At the time
of examination, the patient had informed the doctor that she was knowing the
accused since last four months prior to the date of incident. Around one moth
back they went to Yewat and then to Nagar and Baramati. The patient had
further informed that the accused had forcible intercourse with her three times.
He recorded the history narrated by the patient. He had opined that the patient
had sexual intercourse. It is elicited in the cross-examination that while recording
the history, the patient was not in a frightened state of mind. That the patient had
not informed him about having intercourse one month prior to the medical
examination. The doctor further opined that there were no visible injuries on her
person. The medical certificate is at Exhibit 26. PW-4 Dr. Pawar as proved the
contents of the medical certificate.
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9. PW-5 Musim Sayyad is the Head Master of Mahatma Gandhi
Vidyalaya, Urali Kanchan. He deposed before the Court that as per the records of
the School, the date of birth of Poonam is 8.6.1993.
6. PW-6 Dr. Milind Wabale was attached to BJ Medical College &
Sassoon General Hospital. The victim was taken to the hospital on 6.12.2007.
She was taken to the hospital for ossification test. The doctor has given a
categorical opinion that she had completed 14 years of age but was less than 16
years including the margin of error. He has produced the medical certificate at
Exhibit 42.
7. PW-7 Ramdas Sangale was attached to Lonikalbhor Police Station
as Police Head Constable. He had recorded the complaint which is at Exhibit 44.
According to him, on 28.11.2007, PW-1 had informed the police about the
telephonic call which he received from her daughter. They accompanied the
police to Khandoba Nagar where the girl and Mahadev Pol were found in a room
. They brought them to Urli Kanchan and thereafter PW-1 lodged the FIR. He
has admitted in the cross-examination that at the time of recording of first
information report, the victim was present.
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8. PW-8 Raju Punekar is the Police Constable attached to Lonikalbhor
Police Station carrier of the clothes to the Forensic Laboratory.
9. PW-9 Prabhakar Shinde is the Investigating Officer. He has deposed
before the Court that steps were taken by him in the course of investigation. He
has admitted in the cross-examination that the complainant had informed the
police about the information given to her by her daughter over the telephone.
However, no offence was registered at that time. He has specifically admitted in
the cross-examination that he has not recorded the statement of any witness from
Baramati. It was informed to the police station that the accused was not found on
the spot. He had not enquired about the accused being treated at Baramati from
28.11.2007 at Anand Hospital.
10. PW-9 has admitted in the cross-examination that it had transpired in
the course of investigation that the victim girl refused to go home when she was
staying with Surekha.
11. The Chemical Analyser's report is at Exhibit 63 which shows that
the clothes of the victim wwere blood stained. The victim has specifically stated
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that there was no blood on her clothes at the time of seizure. Hence, the C.A.
Report to that effect cannot be believed. No semen was detected on the clothes
of the victim. Hence, no significance can be attached to the C.A. Report.
12. The defence witness Sureskha Pol is the wife of the appellant. She
claims to be acquainted with the victim as a friend. According to her, on
28.11.2007, Poonam had been to her house. She had told that she had a quarrel
with her mother and does not want to go to her house and that she should be
dropped at Nagar to her grandmother's house. She along with her husband had
taken Poonam to Nagar. PW-1 had asked them to bring Poonam back or else she
would lodge complaint. PW-1 lodged missing complaint an she had brought the
victim back and dropped her at her mother's place.
13. According to DW-1, her husband was arrested from Anand Hospital.
According to the defence witness, her husband was working at Uruli Kanchan
from 23.10.2007 to 29.11.2007.
14. DW-2 Dr. Ashok Doshi runs Anand Hospital at Baramati.
According to him, on 27.11.2007, the accused was admitted in the hospital and
discharged on 29.11.2007. He has admitted that he had not given any treatment
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to any person by named Bapu Pol. The case papers brought by him were not in
his handwriting. In the present case, it is pertinent to note that the missing
complaint was also lodged six days after the victim as missing. There is no
reason to disbelieve PW1 that she had taken the police to Baramati on the basis of
the information given to her by her daughter. The accused was a married man.
He was residing in the close vicinity of the house of the complainant. It cannot be
said that the victim was confined to a particular place by the accused. They had
been to Nagar.The victim had said that she used to cook food at home and they
lived at Nagar for quite some time. The Court cannot be oblivious of the fact that
the victim had relatives at Nagar.She had travelled on the motor-cycle with the
accused from Nagar to Baramati.
15. The disclosure made by the victim to the doctor would be significant
and would assume importance in view of the fact that the mother of the victim
was not present when the victim had narrated the history to the doctor. The
history narrated by the victim was to the effect that she was acquainted with the
accused four months prior to the incident. She had further disclosed that they had
been to various places even prior to the incident. She has stated that the accused
had forcible sexual intercourse with her on the assurance of marriage.
16. The learned Advocate appointed as amicus curiae submits that the
history given to the doctor would clearly reflect that it is a case of consensual sex
and therefore, the accused cannot be said to have committed an offence
punishable under Section 376 of the Indian Penal Code.
17. The learned APP submits that the offence committed by the accusedappellant
would be a statutory rape since the girl was hardly 14 years old at the
time of the incident and that her consent cannot be taken into consideration. The
learned APP rightly submits that the accused was a married man having two
children. He was residing in the close neighhbourhood of the house of the victim.
He could not have married the victim. He was aware that the victim is a minor
and could not have kept the victim along with him at Baramati. The learned APP
submits that the deposition of defence witness No.1 cannot be taken into
consideration as DW-1 happens to be the wife of the accused and she has deposed
accordingly only to save her husband. It is further submitted by the learned APP
that the history given by the victim to the doctor cannot be taken into
consideration for acquitting the accused for the simple reason that the victim has
stated that she was acquainted with the accused, but he had not travelled to Nagar
with her.
18. In any case, the fact that the consent of the minor cannot be taken into
consideration, the appeal deserves to be dismissed.
19. The learned Sessions Court has appreciated the evidence in its proper
perspective. The appellant was a married man and a father of two children, a
daughter of 4 years and a son aged 2 years at the time of incident. The appellant
had obtaiend consent under the pretext of marriage. Implicit reliance can be
placed upon the sterling testimony of the victim. The Court cannot be oblivious
of the fact that the victim was found in the custody of the appellant. According to
the appellant, he is falsely implicated, which is far from truth.
20. Appeal sans merit. The conviction recorded by the Addl. Sessions Judge,
Pune is hereby upheld. The appeal is dismissed.
21. The legal fees of Advocate appointed are quantified at Rs.3,000/-.
The said fees be paid to the Advocate Ms. Megha Bajaria within three months
from today.
(SMT.SADHANA S.JADHAV, J.)
Print Page
would be a statutory rape since the girl was hardly 14 years old at the
time of the incident and that her consent cannot be taken into consideration. The
learned APP rightly submits that the accused was a married man having two
children. He was residing in the close neighhbourhood of the house of the victim.
He could not have married the victim. He was aware that the victim is a minor
and could not have kept the victim along with him at Baramati. The learned APP
submits that the deposition of defence witness No.1 cannot be taken into
consideration as DW-1 happens to be the wife of the accused and she has deposed
accordingly only to save her husband. It is further submitted by the learned APP
that the history given by the victim to the doctor cannot be taken into
consideration for acquitting the accused for the simple reason that the victim has
stated that she was acquainted with the accused, but he had not travelled to Nagar
with her.
In any case, the fact that the consent of the minor cannot be taken into
consideration, the appeal deserves to be dismissed.
The learned Sessions Court has appreciated the evidence in its proper
perspective. The appellant was a married man and a father of two children, a
daughter of 4 years and a son aged 2 years at the time of incident. The appellant
had obtaiend consent under the pretext of marriage. Implicit reliance can be
placed upon the sterling testimony of the victim. The Court cannot be oblivious
of the fact that the victim was found in the custody of the appellant. According to
the appellant, he is falsely implicated, which is far from truth.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 934 OF 2009
Mahadeo @ Bapu Hanumant Pol
vs.
State of Maharashtra .
CORAM: SMT.SADHANA S.JADHAV,J.
JUDGMENT PRONOUNCED: 24.02.2014.
Read original judgment here;click here
1. The appellant herein is convicted for the offence punishable under
Sections 363 of the Indian Penal Code and sentence to suffer R.I. for two years
and to pay fine of Rs.1000/- in default of payment of fine to suffer R.I. for one
month. He is also convicted for the offence punishable under Section 366 of IPC
and sentenced to suffer R.I. for two years and to pay fine of Rs.1,000/- in default
of payment of fine to suffer R.I. for one month. He is also convicted for the
offence punishable under Section 376 of IPC and sentenced to suffer R.I. for
seven years and to pay fine of Rs.3,000/- in default of payment of fine to suffer
R.I. for three months. The appellant is also convicted for the offence punishable
under Sectioon 506(2) of the Indian Penal Code and sentenced to suffer R.I. for
two years and to pay fine of Rs.1,000/- in default of payment of fine to suffer R.I.
for one month in Sessions Case No.207 of 2008 by the Addl. Sessions Judge,
Pune, vide judgment and order dated 21.7.2009. Hence, this appeal.
2. Such of the facts, which are necessary for the decision of this appeal,
are as follows :-
On 2.11.2007, Jaibai Popat Adasul lodged a report at Uruli Kanchan
Police outpost informing the police that her daughter is missing from 23.10.2007.
She had disclosed to the police that on 23.10.2007, she had scolded her daughter,
which was not liked by her and hence she had left the house by informing at
home that she was going to the house of her grandmother. The missing girl was
searched by her parents and only when she could not be found, a report was
lodged which was registered as Missing Report No.121/2007 dated 3.11.2007.
On 28.11.2007, at about 8 p.m., the missing girl Poonam (hereinafter referred to
as the victim) gave a telephone call toher mother that one Bapu Pol, resident of
Golewasti had kidnapped her on 23.10.2007 and she was confined in a room at
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Khandoba Nagar, Baramati. She had also informed her mother that Bapu was
insisting upon her to get married to him and, therefore, she was constrained to
lodge a report. The complainant immediately approached the police outpost and
lodged a report. She went to Baramati along with police and found her daughter
along with Bapu Pol at Khandoba Nagar, Baramati. Upon enquiry, the victim had
informed her mother that on 23.10.2007, Bapu had taken her in a truck to
Baramati by giving her false promise of marriage and had committed sexual
intercourse with her. She had also informed her mother that she was threatened
by Bapu with dire consequences. On 29.11.2007, Crime No.393 of 2007 was
registered against the accused for the offences punishable under Sections 363,
366, 376 and 506 of IPC. The victim was subjected to medical examination and
ossification test. The accused was arrested on 29.11.2007. After completion of
investigation, charge sheet was filed on 25.2.2008. The case was committed to
the Court of Sessions and registered as Sessions Case No.207 of 2008. The
prosecution examined nine witnesses to bring home guilt of the accused.
3. PW-1 Jaibai Popat Adasul is the complainant who happens to be the
mother of the victim. She has deposed before the Court that the date of birth of
her daughter is 8.6.1993. At the time of incident, she was studying in 7th Std. in
Mahatma Gandhi Vidyalaya. She has substantiated her allegations in the missing
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complaint and the first information report which she lodged on 29.11.2007. The
first information report is marked at Exhibit 14. It is elicited in the crossexamination
that the accused resides at a walking distance of half an hour from
the house of the complainant. However, the complainant was not acquainted with
any family members of the house of the accused. It is further elicited that after 15
days of lodging of the missing complaint, the complainant learnt that the accused
was a married man. It is admitted by her in the cross-examination that on the date
of the incident, the victim had left the house without intimating her mother. The
parents had enquired in the school about her. They were informed that she had
not attended the school on that day. PW-1 has deposed before the Court that the
place from where her daughter and the accused were taken into custody consisted
of about five rooms. There was no one else in the house. Her daughter had
shown her the injuries on her head. The head injury was not bleeding. It is
admitted by PW-1 that during the pendency of the trial, her daughter is married.
4. PW-2 Balu Ghadge , who was a panch has resiled from his earlier
statement and has been declared hostile.
5. PW-3 Poonam is the victim who was about 16 years old at the time
of recording of evidence. She has deposed before the Court that on the date of
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incident, she was proceeding towards the house of her maternal uncle at Tambe
Vasti to bring her notebook. She was crying on the road. The accused met her
and enquired with her the reason for crying. The accused then asked her to sit on
his motorcycle, initially she had reused, but when the accused threatened her
that he would kill her brother and therefore, she accompanied him on the
motorcycle. The accused had taken her to Gole Vasti and kept her in a bungalow
behind poultry farm and tied her hands and legs. On the same day in the
evening, the accused had taken her to Nagar. Since she was crying, he took her
to Khandoba Nagar at Baramati. At Khandoba Nagar, the accused had forcible
sexual intercourse with her. One day when the accused was not at home she
made a telephone call to her mother and informed her about the same.
Thereafter, her mother had come to Khandoba Nagar along with the police and
had taken her custody. She has identified the clothes which were seized from her.
In the cross-examination, she has admitted that Gole Vasti is at a distance of one
km. From her house. It is elicited that on 23.10.2007, she had been beaten by her
mother for not doing the work. She has also admited that she used to quarrel with
her mother quite often. She has denied the suggestion that her mother had
refused to take her back. The victim has further admitted that there were many
houses around the place where they stayed at Baramati. She has admitted that she
had not raised any hue or cry nor had called anybody for help. According to her,
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her hands and mouth were tied while she was being taken from one place to
another . It is elicited in the cross-examination that at Nagar, they used to cook
food in the house and eat and at that time she had not made grievance about it to
anybody. It is also admitted by the victim that from 23.10.2007 to 28.11.2007,
she had made no attempt to contact anyone. Even hen she was taken to the doctor,
according to her mother had given the information.
6. The victim has been confronted with her previous statement and the
contradictions are marked at portion marked “A” and “B”. She has denied to
have stated to the police that the accused had told her that he likes her and that he
would divorce his wife and children as he earns Rs.500/- per day by doing mason
work and that he would keep her happy and give her gifts.
7. There are material omissions in respect of the prelude to the incident
when she had sexual intercourse with the accused. The manner in which she
informed her mother about the appellant is also recorded as an omission. She has
admitted that on the first day when they were together, the accused did not have
any physical relation with her. Only after 5 – 6 days he had physical relations
with her. She has also admitted that only when they went to Nagar, they had
physical relations. They have stayed at Nagar for 5 – 6 days. It is also admitted
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that during the period 23.10.2007 to 28.11.2007, the accused had intercourse with
her for 3 – 4 times. It is pertinent to note that she has deposed before the Court
that the clothes seized by the police were not blood stained. Her marriage was
performed just 6 – 7 months prior to recording her evidence. She has admitted
that her mother and uncle had not informed her husband that she was below the
age of eligibility at the time of marriage as she had not completed 18 years.
8. PW-4 Dr. Shailendra Pawar was attached to Sassoon Hospital, Pune
in November 2007. On 30.11.2007, the victim was examined by him. At the time
of examination, the patient had informed the doctor that she was knowing the
accused since last four months prior to the date of incident. Around one moth
back they went to Yewat and then to Nagar and Baramati. The patient had
further informed that the accused had forcible intercourse with her three times.
He recorded the history narrated by the patient. He had opined that the patient
had sexual intercourse. It is elicited in the cross-examination that while recording
the history, the patient was not in a frightened state of mind. That the patient had
not informed him about having intercourse one month prior to the medical
examination. The doctor further opined that there were no visible injuries on her
person. The medical certificate is at Exhibit 26. PW-4 Dr. Pawar as proved the
contents of the medical certificate.
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9. PW-5 Musim Sayyad is the Head Master of Mahatma Gandhi
Vidyalaya, Urali Kanchan. He deposed before the Court that as per the records of
the School, the date of birth of Poonam is 8.6.1993.
6. PW-6 Dr. Milind Wabale was attached to BJ Medical College &
Sassoon General Hospital. The victim was taken to the hospital on 6.12.2007.
She was taken to the hospital for ossification test. The doctor has given a
categorical opinion that she had completed 14 years of age but was less than 16
years including the margin of error. He has produced the medical certificate at
Exhibit 42.
7. PW-7 Ramdas Sangale was attached to Lonikalbhor Police Station
as Police Head Constable. He had recorded the complaint which is at Exhibit 44.
According to him, on 28.11.2007, PW-1 had informed the police about the
telephonic call which he received from her daughter. They accompanied the
police to Khandoba Nagar where the girl and Mahadev Pol were found in a room
. They brought them to Urli Kanchan and thereafter PW-1 lodged the FIR. He
has admitted in the cross-examination that at the time of recording of first
information report, the victim was present.
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8. PW-8 Raju Punekar is the Police Constable attached to Lonikalbhor
Police Station carrier of the clothes to the Forensic Laboratory.
9. PW-9 Prabhakar Shinde is the Investigating Officer. He has deposed
before the Court that steps were taken by him in the course of investigation. He
has admitted in the cross-examination that the complainant had informed the
police about the information given to her by her daughter over the telephone.
However, no offence was registered at that time. He has specifically admitted in
the cross-examination that he has not recorded the statement of any witness from
Baramati. It was informed to the police station that the accused was not found on
the spot. He had not enquired about the accused being treated at Baramati from
28.11.2007 at Anand Hospital.
10. PW-9 has admitted in the cross-examination that it had transpired in
the course of investigation that the victim girl refused to go home when she was
staying with Surekha.
11. The Chemical Analyser's report is at Exhibit 63 which shows that
the clothes of the victim wwere blood stained. The victim has specifically stated
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that there was no blood on her clothes at the time of seizure. Hence, the C.A.
Report to that effect cannot be believed. No semen was detected on the clothes
of the victim. Hence, no significance can be attached to the C.A. Report.
12. The defence witness Sureskha Pol is the wife of the appellant. She
claims to be acquainted with the victim as a friend. According to her, on
28.11.2007, Poonam had been to her house. She had told that she had a quarrel
with her mother and does not want to go to her house and that she should be
dropped at Nagar to her grandmother's house. She along with her husband had
taken Poonam to Nagar. PW-1 had asked them to bring Poonam back or else she
would lodge complaint. PW-1 lodged missing complaint an she had brought the
victim back and dropped her at her mother's place.
13. According to DW-1, her husband was arrested from Anand Hospital.
According to the defence witness, her husband was working at Uruli Kanchan
from 23.10.2007 to 29.11.2007.
14. DW-2 Dr. Ashok Doshi runs Anand Hospital at Baramati.
According to him, on 27.11.2007, the accused was admitted in the hospital and
discharged on 29.11.2007. He has admitted that he had not given any treatment
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to any person by named Bapu Pol. The case papers brought by him were not in
his handwriting. In the present case, it is pertinent to note that the missing
complaint was also lodged six days after the victim as missing. There is no
reason to disbelieve PW1 that she had taken the police to Baramati on the basis of
the information given to her by her daughter. The accused was a married man.
He was residing in the close vicinity of the house of the complainant. It cannot be
said that the victim was confined to a particular place by the accused. They had
been to Nagar.The victim had said that she used to cook food at home and they
lived at Nagar for quite some time. The Court cannot be oblivious of the fact that
the victim had relatives at Nagar.She had travelled on the motor-cycle with the
accused from Nagar to Baramati.
15. The disclosure made by the victim to the doctor would be significant
and would assume importance in view of the fact that the mother of the victim
was not present when the victim had narrated the history to the doctor. The
history narrated by the victim was to the effect that she was acquainted with the
accused four months prior to the incident. She had further disclosed that they had
been to various places even prior to the incident. She has stated that the accused
had forcible sexual intercourse with her on the assurance of marriage.
16. The learned Advocate appointed as amicus curiae submits that the
history given to the doctor would clearly reflect that it is a case of consensual sex
and therefore, the accused cannot be said to have committed an offence
punishable under Section 376 of the Indian Penal Code.
17. The learned APP submits that the offence committed by the accusedappellant
would be a statutory rape since the girl was hardly 14 years old at the
time of the incident and that her consent cannot be taken into consideration. The
learned APP rightly submits that the accused was a married man having two
children. He was residing in the close neighhbourhood of the house of the victim.
He could not have married the victim. He was aware that the victim is a minor
and could not have kept the victim along with him at Baramati. The learned APP
submits that the deposition of defence witness No.1 cannot be taken into
consideration as DW-1 happens to be the wife of the accused and she has deposed
accordingly only to save her husband. It is further submitted by the learned APP
that the history given by the victim to the doctor cannot be taken into
consideration for acquitting the accused for the simple reason that the victim has
stated that she was acquainted with the accused, but he had not travelled to Nagar
with her.
18. In any case, the fact that the consent of the minor cannot be taken into
consideration, the appeal deserves to be dismissed.
19. The learned Sessions Court has appreciated the evidence in its proper
perspective. The appellant was a married man and a father of two children, a
daughter of 4 years and a son aged 2 years at the time of incident. The appellant
had obtaiend consent under the pretext of marriage. Implicit reliance can be
placed upon the sterling testimony of the victim. The Court cannot be oblivious
of the fact that the victim was found in the custody of the appellant. According to
the appellant, he is falsely implicated, which is far from truth.
20. Appeal sans merit. The conviction recorded by the Addl. Sessions Judge,
Pune is hereby upheld. The appeal is dismissed.
21. The legal fees of Advocate appointed are quantified at Rs.3,000/-.
The said fees be paid to the Advocate Ms. Megha Bajaria within three months
from today.
(SMT.SADHANA S.JADHAV, J.)
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